author: Crouch, J. Crane, J. (dissenting).

text:
    Harry E. Shonfeld, Appellant, v. Bessie Shonfeld, Respondent

      (Argued October 27, 1932;
    decided January 10, 1933.)

      Jacob S. Manheimer for appellant.
    The plaintiff is entitled to a decree of annulment as a matter of law. {Weill v. Weill, 104 Mise. Rep. 561; di Lorenzo v. di Lorenzo, 174 N. Y. 467; Griffin v. Griffin, 122 Mise. Rep. 837; 209 App. Div. 883; Svenson v. Svenson, 178 N. Y. 54; Rubman v. Rubman, 140 Mise. Rep. 658; Domschke v. Domschke, 138 App. Div. 454; Libman v. Libtnan, 102 Mise. Rep. 443; O’Connell v. O’Connell, 201 App. Div. 338; Harris v. Harris, 201 App. Div. 880: Watkins v. Watkins, 197 App. Div. 489; Rutstein v. Rutstein, 221 App. Div. 70; Aufiero v. Aufiero, 222 App. Div. 479; Raphael v. Raphael, 222 App. Div. 664; Sheridan v. Sheridan, 186 N. Y. Supp. 470.)
    No appearance for respondent.
   Crouch, J.

e The action is to annul a marriage for fraud. Marriage,” says the statute (Dom. Rel. Law; Cons. Laws, ch. 14, § 10), “ so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.” So it was, too, before the statute was enacted. (Ferlat v. Gojon, 1 Hopk. Ch. 478.) The essentials of marriage as a civil contract are, therefore, (a) consent by (b) parties having statutory capacity to give it. Any lack in those essentials makes the marriage void (Dom. Rel. Law, §§ 5 and 6) or voidable (Id. § 7). If either party consents by reason of fraud there is no reality of consent. Hence the marriage is voidable (Id. § 7, subd. 4) and an action may be maintained to annul it. (Civ. ■ Pr. Act, § 1139.) While the jurisdiction of the court to annul is purely statutory (Walter v. Walter, 217 N. Y. 439) it is equitable in its nature (Cf. Bays v. Bays, 105 Misc. Rep. 492, 500), particularly where fraud is charged. (Cf. Ferlat v.Gojon, supra; Fisk v. Fisk, 6 App. Div. 432.) The statute is silent as to what constitutes fraud. The Legislature perhaps adopted the traditional attitude of equity, which has ever refused to define, lest the craft of man evade the definition. (Lawley v. Hooper, 3 Atk. 278.) The court is left free to meet each case as it arises and to apply to the defendant’s conduct the immemorial test of fair and conscientious dealing. But fraud alone is of no avail unless followed by the statutory consequence that consent to the marriage was given by reason of it. At this point one encounters the interpretation placed upon the statute by this court in di Lorenzo v. di Lorenzo (174 N. Y. 467). Not every fraud by reason of which the particular individual may have given consent to the y marriage is an adequate basis for annulment. On the other hand, the fraud need not necessarily concern what is commonly called the essentials of the marriage relation — the rights and duties connected with cohabitation and consortium attached by law to the marital status, (di Lorenzo v. di Lorenzo, supra; Beard v. Beard, 238 N. Y. 599; Domschke v. Domschke, 138 App. Div. 454.)

Any fraud is adequate which is material, to that degree that, had it not been practiced, the party deceived would Hot have consented to the marriage ” (di Lorenzo v. di Lorenzo, supra, p. 471), and is of such a nature as to deceive an ordinarily prudent person.” (Id. p. 474.) ' With so much premised, we turn to a consideration of the case at hand. The action was undefended. Plaintiff testified that for some years prior to the marriage he had been keeping company with the defendant. On several occasions when the question of marriage was brought up by the defendant, the plaintiff had stated plainly that he was in no position to marry because he was not able to make a living; that he was working on and off with his father without a regular salary and just managed to keep himself going. In May, 1930, the subject was again broached by the defendant, who suggested that if it was merely a matter of sufficient money to establish him in a business of his own, she had enough, if such an opportunity presented itself. A month later there came such an opportunity. An acquaintance, aware that the plaintiff desired to go into business, suggested a partnership in a jewelry store to be leased in the Hotel McAlpin, in the city of New York. Seven thousand dollars was required. The acquaintance was able to contribute only $1,500, or $2,000. The defendant was made acquainted with this and she told the plaintiff that she had $8,000 which would be available. From that point on she took part in the discussions with respect to the proposed business and approved the partnership arrangements and the plans of the store. A lease of the store was to be closed on July 21. Before the execution and delivery of the lease, a deposit by way of security was required. The defendant refused to furnish any money before marriage. There was a civil marriage on July 15. It was not consummated. Each party returned to the parent’s home where each lived. On July 19 the plaintiff went to defendant’s home to secure the amount of the required deposit on the lease. He then discovered that the defendant did not have and never had had any such money or the means of getting it. The trial court found as facts that the representations thus made were false, were believed and relied upon, did induce the plaintiff’s consent to the marriage, and that if they had not been made he would not have consented. A decree was refused upon the ground that the representations did not go “to the essence of the marriage contract.”

For reasons stated above, the ground of the decision is untenable. If the proof shows that the representations were of a nature to deceive an ordinarily prudent man who, but for the representations, would not have consented to the marriage, there is an adequate basis for a decree. The primary consideration in every case is the materiality of the representation viewed in the light of all circumstances by the mind, not of the individual plaintiff but of an ordinarily prudent man. To be material, the representation “ must not only have induced the action taken, it must have been adequate to induce it by offering a motive sufficient to influence the conduct of a man of average intelligence and prudence. ” (1 Bigelow on Fraud, 497.) Present in every case as a circumstance which such a mind would necessarily consider is the important and irrevocable nature of the contract of marriage, affected, as it is, with a public interest and with resultant rights and duties unalterably fixed by law. The trier of fact in testing materiality by this objective standard on such a background is no doubt justified in rejecting, as immaterial, representations which in the case of other types of contract might lead to a different conclusion. Generalizations other than these may not be made. The boundaries of materiality must be pricked out by individual decisions. The question here is whether it can be said as matter of law that the representations made by defendant were not material. The Appellate Division by a divided court has in effect so said. We reach the opposite conclusion. The obligation of a husband to support a wife is no less lightly to be entered into than the other obligations of the marital relation. The ability to support is correspondingly important. While plaintiff’s attitude /may have been something less than heroic, realization of the responsibilities of marriage need not be condemned as sordidly mercenary. The business which defendant’s mythical money was to establish was plaintiff’s only prospect of supporting her. The misrepresentation was not a mere exaggeration or misstatement of her means or prospects, which might or might not be an incentive to marriage. It was a definite statement of an existing fact without which, as defendant clearly understood, no marriage was presently practicable. It cannot be said as matter of law that either rebanee or materiality hang upon an unreasonable or whimsical attitude on plaintiff’s part. No public policy outlaws a marriage settlement agreement (cf. Piper v. Hoard, 107 N. Y. 73; Kujek v. Goldman, 150 N. Y. 176, 182) and no public policy demands that prudent consideration of ability to fulfill the duty of support shall not have a legitimate place in the determination by a party of whether or not to marry.

The judgment of the Appellate Division and that of the Special Term should be reversed and an interlocutory judgment of annulment directed in favor of plaintiff.

Crane, J. (dissenting).

The marriage in this case was a mere matter of bargain and sale. The woman bought the man for $6,000, and because she failed to have the money the man seeks to have the marriage annulled. The question really is whether the marriage ceremony in ^J/his State is of any binding force or whether it is an empty ceremony. Apparently di Lorenzo v. di Lorenzo (174 N. Y. 467) has been somewhat misunderstood in its application and some expressions in the opinion carried far beyond the authority of the case. (See Powell v. . Alabama, 287 U. S. 45.) It is a fundamental principle of stare decisis that a decision is an authority solely upon the points decided and the facts of the particular case. We would go far afield if we followed the expressions in the opinions used to illustrate or to exemplify the principle involved and determined. As Judge Vann said in People ex rel. Metropolitan St. Ry. Co. v. State Board of Tax Comrs. (174 N. Y. 417, at p. 447): Certain expressions of learned judges, used arguendo, in discussing the subject of home rule, are relied upon by counsel as establishing a principle that controls this case. Principles are not established by "" what was said, but by what was decided, and what was said is not evidence of what was decided, unless it relates directly to the question presented for decision. ‘ General expressions/ as the great Federal jurist once said, ‘ are to be taken in connection with the cases in which those expressions are used ’ (Cohens v. Virginia, 6 Wheat. 264, 399).” The di Lorenzo case decided two things. It decided that the woman, in order to be married, had practiced a gross fraud, and it further decided that the man had no way of protecting himself against the fraud by the exercise of diligence and care. The facts are that a woman represented to a man, with whom she had been having intercourse, that she was pregnant by him and that, a child had been bom. The woman represented that the child had been bom while his father was away from the State and she exhibited to him the child when he returned. The fact is that she had not given birth to any child. Gray, J., in writing for the court, said: li It was a gross fraud and, upon reason, as upon authority, I think it afforded a sufficient ground for a decree am-mllmg the marriage contract.” In laying down the rule that the false representations must be of such a nature as to deceive an ordinarily pmdent person (pp. 473, 474 and 475), the judge said: “ The plaintiff had a right to rely upon the defendant’s statement of a fact, the truth of which was known to her and unknown to him, and he was under no obligation to verify a statement, to the truth of which she had pledged herself.”

In commenting upon this decision, in an article in 6 Cornell Law Quarterly (p. 401), Crouch, J. (now of this court), noted these two principles as established by this case: (1) The representations which would justify an annulment must be material; (2) the representations must be such as to deceive the ordinarily prudent person. All the authorities in this country agree upon these points, the conflict, if any, centering around the determination of what is a material representation.

