text:
    (Argued July 11, 1935;
    decided September 9, 1935.)

      Richard H. Level for appellant.
    Constitutional provisions prohibit the Superintendent of Insurance and the Mortgage Commission from any act divesting the certificate holders of their property rights. (People ex rel. Simpson Co. v. Kempner, 154 App. Div. 674; Lord v. Equitable Life Assur. Society, 194 N. Y. 212; Wynehamer v. People, 13 N. Y. 378; Forster v. Scott, 136 N. Y. 577; Louisville Joint Stock Land Bank v. Radford, 79 L. Ed. 920; Worthen Co. v. Kavanaugh, 295 TJ. S. 56; East Tennessee V. & G. Ry. Co. v. Frasier, 139 U. S. 288; Von Hoffman v. Quincy, 4 Wall. 535; Bronson v. Kinsie, 1 How. 311; Brine v. Hartford Fire Ins. Co., 96 U. S. 627; Barnitz v. Beverly, 163 U. S. 118; Howard v. Bugbee, 24 How. 46; Connecticut Mut. Life Ins. Co. v. Cushman, 108 U. S. 51; Union Sewer-Pipe Co. v. Connelly, 99 Fed. Rep. 354; 184 U. S. 540; Matter of Knapp, 127 Cal. 101; Mobile v. Orr, 181 Ala. 308; People v. Schenck, 257 Ill. 384; Sterett v. Portland, 79 Ore. 260.) The attempt of the Mortgage Commission to take over the bond and mortgage and to exercise powers and functions purported to be granted under the Mortgage Commission Act (L. 1935, ch. 19, as amd.) violates section 1 of article 6 of the New York State Constitution since it deprives the State Supreme Court of its inherent equity jurisdiction. {Alexander v. Bennett, 60 N. Y. 204; Davis v. Zimmerman, 91 Hun, 489; Ocorr v. Lynn, 105 Mise. Rep. 489.) The Mortgage Commission Act violates sections 2 and 3 of article 5 of the State Constitution since it attempts to bestow functions of a civil department upon a special commission which is neither temporary nor for a special purpose, and is, therefore, unconstitutional and void. {People v. Tremaine, 252 N. Y. 27; Gause v. Commonwealth Trust Co., 196 N. Y. 134; Colton v. Rossi, 9 Cal. 595; Commonwealth Beal Estate Co. v. South Omaha, 78 Neb. 368.) The Mortgage Commission Act violates section 1 of article 7 and section 9 of article 8 of the State Constitution since it attempts to loan the credit and give the money of the State of New York to or in aid of a corporation for private undertaking, and hence is unconstitutional and void. (Attorney-General v. North American Life Ins. Co., 82 N. Y. 172; New State Ice Co. v. Liebmann, 285 U. S. 262.) The Mortgage Commission Act violates sections 1 and 4 of article 8 of the State Constitution since it attempts by special act to create a special charter for banking purposes. (Johnson v. Hudson River R. R. Co., 49 N. Y. Vernier v. Farmers Loan & Trust Co., 54 App. Div. 271: 176 N. Y. 549.)

      Henry N. Rapaport and Harold M. Steinmetz for Sylvia Zubrow et ah, amici curice.

    There is constitutional prohibition against the impairment of contractual obligations. (U. S. Const, art. I, § 10, and XIYth Amendment; N. Y. Const, art. I, § 6; People v. Budd, 117 N. Y. 1; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; People ex rel. Manhattan Sav. Institution v. Otis, 90 N. Y. 48; Board of Commissioners of Tippecanoe County v. Lucas, 93 U. S. 108; Hughes v. Cuming, 165 N. Y. 91.)

      Lawrence S. Greenbaum, Maurice Finkelstein, Benjamin Kaplan, Joseph Kugel, Justin N. Reinhardt and Benjamin J. Rabin for Mortgage Commission of State of New York, respondent.
    The Mortgage Commission Act effects a change in remedies previously and constitutionally created by statute and is, accordingly, constitutional. (Matter of People [Title & Mortgage Guarantee Co.], 264 N. Y. 69; Matter of People [New York Title & Mortgage Co.], 264 N. Y. 475; Walsh v. State, 223 App. Div. 319; 248 N. Y. 408; Matter of Atlantic Ins. Co., 133 Mise. Rep. 464; Masters v. Eclectic Life Ins. Co., 215 App. Div. 424; Gibbes v. Zimmerman, 290 IT. S. 326; Matter of People Surety Co.], 264 N. Y. 473; Louisville Joint Stock Land Bank v. Radford, 79 L. Ed. 920; Doty v. Love, 295 U. S. 64.) The act may be sustained as an emergency measure. {Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; Wilson v. New, 243 IT. S. 332; Block v. Hirsh, 256 U. S. 135; Brown Holding Co. v. Feldman, 256 U. S. 170; Levy Leasing Co. v. Siegel, 258 U. S. 242; People ex rel. Durham R. Corp. v. LaFetra, 230 N. Y. 429; 257 U. S. 665; Sliosberg v. New York Life Ins.. Co., 244 N. Y. 482 ; 275 U. S. 526; McCullough v. Maryland, 4 Wheat. 316.) The Mortgage Commission Act does not deprive the Supreme Court of inherent equity power in violation of section 1 of article 6 of the State Constitution. {Matter of Union Bank, 204 N. Y. 313; Matter of Casualty Co., 244 N. Y. 443; People v. Knickerbocker Life Ins. Co., 199 App. Div. 503; 233 N. Y. 604; Reed v. Squire Co., 217 App. Div. 494; Matter of Russian Reinsurance Co., 223 App. Div. 378; Matter of Second Russian Ins. Co., 219 App. Div. 46; 244 N. Y. 606; Matter of People [National Surety Co.], 264 N. Y. 473; Matter of Atlantic Ins. Co., 133 Mise. Rep. 464; Masters v. Eclectic Life Ins. Co., 215 App. Div. 424; Walsh v. People, 223 App. Div. 319; 248 N. Y. 408; Matter of Guardian Mut. Life Ins. Co., 13 Hun, 115; 74 Y. 617; Ruggles v. Chapman, 1 Hun, 324; 59 N. Y. 163; 64 N. Y. 557; Matter of Attorney-General v. North American Life Ins. Co., 85 N. Y. 485; 89 N. Y. 94; 92 N. Y. 654; People v. American Steam Boiler Ins. Co., 147 N. Y. 25.) The act does not violate section 1 of article 8 of the State Constitution. {Smith v. Havens Fund, 44 Mise. Rep. 594; 118 App. Div. 678; 190 N. Y. 557; Oneonta Light & Power Co. v. Schwarzenbach, 164 App. Div. 548.) The Mortgage Commission Act is not unconstitutional by reason of repugnance to the provisions of section 1 of article 7 and section 9 of article 8 of the State Constitution providing that the credit of the State shall not be given or loaned to or in aid of any individual, association or corporation, and that neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. (Matter of People [City Bank Farmers Trust Co.], 265 N. Y. 20; Matter of People [Central Hanover Bank & Trust Co.], 265 N. Y. 287; People v. Westchester County Nat. Bank, 231 N. Y. 465; People ex rel. Commissioners v. Banks, 67 N. Y. 568; Lehigh Valley R. R. Co. v. Canal Bd., 204 N. Y. 471; Splittorf v. State, 108 N. Y. 205; Oswego v. State, 226 N. Y. 351; United States v. Realty Co., 163 U. S. 427.)

      Harry Rodwin for Superintendent of Insurance of State of New York, respondent.
    The Mortgage Commission Act is constitutional. (Matter of People [Title & Mortgage Guarantee Co.], 264 N. Y. 69; Matter of People [New York Title & Mortgage Co.], 264 N. Y. 475.)

      Joseph W. Bryan for Title and Mortgage Company of Westchester County, respondent.

      Timothy Newell Pfeiffer for Title Guarantee and Trust Company, respondent.
   Lehman, J.

The appellant purchased from West-chester Title and Trust Company in 1931 a certificate, issued as part of a series purporting to assign undivided interests in a mortgage on a six-story apartment house. The issuing company guaranteed the payment of the amount of such undivided interests. By the terms of the certificate the issuing company was appointed irrevocably by the assured as the agent of the assured to collect the interest and principal of the bond and mortgage and to perform other functions which are commonly included in the servicing ” of mortgages. In 1933 the Superintendent of Insurance secured from the Supreme Court an order directing the rehabilitation of the West-Chester Title and Trust Company, under article XI of the Insurance Law (Cons. Laws, ch. 28). In 1934 defaults occurred under the mortgage. Then the Superintendent of Insurance, exercising his statutory powers conferred by chapter 745 of the Laws of 1933, commonly known as the Schackno Act, promulgated a plan for the reorganization of the mortgage investment covered by the series of certificates. The plan was approved by the court and until the present time the mortgagor has complied with all its terms.

