text:
    In the Matter of the Will of Eugene von Kleist, Deceased. Dow Vroman, as Executor of Eugene von Kleist, Deceased, Appellant; George E. Thomas et al., Respondents.

      (Argued October 1, 1934;
    decided November 20, 1934.)

      Dow Vroman, in person, for appellant.

      Everette H. Hunt for George E. Thomas, respondent.

      Glen R. Bedenkapp, as special guardian for Raymond Thomas, respondent.

      Ellsworth Storrs, as special guardian for August von Kleist, Jr., et al., respondents.
   Lehman, J.

Eugene von Kleist died in 1913 leaving a widow and three children. The widow received a life interest in the residuary estate. She is now dead. Each of the three children received a life interest after her death in a share of the residuary estate. The executor has delivered to each of these children a part of the corpus of the share in which such child had a life interest without requiring security from any of the children. Grandchildren who under the terms of the will have a remainder interest in the residuary estate if they survive their parents, claim that the executor was required to hold the corpus of each share of the residuary estate until the death of the child who had a life interest therein. In a proceeding brought in the Surrogate’s Court for the construction of the residuary clause of the will, the Appellate Division has held that the testator so intended.

The residuary clause is long. After an explanatory introduction, it provides for the division of the residuary estate into three equal parts, each part to be known and designated by the name of one child. In separate paragraphs the testator then disposed of each part. He gave, devised and bequeathed “ the use, income and profits ” derived from each share to his wife for and during the term of her natural life and from and after her death unto the child by whose name that share is designated. Upon the death of such child the testator gave, devised and bequeathed the share so designated to the then surviving issue of such child, or in default of such issue to the issue of the other children.

The executor is commanded to divide the estate into shares, and there is no express command that he should do anything further. After such division, he is not commanded to hold and invest the corpus, to collect income, or to pay over income. The testator devised directly the use, income and profits of each share to a named person, and that person received a legal estate as tenant for life. (Livingston v. Murray, 68 N. Y. 485; Matter of McDougall, 141 N. Y. 21.) In another paragraph of his will the testator by apt language created a trust; in the paragraph now under construction the testator by apt language created a legal life tenancy. So the Appellate Division has held, and its conclusion on that point is not seriously challenged now.

Though no trust in the executor was created by the will during the life of the life tenant, and though the executor is not expressly commanded to do anything except to divide the property, he is, none the less, as executor, under a duty to keep the estate in his custody and to conserve it until he can deliver the property to the person entitled thereto in accordance with the intent of the testator made manifest by the terms of the will. The decree in this case adjudicates that it was the intention of the testator that each share should be held intact by his executor during the life of the life tenant. The question is whether the language of the will shows such intention.

The testator has not said so in express terms. Of course, if the law imposes upon an executor a duty to hold in his custody personal property so long as an unexpired life tenancy exists in that property, then such intention is implicit in the creation of the life tenancy. The difficulty is that the law does not impose such a duty unless the testator so intended. A testator may create a life tenancy with right of possession in the life tenant. Then the executor is under a duty to deliver possession to the life tenant. (Smith v. Van Ostrand, 64 N. Y. 278; Bliven v. Seymour, 88 N. Y. 469; Matter of Denton, 102 N. Y. 200; Matter of Ungrich, 48 App. Div. 594; affd., 166 N. Y. ,618.) By its very nature, a duty in an executor to keep property in his custody can exist only so long as no other person is under the terms of the will entitled to possession. It is .only where a testator has given to one person merely the usufruct of property without right to possession, that an executor is entitled to hold in his custody the property bequeathed, and even then this court has said that an executor may withhold the principal only until adequate security is given or tendered, to account for the same to the remainderman. (Cf. Tyson v. Blake, 22 N. Y. 558; Livingston v. Murray, 68 N. Y. 485.)

Here the bequest of the use, income and profits,” of a share in the residuary estate is a gift only of the usufruct and standing alone would not entitle the legatee to possession of the principal of the funds. (Matter of McDougall, supra.) Though right of possession does not flow from a gift of the usufruct of a fund, it is not inconsistent with a gift of the fund. On the contrary, through possession of the fund the value of the usufruct may be increased. So this court has said that “ when the remainderman is willing and able to give security for the fund, it has been considered just that he should receive it so that he could manage it and reap all the income he could make, free from the charge of commissions by an executor or trustee. In such case care should be taken to secure the corpus of the fund or estate for the remainderman, and the security taken should be adequate for that purpose.” (Livingston v. Murray, supra, p. 493.) Some person must have the right of possession of the property during the continuance of the life tenancy. A testator creating successive estates in property may determine who that person shall be. An executor’s duty to demand security before delivery of the property to a life tenant exists only where the testator has not manifested an intention that the property should be delivered to the life tenant. When the testator bequeathed to his children the usufruct of his property with remainder to their issue, it is clear that he intended that the remaindermen should have the right to hold the custodian of the property responsible for the property when the time comes for delivery to them. Where a testator indicates that possession of a fund should be delivered to a life tenant, the life tenant becomes substituted as custodian for the executor and is alone accountable for its payment to the remainderman. (Matter of Denton, supra.) Thus there is no repugnancy between a gift to a life tenant of the use, income and profits of a fund, and a direction to deliver possession of the fund to the life tenant in order to enable him to enjoy in fullest measure the use of the property. For that reason, if the testator has in other parts of the will expressed or clearly indicated an intention that possession should be given to the fife tenants, the executor had the right to give effect to such intention.

We find such clear indication of intention in the language of the clause we are construing. The disposing parts of the clause are preceded by a preamble or declaration of purpose. Having in mind that I ought in all fairness to dispose of my residuary estate in such manner that after the death of my wife, Charlotte M. L. yon Kleist, my three children * * * or their descendants shall possess and enjoy the same equally (taking into consideration what I have heretofore advanced to my said children).” When that was written the testator could hardly have intended that his property should never come into the possession of his children but should be held by the executor as custodian for the protection of grandchildren, born or future. It is clear that his primary intention was to provide for his children and that they were to possess and enjoy ” his residuary estate equally, after certain charges were made for advancements. It is not unreasonable that the issue of these children to whom the property should eventually go should look to their ancestor rather than to the executor for preservation of their rights.

Moreover, other provisions of the residuary clause indicate that there was no intention that the executor should hold the funds which the testator’s three children were to possess and enjoy.” Indeed, it is clear that part of each of the shares allotted to the daughters for life was only constructively a part of the residuary estate and was never intended to come into possession of the executor. The testator directed that certain sums, together with interest, should be charged to each of his two daughters because the testator paid the expenses of the home in which they lived, and that the sums so charged should be considered as part of the testator’s residuary estate, it being my intention by having the said charges so made to give my said son August a preference in the final division of my said residuary estate.” Then follow the directions for the division of the “ residue and remainder of my estate including the said sums with interest so charged to my said two daughters, Charlotte and Martha, * * * into three equal parts, one of such equal parts to include all such sums with interest so charged to my said daughter, Charlotte, and to be known and designated as the Charlotte yon Kleist share/ another of such equal parts to include all such sums with interest so charged to my said daughter, Martha, and to be known and designated as the ‘ Martha Thomas share ’ * * *.” No party claims that either daughter was to pay to the estate the “ sums with interest so charged ” to either daughter, though the testator has clearly provided that these sums shall be treated as if part of the share allotted to the daughter for life. It is difficult to see how the testator could have intended that sums so charged to each daughter should become part of bis residuary estate, and part of the share of the residuary estate designated by the name of such daughter if the executor was intended to hold that share in his possession during the life of the life tenant.

We have not overlooked the arguments of the respondents that other parts of the will indicate an intention that the life tenants should not have possession of any share of the testator’s property which became part of the residuary estate. We read the will as a whole. We find implicit in its language an intention that the grant to each child of the use, income and profits of a share of the estate should include the right to possess that share. That intention is not .repugnant to the grant, but complements it.

The order of the Appellate Division should be reversed and the decree of the Surrogate affirmed, with a separate bill of costs in this court and in the Appellate Division to each party appearing in this court and filing briefs, payable out of the estate.

Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Best & Co., Inc., Appellant, v. Mask Graves et al., Constituting the State Tax Commission, Respondents.

      (Argued October 2, 1934;
    decided November 20, 1934.)

      Lorenz Reich, Jr., and M. James Spitzer for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   Lehman, J.

The relator was incorporated on July 29th, 1924. It acquired the assets and franchises of Best & Co., Inc., hereinafter referred to as the “ old company.” It assumed the same name as the old company which was thereupon dissolved.

“ For the privilege of exercising its franchise in this state in a Corporate or organized capacity every domestic corporation * * * shall annually pay in advance for the year beginning November 1st next succeeding the first day of July in each and every year an annual franchise tax, to be computed * * * upon the basis of its entire net income for its fiscal * * * year next preceding.” (Tax Law, § 209; Cons. Laws, ch. 60.) Every corporation subject to the tax is required .to file a report on or before July 1st of its net income for its next preceding fiscal year. (§ 211.) The old company, before July 1st, 1924, filed, as it was required to do, a report showing a net income of over $700,000 during its next preceding fiscal year which ended on January 31st, 1924. A franchise tax computed upon the basis of that income was assessed against it for the privilege of doing business for the year beginning November 1st, 1924. The old company was dissolved prior to that date. It neither asked nor acquired the privilege of exercising any franchise during that year, and no tax could be imposed upon it. For that reason the State Tax Commission annulled the tax assessed against the old company, though it failed to take such action for several years, and until after the relator complied under protest with a demand of the Commission for the filing of a report of the income of both the old and the new corporations for the period from February 1st, 1923, to January 31st, 1925. In January, 1933, the relator received notice that a franchise tax was assessed against it for the year beginning November 1st, 1924, based on the net income of the old corporation during the fiscal year ending January 31st, 1924. Subsequently that assessment was modified but the modification is not material here. In the proceedings here under review- the relator seeks the annulment of that assessment.