- Let me call attention in the case before us to this second element of an annulment action, which is as important as the material false representation. A person has no right to rely upon every representation. Before the law all are measured by the standard of the reasonably prudent and careful man. Even in annulment actions one is not to be relieved by the courts if he is so stupid and foolish as to believe statements which his own eyes or ears could have discovered to be false in the exercise of a little care. Neither are the judges and the courts to be fooled in an undefended annulment action by the whimper of a party that he was deceived, when he has no one to blame but himself. The law makes no adjustments of those marital difficulties brought about by a person’s own indifference to and disregard of his own welfare. Care and caution are required and have been emphasized in all the cases dealing with this subject of annulment for fraud.

What are the facts in this case? Harry E. Shonfeld and Bessie Shonfeld, his wife, prior to their marriage in the Municipal Building, in New York city, on July 15, 1930, had known each other for seven years; being so intimate in their relationships as to talk about getting married for a long time previous to the event. Financial matters had been discussed between them so that Harry must have known Bessie’s family, circumstances in life and financial condition. He wanted to go into the jewelry business with a man named Harry Ostrow, who needed $6,000. Bessie said she had $6,000 and would give it to them if Harry married her. After the marriage Bessie said she was to borrow the money from her aunt but could not get it, and her father offered to put up a thousand dollars. This is the whole case. The husband pleads that he relied upon the false and fraudulent representations that Bessie had $6,000. He made no inquiry whatever about it. He never asked her where she had it or where she was going to get it. He did not inquire whether it was in the savings bank or in securities. He had been intimate with her for seven years and knew her condition and circumstances in life. He had frequently told her that he had no money, yet when she said she had $6,000 he never asked where it was or why / she had said nothing about it during the two years’ / delay in getting married. To rely solely upon the mere statement, under these conditions, was blind folly. Love is blind, but in this case there was no love. The plaintiff concedes it was a purely commercial transaction. He, therefore, failed to exercise any care or caution, and has only himself to blame for his predicament. As Lord Stowell said in Wakefield v. Mackay, 1 Phill. Ecc. 134 (cited in 1 Bishop on Marriage and Divorce [6th ed.], § 167): A man who means to act upon such representations should verify them by his own inquiries; the law presumes that he uses due caution in a matter in which his happiness for life is so materially involved, and. it makes no provision for the relief of a blind credulity however it may have been produced.”

The plaintiff’s testimony runs as follows: “ Well, she wanted to know — we had been going together on and off for about seven years, and two years previous to the time that I did get married she wanted to know, or she asked me what my intentions were so far as she was concerned. And I told her at the time that I was in no predicament or position to enter on the sea of matrimony at the present time, because I was not able to make a living. * * * Well, in May, 1930, she asked me if I had decided to do anything as yet, and I said that I was in the same position as I was before, and that I can’t see my way clear in getting married at the present time, because, as I said, I have nothing to fall back on, but if I could get myself into a little business or get a good position, why, I could think of it. And she said, ‘ Well, what — if it is just a case of getting into business, I have a little money, where I could help you out, if something worth while came along that seemed good to you, and it would please me.’ * * * She said before she was going to put any money in, she wanted me to get married first.”

For failure to exercise the ordinary caution of a reason- ' ably prudent and careful man dealing in financial matters this plaintiff can obtain no relief in equity, as one of the cardinal principles, as heretofore stated, in annulment actions for fraud, is that the false representations must have been such as to deceive the ordinarily prudent y^ person. For this reason, if for no other, the judgment below should be affirmed.

But while we are upon this subject, it may be well to utter a word of caution regarding some of the things which have been said in the di Lorenzo case. As an authority we must remember that the fraud was a gross fraud, going to the very essence of the marriage relation, so that the court felt that a decree of annulment should be granted to the husband, although ten years had elapsed after • consummation of the marriage. Whatever was said in the opinion must be viewed in the light of the facts. While marriage in this State is a civil contract, meaning thereby that it takes its validity and binding force from State laws, and not through religious ordinances, the marriage contract is more than a civil contract, which deals merely with property rights. From its very nature it establishes a status from the time of the contract and not from the time of consummation or cohabitation. While a court of equity may at times consider the fact that there has been an immediate desertion after a marriage, and no consummation, this is a circumstance and not a vital element. The law fixes the status from the time of the marriage ceremony and all property rights and marital obligations and privileges begin from that time. The public policy of this State, as of all other. States in this Union, plays an important part in the marriage contract. (Wade v. Kalbfleisch, 58 N. Y. 282, 284; Maynard v. Hill, 125 U. S. 190.) The married couple cannot do as they please with the marriage contract. Whatever may be their freedom of action regarding their own morals, the law does not view marriage lightly or leave it to them to destroy at will.

Because of the statements properly made in the di Lorenzo case, when dealing with its facts, that marriage was a civil contract like any other contract, and could be dissolved for fraud, the bar have at times pressed these words out of their setting and meaning. Thus, in Schaeffer v. Schaeffer (160 App. Div. 48, 49) an annulment of the marriage was sought upon the ground that the defendant had falsely represented that he loved the plaintiff. Mr. Justice Carr remarked in the opinion, denying relief: “ But I think we have not yet arrived at a legal stage which requires an annulment of a marriage because one party or both parties were untruthful to each other in their mutual protestations of all-consuming and undying love. Marriage is yet a status on which depends the idea of a family, and on which in turn has arisen the structure of civilization as we know it.” After seventeen years of marriage an attempt was made to annul a marriage upon the ground of false representations as to love and affection in Griffin v. Griffin (122 Misc. Rep. 837); and in Williams v. Williams (71 Misc. Rep. 590) annulment was sought on the ground of misrepresentation as to age. A warning of the fraud which might be attempted in annulment actions under the very broad words of the di Lorenzo case was given in the critical notes upon this subject to be found in 1 Cornell Law Quarterly, 48, and 6 Cornell Law Quarterly, 199; 24 Harvard Law Review, 157.

We must recognize that the marriage contract can never be on a par with other civil contracts because of its very nature. Other contracts deal with money values or property interests; not so, the marriage contract. Money damages can be ascertained, at least by approximation, for the breach of a civil contract, and even for the breaking of a promise to marry, but no such element finds place in the contract of marriage itself. The utmost the law can do is to dissolve the status for fraud or for disability. Every jurisdiction recognizes that marriage procured by false and fraudulent representations may be annulled in equity. What are the false and fraudulent representations which the courts will consider material? The difference in opinion, as found in the decisions, is over this question of materiality. Surely every representation leading up to marriage cannot be material,— the fact that a brunette turned to a blond over night, or that the beautiful teeth were discovered to be false, or the ruddy pink complexion gave way suddenly to pallor, or that a woman misstated her age or was not in perfect health, would lead no court to annul the marriage for fraud. This court said in Lapides v. Lapides (254 N. Y. 73, p. 80): The fraud which may dissolve the marriage tie must relate to something vital.” And in section 167 of Bishop on Marriage and Divorce (Vol. 1, 6th ed.) we find the almost universal rule to be that In that contract of marriage which forms the gateway to the marriage status, the parties take each other for better,, for worse, for richer, for poorer, to cherish each other in sickness and in health; consequently a mistake, whether resulting from accident, or, in general, from fraudulent practices, in .respect to the character, fortune, health, or the like, does not render void what is done.”

Fraud assumes many different forms and it has always been impossible to predict just how it will appear. No definite rule can be stated for matrimonial actions any easier than it can be stated for any other class of fraud actions. We may say, however, that because of the importance of the marriage contract and the status established thereby the courts will not treat the matter lightly and will only deal with those representations which are serious, grave and important; the representations must be proved by clear and convincing evidence to have been a vital and dominant element in entering into the contract. What induces a man to marry a woman? Who can tell? Are the judges wiser than other men? This is a matter which better not be inquired into too inquisitively, as it has baffled the philosophers of all ages. Law moves not upon supposition or guess, but upon evidence. The false representations inducing "a marriage must be so weighty and material that the courts can say that they would have influenced the consent of a man of average intelligence and prudence. (See Beard v. Beard, 238 N. Y. 599; Minner v. Minner, 238 N. Y. 529; Svenson v. Svenson, 178 N. Y. 54.)

The representations in this case do not rise to this importance. The man says he married the woman to get $6,000. Suppose it had only been a hundred. Where will the courts draw the line? Some other element than mere money' must enter into the representations to move the court. to annul a marriage. There may be occasions when representations as to who and what a person is may be very vital in procuring the consent to marriage. These matters are given attention by careful persons in entering into matrimony. Deception as to these circumstances may lead to annulment, but the courts have not yet gone so far as to recognize marriage as a mere matter of bargain and sale or to annul it because one of the parties is disappointed in the material wealth of the other. Sufficient for this case to say that the mere statement of the woman that she had $6,000 was not sufficient to deceive a reasonably prudent and careful man, and under the circumstances stated here is not of sufficient importance to the marriage contract to move a court of equity to annul it.

Most of the annulment cases upon the ground of fraud are defaults. The parties seek by this easy means to obtain a decree dissolving the bonds of matrimony. In a divorce case based upon adultery the innocent party is ■ prohibited from testifying. Whatever he or she knows about the guilt of the other cannot be told. Not so in annulment cases. The plaintiff becomes a ready witness and glibly recites his or her story in the absence and default of the other party. This has led the courts to say that the proofs should be. strong and convincing in these annulment cases, and that the false representations must go to a vital part of the marriage contract. It should clearly appear not only that the representations were made but that the facts stated were of such weight and seriousness as to induce reasonable persons similarly situated to rely and act upon them.

The referee to whom this matter was referred found against the husband.

The judgment of the Special Term dismissing this complaint, affirmed by the Appellate Division, should be affirmed by this court.

Pound, Ch. J., Kellogg and Hubbs, JJ., concur with Crouch, J.; Crane, J., dissents in opinion, in which Lehman and O’Brien, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Crouch, J.

license: Public Domain

text:
    Edward Koso, Appellant, v. Frederick S. Greene, as Superintendent of Public Works of the State of New York, Respondent.
    (Argued December 14, 1932;
    decided January 10, 1933.)