The petitioner received a copy of the notice of hearing upon the proposed plan of reorganization. She filed no objections to that plan and does not now challenge the validity of the order for its approval. In one respect, however, that plan cannot be carried out according to its strict terms. It provided that The agency of the West-chester Title and Trust Company to service the mortgage as evidenced by the certificates of participation issued by it shall be continued for the period of this mortgage and such service shall be performed by such corporation in rehabilitation either by itself or its duly authorized agent.” For such service the company was to be allowed one-half of one per cent of the unpaid principal amount of the mortgage. The guaranty of the Westchester Title and Trust Company was continued. In June, 1935, the Superintendent of Insurance secured an order directing the liquidation of that company. It can no longer act as agent of the holders of the certificates in servicing the mortgage certificates. The Mortgage Commission, appointed pursuant to the provisions of chapter 19 of the Laws of 1935, seeks to take over and administer the mortgage investment and claims power to exercise the rights heretofore held or exercised by the Westchester Title and Trust Company. It is not disputed that the statute purports to confer upon the Commission the rights and powers it claims. The petitioner challenges the validity of the statute on constitutional grounds. Her application to enjoin the Mortgage Commission from exercising any control over the mortgage, in which the petitioner has an interest, was denied at Special Term.

The questions which we can pass upon on this appeal are narrow. The statute which provides for the appointment of the Mortgage Commission purports to confer upon the Commission powers and authority to perform acts which, it is said, may deprive owners of mortgages of their property without due process of law or which may impair the obligations of contracts. In this case the Commission is asserting only the power to take over from Westchester Title and Trust Company, now in liquidation, the control of the mortgage investment and the authority to service ” the mortgage investment which until now has been exercised by the title company, as agent. All that we can now determine is whether the legislative grant of that power to the Mortgage Commission violated any mandate or restriction imposed by the Constitution of the United States or the Constitution of the State of New York. No question of whether attempted legislative grant of other powers, or attempted exercise by the Commission of powers granted to it, results in unlawful taking of property or impairment of contract is now presented or determined.

In Matter of People (Title & Mortgage Guarantee Co.) (264 N. Y. 69) this court sustained the validity of the earlier statute (Laws of 1933, ch. 745) which conferred similar authority and powers upon the Superintendent of Insurance. True, in that case, the mortgage investment was evidenced by certificates of different form, and the interest of the holders of the certificates in the mortgage investment may, perhaps, have been less direct than the interest of the petitioner, here, in the mortgage investment over which the Mortgage Commission is now asserting right of control. Then, too, the provisions in regard to the depository of the mortgage are not the same. Such differences are, however, immaterial where the question concerns only the right to possession and control of the mortgage investment. Such differences do not affect the basic conditions which justified legislative action for the protection of the general welfare and the interests of holders of certificates. The rights of the certificate holders are substantially similar. The need is the same for the interposition of a State agency in the control of the mortgage investment after the appointed corporate agent has been taken over by a statutory receiver. At least until those interested in the investment have agreed upon some other method of control and administration of the investment, the Legislature could give to a public officer the authority in such case to take care of the mortgage investment and to take appropriate steps for the protection of the holders of certificates. The Superintendent of Insurance has, indeed, taken such action, without challenge by this petitioner, prior to the reorganization of the petitioner’s original mortgage investment. Since then the power of control and administration vested by the Legislature in the Superintendent of Insurance has been transferred by the Legislature to the Mortgage Commission. Except for that change, there could be no serious doubt that the Superintendent would now be vested with the power and subject to the duty to assume temporarily, at least, possession and control of the mortgage investment when the order of liquidation of the corporate agent appointed under the plan of reorganization was entered. Change of depository and substitution of agent under these circumstances do not constitute an impairment of the obligation of the contract between the certificate holders and the guaranty corporation within the scope of the constitutional restriction of the power of the State. If, as the petitioner contends, the agency of the Westchester Title and Trust Company has been terminated by the order of liquidation, then the State may step in for the protection of certificate holders who would otherwise, in the absence of an agent appointed by unanimous agreement, be without protection. That follows from our earlier decision in Matter of People (Title & Mortgage Guarantee Co.) (264 N. Y. 69). Its conclusions are fortified rather than weakened by the opinions of the Supreme Court of the United States in Worthen Co. v. Kavanaugh (295 U. S. 56); Louisville Joint Stock Land Bank v. Radford (295 U. S. 555); Doty v. Love (295 U. S. 64). The remaining question which we must now determine is whether the Legislature may transfer the powers and duties previously vested in the Superintendent of Insurance to the Mortgage Commission.

The powers vested in the Superintendent of Insurance to control and administer mortgage investments of guaranty companies which he had taken over for rehabilitar tion (Laws of 1933, ch. 745), imposed upon him an extraordinary function intended to meet the extraordinary condition created by the economic depression. They were an adjunct to his ordinary functions and powers under the Insurance Law. After almost two years’ trial the Legislature determined to transfer the extraordinary powers and functions to a new public body which it created in corporate form. The original grant of power was not an impairment of the powers of the Supreme Court; nor is the transfer of such powers to the new public body created by the Legislature. The Legislature could provide a new method for the administration of these mortgage investments for the benefit of those interested in such investments without invasion of the' equity powers of the Supreme Court over trusts. The Legislature has found among other things that The holders of mortgage investments in many thousands of issues are numerous and it has been difficult to obtain concerted action by them. The department of insurance and the banking department are not sufficiently equipped to enable their personnel to efficiently perform their usual duties and properly carry on their normal functions, and, in addition, to perform the burdensome task of representing the holders of mortgage investments of thousands of separate and distinct mortgage issues which require the proper administration of upwards of twenty thousand parcels of real property underlying the same.” It has determined that the condition should be met by legislation “ conferring power upon a new state agency to act promptly and to encourage, promote and facilitate self-organization by the holders of mortgage investments until such time as there may be established other effective organizations for the administration of their interests.” (Laws of 1935, ch. 19, art. I, § 1; as amd. by Laws of 1935, chs. 290, 586 and 638.) It is said that the creation of the new public agency violates article Y, sections 2 and 3, of the Constitution of the State.

Those sections provide for a number of civil departments in the State government including the Departments of Insurance and of Banking and for the “ appropriate assignment * * * of all the civil, administrative and executive functions of the state government, to the several departments in this article provided. ⅜ new departments shall be created hereafter, but this shall not prevent the legislature from creating temporary commissions for special purposes.”

Perhaps, under normal conditions, the powers and functions of the Mortgage Commission would be appropriately assigned to either the Department of Banking or the Department of Insurance; but the Legislature has found that more efficient administration can be secured by the creation of a temporary commission for that purpose. In adopting that course it has not violated the restriction placed upon its powers by the Constitution of the State.

The conditions which called forth this exercise of legislative position are not normal. It is quite immaterial whether or not we describe these conditions as an “ emergency.” Certainly they are unusual, and in some respects without precedent in the history of mortgage investments. They call for prompt action and, in the opinion of the Legislature, no department is now equipped for such action. The Commission is created for the special purpose of prompt and effective action during the period when there is special need for prompt and effective action by a public agency properly equipped for that purpose. If the Commission is successful in carrying out the purposes for which it has been created, the permanent departments will, it may be hoped, be able to assume those functions in relation to mortgage investments which the Legislature, in normal times, may confer upon them. The life of the Commission expires on January 1, 1940. It may be terminated earlier by the Legislature. Thus the Commission is “ temporary ” and is created a special purpose ” within the plain intendment of the constitutional provision.

Objection is further urged that the Legislature has violated provisions of the Constitution of the State by creating a banking corporation for banking purposes (Art. VIII, § 4), and by giving or loaning the credit or money of the State in aid of a corporation or private (Art. VIII, § 9). Though the Commission is created as “ a body corporate and politic its functions are solely those of a public agent or public body appointed to carry out a legitimate governmental purpose. It is clearly not a banking corporation within the meaning of the Constitution; it does not become proprietor of any property, it does not perform any functions except those imposed upon it as a governmental agency; it receives no moneys of the State except for the purpose of carrying out governmental purposes. It uses the moneys of the State for the benefit of the People of the State. The moneys appropriated for its expenses are public moneys and remain public moneys until expended for such governmental purposes. The restrictions of the Constitution do not apply here.