Since the relator was organized after July 1st, 1924, the statute then in force did not require the relator to file any return or report until July 1st, 1925, nor was it required to pay in advance any tax for the privilege of exercising its franchise during the year beginning November 1st, 1924. The statute was amended in 1925. Then the statute required that a business corporation which acquired either directly, indirectly or by merger or consolidation the major portion of the actively employed assets or the franchises of another corporation or of corporations exercising any franchise or doing any business in this state * * * shall on or before the first day of July, or within thirty days after such acquisition, merger- or consolidation, if consummated between the thirtieth day of June and the first day of November, file a report and include therein a statement showing its own and the consolidated entire net income of all such corporations for preceding calendar or fiscal years to the extent that all such income has not been used or included in measuring a franchise tax to this state. It shall, in any event, be liable for and pay all taxes that would have been due and payable by the corporation, or corporations, on or before the first day of January next succeeding had the corporation or corporations whose assets or franchises were acquired, or which were merged or consolidated, continued in business and as though there had been no •interruption or change of the business thereof nor discontinuance of the privilege of exercising a franchise.” (§ 214-a, as amd. by Laws 1925, ch. 323.) In express terms the Legislature declared that this section as amended should be given retroactive effect. The omission of that declaration in a recodification of the statute made several years later by the Legislature does not change the force of the original declaration. The intention of the Legislature to make the amendment retroactive stands unquestioned and that intention must be given effect unless it transcends the constitutional powers of the Legislature.

“ A statute purporting to lay a tax may be so arbitrary and capricious that its enforcement would amount to deprivation of' property without due process of law.” (Blodgett v. Holden, 275 U. S. 142, 147, citing Nichols v. Coolidge, 274 U. S. 531.) An act of the Legislature attempting to revoke an exemption from taxation in respect to past transactions may be a denial of due process. (Matter of Pell, 171 N. Y. 48; City Bank Farmers’ Trust Co. v. N. Y. C. R. R. Co., 253 N. Y. 49.) (Cf. Blodgett v. Holden, 275 U. S. 142; 276 U. S. 594; Untermyer v. Anderson, 276 U. S. 440.) Nevertheless “ a tax is not necessarily and certainly arbitrary and therefore invalid because retroactively applied, and taxing acts having retroactive features have' been upheld in view of the particular circumstances disclosed and considered by the court.” (Citing cases.) (Milliken v. United States, 283 U. S. 15, 21.) In his dissenting opinion in Untermyer v. Anderson (supra) Mr. Justice Brandeis has analyzed such cases. They leave no doubt that the rule is that no limitation upon the legislative power to impose a tax excludes the power to give retroactive effect to a tax law. Legislative power does not, however, include the power to take private property arbitrarily, whether through exercise of the power of taxation or otherwise. Thus only a retroactive application of a tax law which would result in the taking of property arbitrarily is beyond the power of any Legislature. In challenging a tax it does not suffice to say that it is imposed because of transactions or conditions which antedate the statute. It is necessary to consider the nature of the tax and of these acts or conditions. (Milliken v. United States, supra.)

The relator in acquiring the assets, franchises and the right to use the name of the old company, knew that as a result the old company would be compelled to discontinue its business and to comply with the statutory requirements for its dissolution. The general purpose of the Tax Law is clear. Corporations must pay for the privilege of doing business in corporate form by a tax based on the income from such business. Since a tax based on income cannot be assessed until the income is ascertained, the statute requires the filing on or before a fixed date of a report of the net income enjoyed during the preceding fiscal year, and then imposes a tax, payable in advance, based upon such income, for the privilege of exercising the franchise during the following tax year. Thus the full income of each corporation will eventually form the basis of the tax assessed against it in succeeding years, so long as it continues to do business. By discontinuing its business and transferring or abandoning its franchise, it can escape payment of any franchise tax based upon its income during the preceding fiscal year, though, as in this case, those earnings may have been large. The State may impose a franchise tax for the privilege of exercising a franchise to conduct a business within the State. The interests of the public would be jeopardized and inequality would result if the tax could be evaded by. transfer of assets or franchises by one corporation to another, which can continue to use them in a business in this State without paying the tax which would otherwise be due from the selling corporation.

We do not say that the old corporation and the relator, which purchased its assets and franchises and continued its business under the same corporate name, conspired to evade the tax. Whatever may have been the motive for the transfer, it is indisputably true that unless either the old corporation or the relator pays a franchise tax measured by the income earned by the old corporation, the result will be the evasion of a tax which but for the transfer would have been payable to the State. The Legislature was called upon to devise a practical method of preventing such evasion. It has done so by providing that the tax liability for the particular business shall follow the major assets. Such provision is within the constitutional powers of the Legislature. (People ex rel. Salisbury Axle Co. v. Lynch, 259 N. Y. 228, 238.)

In that case section 214-a of the Tax Law before the amendment of 1925 was attacked. We did not consider the effect of that amendment. Even before the amendment the section was intended to- provide that, upon a transfer to a corporation of the major part of the assets of another corporation, “ the tax liability for the particular business shall follow the major assets.” It required every corporation, acquiring the major portion of the actively employed assets or franchises of another corporation, during any year to include in its own next annual return, in addition to its own entire net income, so much of the entire net income of the corporation or corporations whose assets or franchises it acquired as shall not have been used or included in measuring a franchise tax to this State, and shall be taxed upon such combined entire net incomes for the year to ensue and as hereinbefore provided.” That section by its terms applied to transfer during any year ” and was not intended to exclude transfer made between July 1st and November 1st, though it failed to require any return to be filed by the vendee of the net income of the vendor corporation before the vendee filed its next annual report, and thus in such case the income of the vendor corporation could not be included in the franchise tax of the vendee until more than a year after the transfer. The amendment was intended to cure this administrative defect.

A tax law which retroactively cures an administrative defect is not arbitrary and unconstitutional. (Graham & Foster v. Goodcell, 282 U. S. 409.) Even if through some error in draftsmanship this relator could have escaped the liability which the Legislature evidently intended to impose, a claim that retroactive cure of patent error was inequitable and arbitrary would be without substance. Here, however, the relator could not escape liability,' even if the error had not been cured by the amendment. True, without such amendment, it would not have been subject to a franchise tax for the year beginning November 1st, 1924, but its tax in the year 1925 would then have included the amount which has been assessed against it for the year beginning in 1924. (People ex rel. Salisbury Axle Co. v. Lynch, supra.)

It is unnecessary in this opinion to discuss the claims of the relator that in other respects also the tax is inequitable and that when the Tax Commission assessed the 1925 tax against the relator it exhausted its powers. We find that the tax determination is not vulnerable on such grounds.

The order should be affirmed, with costs.

Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Order affirmed.


author: Per Curiam.

text:
    Commissioner of Public Welfare of the City of New York, Appellant, v. William Jackson, Respondent.
    (Submitted October 1, 1934;
    decided November 20, 1934.)
   Per Curiam.

The Court of Special Sessions adjudged

defendant to be the father of two children born out of wedlock, respectively, August 29, 1930, and February 8, 1933. The Appellate Division affirmed as to the child born in 1933 and reversed as to the child born in 1930 (240 App. Div. 142). The Commissioner of Public Welfare appealed to this court from that part of the judgment relating to the child born in 1930 and defendant appealed in respect to the child born in 1933. We affirmed as to both (265 N. Y. 469).

In this court defendant for the first time raised the point that admission of evidence by the complaining witness, a married woman, that she never had sexual intercourse with her husband, which evidence is admissible under the statute (Inferior Criminal Courts Act, § 67, as amended by Laws 1930, ch. 434, and Laws 1933, ch. 746), violated the constitutional guaranty of equal protection of the law because such statute does not apply to the entire State but only to the city of New York. Our memorandum reads: “ Orders affirmed. Held, that the constitutional question was not raised below. No opinion.”

The Commissioner of Public Welfare asks for a reargument but expressly states in his brief that he has no desire to ask this court to consider reaching a different result in respect to the child bom in 1930. The motion papers submitted in his behalf on this motion concede that the decision as to this child is justifiable on the facts, but urges that the affirmance by this court may lead to the inference of an acceptance by us of the theory of law set forth in the opinion at the Appellate Division (240 App. Div. 142, 143), in relation to the application of the Domestic Relations Law (Cons. Laws, ch. 14, § 122, subd. 2) rather than the Inferior Criminal Courts Act (§ 64, subd. 1) and the operation of the Statute of Limitations. These questions are left open. Our affirmance without opinion does not mean that we have adopted that opinion in its entirety. (Adrico Realty Corp. v. City of New York, 250 N. Y. 29, 44.)

Motion denied, without costs.


author: Crane, J.

text:
    Michael R. Schwartz et al., Respondents, v. Fifty Greenwich Street Realty Corporation et al., Appellants.
    (Argued June 6, 1934;
    decided July 3, 1934.)

      Frederic H. McCoun for appellants.