      John T. De Graff, Rollin B. Sanford and Robert W. Lochner for appellant.
    A construction should be adopted which will give effect to the constitutional mandate with reference to the civil service. (N. Y. Const, art. 5, § 6.) A person serving under a temporary or provisional appointment is not in the competitive class. (People ex rel. O’Connor v. Adams, 133 N. Y. 203; People ex rel. West. F. I. Co. v. Davenport, 91 N. Y. 574; People ex rel. Rosenthal v. Travis, 169 App. Div. 203.) The original appointment means permanent appointment only. (Civil Service Rules, rules XII, XIV, XV; Civil Service Law, §§ 14, 31.) A provisional or temporary appointment cannot ripen into a permanent appointment. (People ex rel. Orr v. Scannell, 66 N. Y. Supp. 182; Matter of Darling v. Maguire, 70 Mise. Rep. 597; People ex rel. Metz v. Lantry, 32 Mise. Rep. 80.)

      Arthur J. W. Hilly, Corporation Counsel («7. Joseph Lilly, Cornelius Bregoff and Thomas W. A. Crowe of counsel), for City of New York, amicus curios.

    The interpretation of section 31 of the Civil Service Law made by the court below is subversive of the principle of the civil service system. (People ex rel. Sweet v. Lyman, 157 N. Y. 368; Matter of Barthelmess v. Cukor, 231 N. Y. 435; Barlow v. Berry, 245 N. Y. 500; Matter of Stowe v. Board of Supervisors, 236 App. Div. 212; People ex rel. Kennedy v. Feldman, 179 App. Div. 295; 221 N. Y. 655; Rogers v. Common Council of Buffalo, 123 N. Y. 173; Arentz v. Morse D. D. & Repair Co., 249 N. Y. 439; Heaman v. Rowell Co., 236 App. Div. 34; Matter of Darling v. Maguire, 70 Mise. Rep. 597; People ex rel. Metz v. Lantry, 32 Mise. Rep. 80; People ex rel. Orr v. Scannell, 66 N. Y. Supp. 182; Deering v. City of New York, 107 N. Y. Supp. 934.) The retention in service of the architectural designers who received permanent appointments upon dates subsequent to the date of the permanent appointment of the plaintiff was illegal and void. (Civil Service Law, § 14; People ex rel. Rosenthal v. Travis, 169 App. Div. 203; People ex rel. Corkhill v. McAdoo, 113 App. Div. 770; People v. N. Y. C. R. R. Co., 24 N. Y. 485; Church v. Kelsey, 121 TJ. S. 282; Matter of Bristol v. Buck, 201 App. Div. 100; 234 N. Y. 504; Gates v. State, 128 N. Y. 221.) The true construction of section 31 of the Civil Service Law is that no right of seniority or to retention in service can be predicated upon a provisional or a temporary appointment. (Grimmer v. Tenement House Dept., 205 N. Y. 549; Matter of City of New York, 217 N. Y. 1; Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1; New York v. New York City R. R. Co., 193 N. Y. 543.)

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune of counsel), for respondent.
    Original appointment in the service means the first, the initial appointment. (Civil Service Law, § 31.) The origin, development, purpose and history of section 31 of the Civil Service Law sustain and justify the decision of the Appellate Division. (Matter of Devins v. Sayer, 200 App. Div. 669; 233 1ST. Y. 690; Knights v. Staley, 192 N. Y. Supp. 542; 200 App. Div. 850.)
   Crouch, J.

Plaintiff on January 12, 1931, received a permanent appointment as an architectural designer in the Department of Public Works of this State, from an eligible list under the civil service. He was suspended May 5, 1932, by reason of lack of appropriations for that department. Other architectural designers who received provisional or temporary appointments prior to the plaintiff’s permanent appointment, but whose permanent appointments were subsequent to his, have been retained in the employment of the department.

Section 31 of the Civil Service Law (Cons. Laws, ch. 7) provides that “ Any person who while holding a position in the competitive class under the civil service law or rules, has been separated from the service * * * through no delinquency or misconduct on his part shall be deemed to be suspended without pay, which suspension shall be made in the inverse order of original appointment in the service,” etc.

This action on a submission of facts is to determine whether, in construing this statute, the time in service is to be computed from the date of appointment to any civil service class, or whether it contemplates only the original permanent appointment in the competitive class.

By the provisions of section 15 of this law, vacancies in the competitive class which may normally be filled only upon examination and in order of priority upon the eligible list, may be filled by a provisional appointment not exceeding four months, if there are urgent reasons for so doing and no eligible fist exists; and temporary appointments for a period of not more than one month may be made from an eligible fist without regard to the appointee’s standing thereon under similar conditions of urgency. With certain exceptions not here important provisional and temporary appointments may be terminated at any time. Temporary or provisional appointees, though in a sense holding positions in the competitive class, are, for reasons of necessity, exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the civil service rules. (Cf. Civil Service Rules, rule VIII [8].) Permanent appointments are made without reference to whether the appointee is holding a temporary or provisional appointment to the same position, or how long such appointment has lasted. These appointments are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions, and are in no sense probationary. While such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.

Looking only at the wording of section 31, it is literally true that a provisional or temporary appointee is holding a position in the competitive class. But he is holding it merely as a locum, tenens. He has no competitive tenure of position in that class- (People ex rel. Rosenthal v. Travis, 169 App. Div. 203) and as the non-competitive appointment secures him no preference of permanent appointment, neither does it give him preference of retention over those higher in eligibility for original permanent appointment.

We think the spirit and the reason inherent in article V, section 6, of the Constitution require a holding that the words “ original appointment ” as used in section 31 of the Civil Service Law mean an appointment from an eligible list for a probationary term ripening at the end of three months’ satisfactory service into a permanent appointment.

The judgment should be reversed and judgment directed for plaintiff as asked for in the submission, with costs in all courts.

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

Judgment accordingly.


text:
    Walsh and McGee Steel Company, Respondent, v. Fidelity and Deposit Company of Maryland, Appellant.
    (Argued December 8, 1932;
    decided January 10, 1933.)

      Fred Boehm, Thomas E. White and Wallace P. Harvey for appellant.
    Plaintiff’s right of action against the defendant surety having been created by statute, strict compliance therewith is required. (Franklin Lumber Co. v. Globe Indemnity Co., 130 Atl. Rep. 608; 133 Atl. Rep. 919; Warren Bros. v. Hartford Accident & Indemnity Co., 133 Atl. Rep. 479; Fireproof Products Co. v. Dreher, 141 Atl. Rep. 795; Shannon v. Continental Casualty Co., 148 Atl. Rep. 738; Clark Plastering Co. v. Seaboard Surety Co., 235 App. Div. 444.)

      Harold R. Topken for respondent.
    The defendant was furnished with a statement sufficient under the statute. (.Missano v. Mayor, 160 N. Y. 123; Sweeney v. City of New York, 225 N. Y. 271; Brost v. Whitall Tatum Co., 89 N. J. Eq. 531; Fehling v. Goings, 67 N. J. Eq. 375; St. John’s College v. JEtna Indemnity Co., 201 N. Y. 335; United States v. American Surety Co., 200 IT. S. 197; Illinois Surety Co. v. Davis Co., 244 IT. S. 376; Maryland Casualty Co. v. Fowler, 31 Fed. Rep. [2d] 881; McKegney v. Illinois Surety Co., 170 App. Div. 261; Fass v. Illinois Surety Co., 177 App. Div. 596.)
   Crouch, J.

The plaintiff furnished materials to a contractor having a highway construction contract in New Jersey. Defendant is surety on the contractor’s bond which runs to the State of New Jersey. In accordance with the New Jersey statute (Laws 1918, ch. 75) a condition of the bond is the payment by the contractor of all lawful claims of materialmen. Plaintiff’s claim was not paid. This action is brought on the bond to recover the amount thereof from the surety. The statute provides that any person to whom money is due for materials furnished on such a contract shall, within eighty days after the acceptance of the work by the duly authorized board or officer, furnish the sureties on the bond “ a statement of the amount due; ” and that if the indebtedness is not paid at the expiration of sixty days after the furnishing of said statement, suit may be brought by the claimant in his own name.

The complaint pleads the statute and alleges acceptance of the work by the State Highway Commission_of New Jersey on September 29, 1925, the giving of a statement of the amount due thereafter to the said Commission and to the defendant, failure to pay and the lapse of more than sixty days from the giving of the statement.

The proof shows that plaintiff did not furnish to the defendant a statement of the amount due within eighty days after acceptance. It appears that a small fund consisting of a retained percentage was in the hands of the Highway Commission. Plaintiff, apparently under the impression that it had obtained a preference on that fund by filing a claim for the amount due it with the Highway Commission, chose not to furnish the statutory statement to defendant, although the necessity for so doing if it were to claim under the bond was twice called to its attention. An attorney, retained by defendant to ascertain how much money was in the hands of the Highway Commission and what claims had been filed against the fund, was informed of the bare fact that plaintiff had filed such a claim for a stated amount. Upon these facts it has been held below that there was a sufficient and substantial compliance with the statute and plaintiff has had judgment. Information, casually acquired that plaintiff had made claim to a fund in the hands of the Highway Commission was not information given by plaintiff that plaintiff intended to claim under the bond; nor was it information which would naturally move the surety to investigate the claim, and satisfy itself before being called upon to pay — a matter which the statute evidently contemplates. Such cases as Missano v. Mayor, etc., of City of New York (160 N. Y. 123) and Sweeney v. City of New York (225 N. Y. 271) are not in point. The substantial purpose of the statute was fulfilled under the facts in those cases. The city was left in no doubt that claims were being made against it and the details of the claims were in its possession so that due investigation could be made. The contrary is true here.

The judgment of the Appellate Division and that of the Special Term should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


text:
    The Shawmut Corporation of Boston, Respondent, v. William H. Bobrick Sales Corporation, Respondent, and The Bank of United States, Appellant.
    (Argued December 2, 1932;
    decided January 10, 1933.)