It follows that the Legislature could vest in the Mortgage Commission those functions and powers which it could vest in the Superintendent of Insurance or other officer of the State. The extent of the functions and power which might be vested either in a public officer or commission cannot be determined until the exercise of a particular power is challenged. Now we can decide only that the statute creating the Mortgage Commission and vesting it with power to hold and administer the mortgage investment in which the petitioner has an interest is valid. We attempt no general definition of the extent of the powers which might without violation of the Constitution of the United States or the State of New York be vested in any public officer or body.

Such questions as concern the powers of supervision by the Supreme Court over the administration and control of the mortgages, the validity of the specific plans of reorganization, and the amount which may be charged up by the Commission for expenses against the income and other matters which may arise in the course of administration, are not now before us and we do not pass upon them.

The order should be affirmed, without costs.

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

Order affirmed.


source: Caselaw Access Project

author: Lehman, J. Finch, J.

license: Public Domain

text:
    Esther Caplan, Appellant, v. Hyman Caplan et al., Individually and as Copartners under the Firm Name of E. Caplan & Son, Respondents.
    (Submitted June 11, 1935;
    decided October 1, 1935.)

      Carleton J. King for appellant.
    The partners are jointly and severally liable. (Allen v. Allen, 246 N. Y. 571; Thompson v. Thompson, 218 U. S. 611; Cons. Laws, ch. 39, §§ 24, 26, subd. 1; Roberts v. Johnson, 58 N. Y. 613; Matter of Peck, 206 N. Y. 55; Schubert v. Schubert Wagon Go., 249 N. Y. 256; First Nat. Bank v. Far son, 226 N. Y. 218.) The partnership is hable. (First Nat.

      Bank v. Farson, 226 N. Y. 218; Schubert v. Schubert Wagon Co., 249 N. Y. 256.) The partnership has a distinct and independent status from the individuals who make up the partnership. (Cons. Laws, ch. 39, § 20; Hathaway v. Clendening Co., 135 App. Div. 407; Liberty Nat. Bank v. Bear, 276 U. S. 215; Matter of Dumarest, 146 Mise. Rep. 442.) Section 24 of the Partnership Law (Cons. Laws, ch. 39) does not relieve the partnership of liability. CSchubert v. Schubert Wagon Co., 249 N. Y. 256; Wait v. Pierce, 191 Wis. 202.)

      James J. McNaughton and Lawrence B. McKelvey for respondents.
    The partnership is not liable to the wife of a negligent partner. (Schubert v. Schubert Wagon Co., 249 N. Y. 256; Allen v. Allen, 246 N. Y. 571; Thompson v. Thompson, 218 U. S. 611; Cons. Laws, ch. 39, § 24; Matter of Peck, 206 N. Y. 55; Jacobs v. Maryland Casualty Co., 198 App. Div. 470; 234 N. Y. 622; Hartigan v. Casualty Co. of America, 227 N. Y. 175; Belleson v. Skil-beck, 242 N. W. Rep. 1; David v. David, 157 Atl. Rep. 755.)
   Lehman, J.

The plaintiff has brought an action against the members of a partnership, jointly and severally, to recover damages caused by the negligence of one partner while driving an automobile in the business of the partnership. The pleadings disclose that the negligent partner was the husband of the plaintiff. On that ground the plaintiff’s right to bring the action has been challenged.

“ A wife may not maintain an action against a husband nor a husband against a wife, for personal injuries, whether negligent or willful.” (Schubert v. Schubert Wagon Co., 249 N. Y. 253, 255; Schultz v. Schultz, 89 N. Y. 644; v. Allen, 246 N. Y. 571.) To that extent the common-law doctrine still prevails that in marriage the persons of husband and wife become merged, and neither is hable for injuries wrongfully inflicted upon the other. The immunity does not extend to others who wrongfully inflict personal injuries upon a wife even though the husband be used as agent. (Schubert v. Schubert Wagon Co., supra.) All the members of a partnership are jointly and severally hable for torts committed in the course of the partnership business by an employee (Roberts v. Johnson, 58 N. Y. 613), or by a partner (Kavanaugh v. McIntyre, 210 N. Y. 175; affd., 242 U. S. 138). In all the cases where, heretofore, liability has been imposed for the acts of an agent or partner, the defendant has been a person, natural or artificial, other than the husband of the plaintiff. Now the problem arises whether a wife may sue the members of a partnership which includes her husband, upon a cause of action which she could not maintain against her husband if sued alone.

A partnership is not, like a corporation, an artificial person created by law and existing independent of the persons who create or control it. We have said that the acts performed in the name of a partnership cannot ordinarily be considered apart from the persons composing it. A partnership is not like a corporation, which is a legal entity having certain rights and subject to defined liabilities. * * * It has a name by which individuals conduct a joint business and in which their accounts as such are kept, and through which certain established equitable rights in marshaling assets are of Peck, 206 N. Y. 55, 60.) True, because a partnership conducts a joint business and holds its property jointly; because ordinarily it keeps accounts of that business, and because its members are jointly hable upon its obligations, and its creditors may look primarily to the joint property for satisfaction of its obligations, a partnership is regarded among business men as possessing some of the attributes of a separate entity (Hartigan v. Casualty Co., 227 N. Y. 175; Jones v. Blun, 145 N. Y. 333); but it appears even from these cases that in law it is not a separate entity. It is defined by the Partnership Law (Cons. Laws, ch. 39), section 10, as “ an association of two or more persons to carry on as co-owners a business for profit.” Its obligations are the. joint obligations of its members, but like other joint obligations may at times be satisfied by proper proceedings out of their separate property, and, when sued, all the joint debtors must be named as parties defendant.

In the field of liability for torts it is especially apparent that a partnership cannot be regarded as an entity independent of the persons who compose it. In that field it has been said often that liability is joint and several. Perhaps it would be more accurate to say that the members of a partnership are treated like other persons who jointly commit a tort, either in person or by the hand of an agent. All may be held jointly for the tort so committed, or each may be sued individually. So we have said that “ the plaintiff may proceed against any one, all, or such number of the wrongdoers as he may choose.” (Roberts v. Johnson, 58 N. Y. 613, 616; Kavanaugh v. McIntyre, 210 N. Y. 175; affd., 242 U. S. 138.)

The joint liability is, at least, analogous to a true partnership liability and entitles the injured person to payment out of the partnership assets in preference to the individual creditors of the partners; the individual liability of each partner gives rise to a preference to payment out of his separate estate over other creditors of the partnership. Thus a judgment against all the members of a partnership jointly and individually may be satisfied out of the joint assets of the partnership or the separate assets of each partner, and upon insolvency and marshaling of assets the judgment creditor is preferred in the distribution of both joint and separate estates. (Matter of Peck, 206 N. Y. 55.)

The argument that a husband, though immune from liability to his wife for injuries inflicted by him upon her person, should still be liable to her jointly or individually for injuries when inflicted by a partnership of which he is a member, is without substantial foundation. Certainly if the others who joined in the tort are disregarded and the husband is sued individually for his own wrong he cannot be held liable. Nor is the situation different when the husband is sued as a member of a copartnership to enforce his joint and individual liability for acts committed through an agent by the partnership. There, as we pointed out in the Schubert case, liability must not be confused with culpability. The liability of a principal for his wrong committed through the hand of an agent upon the person of the wife exists though the relationship of husband and wife disables the wife from suing her husband. Conversely a wife may not sue a husband for a trespass upon her person, whether committed by the husband in person or through his agent. Upon no principle, based either on reason or tradition, can immunity of a husband for wrong committed in person be reconciled with liability for wrong committed by a husband through the hand of an agent.

Here also there can be no distinction between liability that is joint and liability that is individual. The quality of the wrongful act is not changed by the circumstance that others may have joined in its commission, nor is the nature of the liability of those who have joined in it. The injured party has the right to choose those against whom liability is to be enforced and may join those selected as defendants in one action. Right to select those against whom liability is to be enforced does not embrace a power to impose liability against one to whom the law grants immunity nor does it remove any disability to sue. Thus no action may be maintained by a wife against a husband, either individually or jointly, for a trespass upon her person by her husband, and since he is not hable for such a wrong jointly with his partners, it follows that no judgment can be rendered against all the members of the partnership and in consequence against the partnership itself; for a partnership liability is a joint liability of all tbe partners and there can be no judgment against the partnership except in an action against all the partners to enforce their joint liability.