      Maurice I. Rappaport and Morris Cukor for respondents.
   Judgment modified by reversing judgment as to individual defendant Leary, with costs to him in all courts, and as so modified affirmed, with costs against corporate appellants, on the authority of London v. Toney (263 N.Y. 439). No opinion. (See 265 N. Y. 512.)

Concur: Pound, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.

Crane, J.

(dissenting). I dissent. As the corporation mortgagor could not plead usury, neither can the guarantor Leary.


text:
    The People of the State of New York, Respondent, v. Joseph Paterra, Frank Sabatino, Arthur Velucci, Daniel Scarglato and Carmine Paruolo, Appellants.
    (Argued May 28, 1934;
    decided July 3, 1934.)

      Robert S. Johnstone for appellants.

      William Copeland Dodge, District Attorney (Philip A. Donahue of counsel), for respondent.
   Judgment as to each defendant affirmed; no opinion. Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    George S. Veazie, Respondent, v. Harold Smith et al., as Trustees of School District No. 5, Town of Horse-heads, Appellants.
    (Submitted May 29, 1934;
    decided July 3, 1934.)

      Harry Moseson for appellants.

      Thomas M. Losie for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York, Respondent, v. John J. Finn, Appellant.
    (Submitted May 29, 1934;
    decided July 3, 1934.)

      Irving A. Cook, Daniel H. Prior and Benjamin W. Moore for appellant.

      Frank H. Coyne, District Attorney (William F. Horan and Thomas D. Scoble, Jr., of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    G. A. Baker & Co., Inc., Appellant and Respondent, v. Polygraphic Company of America, Inc., Appellant, and New York Gravure Corporation, Respondent. Polygraphic Company of America, Inc., Appellant, v. G. A. Baker & Co., Inc., Respondent.
    (Argued May 29, 1934;
    decided July 3, 1934.)

      Eugene Eisenmann and J. Alvin Van Bergh for G. A. Baker & Co., Inc., appellant and respondent.

      I. Maurice Wormser and Joseph Quittner for Polygraphic Company of America, Inc., defendant-appellant, and New York Gravure Corporation, defendant-respondent.
   Judgment of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs to plaintiff-appellant G. A. Baker & Co., Inc., in this court and in the Appellate Division on the authority of Farber v. Demino (254 N. Y. 363). No opinion. (See 265 N. Y. 508.)

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Samuel Fassler, as Superintendent of Buildings of the Borough of Manhattan, Appellant, v. All White Wet Wash Laundry, Inc., Respondent.
    (Argued May 29, 1934;
    decided July 3, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair and Henry J. Shields of counsel), for appellant.

      Jacob M. Mandelbaum and Henry B. Wilson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Frank A. Falque, as Receiver of the Copartnership of Frank A. Falque et al., Appellant, v. The People of the State of New York et al., Respondents.
    (Claim No. 21713.)
    (Argued May 31,1934;
    decided July 3, 1934.)

      Robert Darn, Maurice Heilman, Oswald Vischi, Benjamin Lichterman and Harry Malter for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and James R. Creary of counsel), for People of the State of New York, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    John Brehm, Jr., by John Brehm, His Guardian ad Litem, Respondent, v. The Delaware and Hudson Railroad Corporation, Appellant.
    (Argued May 31, 1934;
    decided July 3, 1934.)

      Theodore Kiendl and Edward C. McLean for appellant.

      James A. Leary, Walter A. Fullerton, Lee C. Rich and Benjamin R. Leinhardt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ,


text:
    Henry Amster, Appellant, v. Leo M. Mayer, Respondent, Impleaded with Another.
    (Argued May 31, 1934;
    decided July 3, 1934.)

      Henry Amster, Leo B. Mittelman and Samuel J. Siegel for appellant.

      Julius S. Berg and Philip Weissman for respondent.
   Order affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts. Held, the case presents a question of fact as to whether plaintiff had actual knowledge of the bankruptcy proceedings in time to participate therein. No opinion. (See 265 N. Y. 514.)

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    J. Lester Kinney, Respondent, v. Frederick J. Lisman et al., Copartners under the Firm Name of F. J. Lisman & Company, Appellants.
    (Argued June 1, 1934;
    decided July 3, 1934.)

      William D. Whitney, Thomas T. Cooke and Hugh A. Fulton for appellants.

      Frank G. Raichle and J. C. Randal for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., O’Brien, Hubbs, Crouch and Loughran, JJ. Crane and Lehman, JJ., dissent on the ground there is no evidence of payment of an unlawful commission.


text:
    The People of the State of New York ex rel. Frank Presbrey Company, Appellant, v. Thomas M. Lynch et al., Constituting the State Tax Commission, Respondents.
    (Submitted June 1, 1934;
    decided July 3, 1934.)

      S. Michael Ress for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Accounting of Gertrude M. Moore, Individually and as Executrix of the Estate of Howard D. Bonesteel, Appellant; Alden Bonesteel et al., Respondents.
    (Argued June 4, 1934;
    decided July 3, 1934.)

      John T. Norton for appellant.

      John H. Broderick, T. J. Quillinan, Clark Cipperley, William A. Glenn and Duncan B. Kaye for Y. W. C. A. et al., respondents.

      John J. Mackrell for Alden Bonesteel, respondent.
   Order affirmed, with costs to each of the parties filing briefs on this appeal payable out of the estate. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York ex rel. New York Central Railroad Company, Appellant, v. Charles M. Gilson, as Mayor of the Village of East Syracuse et al., Respondents.
    (Argued June 4, 1934;
    decided July 3, 1934.)

      Frank H. Hiscock and Maurice F. Lane for appellant.

      Raymond O. Campbell and Frank J. Greiner for respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Village of Northport, Respondent, v. John L. Walsh, Appellant, Impleaded with Another.
    (Argued June 4, 1934;
    decided July 3, 1934.)

      Friend H. Miller for appellant.

      John J. King for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Caroline L. Yanney et al., Respondents, v. John H. Pember et al., as Executors of Ellen J. L. W. Pember, Deceased, Appellants.
    (Argued June 4, 1934;
    decided July 3, 1934.)

      C. C. Van Kirk and J. B. McCormick for appellants.

      Jacob M. Frankel for respondents.
   Judgment affirmed, with costs; no opinion. (See 265 N. Y. 578.)

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Robert O’Connor, an Infant, by Arthur O’Connor, His Guardian ad Litem, et al., Respondents, v. Kulerban Holding Corporation, Appellant.
    (Submitted June 4, 1934;
    decided July 3, 1934.)

      Alvin R. Cowan and Harold M. Phillips for appellant.

      Samuel L. Sargent, Gabriel Rubino and Charles F. McGrath for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Luigi Antonelli et al., Respondents, v. Raffaello Morgilli et al., Appellants.
    (Argued June 4, 1934;
    decided July 3, 1934.)

      Frank H. Innes for appellants.

      Ralph Cerreta for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Loma Holding Corporation, Respondent, v. Cripple Bush Realty Corporation, Appellant.
    (Argued June 5, 1934;
    decided July 3, 1934.)

      Frederic R. Sanborn for appellant.

      Benjamin M. Kaye for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Catherine Welch, Respondent, v. Donald D. Welch, Appellant.
    (Argued June 5, 1934;
    decided July 3, 1934,)

      Isidor B. Rosman and Joseph L. Hochman for appellant.

      Denis M. Hurley for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Edith G. Ostrander, Appellant, v. The Travelers Insurance Company, Respondent.
    (Argued June 7, 1934;
    decided July 3, 1934.)

      Walter Lyman Bryant for appellant.

      Bernard J. McGlinn, William B. Crowell and William J. Moran for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Theodore Teitelbaum, Respondent, v. Stanley J. Halle et al., Individually and as Copartners under the Name of Halle & Stieglitz, Appellants.
    (Argued April 25, 1934;
    decided July 3, 1934.)

      Osmond K. Fraenkel and Charles H. Levitt for appellants.

      Mortimer S. Gordon, Herman Keller and Abraham P. Wilkes for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., O’Brien, Hubbs and Crouch, JJ. Dissenting: Crane and Lehman, JJ.


text:
    Commissioner of Public Welfare of the City of New York, Appellant, v. William Jackson, Respondent. Commissioner of Public Welfare of the City of New York, Respondent, v. William Jackson, Appellant.
    (Argued May 23, 1934;
    decided July 3, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair and Arthur H. Kerns of counsel), for plaintiff, appellant and respondent.

      Frederick G. Rita for defendant, respondent and appellant.
   Orders affirmed. Held, that the constitutional question was not raised below. No opinion. (See 265 N. Y. 440.)

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York, Respondent, v. Samuel Krassner, Appellant.
    (Argued May 28, 1934;
    decided July 3, 1934.)

      Henry Waldman and Lester J. Waldman for appellant.

      John R. Schwartz, District Attorney (Thomas A. Lavery and Joseph A. McCabe of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ. Lehman and Loughran, JJ., dissent on the ground that the offense constituted only a misde meanor under section 75 of the Personal Property Law (Cons. Laws, ch.


text:
    Benjamin Block et al., Individually and as Copartners under the Firm Name of Block, Maloney & Co., Respondents, v. The Pennsylvania Exchange Bank, Appellant.
    (Argued May 31,1934;
    decided July 3, 1934.)

      I. Alfred Levy, Max Dorff and Louis Greenblatt for appellant,

      James Marshall and N. H. Kugelmass for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O'Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Gussie Rosenblum, Appellant, v. Joseph T. Higgins, Individually and as Sheriff of the County of New York, Respondent.
    (Submitted May 31, 1934;
    decided July 3, 1934.)