      Walter Bishop, Arthur Ofner, Warren C. Fielding and Carl J. Austrian for defendant-appellant.
    The payment of the moneys in suit by Schild & Co. to the bank did not create a trust or special deposit for the payment of the draft by the bank. (National Bank v. Merchants’ Bank, 91 TJ. S. 92; Marine & Fire Ins. Bank v. Jauncey, 3 Sandf. 257; Lamborn v. National Park Bank, 240 N. Y. 520; Laudisi v. American Exchange Nat. Bank, 239 N. Y. 234; O’Meara Co. v. National Park Bank, 239 N. Y. 386; Lamborn v. Lake Shore Banking & Trust Co., 196 App. Div. 504; 231 N. Y. 616; Bank of Montreal v. Recknagel, 109 N. Y. 482; Frey & Son, Inc., v. Sherburne Co., 193 App. Div. 849; American Steel Co. v. Irving Nat. Bank, 266 Fed. Rep. 41; 258 TJ. S. 617; Bank of Taiwan, Ltd., v. Schild, 236 App. Div. 128; Dibble v. Richardson, 171 N. Y. 131; Hall v. Stevens, 116 N. Y. 201; Gibson v. Tobey, 46 N. Y. 637; Wise v. Chase, 44 N. Y. 337; Noel v. Murray, 13 N. Y. 167; Darnall v. Morehouse, 45 N. Y. 64; Lee v. Larkin, 125 App. Div. 302; New York & Cuba Mail S. S. Co. v. Texas Co., 282 Fed. Rep. 221; The President Arthur, 22 Fed. Rep. [2d] 584; 25 Fed. Rep. [2d] 648; 279 TJ. S. 564; Matter of Dever, 13 Q. B. Div. 766; Finkelstein, Legal Aspects of Commercial Letters of Credit, pp. 158n, 280n.)

      Winslow M. Lovejoy and J. Adam Murphy for plaintiff.
    The prepayment by Schild & Co. of the draft drawn under the letter of credit agreement created a trust fund and defendant-respondent is entitled to the judgment decreed in the court below, and is entitled to have a trust impressed upon the funds of the bank. (People v.
      City Bank of Rochester, 96 N. Y. 32; Coates v. First Nat. Bank, 91 N. Y. 20.) A trust was impressed upon the funds of the bank regardless of the fact that a separate fund was not set apart and earmarked by the bank. (.Matter of International Milling Co. [Broderick], 259 N. Y. 77; Genesee v. U. S. Fidelity & Guaranty Co., 247 N. Y. 52; Matter of McCarthy, 139 Mise. Rep. 147; People v. City Bank of Rochester, 96 N. Y. 32.)

      Edward B. Schulkind for defendant-respondent.
    The direction by Schild & Co. to the bank to charge its account with the sum necessary to meet the draft drawn under the letter of credit agreement and the debiting of Schild & Co.’s account for the specific purpose of meeting the draft created a trust fund in favor of the holder of the draft and the defendant-respondent was entitled to an order impressing the funds of the bank with the amount of the money paid for such purpose. (Bank of United States v. Seltzer, 233 App. Div. 225; Greenough v. Munroe, 53 Fed. Rep. [2d] 362; Kane v. Bloodgood, 7 Johns. Ch. 90; Taylor v. Benham, 5 How. [U. S.] 233; HeideTbach v. National Park Bank, 87 Hun, 117; Vaughan v. Massachusetts Hide Corp., 209 Fed. Rep. 667; Matter of James, 30 Fed. Rep. [2d] 555; State v. Grills, 35 R. I. 70; Genesee Wesleyan Seminary v. U. S. Fidelity & Guaranty Co., 247 N. Y. 52; People v. City Bank of Rochester, 96 N. Y. 32; Coates v. First Nat. Bank, 91 N. Y. 20; National Bank v. Rogers, 166 N. Y. 380; Stephan v. Bank of United States, 236 App. Div. 280; Barclays Bank v. Bank of United States, 236 App. Div. 150.)

      Robert D. Murray for Yokohama Specie Bank, Ltd., amicus curice.

    The funds furnished the bank to pay the draft and the bank’s acceptance thereof for that purpose created a trust. (Kane v. Bloodgood, 7 Johns. Ch. 90; Taylor v. Benha?n, 5 How. [U. S.] 233; HeideTbach v. National Park Bank, 87 Hun, 117; National City Bank v. Waggoner, 230 App. Div. 88; 255 N. Y. 527; People v. City Bank of Rochester, 96 N. Y. 32; State v. Grills,
      35 R. I. 70; Genesee Wesleyan Seminary v. U. S. Fidelity & Guaranty Go., 247 N. Y. 55; Matter of Union Bank, 204 N. Y. 313; Lafayette Trust Co. v. Higginbotham, 136 App. Div. 747; Mechanics & Metals Nat. Bank v. Banque Industrielle, 205 App. Div. 543; Matter of Littman v. Broderick, 232 App. Div. 538; 258 N. Y. 468; Importers & Traders’ Bank v. Peters, 123 N. Y. 272; Straus v. Tradesman Nat. Bank, 122 N. Y. 379; Matter of McCarthy, 139 Mise. Rep. 147; Brown v. Spohr, 180 N. Y. 201; Bergstresser v. Lodewich, 37 App. Div. 629; Morris v. Windsor Trust Co., 213 N. Y. 27; Matter of Wasserman v. Broderick, 140 Mise. Rep. 174.) Procuring a commercial credit does not discharge the buyer and he is entitled to have the funds which he furnishes the issuing bank applied to the payment of the acceptance representing the purchase price. (Laudisi v. American Exchange Nat. Bank, 239 N. Y. 234; Greenough v. Munroe, 53 Fed. Rep. [2d] 362; Bank of United States v. Seltzer, 233 App. Div. 225; Bassett v. Leslie, 123 N. Y. 396; Leslie v. Bassett, 129 N. Y. 523.)
   Crouch, J.

The Shawmut Corporation of Boston (hereinafter called Shawmut) sued the William H. Bob-rick Sales Corporation (hereinafter called Bobrick) on a draft for $4,200 drawn on the Bank of the United States (hereinafter called the Bank) by Bobrick to its own order and accepted by the Bank. After indorsement, Bobrick sold the draft to the Bank which in turn sold it to Shawmut. Before maturity the Bank was taken over for liquidation by the Superintendent of Banks of the State of New York, pursuant to section 57 of the Banking Law (Cons. Laws, ch. 2). When presented at maturity, payment of the draft was refused. Bobrick answered the suit by impleading the Bank and demanding that certain funds alleged to have been furnished to the Bank for that express purpose be applied to the payment of the draft. The Bank answered. Shawmut then moved for summary judgment against Bobrick, and Bobrick moved for summary judgment against the Bank. Both motions were granted. The Bank appealed to the Appellate Division which affirmed the order directing judgment against it.

On the 22d of November, 1930, Irving Schild & Co., merchants in New York city, had to their credit in a general account with the Bank $19,680.10. On that day they directed the Bank to debit their account with the amount of the draft in suit plus commission and less rebate of interest. The Bank did so and at the same time credited them with the sum of $4,200 in an account entitled “ Prepaid Acceptances." The decision here depends upon the nature and legal consequences of that transaction. The facts leading up to it were briefly as follows: Schild & Co., desiring to purchase certain merchandise from Bobrick, requested the Bank to issue to Bobrick a commercial letter of credit. This the Bank did under date of August 15, 1930. The letter was designated and thereafter referred to as Credit No. 8853 and provided credit for account of Schild & Co. up to $4,200 available on or before August 20, 1930, by draft at four months’ sight when accompanied by specified documents. In consideration of the issuance thereof, Schild & Co. agreed to provide one day prior to maturity of the bills drawn in virtue thereof sufficient funds in cash to meet the payment of the same, with interest, commission and all expenses; title to all property purchased and to the proceeds thereof to be in the Bank until payment of the bills, and of any and all other indebtedness of Schild & Co. to the Bank. On August 16, 1930, Bobrick drew its four months’ draft for $4,200 for the purchase price of the merchandise, sold to Schild & Co. The draft bore.on its face reference to Credit No. 8853. On the same day, with documents attached, it was presented to and accepted by the Bank. On August 18, 1930, the documents were delivered to Schild & Co. against a trust receipt by which they agreed to hold the merchandise and its proceeds in trust as security for the Bank and to deliver the proceeds to the Bank to be applied against its acceptance of the draft or any other indebtedness. Schild & Co. thereafter sold the merchandise, notified Bobrick to that effect, prepaid the draft in the manner above stated, and received from the Bank notice that their account had been charged for “ acceptance due re-L /C #8853.” There is no evidence that Schild & Co. was informed of the entry in the Bank’s Prepaid Acceptances ” account.

There is no contention here that any lien on the merchandise or its proceeds remained in Bobrick after the Bank’s acceptance; nor that the suspension of the Bank in any manner revived a lost hen. Neither is there any contention that in the original letter of credit transaction there was any element of a trust in favor of Bobrick or of any holder of the draft. Had the proceeds of the sale of the merchandise remained in the general account of Schild & Co., Bobrick, considered here as the holder of the draft, would have ranked upon the suspension of the Bank merely as a general creditor. (Finkelstein, Legal Aspects of Commercial Letters of Credit, note 13, p. 150; note 15, p. 280, and cases cited.) The situation would then have been substantially as it was in Matter of Dever (L. R. 13 Q. B. D. 766), which is pressed to our attention by appellant as an exact parallel. There it appears (p. 770) that “ in no case did he [the buyer] in making * * * payment specify the particular acceptance against which he made the payment, nor did any one payment, or the aggregate of payments made in any one day, correspond to any particular acceptance.” The argument of counsel with which the court agreed was, therefore (p. 772), that Suse & Sibeth [the issuing party] were at liberty to use the money, when they received it, as they pleased, and that there was no specific appropriation to meet the acceptances.”