The question remains whether another partner may be held individually liable in such case. Doubtless if the trespass had been committed by an employee rather than a partner who was immune from liability, an action might be maintained against any partner individually. (Roberts v. Johnson, supra; Schubert v. Schubert Wagon Co., supra.) Does the circumstance that the trespass was committed by a partner who is himself immune from liability dictate a different rule? Though culpability should not be confused with liability, it seems unfair that one partner should be held responsible for the wrong of another partner who enjoys a personal immunity. Nevertheless an injured party should not be deprived of right to compensation from any person who through an agent has wrongfully injured her, because she rests under a disability to maintain an action against all those who were parties to the wrong.

We have assumed, so far, that the husband acted as the agent of the partnership when he injured his wife, because he was then driving an automobile in the business of the partnership. For most purposes a partner may be regarded as the agent of the partnership in connection with all acts performed by him in the course of the partnership business, yet in some respects that is not entirely true. (Cf. Partnership Law, § 4, subd. 3; § 20, subd. 1.) Perhaps it would be more accurate to say that each partner acts, as to himself, as a principal, having a joint interest in the partnership property, and, as to each other partner, as a general agent.” (First Nat. Bank v. Farson, 226 N. Y. 218, 221.) Even insofar as a partner acts as general agent of his partners, the circumstance that he at the same time acts as principal as to himself produces some complications, and the rules of agency cannot always be applied as if no such complications existed. (See Burdick on the Law of Partnership [3d ed.], p. 210; Guarantee Trust & Safe Deposit Co. v. Drew Investment Co., 107 La. 251, at p. 256.)

The responsibility of all the partners for the act of a partner in the course of its business flows from the relationship of copartners. Each has actual or apparent authority to bind all the partners by acts in the course of the partnership business, and ordinarily all are responsible for torts committed in the course of the joint business. Where the law grants to a partner immunity from liability for his own acts there can be no partnership liability asserted against all the partners, and the foundation of liability arising from a joint venture fails. Then, to hold the other partners individually liable for fault of a copartner, though the erring partner is immune, would create an anomaly. Freedom from liability by all the parties in such case is not an extension of the personal immunity of the erring partner. It arises from the fact that partners are hable for the acts of a copartner in a business carried on by them jointly only within the field where liability is joint. For these reasons the plaintiff cannot maintain an action against the defendants or any of them jointly or severally for the wrong committed by her husband.

The distinctions we have pointed out are, indeed, embodied in the Partnership Law. Section 24 provides: “ Partnership bound by partner’s wrongful act. Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership * * * the partnership is liable therefor to the same extent as the partner so acting or omitting to act.” Section 25 is entitled: “ Partnership bound by partner’s breach of trust,” and provides that the partnership is bound to make good the loss where moneys received are misapplied by a partner. Section 26 then provides:

Nature of partners’ liability. All partners are liable 1. Jointly and severally for everything chargeable to the partnership under sections twenty-four and twenty-five. 2. Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract.”

The liability of a partnership for a partner’s wrongful acts, as defined by section 24, is thus limited to liability to the same extent as the partner so acting or omitting to act.” Where that partner is not liable for a wrongful act, this section imposes no liability upon the partnership or its members. It is said, however, that these sections of the Partnership Law are merely declaratory of the common law, and were not intended to extend or limit the common-law rules of liability. Though that be true, they represent a legislative codification of the common law, and we have found no case in any jurisdiction where a liability has been successfully asserted against a partnership for the wrongful act of a partner where the partner who performed the wrongful act was not hable.

It is true that in the case of Schubert v. Schubert Wagon Co. we expressly rejected the decisions of other States that a principal is not hable for the act of an agent who is himself immune from habihty, and in those States no action could be maintained the rules of agency against a partnership or its individual members for wrongful acts committed by a partner who was himself not hable. Other obstacles and disabilities, long since removed by statute or decisions in this State, also barred, at common law, actions by a wife against a partnership in which her husband was a partner. These obstacles may explain to some extent the absence of any case in which a partnership or any of its members has been held hable for an act of a partner for which he is not hable. The fact still remains that there is no authority sustaining a common-law habihty of a partnership broader than the habihty defined by the Partnership Law, literally construed, and in two recent cases it has been decided that there is no broader rule of liability. (David v. David, 161 Md. 532; Belleson v. Skilbeck, 185 Minn. 537.) Reason, authority and statutory codification of the common law alike dictate that conclusion.

The judgment should be affirmed, with costs.

Finch, J.

(dissenting). The plaintiff, while riding in an automobile driven by Hyman Caplan, her husband, and owned by E. Caplan & Son, a copartnership, consisting of said Hyman Caplan and Simon Caplan, sustained personal injuries as the result of a collision between the automobile and a bus. An action brought by her against the bus company was terminated by a verdict of no cause of action. The plaintiff then commenced this action against the defendants individually and as copart-ners. The answer admits ownership and the use of the car at the time in the partnership business and sets up as a defense that the driver of the automobile, the defendant Hyman Caplan, is the husband of the plaintiff. The reply admits the relationship between these parties. A motion by the defendants for judgment on the pleadings dismissing the complaint was denied at Special Term. The Appellate Division reversed and dismissed the complaint.

The sole question involved is whether the complaint states a cause of action against either of the partners or the partnership.

The common-law rule that one spouse cannot sue the other, although relaxed to a large extent by the “ Married Women’s Law ” (Cons. Laws, ch. 14, art. 4), is still effective in this State to bar an action for negligently inflicted personal injuries or other tortious acts. (Allen v. Allen, 246 N. Y. 571; Schubert v. Schubert Wagon Co., 249 N. Y. 253.) It is clear, therefore, that the complaint, in so far as it attempted to state a cause of action against the husband, Hyman Caplan, individually or as a member of the partnership, was properly dismissed.

The plaintiff, however, may maintain a cause of action against the other partner individually. The determination of the question depends upon the application of the principles stated in Schubert v. Schubert Wagon Co. (supra). In the Schubert case the plaintiff sued a corporation for injuries suffered by her as a result of the negligent acts of her husband in the course of his employment by the corporation. Prior to that time several other States had held that a recovery could not be had in similar circumstances. (Maine v. Maine & Sons Co., 198 Iowa, 1278; Riser v. Riser, 240 Mich. 402; Emerson v. Western Seed & Irrigation Co., 116 Neb. 180.)

The distinction between culpability and liability was pointed out in the Schubert case. A wife cannot maintain a suit against her husband but that does not mean that he is not guilty of a wrongful act. The fiction of the unity of husband and wife bars a cause of action. In a way, this is analogous to a contract not to sue. Cakdozo, Ch. J., writing for the court, said: " But the master is not exonerated when the servant has had the benefit of a covenant not to sue (Gilbert v. Finch, 173 N. Y. 455; Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58), or has set up a discharge in bankruptcy, or has escaped liability upon grounds not inconsistent with the commission of a wrong unreleased and unrequited.” (Schubert v. Schubert Wagon Co., supra, at p. 256.) The suit is barred but that does not alter the wrongfulness of the act.

“A. trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity. The trespass may be a crime for which even a husband may be punished, but whether criminal or not, unlawful it remains. As well might one argue that an employer commanding a husband to commit a battery on a wife, might justify the command by the victim’s disability. * * * Unlawful the act remains, however shorn of a remedy. (Bennett v. Bennett, 116 N. Y. 584.) ” (Schubert v. Schubert Wagon Co., supra, at p. 256.)

A principal is liable for tbe wrongful acts of bis agent in the course of his employment. This vicarious liability is founded on the theory that the acts of his agent are his own acts. (Laski, The Basis of Vicarious Liability, [1916] 26 Yale Law Journal, 105.) “ In each case the governs that he who acts through another, acts by himself.” (Schubert v. Schubert Wagon Co., supra, at p. 257.) The wrongful act is regarded as that of the principal and an action may be maintained against him, although an action against his agent is barred by reason of the marital unity, similar to a covenant not to sue. It differs from the situation where it is held that the master is not liable if after a trial it is found that the servant is not liable. (Pangburn v. Buick Motor Co., 211 N. Y. 228; New Orleans & N. E. R. R. Co. v. Jopes, 142 U. S. 18.) There a finding that the servant is not liable necessarily means that the servant is guilty of no wrong. The servant being absolved of wrongdoing, there is no other foundation for a finding that the master has done wrong.

Since the decision in the Schubert case several States have adopted this reasoning. (Chase v. New Haven Waste Material Corp., 111 Conn. 377; Poulin v. Graham, 102 Vt. 307; McLaurin v. McLaurin Furniture Co., 166 Miss. 180. Contra, Sacknoff v. Sacknoff, 131 Me. 280.)