      H. Eliot Kaplan and Meyer Kivowitz for appellant.

      John Caldwell Myers and Hugh B. Archer for respondent.
   Order affirmed, with costs. First question certified answered in the affirmative. Other questions certified not answered. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Bridgeville Farms, Inc., Appellant and Respondent, against Charles H. Baldwin et al., Constituting the Milk Control Board of the State of New York, Respondents and Appellants.
    (Argued June 5, 1934;
    decided July 3, 1934.)

      Abraham L. Doris for petitioner, appellant and respondent.

      Henry S. Manley for defendants, respondents and appellants.
   Appeal by State dismissed, with costs. On appeal by plaintiff: Order affirmed, with costs. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Frank Colonna, Respondent, v. The State of New York, Appellant.
    (Claims Nos. 17117, 17337, 17661, 17826, 18146, 18538, 18687, 19450 and 21687.)
    (Argued June 5, 1934;
    decided July 3, 1934.)

      John J. Bennett, Jr., Attorney-General (James Gibson and Henry Epstein of counsel), for appellant.

      Arthur Rathjen and Jack G. Lubelle for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Adele Fiedler, Appellant, v. George Fiedler, Respondent.
    (Argued June 5, 1934;
    decided July 3, 1934.)

      Milton M. Eisenberg and Ralph Weller for appellant.

      Allan R. Campbell for respondent.
   Judgment affirmed, without costs; no opimon.

Concur; Pound, Ch. J., Lehman, O’Brien and Hubbs. JJ. Crane, Crouch and Loughran, JJ., dissent and vote to modify the judgment of the Appellate Division by reversing so much thereof as grants the defendant husband judgment for a separation upon Ms counterclaim.


text:
    In the Matter of the Accounting of United States Trust Company of New York, as Trustee under the Will of Louis C. Krauthoff, Deceased, et al., Respondents; Samuel Grant et al., as Executors of Margaret G. Krauthoff, Deceased, Appellants.
    (Submitted June 6, 1934;
    decided July 3, 1934.)

      Thomas J. Blake for appellants.

      William A. Robinson for Olive B. Krauthoff, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Charles C. Fenno et al., as Trustees in Bankruptcy of James Kearns, Jr., Respondents, v. Yonkers National Bank & Trust Company, Inc., Appellant.
    (Argued June 6, 1934;
    decided July 3, 1934.)

      Paul L. Bleakley and Gerald Nolan for appellant.

      A. P. Bachman, Henry R. Barrett, Jr., James Taylor Lewis and Henry R. Barrett for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York ex rel. James T. M. Bleakley, Appellant, v. James J. Sexton et al., as Commissioners of the Department of Taxes and Assessments of the City of New York et al., Respondents.
    (Argued June 7, 1934;
    decided July 3, 1934.)

      Samuel B. Seidel and Walter Frank for appellant.

      Paul Windels, Corporation Counsel (William H. King, Isaac Phillips and Samuel Wittlin of counsel), for Commissioners of Taxes and Assessments, respondents.

      Schuyler M. Meyer and John L. Dunn for The Wood-lawn Cemetery, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O'Brien, Hubbs, Crouch and Loughran, JJ.


text:
    George F. Stuhmer & Company, Respondent, v. Louis Korman, as Treasurer of Bakery and Confectionery Workers International Union of America, Local 505, et al., Appellants.
    (Argued June 7, 1934;
    decided July 3, 1934.)

      Henry Mayer, Matthew M. Levy and Jacob Panken for appellants.

      Ezra P. Prentice, James F. Collins and Hamilton Le Viness for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs and Loughran, JJ. Dissenting: Lehman and Crouch, JJ.


text:
    Owen Russell, as Administrator de Bonis Non of the Estate of Mary J. Russell, Deceased, Appellant, v. James Butler Grocery Company, Respondent.
    (Argued June 7, 1934;
    decided July 3, 1934.)

      Charles G. F. Wahle, Samuel Mezansky and Saul Grover Wlodaver for appellant.

      Hieronimous A. Herold for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division on the ground that the evidence presented a question of fact for the jury. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    American Surety Company of New York, Appellant, v. Empire Trust Company, Respondent.
    (Argued June 8, 1984;
    decided July 3, 1934.)

      David S. Konheim and William Lurie for appellant.

      William J. McArthur for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Baugh and Sons Company, Appellant, v. United States Fidelity and Guaranty Company, Respondent.
    (Submitted June 8, 1934;
    decided July 3, 1934.)

      Theodore J. Miller and George Kirk, 3rd, for appellant.

      Robert Gray and William J. McArthur for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The Crowell Corporation, Respondent, v. Baugh and Sons Company, Appellant.
    (Submitted June 8, 1934;
    decided July 3, 1934.)

      Theodore J. Miller and George Kirk, 3rd, for appellant.

      Neil P.Cullom and Henry W. Steingarten for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Fern A. Rowley, Appellant, v. Ernest Reynolds et al., Respondents. Fern A. Rowley, as Executrix of Irving G. Rowley, Deceased, Appellant, v. Ernest Reynolds et al., Respondents.
    (Submitted June 8, 1934;
    decided July 3, 1934.)

      David A. White for appellants.

      W. Clyde O’Brien for respondents.
   In each case, judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Jennie T. Farley, Appellant, against J. G. William Greeff, as Commissioner of the Department of Hospitals of the City of New York, Respondent.
    (Submitted June 8,1934;
    decided July 3, 1934.)

      Richard M. Cantor for appellant.

      Paul Windels, Corporation Counsel (Henry J. Shields and Russell Lord Tarbox of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Loughran, JJ. Dissenting: Crouch, J.


text:
    In the Matter of the Probate of the Will of Martha J. Mullin, Deceased. Mary A. Watson, as Executrix, Appellant; James T. Gardiner, Respondent.
    (Submitted June 8, 1934;
    decided July 3, 1934.)

      Joseph J. Schwartz and John H. Donlan for appellant.

      Hugo Wintner, Robert J. Fox and John G. Markey for respondent.
   Order.affirmed, with costs to respondent payable out of the estate. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Celia C. Gallin, on Behalf of Herself and Other Creditors of Bond and Mortgage Guarantee Company, Appellant, v. C. D. Burdick et al., Defendants, and Bond and Mortgage Guarantee Company, Respondent.
    (Submitted June 8, 1934;
    decided July 3, 1934.)

      Abraham L. Pomerantz for appellant.

      Frank Weinstein and Samuel J. Levinson for Paul F. E. Ewoldt, amicus curiœ.

      Arthur Ofner, Abraham J. Halprin, Samuel Boksenbom and Alfred C. Bennett for respondent.
   Order affirmed, with costs. First question certified answered in the negative. Fourth question certified answered in the affirmative. Other questions certified not answered. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Jean B. Jennings et al., as Executors and Trustees under the Will of Walter Jennings, Deceased, et al., Appellants, against William Watt et al., as Members of the Town Board of Huntington, et al., Respondents.
    (Submitted June 6, 1934;
    decided July 3, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 306.)


text:
    The Prudential Savings Bank, Appellant, v. Made-well Homes Corporation et al., Defendants, and Forest Hills Housing Company, Inc., Respondent.
    (Submitted June 6, 1934;
    decided July 3, 1934.)

      Samuel Hart for motion.

      Herbert A. O’Brien opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Beatrice Clay et al., Respondents, v. Austin L. Brown, as Administrator of the Estate of Louisiana Brown, Deceased, Appellant.
    (Submitted June 7, 1934;
    decided July 3, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 543.)


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Appellant, v. Robert Adamson et al., Defendants, and Morris W. Haft, Individually and as Trustee, Respondent.
    (Submitted July 3, 1934;
    decided July 3, 1934.)

      Charles L. Grad for motion.

      Harold N. Cohen opposed.
   Motion denied on the ground that appeal is taken as matter of right.


text:
    General Accident Fire & Life Assurance Corporation, Limited, of Perth, Scotland, Appellant, v. Hertz Drivurself Stations, Inc. (New York), Respondent.
    (Argued May 31, 1934;
    decided October 2, 1934.)

      Louis J. Wolff and James A. Nooney for appellant.

      C. Frank Reavis and Martin D. Jacobs for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Application of the City of New York to Acquire Title to Wharfage Rights. (Pier New No. 32, North River.) In the Matter of the Application of City Bank Farmers Trust Company, as Trustee, et al., Appellants. In the Matter of the Petition of Gibboney, Johnston & Flynn, to Enforce an Attorneys’ Lien, Respondents.
    (Argued June 6, 1934;
    decided October 2, 1934.)

      Nathan L. Miller, William W. Miller and Harold H. Corbin for City Bank Farmers Trust Company, as trustee, and Irving Trust Company, as receiver, appellants.

      Herman L. Weisman and Edward Lee for Theodore Waeber, as trustee in bankruptcy, appellant.

      James F. Donnelly, Stuart G. Gibboney, Henry Alan Johnston and Frederick J. Flynn for respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Greater New York Export House, Inc., Appellant, v. Arthur L. Peirson et al., as Trustees, Respondents, Impleaded with Others.
    (Argued June 4, 1934;
    decided October 2, 1934.)

      Joseph I. Weissman for motion.

      Robert Aronstein opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    James E. Taylor, Appellant, v. Erie Railroad Company et al., Respondents, Impleaded with Others.
    (Submitted July 3, 1934;
    decided October 2, 1934.)