The contrary is true here. The transaction between the buyer, Schild & Co., and the Bank on November 22, 1930, seems to us to have amounted to a specific appropriation to meet the acceptance. Under the terms of the letter of credit agreement, Schild & Co. owed no duty to the Bank to provide funds to meet the payment of the draft until December 15, 1930; nor until that date was the Bank bound to accept such provision. But Schild & Co., under the evidence, were, as buyers, ultimately liable to Bobrick on the' sales contract. (Bassett v. Leslie, 123 N. Y. 396; Leslie v. Bassett, 129 N. Y. 523; Greenough v. Munroe, 53 Fed. Rep. [2d] 362; Cf. 40 Harvard Law Rev. 294.) Apart from their obligation to the Bank, they thus had an interest in providing for the payment of the draft. For that express purpose, they requested the Bank to debit their general account with the amount of the draft. For that express purpose the Bank did so. Thereafter Schild & Co. had no further control over the moneys so charged. When the Bank notified them in writing that their general account had been charged with $4,200 for acceptance due in connection with Letter of Credit No. 8853, they had the right to suppose either that the draft had in fact been taken up or that the amount charged had been in some form set aside and appropriated for that purpose. In fact, it was, as we think, so set aside and appropriated by putting it as a separate and unmistakably identified item of credit in its “ Prepaid Acceptances ” account. Short of a physical segregation of so much cash, it is difficult to see what more could have been done to put a specific sum of $4,200 into an identified fund. The facts are in no essential respect different from those in People v. City Bank of Rochester (96 N. Y. 32). The same result must follow. By a transaction outside of the terms of the letter of credit agreement, Schild & Co. provided a fund for the payment of the draft. The Bank set it aside and engaged to apply it for that purpose. “As to it, the bank was bailee or trustee.” (People v. City Bank of Rochester, supra, p. 37.)

The judgment should be affirmed, with costs.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Bbien and Hubbs, JJ., concur.

Judgment affirmed.


author: Crane, J. (dissenting).

text:
    Village of Elmira Heights, Respondent, v. Town of Horseheads, Appellant.
    (Argued June 8, 1932;
    decided July 19, 1932.)

      Frederick Collin, Halsey Sayles and Henry Bush for appellant.

      Robert P. McDowell and Asbury H. Harpending for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Kellogg, Hubbs and Crouch, JJ. Crane, J., dissents in the following opinion in which O’Brien, J., concurs; and Lehman, J., dissents and votes to reverse and to dismiss the complaint.

Crane, J. (dissenting).

Under the authority of Strough v. Board of Supervisors (119 N. Y. 212) and City of Buffalo v. County of Erie (88 Misc. Rep. 591, opinion by Judge Wheeler; affd., 171 App. Div. 973, and 220 N. Y. 620) this action can be maintained by the village of Elmira Heights to recover from the town of Horseheads the amount of money which the County Treasurer by mistake paid to the town instead of to the village, pursuant to section 219-h of the Tax Law (Cons. Laws, ch. 60).

The interest amounts to quite a sum — $11,422.07. Interest on $3,984.48 ran from July 17, 1923; on $15,657.02, from August 14, 1924; and on $9,491.86 from August 10, 1925. Exception was duly taken to this award of interest.

The appellant claims that the amount was unliquidated, and that interest could only be computed from the time of the referee’s report; and that section 480 of the Civil Practice Act, as amended April 4,1927, can have no retroactive effect upon unliquidated damages. We think these damages were liquidated, as the amount could be ascertained from computation. While it would require the gathering of record data, such as the limits of the village of Elmira Heights within the town of Horseheads, and the ascertainment of the amount of taxes raised in this part of the village for village and town purposes, and also the ascertainment of the amount of taxes raised in the town, in order to get the proper proportions and the divisional rate, yet we think this all comes within the rule as stated in Excelsior Terra Cotta Co. v. Harde (181 N. Y. 11, 14): While the old common-law rule has been modified, which required that a demand should be liquidated, or its amount ascertained, before interest could be allowed, the extent of its modification is that if the amount due is capable of being ascertained by mere computation, the allowance of interest is proper.”

The amount overpaid by the County Treasurer to the town of Horseheads could be ascertained by computation, although it would require some extensive figuring. The amount due, therefore, being liquidated, the question as to the application of section 480 of the Civil Practice Act does not arise.

Under another rule, however, the allowance of interest was erroneous, and the judgment should be modified by a proper deduction. Whether the amount due from the town of Horseheads was liquidated or unliquidated, interest will not run until a proper demand has been made for the return of the overpayment. The rule is of universal application that where money has been voluntarily paid by mistake and in good faith, the obligation to refund the money does not arise until after notification of the mistake and a demand of payment. (Southwick v. First Nat. Bank, 84 N. Y. 420, p. 430.) In Commonwealth v. Newton Township (276 Penn. St. 172), where a township collected payments which were due to the State, the court held, and said: “ There is nothing to show want of good faith, and, under any fair construction, interest should not be allowed until demand, here made when this suit was brought. The court was in error in allowing interest from the several dates of payment to the township.”

In Ashhurst v. Field’s Administrator (28 N. J. Eq. 315) the chancellor said: “ One to whom money is paid as his due, and who receives it believing that it is his due, is not liable for interest upon it before demand made and refusal to pay, nor until he shall have reason to be satisfied that he ought to repay it, and shall know to whom he should pay it.”

To the same effect, Gould v. Emerson (160 Mass. 438).

The proportion adopted in the interpretation of article 9-A of the Tax Law, section 219-h, subdivision 4, gave to the town of Horseheads a larger amount than it was entitled to. The method of computation was adopted upon the opinion of the Attorney-General and Tax Commission and followed for a number of years. Not until this action was it judicially determined that this computation was erroneous, and that in ascertaining the proportion of the tax moneys which should go to the villages, one side of the equation should include the moneys raised in the village, or the proportion thereof in the town, for village and town purposes, instead of the amount for village purposes only. Under this determination the village is entitled to a larger share than it has received of the tax moneys deposited by the Comptroller with the County Treasurer, pursuant to the Tax Law. For a period of six or more years the town has been overpaid, in good faith and without any knowledge that the law was not being strictly followed. The money was paid voluntarily by the County Treasurer under the advice of the Attorney-General and received by the town in good faith. Under these circumstances the town was not obliged to pay back the money until demand had been made upon it. No demand was made until the certiorari proceedings, August 30,1926. This is the only demand which the plaintiff proved in this case.

The judgment, therefore, should be modified by allowing interest from August 30, 1926, and not before.

The judgment appealed from should be modified by striking out the allowance of interest therein contained, and awarding interest on the amounts found to be due, running from the 30th day of August, 1926, and as so modified, affirmed, without costs.


text:
    The People of the State of New York, Respondent, v. George Harris, Appellant.
    (Argued June 7, 1932;
    decided July 19, ,1932.)

      James D. C. Murray, Caesar B. F. Barra, Sidney S. Meyers, Paul L. Corwin and Jacob J. Sachs for appellant.

      Thomas C. T. Crain, District Attorney (Robert C. Taylor, of counsel), for respondent
   Judgment of conviction affirmed; no opinion.

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


text:
    Carl W. Stern, Respondent, v. Zucker & Josephy, Inc., Appellant.
    (Submitted June 8, 1932;
    decided July 19, 1932.)

      Samuel F. Frank and Isaac Perlman for appellant.

      Bernard Hershkopf and I. Gainsburg for respondent.
   Judgment affirmed, with costs; no opinion. (See 260 N. Y. 564.)

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


text:
    Mary H. Tompkins et al., Respondents, v. The City of New York et al., Appellants, Impleaded with Others.
    (Argued June 8, 1932;
    decided July 19, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (Alfred D. Jahr and Edwin J. Talley of counsel), for 'appellants.

      Howard C. Kelly for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lillian M. Popielawski, Appellant, v. Frederick A. Gimbel, Respondent, Impleaded with Another.
    (Argued June 8, 1932;
    decided July 19, 1932.)

      Harry A. Gordon for appellant.

      George W. Whiteside and J. Arthur Leve for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, JBubbs and Crouch, JJ.


text:
    Salvatore Provenzano, Respondent, v. Adelbert H. Chambers et al., Copartners under the Firm Name of Stuyvesant Garage, Appellants, Impleaded with Another. Frank Grimldo, Respondent, v. Adelbert H. Chambers et al., Copartners under the Firm Name of Stuyvesant Garage, Appellants, Impleaded with Another.
    (Argued June 8, 1932;
    decided July 19, 1932.)

      Frank W. Brooks for appellants.

      O. D. B. Hasbrouck for respondents. <
   Judgments affirmed, with costs; no opinion.

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


text:
    Tillie Boles, as Administratrix of the Estate of Henry Boles, Deceased, Respondent, v. Munson Steamship Line, Inc., Appellant, Impleaded with Others.
    (Argued June 8, 1932;
    decided July 19, 1932.)

      James A. Gray and C. B. Dunham for appellant.

      Walter L. Rathborne for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and new trial granted, with costs to abide the event, on the authority of Maleeny v. Standard Shipbuilding Corp. (237 N. Y. 250). (Cf. Johnson v. U.S. Shipping Board, etc., 24 Fed. Rep. [2d] 963; reversed on other grounds, 280 U. S. 320; Matter of Pennsylvania R. R. Co., 48 Fed. Rep. [2d] 559.) No opinion.

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


text:
    Kelvinator Sales Corporation, Respondent, v. Ebling Aurora Ice Cream Co., Inc., Appellant.
    ■ (Argued June 9, 1932;
    decided July 19, 1932.)

      Eugene Cohn, Spier Whitaker and John F. Condon, Jr., for appellant.

      Eugene S. Bibb and George G. Shiya for respondent. . ■
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank Curreri, Respondent, v. Texas Company, Appellant.
    (Argued June 9, 1932;
    decided July 19, 1932.)

      Charles R. Hickox, Vernon S. Jones and Raymond Parmer for appellant.

      Jay Leo Rothschild, Louis Rivkin and George A. Grabow for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward H. Titus, Respondent, v. Lou C. Wallick, Appellant.
    (Argued June 9, 1932;
    decided July 19, 1932.)

      James F. Donnelly, Mark Eisner, Samuel Michelman and Victor S. Gettner for appellant.

      Thomas I. Sheridan, Lewis F. Glaser, Aaron Frank and Philip Warren for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Julia Kindga, as Administratrix of the Estate of Michael B. Kindga, Deceased, Respondent, v. Charles F. Noyes Co., Inc., Appellant.
    (Argued June 10, 1932;
    decided July 19, 1932.)

      Stephen Callaghan and Alfred W. Andrews for appellant.

      Joseph B. Kenny for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles E. Aldrich, Jr., Respondent, v. Turner, Carter Company, Inc., Appellant.
    (Argued June 13, 1932;
    decided July 19, 1932.)

      Clifton P. Williamson for appellant.