Turning to the law of partnership, we find that it is held that for a tortious act of a partner a cause of action arises against all partners individually and as copartners. (Matter of Peck, 206 N. Y. 55; Roberts v. Johnson, 58 N. Y. 613; Partnership Law, §§ 24, 26.) It may be maintained against any or all of them; it may be maintained alone against one of the partners who has committed no wrong. (Kavanaugh v. McIntyre, 242 U. S. 138, affg. 210 N. Y. 175; Boston Foundry Co. v. Whiteman, 31 R. I. 88; Dixon v. Haynes, 146 Wash. 163; Hamlyn v. Houston & Co., [1903] 1 K. B. 81.)

Each partner acts, as to himself, as a principal, having a joint interest in the partnership property, and, as to each other partner, as a general agent.” (First Nat. Bank v. Farson, 226 N. Y. 218, at p. 221.) The other partner is bound although his agent, the partner actually guilty of the wrongful act, may, as in the case at bar, have a personal defense to a suit brought against him. (Schubert v. Schubert Wagon Co., supra.)

Nor does section 24 of the Partnership Law create a limitation. Section 24 reads as follows: Partnership bound byjpartner’s wrongful act. Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is hable therefor to the same extent as the partner so acting or omitting to act.”

It is argued that this section read literally means that unless the wrongdoing partner is hable, the other partners are not. But the section is not a shield against habihty. It is only declarative of the common law. Such is the statement of the drafter of the Uniform Partnership Act. (Lewis, The Uniform Partnership Act, [1915] 24 Yale Law 617; Lewis, The Uniform Partnership Act, [1915-1916] 29 Harvard Law Keview, 158, 291.) The principles of agency are apphcable to the law of partnership. (Partnership Law, § 4, subd. 3; § 20, subd. 1.) In agency the gist of the principal’s habihty is the agent’s wrongful act, not his habihty. It thus becomes clear that the Appellate Division erred in dismissing the complaint against Simon Caplan, the partner of Hyman •Caplan.

It matters not that ultimately Simon Caplan may recover over from Hyman Caplan by way of indemnity. In the Schubert Case (supra) it was said: We are told that in the long run the consequences of upholding an action against the master may be to cast the burden on the husband, since the master, if not personally at fault, has a remedy over. (Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461; Wash. Gas Light Co. v. Dist. of Col., 161 U. S. 316, 327; Boston etc., Co. v. Kendall, 178 Mass. 232.) The consequence may be admitted without admitting its significance as a determining factor in the solution of the problem. The master who recovers over against the servant does not need to build his right upon any theory of subrogation to a cause of action once belonging to the victim of the injury. A sufficient basis for his recovery is the breach of an independent duty owing to himself ” (p. 257.)

A claim for indemnity against Hyman Caplan would not make him a true party to the original controversy and he need only enter a defense to the claim for indemnity made by the defendant. (Municipal Service Real Estate Co. v. D. B. & M. Holding Corp., 257 N. Y. 423.)

Where a contrary conclusion has been reached in other States it is based on a failure to make the distinction between non-liability and non-culpability. (David v. David, 161 Md. 532. Cf. Belleson v. Skilbeck, 185 Minn. 537.)

Although the complaint must be dismissed as against the partnership because of the bar against one of the partners, no such obstacle stands in the way of a recovery against the other partner individually.

Where an actionable injury has been caused through the tortious act of an employee or one of a number of partners, to deny any right of recovery against all the other partners individually because one of the partners is possessed of an immunity to suit personal to him, it is submitted, results in a great injustice not legally required or justified.

The judgment should be modified so as to reverse the dismissal of complaint against Simon Caplan individually.

Crane, Ch. J., O’Brien and Loughran, JJ., concur with Lehman, J.; Finch, J., concurs in opinion of Lehman, J., as to Hyman Caplan, individually, and the copartnership, but dissents in opinion as to Simon Caplan, individually; Hubbs, J., dissents on authority of Schubert v. Schubert Wagon Co. (249 N. Y. 253); Crouch, J., not sitting.

Judgment affirmed.


author: Per Curiam.

text:
    In the Matter of Jewish Mental Health Society, Appellant, against Village of Hastings et al., Respondents.
    (Argued September 30, 1935;
    decided October 8, 1935.)

      Sidney Newborg and Donald L. Newborg for appellant.
    The hospital is not an insane asylum. Therefore, its location is not barred by the zoning ordinance. (People ex rel. Board of Charities v. N. Y. Soc. P. C. 161 N. Y. 233; 162 N. Y. 429; City of Rochester v. Rochester Girls’ Home, 194 N. Y. Supp. 236.) The attempt to exclude charitable institutions from residential districts is unconstitutional, arbitrary and void. (Women’s Kansas City St. Andrews Soc. v. Kansas City, 58 Fed. Rep. [2d] 593; Continental Oil Co. City of Twin Falls, 49 Idaho, 89; Ignaciunas v. Risley, 98 J. L. 712; 99 N. J. L. 389; Matter of Stevens v. Clarke, 216 App. Div. 351; Matter of Barker v. Switzer, 209 App. Div. 151; 238 N. Y. 624; Jewish Consumptives’ Relief Society v. Town of Woodbury, 230 App. Div. 228; 256 N. Y. 619; Jardine v. City of Pasadena, 199 Cal. 64; Village of University Heights v. Cleveland Jewish Orphans Home, 20 Fed. Rep. [2d] 743; 275 U. S. 569; State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U. S. 116; Nedow v. City of Cambridge, 277 U. S. 183; Buchanan v. Worley, 245 U. S. 60; Liggett Co. v. Baldridge, 278 U. S. 105; Village of Terrace Park v. Errett, 12 Fed. Rep. [2d] 240.)

      John J. Dillon and William D. Cunningham for Village of Hastings et ah, respondents.
    The petitioner’s institution is used and is to be used as an asylum for the insane, a use which is expressly prohibited by the zoning ordinance. (People v. Shakun, 251 N. Y. 107; Cooper-Snell Co. v. State, 230 N. Y. 249; People ex rel. Kemp v. D’Oench, 111 N. Y. 359; Doyle v. City of Troy, 138 App. Div. 650; 202 N. Y. 625.) The ordinance is a reasonable exercise of the police power and is constitutional. (People ex rel. A. P. C. Co. v. Knapp, 230 N. Y. 48; N. Y. C. R. R. Co. v. Williams, 199 N. Y. 108; Skaneateles Water Works Co. v. Village of Skaneateles, 161 N. Y. 154; Matter of Wulf-sohn v. Burden, 241 N. Y. 288; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; People ex rel. St. Albans-

      Springfield Corp. v. Connell, 257 N. Y. 73.) The petitioner has no right to construct the proposed building as a non-conforming use. (American Wood Products Co. v. City of Minneapolis, 21 Fed. Rep. [2d] 440; 35 Fed. Rep. [2d] 657; ex rel. City Ice & Fuel Co. v. Stegner, 120 Ohio, 418; Greenwich Gas Co. v. Tuthill, 113 Conn. 684; Thayer v. Bd. of Appeals of City of Hartford, 114 Conn. 15; People ex rel. Publicity Leasing Co. v. Ludwig, 218 N. Y. 540; Fox Lane Corp. v. Mann, 216 App. Div. 813; 243 N. Y. 550; Bice v. Van Vranken, 225 App. Div. 179; 255 N. Y. 541; Town of Ramapo v. Bochar, 151 Mise. Rep. 613.)

      John J. Bennett, Jr., Attorney-General Epstein of counsel), for Frederick W. Parsons, as Commissioner of the Department of Mental Hygiene, et ah, respondents.
   Per Curiam.

The evidence sustains the finding that the institution of the appellant is an asylum for the insane. In the circumstances the zoning ordinance is a valid exercise of authority reasonably conferred for the general welfare.

The order should be affirmed, with costs.

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

Order affirmed.


text:
    Annie Noonan, Appellant, v. Henry Sonn & Co., Inc., Respondent.
    (Argued October 7, 1935;
    decided October 15, 1935.)