      Elbert N. Oakes for motion.

      Henry Hirschberg opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless undertaking is filed and appellant pays ten dollars costs within ten days after service of order, in which case motion is denied.


text:
    Charles B. Squier, Appellant, v. Augustus S. Houghton et al., Individually and as Executors and Trustees under the Will of Edwin M. Squier, Deceased, et al., Respondents.
    (Argued July 3, 1934;
    decided October 2, 1934.)

      Woolsey A. Shepard and George S. Mittendorf for motion.

      Frank Hendrick opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Application of The City of New York, Relative to Acquiring Title to Real Property Required for Opening Rochester Avenue in the Borough of Brooklyn. The City of New York et al., Appellants and Respondents; Libby Kuhnberg et al., Respondents and Appellants.
    (Submitted July 3, 1934;
    decided October 2, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 607.)


text:
    Shelton Holding Corporation, Appellant, v. 150 East Forty-eighth Street Corporation et al., Respondents.
    (Submitted July 3, 1934;
    decided October 2, 1934.)
   Motions to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 339.)


text:
    Alfred Garthe, Respondent, v. Jacob Ruppert, Appellant.
    (Submitted July 3, 1934;
    decided October 2, 1934.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 290.)


text:
    In the Matter of the Application of The City of New York, Respondent, Relative to Closing Old Third Avenue in the Borough of The Bronx. Joseph Hanlon et al., as Executors of Charlotte R. Hanlon, Deceased, Appellants.
    (Submitted July 3, 1934;
    decided October 2, 1934.)

      Paul Windels, Corporation Counsel (Samuel K. Handel of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Peter O. Duncan, Respondent, v. John E. McMurtry et al., Copartners, under the Firm Name of John E. McMurtry & Co., Appellants.
    (Argued July 3, 1934;
    decided October 2, 1934.)

      Hamilton M. Dawes for motion.

      John J. Cunneen opposed.
   Motion denied, without costs.


text:
    Malvina Cooper, Appellant, v. Morris E. Gossett, Respondent.
    (Submitted July 3, 1934;
    decided October 2, 1934.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 491.)


text:
    The People of the State of New York, Respondent, v. Ralph Grieco, Appellant.
    (Submitted October 1, 1934;
    decided October 3, 1934.)

      Howard B. Donaldson, District Attorney, for motion.

      Melvin F. Kinkley, opposed.
   Motion denied and case set down for argument on November 26, 1934. If not ready at that time, or no further extension is granted, the appeal will be dismissed.


text:
    In the Matter of Frank W. Eckels, as Executor of Frank Eller, Deceased, Respondent, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants, and Fred Teichmann et al., Interveners, Appellants.
    (Submitted October 1, 1934;
    decided October 4, 1934.)

      Millard E. Theodore for motion.
    No one opposed.
   Motion granted, with ten dollars_ costs and costs of motion.


text:
    Milton E. Bennett, Respondent, v. Maybelle E. A. D. Bennett, Appellant.
    (Argued October 1, 1934;
    decided October 9, 1934.)

      William A. Smith for motion.

      Victor A. Pascal opposed.
   Judge Crouch having denied the application for a certificate that there is a constitutional question involved within the meaning of section 593 of the Civil Practice Act, the motion to dismiss the appeal is granted and the appeal dismissed, without costs, unless the appellant files and serves an undertaking within ten days, in which event the motion is denied.


text:
    Joseph A. L. Blek, Appellant, v. Frank Wilson, as President of Local Union No. 3 of the International Brotherhood of Electrical Workers, Respondent.
    (Submitted October 1, 1934;
    decided October 9, 1934.)

      Harold, Stern for motion.

      Maximillian L. Blek opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant pays ten dollars costs and files undertaking within ten days, in which event the motion is denied.


text:
    The People of the State of New York ex rel. Gene Kipper, Appellant, v. Albert E. Ellinger, as Sheriff of Oneida County, Respondent.
    (Submitted October 8, 1934;
    decided October 9, 1934.)

      Thomas Brown Rudd, District Attorney, for motion.

      William R. Goldbas opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless, within ten days, appellant files and serves papers and pays ten dollars costs, in which event the motion is denied.


text:
    Manufacturers Trust Company, Appellant, v. William B. Steinhardt, Respondent.
    (Submitted October 1, 1934;
    decided October 9, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 265 N. Y. 145.)


text:
    G. A. Baker & Co., Inc., Appellant and Respondent, v. Polygraphic Company of America, Inc., Appellant, and New York Gravure Corporation, Respondent. Polygraphic Company of America, Inc., Appellant, v. G. A. Baker & Co., Inc., Respondent.
    (Submitted October 1, 1934;
    decided October 9, 1934.)
   Motion for reargument denied; with ten dollars costs and necessary printing disbursements. (See 265 N. Y. 447.)


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Lawyers Mortgage Company, Respondent. Simon Borg & Company et al., Appellants, Impleaded with Others.
    (Submitted October 1, 1934;
    decided October 9, 1934.)

      George A. Spiegelberg and Harry W. Mack for motion.

      Milton B. Ignatius and Joseph S. Catalano opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not final.


text:
    Betty Beuschel, Respondent, v. Jacob Manowitz, Appellant.
    (Submitted October 1, 1934;
    decided October 9, 1934.)

      Sidney J. Loeb for motion.
    No one opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the Order is not a final order.


text:
    Gordon S. P. Kleeberg, Appellant, v. Joseph N. Sipser, Respondent.
    (Submitted October 1, 1934;
    decided October 9, 1934.)
   Motion to amend remittitur denied, without costs. (See 265 N. Y. 87.)_


text:
    Wirth & Hamid Fair Booking, Inc., et al., Respondents, v. Frank Wirth et al., Appellants.
    (Submitted October 1, 1934;
    decided October 9, 1934.)
   Motion for reargument denied, without costs.

Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding the following provision thereto: “ The defendant Monheimer is directed to continue to hold in his possession any moneys paid to him upon the notes referred to in the contract pending the entry of judgment upon the finding of the referee, and he is further directed to pay over to the plaintiffs the amount of the judgment, if any, entered on such findings, out of the moneys so held by him; except that before the entry of such judgment the defendant Monheimer may pay to the plaintiffs costs awarded to them.” (See 265 N. Y. 214.)


text:
    Lyle F. Gates, Appellant, v. The Prudential Insurance Company of America, Respondent.
    (Argued October 1, 1934;
    decided October 9, 1934.)

      Newell H. Timerman for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars cost of motion.


text:
    Charles A. Waggoner et al., Infants, by George Waggoner, Their Guardian ad Litem, Appellants, v. Michael Jageacks et al., Respondents.
    (Submitted October 1, 1934;
    decided October 9, 1934.)

      Fred A. Robbins for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Michael R. Schwartz et al., Respondents, v. Fifty Greenwich Street Realty Corporation et al., Appellants.
    (Submitted October 1, 1934;
    decided October 9, 1934.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by striking out the provision therein awarding costs to the individual defendant. (See 265 N. Y. 443.)


text:
    Rose Hagen, Appellant, v. The Village of Montgomery, Respondent.
    (Argued October 1, 1934;
    decided October 9, 1934.)

      Philip A. Rorty for motion.

      Daniel Becker opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    David McConnell, Appellant, v. Williams Steamship Company, Inc., et al., Respondents.
    (Argued October 1, 1934;
    decided October 9, 1934.)

      Corydon B. Dunham for motion.

      Charles A. Ellis opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    Samuel Koff, Respondent, v. Benjamin Construction Co., Inc., Appellant, Impleaded with Others.
    (Submitted October 1, 1934;
    decided October 9, 1934.)

      Jacob Graifer for motion.

      Samuel Binder opposed.
   Motion denied, with ten dollars costs.


text:
    Clara I. Sielcken-Schwarz, Respondent, v. American Factors, Limited, Appellant.
    (Submitted October 1, 1934;
    decided October 9, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 265 N. Y. 239.)


text:
    Henry Amster, Appellant, v. Leo M. Mayer, Respondent, Impleaded with Another.
    (Submitted October 1, 1934;
    decided October 9, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 265 N. Y. 452.)


text:
    Elizabeth Issaia, Respondent, v. Russo-Asiatic Bank, Appellant, Impleaded with Others.
    (Appeal No. 2.)
    (Argued October 8, 1934;
    decided October 9, 1934.)

      Borris M. Komar for motion.

      Maurice Léon opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    Emil J. Frenger, Appellant, v. Henry Katz et al., Respondents, Impleaded with Others.
    (Submitted October 1, 1934;
    decided October 9, 1934.)

      Charles L. Apfel for motion.

      Edward B. Thompson opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion. (Civ. Pr. Act, § 591.)


text:
    In the Matter of John O. Nelson, Appellant, against Department of Hospitals of the City of New York et al., Respondents.
    (Submitted October 1, 1934;
    decided October 16, 1934.)

      John O. Nelson, in person, for appellant.

      Paul Windels, Corporation Counsel (Henry J. Shields of counsel), for respondents.
   Appeal dismissed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of John O. Nelson et al., Appellants, v. Henry M. Cummings, Respondent.
    (Submitted October 1, 1934;
    decided October 16, 1934.)

      John O. Nelson, in person, for appellants.
   Appeal dismissed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Estate of Julius Lustig, Deceased. Martin Gollubier, Appellant; National Surety Corporation, Respondent.
    (Argued October 1, 1934;
    decided October 16, 1934.)