      Frederick C. McLaughlin for respondent.
   Judgment.affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Luke O’Neill, Appellant.
    (Argued June 13, 1932;
    decided July 19, 1932.)

      Samuel J. Siegel, Joseph D. Edelson and Edwin M. Stanton for appellant.

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Peter Polemenakos, Appellant, v. Julius Cohn et al., Respondents.
    (Argued June 13, 1932;
    decided July 19, 1932.)

      Frank Gibbons for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. B. P. Ducas Company, Inc., Appellant, against The State Tax Commission, Respondent.
    (Argued June 1, 1932;
    decided July 19, 1932.)

      Arthur L. Strasser and Martin W. Kramer for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondent.
   Determination of the Appellate Division modified and the tax restated at $1,536.90, with costs to appellant in this court and in the Appellate Division, on the ground that the rule laid down in section 211 of the Tax Law, as it read in the year 1925 and as applicable to this proceeding, is too vague to state a workable rule. No opinion. (See 260 N. Y. 654.)

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


text:
    The People of the State of New York ex rel. Eitingon Schild Co., Inc., Appellant, against Thomas M. Lynch et al., Constituting the State Tax Commission of the State of New York, Respondents. (Proceedings Nos. 1 & 2.)
    (Submitted June 13, 1932;
    decided July 19, 1932.)

      Bernard S. Barron, Daniel Katz and George P. Halperin for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   In each proceeding determination of Tax Commission modified and tax restated as reported by the relator, with costs to appellant in the Appellate Division and in this court, on the authority of People ex rel. Ducas Co. v. State Tax Commission (260 N. Y. 525). No opinion.

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


text:
    In the Matter of Fannie Taylor, Appellant and Respondent. Israel N. Thurman et al., as Executors and Trustees under the Will of David Taylor, Deceased, Respondents and Appellants.
    (Argued June 14, 1932;
    decided July 19, 1932.)

      William H. Bisnoff, Samuel Zamzok and Bernard Margulis for Fannie Taylor, testamentary guardian, etc., appellant and respondent.

      Adolph Feldblum and Copal Mintz for Israel N. Thurman et al., trustees, etc., respondents and appellants.
   Appeal of trustees; order affirmed, with costs payable out of the estate. Appeal of petitioner dismissed, without costs. No opinion.

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


text:
    In the Matter of Mamaroneck Commodore, Inc., et al., Appellants, against L. Harold Bayly et al., Constituting the Board of Appeals of the Village of Mamaroneck, Respondents.
    (Argued June 14, 1932;
    decided July 19, 1932.)

      Arthur L. Barton for appellants. .

      Anthony Sansone for respondents.

      Edgar M. Souza and Thomas Epstein for Beach Point Club et ah, amici curice.

   Order affirmed, with costs; no opinion.

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


text:
    Mart Hall, Respondent, v. Shell Eastern Petroleum Products, Inc., et al., Appellants.
    (Argued June 14, 1932;
    decided July 19, 1932.)

      George J. Stacy and James J. Mahoney for appellants.

      James I. Cuff and James A. Hughes for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Helen Schnatz, as Administratrix of the Estate of Frederick Schnatz, Deceased, Respondent, v. John T. Whalen, Appellant, Impleaded with Others.
    (Argued June 14, 1932;
    decided July 19, 1932.)

      James I. Cuff, Harold V. Angevine and Grattan B. Shults for appellant.

      Samuel L. Sargent and Gabriel Rubino for respondent.
   Judgment affirmed, with costs; no opinion. (See 260 N. Y. 563.)

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


text:
    Meyer S. Albert, Appellant, v. Parking Stations of New York, Inc., Respondent.
    (Argued June 14,1932;
    decided July 19,1932.)

      Charles Eno and Gustav Nadel for appellant.

      Ralph M. Ketcham for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Marie L. H. Watson et al., Individually and as Executrices of Frances E. Hidden, Deceased, et al., Respondents, v. Edward H. Raynolds et al., Appellants, Impleaded with Another.
    (Argued June 16, 1932;
    decided July 19, 1932.)

      Richard T. Greene, Daniel S. Murphy and Vincent W. Farley for Edward H. Raynolds, appellant.

      Harold Swain and Arthur H. Indell for Alexander G. Zographos et al., appellants.

      Ralph W. Crolly for Brooklyn Trust Company, as committee of Androcles G. Zographos, appellant.

      John E. Mack for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alice G. Peterson, Appellant, v. The City of Yonkers, Respondent.
    (Argued June 15, 1932;
    decided July 19, 1932.)

      John E. Mack, Joseph W. Bryan and Robert M. Clark for appellant.

      Leonard G. McAneny, Corporation Counsel (William F. Cauley, Jr., of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Walter J. Stone, Inc., Respondent, v. The Provident Loan Society of New York, Appellant.
    (Argued June 15, 1932;
    decided July 19, 1932.)

      Osmond K. Fraenkel, Arnold J. Brock and Charles Haskell Levitt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert A. Badger, Appellant, v. Scobell Chemical Company, Inc., Respondent.
    (Argued June 15, 1932;
    decided July 19, 1932.)

      Carroll M. Roberts and Arthur E. Sutherland for appellant.

      Howard M. Woods for respondent.
   Judgment affirmed, with costs; no opimon.

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


text:
    Abraham Baumwald, Respondent, v. Two Star Laundry Service, Inc., et al., Defendants, and Jacob Leiman, Appellant.
    (Argued June 15, 1932;
    decided July 19, 1932.)

      Jacob Leiman, appellant in person.

      Zarah Williamson, George Goldberg and William Gold for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Paul Berlenbach, Respondent, v. Chemical Bank and Trust Company, Appellant.
    (Argued June 16, 1932;
    decided July 19, 1932.)

      Carroll G. Walter for appellant.

      James V. Hayes for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank Grimaldi, Respondent, v. 1412 Broadway, Inc., Appellant, and General Electric Company et al., Respondents.
    (Argued June 16, 1932;
    decided July 19, 1932.)

      Stephen Callaghan and Alfred W. Andrews for appellant.

      Frederick H. Cunningham for plaintiff-respondent.

      ■John C. Bowe for General Electric Company, defendant-respondent.

      John W. Jordan, Harold B. Medina and Eugene A. Sherpick for Gurney Elevator Company, defendant-respondent.
   Judgment and orders affirmed, with costs; no opinion.

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


text:
    In the Matter of Frances Friel, as Executrix of Joseph J. Friel, Deceased, Appellant; Henry Paul, Respondent.
    (Argued June 16, 1932;
    decided July 19, 1932.)

      Benjamin C. Ribman for appellant.

      Avrom M. Jacobs, Daniel J. Dugan and Isadore Book-stein for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of Emma L. Roche, Appellant; John K. Clark, Respondent.
    (Argued June 16, 1932;
    decided July 19, 1932.)

      Milton Seymour Cohn for appellant.

      John Kirkland Clark, respondent in person.
   Order affirmed, with costs; no opinion.

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


text:
    Burwell S. Cutler, Appellant, v. Manufacturers and Traders-Peoples Trust Company et al., Defendants, and Lillie J. Sikes, as Executrix of Albert D. Sikes, Deceased, Respondent.
    (Argued June 16, 1932;
    decided July 19, 1932.)

      . John Kirkland Clark and Edward T. Welch for appellant.

      Thomas B. Wheeler and William I. Morey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Saucke Bros. Construction Co., Inc., Appellant, v. Edward A. Comstock et al., Respondents.
    (Argued June 16, 1932;
    decided July 19, 1932.)

      Walter S. Forsyth for appellant.

      Percival D. Oviatt for Edward A. Comstock and Frederick P. Kimball, respondents.
   Judgment affirmed, with costs to respondents Com-stock and Kimball; no opinion.

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


text:
    John H. Cavanaugh, an Infant, by William J. Cavanaugh, His Guardian ad Litem, Respondent, v. Peoples Gas and Electric Company of Oswego, Appellant. William J. Cavanaugh, Respondent, v. Peoples Gas and Electric Company of Oswego, Appellant.
    (Argued June 16, 1932;
    decided July 19, 1932.)

      Harry C. Misen for appellant.

      Avery S. Wright, Leonard H. Amdursky and Francis D. Culkin for respondents.
   Judgment in each action affirmed, with costs; no opinion. '

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


text:
    Stuart E. Henderson et al., Individually, and as Copartners under the Firm Name of S. E. Henderson & Co., Appellants, v. Huntington Mortgage Corporation, Respondent.
    (Submitted June 17, 1932;
    decided July 19, 1932.)

      Fred L. Gross, Frederick A. Keck and Bradford Butler' for appellants.

      Otho S. Bowling and Wallace E. J. Collins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Joseph M. Martin, Appellant, against Abraham Kaplan et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    (Argued June 20, 1932;
    decided July 19, 1932.)

      John W. Remer and Frank H. Richmond for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Vine H. Smith and Arthur Sweeny of counsel), for respondents.
   Order affirmed, wdth costs; no opinion.

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


text:
    John Schoeffter, an Infant, by Lina Schoeffter, His Guardian ad Litem, Respondent, v. New York Central Railroad Company, Appellant, Impleaded with Others.
    (Argued June 20, 1932;
    decided July 19, 1932.)

      Daniel Scanlon for appellant.

      Crandall Melvin for respondent.
   ' Judgment affirmed, with costs; no opinion.

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


text:
    George W. Kremer, Appellant, v. New York Air Terminals, Inc., Respondent.
    (Appeals 1 and 2.)
    (Argued June 20, 1932;
    decided July 19, 1932.)
   Howard Osterhout and Cyril Hyde Condon for respondent. Judgment affirmed, with costs; no opinion.

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


text:
    James N. Butterly, Appellant, v. Maribert Realty Corporation et al., Respondents.
    (Argued June 21, 1932;
    decided July 19, 1932.)

      Alvin C. Cass, Edward D. Dowling and Jacques W. Bacal for appellant.

      Charles J. Nehrbas for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of the City of New York, Respondent, to Acquire Real Estate in the Town of Yorktown, Westchester County, for Protection of Water Supply. Sarah Percy et al., Appellants.
    (Argued June 21, 1932;
    decided July 19, 1932.)