      Allen B. Flouton, Joseph C. Thomson and F. Jerome McNulty for appellant.
    The evidence sustained the cause of action alleged in the complaint so as to create a question of fact for the jury. (Bopp v. New York Electric Vehicle Transp. Co., 177 N. Y. 33; Kirwan v. American Lithographic Co., 197 N. Y. 413; Porges v. United States Mortgage & Trust Co., 203 N. Y. 181; Bergman v. Scottish Union & Nat. Ins. Co., 264 N. Y. 205; Jolliffe v. Miller, 126 App. Div. 763; 196 N. Y. 504; Stump v. Burns, 219 N. Y. 306; Morrison v. Metropolitan Tel. Co., 69 Hun, 100; Schiemann v. Musical Mutual Protective Union, 167 App. Div. 320; Shearod v. Forty-first & Park Ave. Carp., 254 N. Y. 618; Sciolaro v. Asch, 198 N. Y. 77; Pitman v. City of New York, 141 App. Div. 670; Dollard v. Roberts, 130 N. Y. 269.)

      James B. M. McNally, Francis J. MacIntyre and John V. Downey for respondent.
    The dismissal of the complaint was correct and should be affirmed. (O’Toole v. Thousand Island Park Asm., 206 App. Div. 31; Fox v. Village of Manchester, 183 N. Y. 141; Kelly v. City of New York, 188 N. Y. Supp. 801; Todd v. City of Troy, 61 N. Y. 506; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; Kirby v. Newman, 239 N. Y. 470; Kaplan v. Lyons Building & Operating Co., 61 Mise. Rep. 315; Green v. Urban Contracting & Heating Co., 106 App. Div. 460; Sackheim v. Pigueron, 215 N. Y. 62.)
   Per Curiam.

We think the issues were for the jury. Without the testimony of the night elevator man, the question of defendant’s negligence was one of fact. In view of the short lapse of time between the moment when the elevator man says he left after putting out the elevatoi light and closing the doors, and the moment when plaintiff found an entirely different condition, his credibility was a question of fact.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur; Lehman, J., not sitting.

Judgments reversed, etc.


author: Hubbs, J.

text:
    In the Matter of Edward J. Tierney, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Appellants.

      (Argued October 16, 1935;
    decided October 22, 1935.)

      Paul Windels, Corporation Counsel (Joseph L. Weiner and Henry R. Bright of counsel), for appellants.
    The applications for mandamus are premature and the issues sought to be raised are not properly before the court at this time. (Matter of McCabe v. Voorhis, 243 N. Y. 401; People ex rel. Hotchkiss v. Smith, 206 N. Y. 231. The scheme of financing set forth in the local law is valid. (Robertson v. Zimmerman, 268. N. Y. 52; New York Steam Corp. v. City of New York, 268 N. Y. 137; Kelly v. Merry, 262 N. Y. 151.)

      Ralph G. Albrecht, Martin A. Meyer, Jr., Jesse S. Raphael and Louis S. Lewis for Consumers’ Public Power Plant Committee, amicus curice.

    Chapter 281 of the Laws of 1934, on the authority of which Local Law No. 25 was passed, is a clear declaration of legislative public policy in favor of public ownership and operation of public utility service and it permits municipalities to adopt the means best suited to their individual circumstances to accomplish this result and should, therefore, be liberally construed. (Finsilver, Still & Moss, Inc., v. Goldberg, Maas & Co., 253 N. Y. 382.)

      Joseph M. Proskauei, Randall J. Le Boeuf, Jr., Horace R. Lamb and J. Alvin Van Bergh for respondent.
    Mandamus will issue to prevent a referendum where either the proposition directed to be submitted, or the local law directing submission, is invalid. (Matter of McCabe v. Voorhis, 243 N. Y. 401; Mills v. Sweeney, 219 N. Y. 213; Williatns v. Boynton, 147 N. Y. 426; Schieffelin v. Hylan, 236 N. Y. 254; Matter of Village of Le Roy, 35 App. Div. 177; Hathaway v. City of Oneonta, 148 Mise. Rep. 695; Schieffelin v. Komfort, 212 N. Y. 520; Reycroft v. City of Binghamton, 138 Mise. Rep. 257.) The attempt to finance the cost of a “ public utility-service ” by the issuance of bonds, to which the city’s credit is not pledged, being unauthorized by the State Legislature, is void. (Robia Holding Corp. v. Walker, 257 N. Y. 431; Browne v. City of New York, 241 N. Y. 96.) The local law is invalid in that, contrary to the enabling act, it purports to authorize an “ authority ” to finance a public utility service. {Clark v. LaGuardia, 245 App. Div. 325; Browne v. City of New York, 241 N. Y. 96.)
   Hubbs, J.

The Board of Elections has appealed from an order of the Supreme Court which prohibits and restrains it from submitting to the electors of the city of New York the proposition contained in Local Law 25. That local law is alleged to have been adopted pursuant to the provisions of chapter 281 of the Laws of 1934, article 14-A of the General Municipal Law (Cons. Laws, ch. 24), which authorizes the adoption of a local law by a municipality under which it may engage in operating electric fighting plants and public utility services. The enabling statute (Ch. 281) by mandatory provision requires a referendum before such a local law can become final and effective. The Municipal Assembly by such local law provided for a referendum and directed that the proposition be submitted to the electors of the city at the election to be held on November 5, 1935.

The Special Term decided that Local Law 25 is void and restrained the Board of Elections from submitting the proposition to the electors. The primary question involved on this appeal is whether that local law is void. If it is, then the other questions argued are of secondary importance.

The State Legislature by enacting chapter 281, Laws of 1934, authorized and empowered municipal corporations to establish an electric lighting plant and public utility services. It attempted to enact a law which, when followed and carried out by a municipality, would constitute a workable system by which to acquire an electric lighting plant and public utility services and to pay therefor. That statute became a part of the General Municipal Law of the State, article 14-A.

Section 360 thereof provides:

“ Notwithstanding any general or special law, any municipal corporation may construct * * * any public utility service.” (Subd. 2.)
“ The proposed method of constructing, leasing, purchasing, acquiring, the plant and facilities for such service, together with both the maximum and the estimated costs thereof, the plan for financing such project, and the method of furnishing such service shall be fixed by a local law in the case of a city.” (Subd. 3.)
“ Authority to enact such a local law for a city is hereby conferred upon the local legislative body of the city as defined in the city home rule law.” (Subd. 4.)
Any such action by the local legislative body of a city, before taking effect, shall be submitted for the approval of the electors of the city at the next general election or at a special election called for such purpose, in the manner provided by, and in accordance with the provisions of the city home rule law relative to the submission of other local laws required thereby to be submitted in a mandatory referendum. * * * Every such local law, * ⅜ and notice of the submission thereof, shall be published in one or more newspapers published within the city, * __ * *.” (Subd. 5.)

Subdivision 6 provides that a municipal corporation may acquire a public utility company by. purchase. Subdivision 7 relates to the rates to be charged and the method of operation. Section 361 relates to services beyond the territorial limits of the municipality and has no bearing on the questions here involved. Sections 362 and 363 read:

“§362. Financing by bonds. Any municipal corporation may finance the cost of such public utility service in whole or in part by levying taxes or by the issuance of bonds in the same manner as taxes are levied or bonds are issued pursuant to law for any permanent improvement by such municipal corporation; except that the amounts and terms of such bonds and the details of the proposed method of financing the cost of such service in the first instance shall be clearly included within the proposition submitted to the qualified voters of the municipal corporation in the mandatory referendum specified in this article. Any subsequent issue of bonds other than refunding bonds shall be subject to similar mandatory referendum.
“ § 363. Construction of public utility service. The purchase, acquisition, leasing, and construction of such public utility service shall, in so far as is practicable, be effected by such municipal corporation in the same manner and by the same officers or boards as other authorized public improvements are effected for and by such corporation. The provisions of law in force in such municipal corporation applicable to the purchase, acquisition, leasing and construction of the public utility service provided for in this article shall apply when not inconsistent with the provisions of this article. The local law, ordinance or resolution provided for in section three hundred and sixty of this article may, however, provide a different method or authority or agency for the purchase, acquisition, leasing and construction of such service, not inconsistent with state law applicable thereto. Funds to be used for any of the purposes set forth in section three hundred and sixty of this article shall be paid out in the manner prescribed by law for the payment of the expenses of other public improvements authorized for and effected by the municipal corporation affected.”

By this statute the Legislature has provided for and granted to cities power and authority to establish elec+ric lighting plants. That statute has become part of the General Municipal Law of the State and constitutes an addition to such General Municipal Law.

It would seem that a mere reading of the statute would convey to the mind of a reader the purpose which it was enacted to accomplish, the machinery to be employed, and the method of financing such a project. The purpose (in this case) is the construction of an electric fighting plant. The method is by the passage of a local law under the provisions of the City Home Rule Law (Cons. Laws, ch. 76) and the submission of the proposition to the electors of the city, the financing to be done by the city either by taxation, the issuing of bonds or partly by the issuing of bonds and partly by taxation.