      Martin Gollubier, in person, for appellant.

      Le Roy B. Iserman and Wendell P. Barker for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ. Dissenting: Crane, J.


text:
    In the Matter of the Probate of the Will of Fannie Redway, Deceased. Earl Fenner et al., Appellants; Frank J. Redway, Respondent.
    (Argued October 1, 1934;
    decided October 16, 1934.)

      Charles T. Major for Mabel Taylor, appellant.

      Frederick A. Brown for Earl Fenner, appellant.

      Russell Wright, Delos M. Cosgrove and James C. Dolan for respondent.
   Order affirmed, with costs to respondent payable out of the estate. No opinion.

Concur: Pound, Ch. J., Lehman, O’Brien, Crouch and Loughran, JJ. Dissenting: Crane and Hubbs, JJ.


text:
    In the Matter of Morewood Realty Holding Company, Appellant, against Board of Supervisors of Nassau County, Respondent.
    (Argued October 1, 1934;
    decided October 16, 1934.)

      Yorke Allen for appellant.

      James L. Dowsey, County Attorney (G. Burchard Smith and Le Roy G. Edwards of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Estate of Charles Rosenberg, Deceased. Harold R. Lhowe et al., Appellants; Morton Rosenberg et al., as Executors and Trustees, Respondents.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      Harold Korzenik for appellants.

      Henry A. Blumenthal and Albert C. Fach for respondents.
   Order affirmed, with costs to respondents payable out of the estate. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Accounting of Ralph Pulitzer et al., as Trustees under the Will of Joseph Pulitzer, Deceased. John G. Jackson, as Administrator of the Estate of Margaret Pulitzer, Deceased, Appellant; Ralph Pulitzer et al., Individually and as Trustees, et al., Respondents.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      Edward K. Hanlon, Hubert C. Mandeville, Jr., Milton Schilback and Charles K. Beekman for appellant.

      Louis C. Haggerty for Seward W. Pulitzer et al., respondents.
   Order affirmed, with costs to respondents payable out of the fund. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Will of Clarence B. Stevens, Deceased. John L. Stevens, Individually and as Administrator with the Will Annexed of Clarence B. Stevens, Deceased, et al., Respondents; George E. LeRoy et al., Individually and as Executors of Selena Stevens, Deceased, et al., Appellants.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      Willis H. Ryder and Clayton Ryder for appellants.

      Harrison T. Slosson, Edwin B. Covey and Edward P. Barrett for respondents.
   Order affirmed, with one bill of costs to appellants and respondents payable out of the estate. No opinion. (See 265 N. Y. 526.)

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Accounting of Selena Stevens (Now Deceased), as Executor of Clarence B. Stevens, Deceased. John L. Stevens, Individually and as Administrator with the Will Annexed of Clarence B. Stevens et al., Respondents; George E. LeRoy et al., Individually and as Executors of Selena Stevens, Deceased, et al., Appellants.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      Willis H. Ryder and Clayton Ryder for appellants.

      Harrison T. Slosson, Edwin B. Covey and Edward P. Barrett for respondents.
   Appeal dismissed, without costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, IIubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Claim of Charles Knights, Respondent, against Albert Morris et al., Respondents. State Industrial Board, Appellant.
    (Submitted October 2, 1934;
    decided October 16, 1934.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John R. O’Hanlon of counsel), for appellant.

      Charles E. Spencer and M. J. Allen for respondents.
   Order affirmed, with one bill of costs to respondents against the State Industrial Board. No opinion.

Concur: Pound, Ch. J,, Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Claim of Violet P. Stapleton, Respondent, against Keenan, Gifford and Lunn Apartment House Company et al., Appellants. State Industrial Board, Respondent.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      Robert C. Winchell for appellants.

      John J. Bennett, Jr., Attorney-General (H. A. Robichon of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Claim of James E. Langley, Respondent, against W. E. Hennessey et al., Appellants. State Industrial Board, Respondent.
    (Submitted October 2, 1934;
    decided October 16, 1934.)

      Raymond F. Nichols for appellants.

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Claim of Louise P. Fluhr, Respondent, against Henry J. Lunde, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Submitted October 2, 1934;
    decided October 16, 1934.)

      Frank L. Ward for appellants.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Claim of Emma Munro, Respondent, against L. P. Henryson & Co., et al., Appellants. State Industrial Board, Respondent.
    (Submitted October 2, 1934;
    decided October 16, 1934.)

      Hobart R. Marvin and James I. Cuff for appellants.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J.. Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Claim of the State Industrial Commissioner, on Account of the Death of Ercole Malena, Respondent, against Herman Leff et al., Appellants. State Industrial Board, Respondent.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      John J. Connors Jr., for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Claim of George Stockdale, Respondent, against International Railway Company et al., Appellants. State Industrial Board, Respondent.
    (Submitted October 2, 1934;
    decided October 16, 1934.)

      Noel S. Symons for International Railway Company, appellant.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Estate of Alta W. Salisbury, Deceased. William A. Salisbury, as Executor of Alta W. Salisbury, Deceased, Appellant; Elizabeth G. Brooks, as Trustee, Respondent.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      Henry A. Brann for appellant.

      Albert Ritchie for respondent.
   Order affirmed, with costs payable out of the estate. No opinion.

Concur: Crane, O’Brien, Herbs, Crouch and Loughran, JJ. Pound, Ch. J., and Lehman, J., dissent on the ground that the question remains in the case whether the gifts were made for the purpose of evading the obligations of the joint will.


text:
    The People of the State of New York ex rel. Donald D. Smith, Appellant, against Lewis E. Kenyon, Respondent.
    (Submitted October 2, 1934;
    decided October 16, 1934.)

      Olin T. Nye for appellant.

      Arthur R. Ellison for respondent.
   Order affirmed, without costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The Bank of United States, Respondent, v. Pincus Glickman, Appellant.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      Jacob L. Holtzmann and Lloyd Buchman for appellant.

      Richard F. Weeks, Arthur Ofner, Warren C. Fielding and Carl J. Austrian for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Respondent, v. Normandie National Securities Corporation, Appellant, Impleaded with Others.
    (Submitted October 2, 1934;
    decided October 16, 1934.)

      Samuel Poses for appellant.

      Harold N. Cohen, Arthur Ofner, Warren C. Fielding, Edward Weitz and Carl J. Austrian for respondent.
   Order affirmed, with costs, and questions certified answered in the affirmative. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Liberty Bank of Buffalo, Appellant and Respondent, v. City of Buffalo, Respondent and Appellant.
    (Argued October 2, 1934;
    decided October 16, 1934.)

      R. Randolph Hicks and John W. Van Allen for plaintiff, appellant and respondent.

      George L. Grobe, Corporation Counsel (Jeremiah J. Hurley of counsel), for defendant, respondent and appellant.
   On the appeal of the plaintiff: Judgment affirmed, without costs.

On the appeal of the defendant: Order affirmed, without costs. First question certified answered in the affirmative. Second question certified answered in the negative. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Frank W. Eckels, as Executor of Frank Eller, Deceased, Respondent, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants.
    (Argued October 4, 1934;
    decided October 23, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for appellants.

      Benjamin T. Cooke and Millard E. Theodore for respondent.
   Per Curiam.

The determination of the Board of Standards and Appeals was within its sound discretion and not arbitrary.

The order of the Appellate Division should be reversed and the determination of the Board of Standards and Appeals denying a variance reinstated, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Order reversed, etc.


text:
    Ellen M. McDonald, Respondent, v. Juilliard McDonald, Appellant.
    (Argued October 3, 1934;
    decided October 23, 1934.)

      Abraham L. Bienstock and Max D. Steuer for appellant.

      George Sylvester, Louis Haimoff and George Z. Medalie for respondent.
   Order affirmed, without costs, and question certified answered in the affirmative. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Ellsworth Barrows & Co., Respondent, against Town of Great Valley, Appellant.
    (Argued October 3, 1934;
    decided October 23, 1934.)

      J. M. Seymour for appellant.

      James S. Pierce for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Edward F. Cohen, Respondent, v. Jonathan Levi Company, Inc., Appellant.
    (Argued October 3, 1934;
    decided October 23, 1934.)

      Carleton H. Lewis for appellant.

      Arthur S. Golden for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Probate of the Will of Margaret J. Taylor, Deceased. Anna E. Hallman et al., Appellants; James A. Cooley, as Executor of Margaret J. Taylor, Deceased, Respondent.
    ■ (Submitted October 3, 1934;
    decided October 23, 1934.)

      Jerome C. Jackson, William Goldsticker and Clinton R. Williams for appellants.

      James O. Trybom and Frank E. Davis for respondent
   Order affirmed, with costs to respondent payable out of the estate. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Thomas W. Mullarkey, Appellant, against John F. O’Ryan, as Police Commissioner of the City of New York, Respondent.
    (Argued October 4, 1934;
    decided October 23, 1934.)

      Sydney Rosenthal and Sydney S. Snyder for appellant.

      Paul Windels, Corporation Counsel (Seymour B. Quel, Paxton Blair and Arthur B. Hoff, Jr., of counsel), for respondent.
   Order affirmed, with costs; no opimon.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Joseph F. Mafera, Respondent, against James Pasta, as Commissioner of Parks of the Borough of Queens, Appellant.
    (Argued October 4, 1934;
    decided October 23, 1934,)

      Paul Windels, Corporation Counsel (Paxton Blair, Edmund L. Palmieri and Henry J. Shields of counsel), for appellant.