      Lester D. Stickles, Chester B. McLaughlin and Ben J. Brown for appellants.

      Arthur J. W. Hilly, Corporation Counsel (Frank T. Fitzgerald, of counsel), for respondent.
   Appeal dismissed, with costs, on the ground that the order appealed from is not a final order. (City of Johnstown v. Wade, 157 N. Y. 50.) No opinion. (See 260 N. Y. 603.)

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


text:
    The People of the State of New York ex rel. Herman Rothenberg, Appellant, v. Lewis E. Lawes, as Warden of Sing Sing Prison, Respondent.
    (Submitted June 21, 1932;
    decided July 19, 1932.)

      Arthur W. Fried for appellant.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden of counsel), for respondent.
   Appeal dismissed on the ground the appeal was taken without leave and no constitutional question is involved; no opinion. (See 260 N. Y. 566.)

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


text:
    Grace E. Lowendahl, Suing on Behalf of Herself and Others, Respondent, v. L. Van Bokkelen, Inc., Appellant.
    (Argued May 10, 1932;
    decided July 19, 1932.)

      Frederick H. Wood, Bruce Bromley and George F. Shea for appellant.

      Neil P. Cullom, James E. Freehill and Henry W. Steingarten for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Robert C. Nelson, Appellant.
    (Argued June 6, 1932;
    decided July 19, 1932.)

      James A. Leary for appellant.

      Thomas C. T. Crain, District Attorney (John C. McDermott of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Pound, Ch. J., Kellogg, O’Brien, Hubbs and Crouch, JJ. Dissenting: Crane and Lehman, JJ., on the ground that the evidence of guilt is insufficient.


text:
    In the Matter of David MacAdams, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents. In the Matter of David H. Knott, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    (Argued October 4, 1932;
    decided October 6, 1932.)

      . Nathan L. Miller, Harold B. Medina, William Gilbert and John W. Jordan for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and William E. C. Mayer of counsel), for Board of Elections of the city of New York, respondent.

      Morris Hillquit, I. Henry Kutz and Louis Waldman for Algernon Lee, as chairman of the City Committee of the Socialist Party, et al., intervenors-respondents.

      John Godfrey Saxe, John T. Dooling, William B. Crowell, Paul T. Kammerer, David A. Tichtin and Emanuel Van Dernoot for David H. Knott, as chairman of the County Committee of the Democratic Party, respondent.
   Order affirmed, without costs, on the authority of Matter of O’Connell v. Corscadden (243 N. Y. 86). No opinion.

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


text:
    Ida Rothman, Respondent, v. The City of New York, Appellant.
    (Submitted October 3, 1932;
    decided October 11,1932.)
   Motion for reargument of motion to dismiss appeal denied. (See 259 N. Y. 663.)


text:
    Kieren J. Ganly, an Infant, by John B. Ganly, His Guardian ad Litem, et al., Respondents, v. Steel Storage and Trucking Corporation, Appellant, Impleaded with Others.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 396.)


text:
    Knickerbocker Oil Corporation, Respondent, v. Richfield Oil Corporation of New York, Appellant.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 657.)


text:
    In the Matter of Henry Morris, Inc., Appellant, v. The Department of Health of the City of New York, Respondent.
    (Submitted October 3, 1932;
    decided October 11, 1932.) .

      Arthur J. W. Hilly, Corporation Counsel (Arthur if. Kerns of counsel), for motion:

      Max Rothenberg, opposed
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless the appellant files the record within ten days and pays ten dollars costs, in which event the motion is denied.


text:
    Manufacturers Trust Company, as Trustee, Appellant, v. Roerich Museum et al., Respondents; Impleaded with Others.
    (Submitted October 3, 1932;
    decided October 11, 1932.)

      Edward S. Greenbaum for motion.

      J. M. Richardson Lyeth opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion. (See 260 N. Y. 604.)


text:
    Helen Schnatz, as Administratrix of the Estate of Frederick Schnatz, Deceased, Respondent, v. John T. Whalen, Appellant, Impleaded with Others.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 530.)


text:
    Stillwell Theatre, Inc., Respondent, v. Sam Kaplan, as President of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union, Appellant. Rosekay Amusement Corporation, Respondent, v. Sam Kaplan, as President of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union, Appellant. Windsor Circuit Corporation, Respondent, v. Sam Kaplan, as President of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Union, Appellant.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motions for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 405.)


text:
    Central Chandelier Company, Appellant, v. Irving Trust Company, as Trustee in Bankruptcy, Respondent.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 343.)


text:
    Morris Osinoff, Appellant, v. Gert Realty Corporation, Respondent, Impleaded with Others.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion for reargument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 36.)


text:
    Carl W. Stern, Respondent, v. Zucker & Josephy, Inc., Appellant.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 512.)


text:
    Campbell Smith Ritchie Company, Respondent, v. J. Pechenik, Inc., Appellant.
    (Submitted October 3, 1932;
    decided October 11, 1932.)

      Thomas H. Dugan for motion.

      Conrad J. Ruby opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files return within ten days and pays ten dollars costs, in which event the motion is denied.


text:
    Sam Finkelstein, Appellant, v. Celia Freeman et al., Respondents.
    (Argued October 3, 1932;
    decided October 11, 1932.)

      Herbert Sakofsky and Morris M. Oppenheim for motions.

      William F. Dutton opposed.
   Motions granted and appeal dismissed, with costs and ten dollars costs of motions. (See 260 N. Y. 680.)


text:
    Wellington Kenwell, Appellant, v. Clarence F. Lee, as Supervisor of the Town of Inlet, et al., Respondents.
    (Argued October 3, 1932;
    decided October 11, 1932.)

      J. C. Tormey for motion.

      Charles E. Snyder opposed.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York ex rel. Herman Rothenberg, Appellant, v. Lewis E. Lawes, as Warden of Sing Sing Prison, Respondent.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 557.)


text:
    Miles Shoes of New York, Inc., Respondent, v. Niles Bootery, Inc., et al., Appellants.
    (Submitted October 3, 1932;
    decided October 11, 1932.)

      Charles L. Fleece for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten doUars costs of motion.


text:
    The Mayaguez Drug Company, Inc., Appellant, v. The Globe and Rutgers Fire Insurance Company of New York, Respondent.
    (Submitted October 3, 1932;
    decided October 11, 1932.)

      Hugo Wintner for motion.

      B. F. Norris and Frank B. Pitt opposed.
   Motion denied without prejudice to a renewal thereof on the argument of the appeal. (See 260 N. Y. 356, 681.)


text:
    Madison County Trust and Deposit Company, Respondent, v. Ray B. Smith et al., Defendants, and H. Seymour Getman et al., Appellants.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion to amend remittitur granted; return of remittitur requested and when returned it will be amended to read, as follows: The judgment of the Appellate Division modified by granting a new trial and as so modified affirmed with costs to appellants in the Appellate Division and in this court to abide the event.” (See 259 N. Y. 348.)


text:
    In the Matter of Wards Hats, Inc. Edward J. Ryan, Appellant; Samuel I. Kandell, Respondent. In the Matter of Wards Hats, Inc. Rose Jacobs, Appellant; Samuel I. Kandell, Respondent.
    (Appeal No. 1.)
    (Appeals Nos. 2 and 3.)
    (Submitted October 3, 1932;
    decided October 11, 1932.)

      Sidney Weeden for motions.

      Benjamin Berinstein and Solomon Goodman opposed.
   Motions granted and appeals dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Claim of Charles Keller, Respondent, against Elmer Sherwood, Respondent, and Lumber Mutual Insurance Company of New York, Appellant. The State Industrial Board, Respondent.
    (Submitted October 3, 1932;
    decided October 11, 1932.)
   Motion to amend remittitur granted; return of remittitur requested and when returned it will be amended so as to award the employer-respondent a separate bill of costs. (See 259 N. Y. 640.)


text:
    George H. S. Rowe, Individually, and as General Agent of the Travelers Insurance Company, Respondent, v. Cornelius G. DeLoca, Appellant.
    (Submitted October 3, 1932;
    decided October 11, 1932.)

      William Frolich for motion.

      Edward Siegel opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Robert K. Stafford, Appellant, Impleaded with Another, v. New York Life Insurance Company, Respondent, Impleaded with Others.
    (Submitted October 3, 1932;
    decided October 11, 1932.)

      B. F. Norris for motion.

      Robert E. McLear opposed.
   Motion denied, with ten dollars costs, on the ground that the appeal may be taken as of right because of the modification of judgment below.


text:
    Osias Stecher, Respondent, v. Louis Birnhack, Appellant.
    (Submitted October 3, 1932;
    decided October 11, 1932.)

      Saul S. Brin for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Dr. Bloom Dentist, Inc., Respondent, against Michael J. Cruise, as Clerk of the City of New York, Appellant.
    (Submitted October 10, 1932;
    decided October 12, 1932.)
   Motion for reargument denied. Motion to amend remittitur granted; return of remittitur requested and when returned it will be amended by adding the following: The point was . presented by respondent in his . brief on the appeal that, the order herein results in the taking of its property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. Such point was considered and decided by the Court adversely to the respondent.” (Bryant v. Zimmerman, 278 U. S. 63, on page 69.) (See 259 N. Y. 358.)


text:
    In the Matter of Ethel H. Holm, Appellant, against The Board of Education of the City of Rochester, Respondent.
    (Argued October 3, 1932;
    decided October 18, 1932.)

      Henry Redman Dutcher for appellant.

      Clarence M. Platt, Corporation Counsel (Charles B. Forsyth of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Adolph Eichhorn et al., Respondents.
    (Argued October 3, 1932;
    decided October 18, 1932.)

      Henry V. Stebbins, District Attorney {Sydney A. Syme of counsel), for appellant.

      Mortimer B. Patterson, Thomas Oagan and Frank Comesky for respondents.
   Order affirmed; no opinion.

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


text:
    In the Matter of Patrick Hayes, Appellant, against The New York City Employees’ Retirement System, Respondent.
    (Submitted October 4, 1932;
    decided October 18, 1932.)

      Raymond A. McCourt and David Krause for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and Arthur Sweeny of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Mary A. Boyle, Respondent,against The Yellow Taxi Corporation, Appellant. State Industrial Board, Respondent.
    (Argued October 4, 1932;
    decided October 18, 1932.)