The attempt to read into the statute another and different meaning runs counter to the clear wording of the statute and is in direct conflict with fundamental provisions of the General City Law (Cons. Laws, ch. 21) which remain in full force and effect and are so recognized in the enabling statute by its terms. It is urged by appellants, however, that the act authorizes the city by a local law to set up a statutory authority ” with the power to construct an electric fighting plant and finance the same by issuing bonds which shall not be issued upon the credit of the city but on the credit of the “ authority ” alone. The local law assumed to be authorized by the enabling act attempts to establish an “ authority or agency; ” to establish, construct and operate an electric fighting plant with a capacity of 140,000 K. W. for supplying electricity to public and private consumers within the territorial limits of the city of New York on a site to be provided by and owned by the city at a maximum cost of not to exceed $49,500,000 and at an estimated cost of $45,000,000, the costs to be financed by bonds of the “ authority,” the credit of the city not to be pledged and the city not to be liable for any deficits from the operation of the plant; the “ authority” to have the power to construct the plant; to choose between purchase, lease or construction; to have the same powers and duties, liabilities and privileges as a' private corporation engaged in the same or similar business. The Board of Estimate is authorized and empowered to take all necessary action to carry out and accomplish the purpose of the local law. The local law provides that it shall become operative only if a majority of the electors approve the proposition to be submitted.

The right and power of the Municipal Assembly to enact the local law and to submit to the voters the proposition thereunder is based upon the enabling act and the justification for the enactment of the local law and the submission of the proposition thereunder must be found in the language of that act (L. 1934, ch. 281), and the local law and the proposition submitted thereunder must in its primary essentials comply therewith. If, therefore, the local law itself is void, because not authorized by the enabling act and in conflict with material provisions of the General City Law, or if the proposition to be submitted does not comply with the essential requirements of the enabling act, there can be no legal basis for the enactment of the local law or the submission of the proposition as worded, as the power to enact the local law and to submit the proposition is purely statutory. (Matter of McCabe v. Voorhis, 243 N. Y. 401, 413.)

We are unable to find in the enabling act any justification or basis for the enactment of the local law which attempts to secure for the city an electric lighting plant estimated to cost $45,000,000 without pledging the credit of the city therefor. Nowhere in the enabling act can be found any provision authorizing the “ authority to issue its bonds in payment for such a plant and, of course, it has no authority to levy taxes in payment therefor. The grant of power is to the city to erect a plant and to pay therefor. The grant is made directly to the city. The payment of the cost thereof is to be made by the city by taxation, the issuance of bonds or, partly by taxation and partly by the issuance of bonds. Not only is the local law in violation of the very language of the enabling act but is also in clear violation of chapter 390 of the Laws of 1933 (General City Law, § 20, subd. 5), which reads in part: “ * * * but, notwithstanding the provisions of any general, special or local law or ordinance a city shall have no power to issue obligations to which it has not pledged its faith and credit for payment of the principal and interest thereof.” The enabling act does not by its terms or by implication repeal the quoted provision of the General City Law. In fact, section 363 of the enabling act specifically recognizes the continued existence of the above-quoted provision. It reads: The provisions of law in force in such municipal corporation applicable to the purchase, acquisition, leasing and construction of the public utility service provided for in this article shall apply when not inconsistent with the provisions of this article.”

The article referred to is article 14-A of the General Municipal Law.

We find no provision in the enabling act Which makes the quoted provision of the General City Law inconsistent with the provisions of the enabling act.

To decide otherwise would change the whole system of municipal financing and authorize the city to build an electric lighting plant from the proceeds of bonds issued by an “ authority ” upon its own credit and not upon the credit of the city itself, in direct violation of section 20,

The appellant contends that the first sentence of section 362 heretofore quoted indicates that the authority may issue such bonds on its credit.

Emphasis is placed upon the words in whole or in part ” and it is urged that the meaning of the section is that the city may finance the construction in part ” and that the “ authority ” may finance the construction in part.” We are unable to agree with such interpretation of the statute. It is in direct contradiction of other parts of the act and with the provisions of the General City Law (§ 20, subd. 5). The words mean, as heretofore stated, that the city may finance such a project in part by taxation and in part by a bond issue.

Appellant also urges that the following sentence of section 363 constitutes authority for the adoption of the local law and the establishment of the authority: “ The local law, ordinance or resolution provided for in section three hundred and sixty of this article may, however, provide a different method or authority or agency for the purchase, acquisition, leasing and construction of such service, not inconsistent with state law applicable thereto.” We do not so read the statute. After providing the way of constructing public utility service, the statute simply provides that a local law may provide a different method or authority or agency for the purchase, acquisition, leasing and construction of such service,” not one word indicating that the “ method or authority or agency ” shall have authority to issue bonds upon its own credit in payment for such utility. But the appellant says that the word authority ” carries with it the implied power to issue bonds, in the same maimer as other authorities have been granted express power by the Legislature so to do in other cases where authorities have been authorized by the Legislature. In other cases, many of which are referred to in the case of Gaynor v. Marohn (268 N. Y. 417), the Legislature expressly granted to the authority power to issue bonds upon its own credit. Such was the case of Robertson v. Zimmermann (268 N. Y. 52). In the absence of such express power, a city has no authority to finance a permanent, public improvement upon the credit of an agency or authority. What the city cannot do directly, an agency or authority cannot do indirectly.

In view of the conclusion which we have reached on the principal question involved, we do not deem it necessary to discuss the other questions which have been argued. We entertain no doubt as to the power of the court to afford the relief which has been granted.

The order should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Order affirmed.


author: Crane, Ch. J.

text:
    (Submitted October 2, 1935;
    decided October 22, 1935.)

      John J. Bennett, Jr., Attorney-General (Arthur T. McAvoy and Henry Epstein of counsel), for appellant.
    The decree of 1920 fully and finally adjudicated the rights, claims and interests of the respondents to the funds in question. (Staples v. Mead, 152 App. Div. 745; Matter of Von Bernuth, 127 Mise. 705; Kirk v. McCann, 117 App. Div. 56; Mangara v. City of Brooklyn, 98 N. Y. 585; Brackett v. Harvey, 25 Him, 502; Alt?nan v. Hofeller, 152 N. Y. 498; Matter of Hodgrnan, 140 N. Y. 421; Crabb v. Young, 92 N. Y. 56; Fitzgerald v. Topping, 48 N. Y. 438.) The right to recover not existing in 1920, the 1929 amendment (L. 1929, ch. 518) was not retroactive. (Jacobus v. Colgate, 217 N. Y. 235; MacAffer v. Boston & Maine Railroad, 242 App. Div. 136; People ex rel. Collins v. Spicer, 99 N. Y. 233.)

      ■Samuel Berzick for respondents.
    The decree of 1920 did not finally adjudicate the claim to the fund deposited with the State Treasurer. (Joseph v. Herzig, 198 N. Y. 456; Penny v. Dickerson, 85 N. Y. 345; Matter of Eisner, 129 Mise. Rep. 106; Jenkins v. Mollenhauer, 105 Mise. Rep. 15; 193 App. Div. 893; Matter of Peck, 131 App. Div. 81; Matter of Haggerty, 126 Mise. Rep. 769; Van Camp v. Fowler, 133 N. Y. 600; Matter of Eaton, 125 Mise. Rep. 629 ; 217 App. Div. 704; Matter of Rowe, 197 App. Div. 449 ; 232 N. Y. 554; Matter of Whitbeck, 22 Mise. Rep. 494; Matter of Hunt, 41 Mise. Rep. 72; Buhler v. Hubbell, 56 Hub, 450; Stannard v. Hubbell, 123 N. Y. 520; Matter of Watson, 144 Mise. Rep. 213; Sweeney v. Warren, 127 N. Y. 426; Fribourg v. Emigrant Industrial Sav. Bank, 168 App. Div. 816; Brantingham v.' Huff, 43 App. Div. 414; Woolley v. Stewart, 169 App. Div. 678; 222 N. Y. 347; Reynolds v. Reynolds, 167 App. Div. 90; 224 N. Y. 429; McGillis v. McGillis, 154 N. Y. 532.) The fund in the hands of the State Treasurer, was “ not distributed on the first day of May, nineteen hundred and twenty-nine.” (Matter of Maltbie, 184 App. Div. 743; 226 N. Y. 641; Matter of Bergamini, 136 Mise. Rep. 118; Thomson v. Tracy, 60 N. Y. 174; Matter of Irving, 153 Mise. Rep. 807.) There was a right in 1920 in these next of kin, and the 1929 law was retroactive by express legislative terms and by the general principles of law that remedial statutes are retroactive. (Matter of Irving, 153 Mise. Rep. 807; Matter of Leslie, 92 Mise: Rep. 663; 175 App. Div. 108; Matter of Watson, 161 N. Y. Supp. 875; Matter of Peer, 138 Mise. Rep. 247; 232 App. Div. 872; Deuscher v. Cammerano, 256 N. Y. 328; Laird v. Carton, 196 N. Y. 169; Lazarus v. Met. El. Ry., 145 N. Y. 581; Matter of Bachmann, 151 Mise. Rep. 761; Archer v. Equitable Life Assur. Society, 218 N. Y. 18; Allen v. Stevens, 161 N. Y. 122.)
   Crane, Ch. J.