      Austin B. Mandel for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of James F. Kiernan, Respondent, against Raymond V. Ingersoll, as President of the Borough of Brooklyn, Appellant.
    Argued October 4, 1934;
    decided October 23, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair, Edmund L. Palmieri and Thomas W. A. Crowe of counsel), for appellant.

      Samuel M. Ostroff and Charles L. Raskin for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of William B. Murray, Respondent, against Paul Blanshard, as Commissioner of Accounts of the City of New York, et al., Appellants.
    (Argued October 4, 1934;
    decided October 23, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for appellants.

      Roy P. Monahan and S. Bertram Friedman for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Frank J. MacMaster, Appellant, against George U. Harvey, as President of the Borough of Queens, et al., Respondents.
    (Submitted October 4, 1934;
    decided October 23, 1934.)

      Sydney Rosenthal and Sydney S. Snyder for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair, Willard S. Allen and Thomas W. A. Crowe of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title to Real Property Required for Opening and Extending Harrison Avenue from West One Hundred and Seventy-sixth Street to West Tremont Avenue in the Borough of The Bronx. Fulton Development Corporation, Appellant; Sidnor Realty Co., Inc., Respondent.
    (Argued October 4, 1934;
    decided October 23, 1934.)

      Paul Windels, Corporation Counsel (John H. Finn, Anson Getman and George S. Parsons of counsel), for The City of New York, appellant.

      Merle I. St. John for Fulton Development Corporation, appellant.

      Harry H. Chambers, Harry B. Chambers and Thomas K. Mahlon for respondent.
   Appeals dismissed, with costs, on the ground that the order appealed from is not a final order. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Garden Estates, Inc., et al., Respondents, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, et al., Appellants.

      (Argued October 4, 1934;
    decided October 23, 1934.)

      Paul Windels, Corporation Counsel (Seymour B. Quel and Paxton Blair of counsel), for The Board of Standards and Appeals, appellants.

      Leonard Acker for Essanarr Garage Corporation, intervener-appellant.

      Lewis M. Isaacs, M. S. Isaacs and I. S. Isaacs for respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York ex rel. Joseph F. Pettit, Appellant, against William Schroeder, Jr., as Chairman of the Sanitary Commission of the Department of Sanitation of the City of New York, Respondent.
    (Argued October 4, 1934;
    decided October 23, 1934.)

      M. Allen Cutler for appellant.

      Paul Windels, Corporation Counsel (Henry J. Shields of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur:' Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Claims of Jessie I. McKinnon et al., Appellants, against The Kinsman Transit Company et al., Respondents. State Industrial Board, Appellant.
    (Argued October 5, 1934;
    decided October 23, 1934.)

      Edward B. Murphy for claimants-appellants.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John R. O’Hanlon of counsel), for State Industrial Board, appellant.

      Wallace H. Miller for respondents.
   Order affirmed, with one bill of costs against appellants. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Anna Allen, Respondent, v. Guy L. Vaughan, Appellant.
    (Submitted October 5, 1934;
    decided October 23, 1934.)

      Clarence S. Zipp and James B. Henney for appellant.

      Louis P. Eisner and Eugene J. Raphael for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Thomas Nickolopulos, Respondent, v. Harry Janoff et al., Defendants, and Dubin’s Bakery, Inc., Appellant.
    (Submitted October 5, 1934;
    decided October 23, 1934.)

      Harold S. Kohn and Philip Marcus for appellant.

      Thomas O’Rourke Gallagher for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Peter Ahbol, Appellant, v. Harden Contracting Co., Inc., Defendant, and Lehigh Construction Co., Inc., Respondent.
    (Submitted October 5, 1934;
    decided October 23, 1934.)

      Milton Paulson and Emanuel Siegfried for appellant.

      John P. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York, Respondent, v. Tony Carlsonakas and Gustantine J. Flessas, Appellants.
    (Submitted October 8, 1934;
    decided October 23, 1934.)

      Francis Martocci and Merwin F. Le Vine for appellants.

      William Copeland Dodge, District Attorney (Erwin N. Schapira of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ. Dissenting: Lehman and Loughran, JJ.


text:
    Donna MacDonough, Appellant, v. James MacDonough, Respondent.
    (Argued October 8, 1934;
    decided October 23, 1934.)

      Edward J. Bennett and Francis B. Delehanty, Jr., for appellant.

      Paul L. Bleakley for respondent.
   Judgment affirmed; no opinion.

Concur: Pound, Ch. J., O’Brien, Hubbs and Loughran, JJ. Crane and Crouch, JJ., dissent and vote to reverse as to the counterclaim. Not voting: Lehman, J.


text:
    Blakeslee Rollins Corporation, Appellant, v. The State of New York, Respondent.
    (Claim No. 19465.)
    (Argued October 8, 1934;
    decided October 23, 1934.)

      Edgar Allen Poe, Mark W. Norman, Benjamin McClung, Charles B. Sullivan and J. Kemp Bartlett for appellant.

      John J. Bennett, Jr., Attorney-General (James Gibson of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubes, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    New York State National Bank, Albany, Respondent, v. Harold G. Aron, Appellant.
    (Argued October 8, 1934;
    decided October 23, 1934.)

      Harold G. Aron, in person, and Laurence J. Rittenband for appellant.

      C. E. Nichols and C. Emory Lochner for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    Arthur Allen et al., Appellants, v. The Trustees of the Great Neck Free Church et al., Respondents, Impleaded with Another.
    (Argued October 9, 1934;
    decided October 23, 1934.)

      Roy F. Wrigley, Joseph B. Cotton, Samuel Brenner and I. Joel Komarova for appellants.

      Henry M. Bellinger and Glenn C. Beechler for Great Neck Society for Social and Educational Advancement, Inc., respondent.

      F. A. Zunino, Jr., for The Trustees of the Great Neck Free Church, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman,. J.


text:
    Wolf-Kahn Realty Corporation, Suing on Behalf of Itself and Other Creditors of Eckhardt Berman Furniture Co., Inc., Appellant, v. Harris Sussman et al., Defendants, and Morris Berman, Respondent.
    (Argued October 9, 1934;
    decided October 23, 1934.)

      Meyer Levy for appellant.

      David Michelsohn for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch, and Loughran, JJ. Not voting: Lehman, J.


text:
    Northeastern Shares Corporation, Respondent, v. International Insurance Company of New York, Appellant.
    (Argued October 9, 1934;
    decided October 23, 1934.)

      Abraham Kaplan, David A. Ticktin and Milton Adler for appellant.

      David Asch, William J. Butler and Francis X. Walsh for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    Ben Fligel Co., Inc., Respondent, v. Joseph Kessler, as Treasurer of Waterproof Garment Workers Union Local No. 20, et al., Appellants, Impleaded with Others, Defendants.
    (Submitted October 9, 1934;
    decided October 23, 1934.)

      Lawrence Kovalsky and David Goldstein for appellants.

      Samuel M. Rivelson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch, J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    In the Matter of Milton K. Nestler, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections in the City of New York, Respondents.
    (Submitted October 19, 1934;
    decided October 23, 1934,)

      Arthur G. Weinberger, Arthur M. Post and Alexander Wolf for appellant.

      Paul Windels, Corporation Counsel (Russell Lord Tarbox, Paxton Blair and Ralph W. Thomas of counsel), for respondents.
   Appeal dismissed, without costs, on the ground that the question has become academic by lapse of time. (Matter of Lyon Co. v. Morris, 261 N. Y. 497.) No opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not sitting: Lehman, J.


text:
    Harry C. Corke, Appellant, v. City of Syracuse, Respondent.
    (Argued October 9, 1934;
    decided October 23, 1934.)

      Clifford H. Searl for appellant.

      Edward L. Robertson, Corporation Counsel (James C. Tormey of counsel), for respondent.
   Appeal withdrawn on payment of costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    Caroline L. Yanney et al., Respondents, v. John H. Pember et al., as Executors of Ellen J. L. W. Pember, Deceased, Appellants.
    (Submitted October 15, 1934;
    decided October 23, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 265 N. Y. 459.)


text:
    Edna Layman, an Infant, by James Layman, Her Guardian ad Litem, Respondent, v. Allegi & Loring, Inc., et al., Defendants, and The Mount Vernon Trust Company, Appellant.
    (Submitted October 15, 1934;
    decided October 23, 1934.)
   Motion to amend remittitur denied, without costs. (See 264 N. Y. 610.)


text:
    Charles Gass, Appellant, v. Louis S. Wetmore et al., Copartners under the Name of L. S. Wetmore Co., et al., Defendants, and Benjamin R. Kittredge, Respondent.
    (Submitted October 18, 1934;
    decided October 23, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 663.)


text:
    Louise Anson, as Administratrix of the Estate of Sherman Anson, Deceased, Appellant, v. Third Avenue Railways Company, Respondent, Impleaded with Another.
    (Submitted October 10, 1934;
    decided October 26, 1934.)

      John M. Wilson for appellant.

      Alfred T. Davison and Addison B. Scoville for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J. Crane, J., concurs in result in the following memorandum: Although I adhere to my views as expressed in Berkey v. Third Avenue Ry. Co. (244 N. Y. 84), yet as this case has become the law, and the facts here are not dissimilar, I concur in the result.


text:
    The People of the State of New York, Respondent, v. Robert Leik, Appellant.
    (Argued October 8, 1934;
    decided October 26, 1934.)