      Clarence B. Tippett for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin and Hector A. Bobichon of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Henry Schubert, Appellant, against Abraham Heller et al., Respondents. State Industrial Board, Appellant.
    (Argued October 4, 1932;
    decided October 18, 1932.)

      Benjamin Davidson and David Stern for claimant-appellant.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for the State Industrial Board, appellant.

      William E. Lyons and Barnett Cohen for Royal Indemnity Company, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    City Bank Farmers Trust Company, Individually and as Trustee, Plaintiff, v. Anna F. Ernst et al., Appellants, and City Bank Farmers Trust Company, as Executor of Wood Fosdick, Deceased, et al., Respondents, Impleaded with Another.
    (Submitted October 10, 1932;
    decided October 18, 1932.)

      E. J. Dimock for motion.

      Fitzhugh McGrew and Windsor B. Putnam opposed.
   Motion denied with leave to renew upon argument of appeal.


text:
    Mary A. Henry, Appellant, v. Edward Vintschger et al., Respondents.
    (Submitted October 10, 1932;
    decided October 18, 1932.)

      Rush Taggart and Harry A. Gair for motions.
    No one opposed.
   Motions granted and appeal dismissed, with costs and ten dollars costs of one motion.


text:
    In the Matter of the Claim of Philip Moscon, Respondent, against Martin Thomford et al., Appellants. State Industrial Board, Respondent.
    (Argued October 5, 1932;
    decided October 25, 1932.)

      Frank L. Ward for appellants.

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

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


text:
    In the Matter of Colonial Discount Co., Inc., Appellant, against Joseph A. Broderick, as Superintendent of Banks of the State of New York, Respondent.
    (Submitted October 5, 1932;
    decided October 25, 1932.)

      Joseph B. Quinlan for appellant.

      Jules Hdberman for respondent.
   Order aflarmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Owen Madden, Appellant, against Robert H. Barr, as Warden of the City Prison of the City of New York, et al., Respondents.
    (Argued October 5, 1932;
    decided October 25, 1932.)

      William D. Cunningham, Samuel H. Kaufman, Emil Weitzner, Joseph Shalleck and William T. Harris for appellant.

      John J. Bennett, Jr., Attorney-General {John T. Cahill of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Jeremiah Sullivan, Appellant, against Robert H. Barr, as Warden of the City Prison of the City of New York, et al., Respondents.
    (Argued October 5, 1932;
    decided October 25, 1932.)

      A. H. F. Seeger and Joseph Shalleck for appellant.

      John J. Bennett, Jr., Attorney-General (John T. Cahill of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Widening of Chrystie, Forsyth, Hester, Broome, Rivington and Stanton Streets, in the Borough of Manhattan, City of New York. David Davis et al., Respondents.
    (Argued October 5, 1932;
    decided October 25, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (Joseph P. Mulqueen, Jr., Joel J. Squier, J. Joseph Lilly and Reuben Levy of counsel), for appellant.

      Clarence J. Shearn, Charles J. Nehrbas and Martin Lippman for Charles E. Hughes, Jr., as ancillary receiver of American Bond and Mortgage Company, respondent.

      Henry Herz and Isaac E. Bermant for Hyman Steinberg et al., respondents.

      Louis Salant, Joseph J. Cunningham and Eli S. Wolbarst for Fannie A. Kallis et al., respondents.

      Reginald S. Hardy for Kate Rubino, as executrix of Joseph C. Rubino, deceased, respondent.

      Leffert Holz, Benjamin F. Schreiber and Herman Sckrier for Milton Brinn et al., respondents.

      Charles Lamb and Edmund J. Delany for David Davis et al., respondents.

      Sidney A. Clarkson, Albert A. Hovell and Harry W. McChesney for Harry W. Perlman, respondent.

      Nathan L. Goldstein, George Schenker and Irving S. Dorf for Isabel Blumborg et al., respondents.

      S. G. Nissenson for Nathan Himowich, respondent.

      Francis P. O’Connor and Edward W. Murphy for James N. Webb et al., respondents.

      Charles B. Fernald and F. W. H. Adams for the Chase National Bank of the City of New York et al., respondents.

      Dominic L. O’Reilly, James Regan FitzGerald and A. M. Frumberg for Max Horowitz et al., and Marknew Realty Co., Inc., respondents.

      Leslie J. Tompkins, Dominic L. O’Reilly and James Regan FitzGerald for Bernard L. Meyer et al., respondents.

      Ira B. Livingston for Oscar Lloyd Realty Corporation, respondent.

      Samuel Rubin and William W. Conrad for Stancar Realty Corporation et al., respondents.

      Ignatius Castelli for Charles Lampedusa, respondent. Louis A. Rosenstein and Maurice Janklow for Fanny E. Krooks, respondent.

      Harry Lesser for Samuel M. Krauthamer, respondent. Barnett E. Kopelman and Alexander Liebman for I. Ptaschnik & Son, Inc., respondent.
   Order affirmed, with costs; no opinion. (See 260 N. Y. 658.)

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


text:
    The People of the State of New York, Appellant, v. Richard Miller et al., Respondents. The People of the State of New York, Appellant, v. Arthur Burnett et al., Respondents.
    (Argued October 6, 1932;
    decided October 25, 1932.)

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer and Peter J. Brancato of counsel), for appellant.

      George W. Percy for Richard Miller and Arthur Burnett, respondents.

      Lucius H. Beers, Sherman Baldwin and Woodson D. Scott for The Trustees of the Freeholders and Commonalty of the Town of Southampton, respondent.
   Judgments affirmed, with costs; no opinion.

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


text:
    Eugene Keet, Respondent, v. Howard Murrin, Appellant.
    (Argued October 7, 1932;
    decided October 25, 1932.)

      John H. Broderick and Thomas H. Guy for appellant.

      Jacob M. Frankel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Catherine Butler, as Administratrix of the Estate of Charles Butler, Deceased, Appellant, v. Kenny Bros., Inc., Appellant, and Taylor-Fichter Steel Construction Co., Inc., Respondent, Impleaded with Another.
    (Argued October 7, 1932;
    decided October 25, 1932.)

      Frank W. Holmes, Alfred T. Tompkins and Alexander Kerner for Kenny Bros., Inc., defendant-appellant.

      Grant C. Fox and Edward D. Loughman for plaintiff-appellant.

      Charles Capron Marsh and Rolph Thayer Marsh for respondent.
   On appeal by Kenny Bros., Inc.: Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. On appeal by plaintiff: Judgment affirmed, with costs. No opinion.

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


text:
    Anna Murmann, as Administratrix of the Estate of George J. Murmann, Deceased, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.
    (Argued October 7,1932;
    decided October 25, 1932.)

      E. B. Brumley and John M. Gibbons for appellant. Charles D. Lewis and Thomas J. O’ Neill for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph V. Bendix, Appellant.
    (Submitted October 10, 1932;
    decided October 25, 1932.)

      Alfred I. Rosner for appellant.

      Thomas C. T. Crain, District Attorney (LeRoy Manóle of counsel)/for respondent.
   Judgment affirmed; no opinion.

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


text:
    Joseph Valvo, Respondent, v. The State of New York, Appellant.
    (Argued October 11, 1932;
    decided October 25, 1932.)

      John J. Bennett, Jr., Attorney-General {John L. Camp-hell of counsel), for appellant.

      G. lAnnemann Prescott for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Melissa T. Gracey, Appellant, v. Jasper A. Campbell, Jr., et al., Copartners under the Firm Name of Campbell, Starring & Company, Respondents.
    (Argued October 11, 1932;
    decided October 25, 1932.)

      Edward D. Bryde for appellant.

      William E. Bardusch and Harold A. Scheminger for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the City of Utica, Respondent, against The George F. Weaver Sons Company et al., Appellants.
    (Submitted October 17, 1932;
    decided October 25, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 584.)


text:
    Theodore W. Seckendorff, Respondent, v. Halsey, Stuart & Co., Incorporated, Appellant, Impleaded with Others.
    (Submitted October 17, 1932;
    decided October 25, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 353.)


text:
    The People of the State of New York, Respondent, v. Joseph Brown and Charles Markowitz, Appellants.
    (Argued October 6, 1932;
    decided October 28, 1932.)

      Alexander I. Borke, John T. Hogan, Thomas Jefferson Byan and Joseph W. O’Donnell for Joseph Brown, appellant.

      Martin C. Ansorge, Sidney C. Grane and Henry A. Drescher for Charles Markowitz, appellant.

      Thomas C. T. Crain, District Attorney {Robert C. Taylor of counsel), for respondent.
   Judgment of conviction as to each defendant affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Gentaro Akiyama, Appellant.
    (Argued October 10, 1932;
    decided October 28, 1932.)

      William B. Moore for appellant.

      John B. Schwartz, District Attorney (Thomas A. Lavery of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Frank L. Woods et al., Respondents, v. C. E. Mills Oil Company, Appellant.
    (Argued October 12, 1932;
    decided October 28, 1932.)

      Stewart F. Hancock and Benjamin E. Shove for appellant.

      Thomas Woods for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Washington Mortgage Corporation et al., Appellants, v. Forways Realty Corporation et al., Defendants, and National Theatre Supply Company, Inc., Respondent.
    (Submitted October 12, 1932;
    decided October 28, 1932.)

      Leonard Acker and Samuel Rubinton for appellants.

      Albert S. Goldberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound,. Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ. t . .


text:
    Constantine Zitz, Respondent, v. Louis D. Waxberg et al., Appellants.
    (Argued October 12, 1932;
    decided October 28, 1932.)

      John W. Jordan, Harold R. Medina, Harold R. Oakes and William Butler for appellants.

      Manley J. Greenwald and Henry S. Sellin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Manor Realty Company, Appellant, v. Harry Koeppel et al., Defendants, and Abraham Lipsky et al., Respondents.
    (Argued October 13, 1932;
    decided October 28, 1932.)

      Robert S. Kristeller for appellant.

      Emil Weitzner, Jacob Goodman and Sidney Friedman for respondents.
   Judgment affirmed, with costs; no opinion.

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