      Robert S. Johnstone, Maxwell Shapiro and Edward Weinfeld for appellant.

      William Copeland Dodge, District Attorney (John C. McDermott and Felix C. Benvenga of counsel). for respondent.
   Judgment affirmed, no opinion.

Concur: Pound, Ch. J., O’Brien, Hubbs, Crouch and Loughran, JJ. Dissenting: Crane and Lehman, JJ.


text:
    Netley Offices, Inc., Appellant, v. Burgundy Realty Corporation, et al., Respondents.
    (Submitted October 9, 1934;
    decided October 26, 1934.)

      Abraham B. Hertz and Harold Siegel for appellant.

      Jacob F. Raskin and George Robinson for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    William Wiese, Appellant, v. Corn Exchange Bank Trust Company, Respondent, Impleaded with Another.
    (Argued October 10, 1934;
    decided October 26, 1934.)

      R. Keith Kane and Edward A. Niles for appellant.

      Frank C. Laughlin, Spotswood D. Bowers, Albert Falck and Joseph W. Kirkpatrick for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Irma C. Lowe, Respondent, v. The City of New York, Appellant.
    (Argued October 10, 1934;
    decided October 26, 1934.)

      Paul Windels, Corporation Counsel (Alfred D. Jahr, Paxton Blair and Anson Getman of counsel), for appellant.

      Stephen Callaghan and Ralph Stout for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    The Prudential Insurance Company of America, Respondent, v. Adelphi Hall, Inc., et al., Appellants, Impleaded with Others; Emanuel Harmel, Respondent.
    (Argued October 10,1934;
    decided October 26, 1934.)

      Stephen Callaghan, Arthur Knox and Thomas A. Gaffney for appellants.

      Edward F. Clark and Leonard J. Reynolds for The Prudential Insurance Company of America, respondent.
   Appeal dismissed, with costs, on the ground that the order appealed from is not a final order in a special proceeding. No opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    Emma S. Hines et al., Respondents, v. Patrick Murphy, Inc., Appellant.
    (Argued October 10, 1934;
    decided October 26, 1934.)

      William B. Davis and E. C. Sherwood for appellant.

      F. Campbell Jeffery for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    Elizabeth V. Hayden, Respondent, v. James A. Hearn & Son, Inc., Appellant.
    (Argued October 10,1934;
    decided October 26, 1634.)

      William A. Mulvey and James B. Henney for appellant.

      Leonard J. Supple for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    President and Directors of The Manhattan Company, as Successor Trustee under a Deed of Trust, Respondent, v. Harry H. Newberry et al., Appellants, and Silrap Construction Company, Inc., et al., Respondents, Impleaded with Others,
    (Argued October 11, 1934;
    decided October 26, 1934.)

      Stephen Callaghan, A. Delafield Smith and Ralph Stout for appellants.

      Bernard Sobol for plaintiff, respondent.

      William L. Carns for Clinton M. Woodford et al., as committee, respondents.

      Meyer Kraushaar for Rae Ranzal, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ. Not sitting: Crane, J.


text:
    Flora W. Yelin, Respondent, v. Columbia Casualty Company, Appellant.
    (Argued October 11, 1934;
    decided October 26, 1934.)

      Everett F. Warrington and Herbert F. Hastings, Jr., for appellant.

      Edward H. Wolkind, Gordon Steele and Jacob Jacobson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    Bernard Knopp, Appellant, v. Edward T. Sherwood, Jr., as Grand Master of the Grand Lodge of Free and Accepted Masons, Prince Hall, of the State of New York et al., Respondents.
    (Argued October 11, 1934;
    decided October 26, 1934.)

      Samuel Meyers, Morris M. Goldknopf and Morris Meyers for appellant.

      Oliver D. Williams, Francis F. Giles and George H. Beaubian for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    The People of the State of New York ex rel. Guaranty Trust Company of New York, as Trustee, Appellant, against Thomas M. Lynch et al., Constituting the State Tax Commission, Respondents.
    (Argued October 11, 1934;
    decided October 26, 1934.)

      Bernhard Knollenberg, Harry J. Rudick and Joseph W. Wyatt for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    David McConnell, Appellant, v. Williams Steamship Company, Inc., et al., Respondents.
    (Argued October 11, 1934;
    decided October 26, 1934.)

      Charles A. Ellis and Lucien V. Axtell for appellant.

      Corydon B. Dunham and Ralph Stout for respondents.
   Judgment affirmed, with costs, reserving the question whether the amended complaint states a cause of action against the defendants for assault in any court. No opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    Caroline E. Cox, as Administratrix of the Estate of Malachi F. Cox, Respondent, v. Seglin-Harrison Construction Co., Inc., Appellant.
    (Argued October 11, 1934;
    decided October 26, 1934.)

      Horace B. Casey for appellant.

      Daniel H. Prior, George W. Foy, John T. DeGraff and Louis F. O’ Neill for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ. Not voting: Lehman, J.


text:
    Frank Hazelton, Respondent, v. Harry N. Kelley, Appellant.
    (Argued October 11, 1934;
    decided October 26, 1934.)

      P. C. Dugan and Kenneth J. Dugan for appellant.

      Sheridan P. Wait for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Andrew J. Moran, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York et al., Respondents.
    (Argued October 26, 1934;
    decided October 26, 1934.)

      Theodore B. Richter, Milton Gladstone and Samuel D. Smoleff for appellant.

      Edwin A. Whalen and Nathan Blum for respondents.
   Order affirmed on the ground that proceeding must be instituted within ten days of a primary election. (Election Law [Cons. Laws, ch. 17], § 330, subd. 2.) No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Nathan Straus, Individually and as Chairman of the Liberal Party et al., Appellants; Selah B. Strong, Respondent.
    (Argued October 26, 1934;
    decided October 26, 1934.)

      Theodore B. Richter and Milton Gladstone for appellants.

      Benjamin M. Gottesfeld and Malvin B. Mariash for respondent.
   Order affirmed on the authority of Matter of O’Brien (206 N. Y. 694) and Matter of Trosk v. Cohen (262 N. Y. 430). This is not a case of conflicting nominations for the same office. (Matter of Marcus v. Cohen, 262 N. Y. 444.) No opinion.

Concur: Pound, Ch. J., Crane, O’Brien, Hubbs and Loughran, JJ. Dissenting: Crouch, J. Not sitting: Lehman, J,


text:
    Samuel D. Serina, an Infant, by Angelo Serina, His Guardian ad Litem, Appellant, v. New York Railways Corporation, Respondent. Angelo Serina, Appellant, v. New York Railways Corporation, Respondent.
    (Submitted October 22, 1934;
    decided October 26, 1934.)

      Joseph L. Zelaskow for motions.

      Sol Gelb opposed.
   Motions granted and appeals dismissed with costs and ten dollars costs of motion unless an undertaking is filed in each case and appellant pays ten dollars costs within ten days, in which event the motions are denied.


text:
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Opening and Extension of Northern Boulevard in the Borough of Queens. McClenahan Realty Co., Inc., et al., Respondents.
    (Submitted October 22, 1934;
    decided October 26, 1934.)

      Paul Windels, Corporation Counsel (George S. Parsons of counsel), for motion.

      Henry Herz opposed.
   Motion denied on the ground that the order is not a final order in a special proceeding. A motion to amend the remittitur is the proper remedy, if any. (Matter of Prospect Park & Coney Island R. R. Co., 67 N. Y. 371, 378; Smythe v. City of New York, 203 N. Y. 584.)


text:
    In the Matter of Edward F. Bowes et al., Appellants, against The Board of Elections of the City of New York, et al., Respondents.
    (Argued October 31, 1934;
    decided October 31, 1934.)

      Walter E. Godfrey for appellants.

      Paul Windels, Corporation Counsel (Russell L. Tarbox of counsel), for Board of Elections, respondent.

      Kenneth F. Simpson, Sanford H. Cohen, Watson Wash-burn and Maxwell Shapiro for Abbot L. Moffat et al., respondents.
   Order affirmed; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of John Rosenberg, Appellant, against The Board of Elections of the City of New York, et al., Respondents.
    (Argued October 31, 1934;
    decided October 31, 1934.)

      Edward M. Rose and John Rosenberg, in person, for appellant.

      Paul Windels, Corporation Counsel (Russell L. Tarbox of counsel) for Board of Elections, respondent.

      Joseph P. Brennan, Jr., and Joseph S. Gershman for Christopher D. Sullivan, respondent.
   Order affirmed on the authority of Matter of Wicksel v. Cohen (262 N. Y. 446). No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Samuel Buchler, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents.
    (Argued October 31, 1934;
    decided October 31, 1934.)

      William H. Schreiber for appellant.

      Paul Windels, Corporation Counsel (Russell L. Tarbox of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Charles Garside et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents.
    (Argued October 31, 1934;
    decided October 31, 1934.)

      Watson Washburn, Maxwell Shapiro, Sanford H. Cohen, Whitney N. Seymour and Kenneth F. Simpson for appellants.

      Paul Windels, Corporation Counsel (Russell L. Tarbox of counsel), for Board of Elections, respondents.

      Benjamin J. Rabin, Irving H. Saypol, Samuel L. Scholer and Cornelius J. Smyth for Bernard Botein et al., respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed. Held, that the nominating petition was valid notwithstanding the irregularity in naming more than one committee to fill vacancies. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.