The decedent, Carl L. Chamberlin, died intestate on the 8th day of August, 1911. He left him surviving no widow, no children or other next of kin. His wife, Nellie B. Chamberlin, had predeceased him. Administrators were thereafter duly appointed, and on the 5th day of January, 1920, their accounts were judicially settled and they were discharged.

The decree of the Surrogate settling the accounts and discharging the administrators provided that personal property of the value of $4,526.04 should be distributed to the next of kin of the said Nellie B. Chamberlin, as Carl L. Chamberlin, the deceased, had received this amount from his wife. The decree further provided that the balance of the estate, which amounted to $5,625.72, should be paid into the State treasury for the benefit of the person or persons who may thereafter appear to be entitled thereto.” This direction was-In accordance with the provisions of section 2740 of the Code of Civil Procedure, then in effect, now section 272 of the Surrogate’s Court Act. This act reads: “ Where the person entitled to a legacy or distributive share is unknown, the decree must direct the executor, administrator, guardian or testamentary trustee to pay the amount thereof to the comptroller of the state [treasurer], for the benefit of the person or persons who may thereafter appear to be entitled thereto.”

As the law stood at the time of this decree and the distribution of the estate, the deceased’s wife’s next of kin could not inherit from the husband. Nellie B. Chamber-lin’s relatives had no interest in, or claim to the estate of Carl L. Chamberlin except as to that amount which had come from or .through his wife. This amount they received. It was declared to be $4,526.04, which was distributed to them by the decree of January 5, 1920, and was found by that decree to be the full and only amount to which they were entitled. The balance was paid into the office of the State Treasurer as no next of kin of Carl L. Chamberlin were known to exist. The words in the decree followed the words of the statute in saying that the treasurer was to hold the money for the benefit of the person or persons who may thereafter appear to be entitled thereto, which means entitled thereto, according to the law as it existed at the time of Chamberlin’s death.

Later the Legislature changed the law of distributions by amendments to the Decedent Estate Law (Cons. Laws, ch. 13). Chapter 174 of the Laws of 1930 reads as follows (amending subdivision 15 of section 83 of the Decedent Estate Law): " If there be no husband or wife surviving and no children, and no representatives of a child, and no other distributees, and no child or children of the husband or wife of the deceased, then the whole shall descend and be distributed equally to the next of kin of the husband or wife of the deceased, as the case may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this article or in article seven hereof.” This section, of course, has no retroactive effect and had no effect upon the distribution made by the decree in the estate of Chamberlin the 5th day of January, 1920. This act of 1930 (§ 10), however, specifically repealed chapter 518 of the Laws of 1929, which had in it, as subdivision 16 of section 98, the following:

16. If there be no husband or wife surviving and no children, and no representatives of a child, and no next of kin, and no child or children of the husband or wife of the deceased, then the whole surplus, including the surplus of any estate not distributed on the first day of May, nineteen hundred and twenty-nine, shall be distributed equally to and among the next of kin of the husband or wife of the deceased, as the case may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this article or in the surrogate’s court act.”

It is apparent at once that chapter 174 of the Laws of 1930, in repealing chapter 518 of the Laws of 1929, struck out of the prior law the words above italicized.

The next of kin of Chamberlin’s wife, Nellie Chamber-lin, have presented a petition to the Surrogate’s Court of Greene county, pursuant to the provisions of section 272 of Surrogate’s Court Act, claiming that they are now entitled to the money in the hands of the State Comptroller, that by chapter 518 of the Laws of 1929, above quoted, they became the next of kin of Carl L. Chamberlin, and that the act making them such related back to take in the estate settled January 5, 1920, because of the words including the surplus of any estate not distributed on the first day of May, nineteen hundred and twenty-nine.”

We do not think the Legislature intended to open up all estates which had been settled and distributed so that by this act a wife’s next of kin could get moneys from the State Treasurer or the Comptroller, theretofore deposited under decrees settling husbands’ estates according to prior laws. How far such an interpretation of this act would take us we do not know. These words have reference to estates which are in a process of settlement as to which there has been no final accounting and no distribution on a final accounting. They have no reference to estates where the moneys had been distributed and the administrators discharged. . The decree of 1920 distributed Chamberlin’s estate, giving to the wife’s next of kin their money and directing the balance of the estate to be paid to the State Treasurer for the benefit of the persons who may appear thereafter to be entitled thereto, i. e., entitled according to the law as it existed at the time of the decree or death of Chamberlin. Nothing could change this except a subsequent law. When, therefore, the Legislature did change the law of distribution, making the wife’s next of kin also those of the husband, it should have been very specific and exact in its language, as in McGillis v. McGillis (154 N. Y. 532), if the intention were to make this relationship apply to estates settled prior to its enactment. We are of the opinion that the plain meaning of the words, not distributed on the first day of May, nineteen hundred and twenty-nine,” has reference to estates in the process of settlement where no final decree of accounting has been entered.

The order of the Appellate Division should be reversed, and the decree of the Surrogate affirmed, with costs in all courts payable out of the estate.

Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Ordered accordingly.


text:
    In the Matter of Aaron M. Orange, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents.
    (Argued October 21, 1935;
    decided October 22, 1935.)

      Andrew Byrne for appellant.
    The provisions of the Election Law (Cons. Laws, ch. 17) in reference to certificates of nomination by independent bodies should be liberally construed so as to promote and not hinder the independence of voters at public elections. (Matter of Independence League Nominations, 51 Mise. Rep. 486] Matter of McClosky, 21 Mise. Rep. 365; Matter of Adams, 21 Mise. Rep. 396; Matter of Pool, 108 App. Div. 361.)

      Paul Windels, Corporation Counsel (Paxton Blair and Seymour B. Quel of counsel), for respondents.
    The Board of Elections was without power to accept the original nominating petitions filed on behalf of the petitioner in view of the defects in the oaths of the subscribing witnesses. (Cons. Laws, ch. 17, § 137, subd. 2; Matter of Dorsey v. Cohen, 268 N. Y. 620.)
   Per Curiam.

The petition filed for the independent nomination of petitioner was filed within the time allowed by law. Thereafter it was discovered that the authentications were defective because the authenticating witnesses failed to state that they were duly qualified voters at the last election and set forth the places from which they voted, as required by the amendment of section 135 of the Election Law (Cons. Law, ch. 17) enacted in 1935 (Ch. 955, § 6). Before the expiration of the time fixed by law for the filing of petitions for independent nominations the authenticating witnesses filed with the Board of Elections new affidavits, correct in form and which complied with section 135 as amended. We have reached the conclusion that the Special Term was justified in deciding that the filing of the new affidavits corrected the error, and that the petitions and new affidavits should be treated as re-filed. Matter of Dorsey v. Cohen (268 N. Y. 620, decided on September 9, 1935) is not in conflict, as in that case the affidavits were not corrected.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Lotjghran and Finch, JJ., concur; Crouch, J., not sitting.

Ordered accordingly.


text:
    In the Matter of Ira H. Holley et al., Appellants; William C. Rittenberg, Respondent.
    (Argued October 21, 1935;
    decided October 22, 1935.)

      Irving II. Saypol and Leo Kottler for Ira H. Holley, appellant.
    The Supreme- Court ha? jurisdiction after a

      Paul Windels, Corporation Counsel (Paxton Blair, Russell Lord Tarbox and Seymour B. Quel of counsel), for Board of Elections of the City of New York, appellant.
    The Supreme Court had inherent jurisdiction by virtue of the provisions of the State Constitution and the Election Law (Cons. Laws, ch. 17) to enter the order appealed from. (N. Y. Const, art. 6, § 1; Cons. Laws, ch. 17, §§ 330, 333; Matter of Hearst v, Woelper, 183 N. Y, 284; Matter of Wogan, 242 App. Div. 839.)

      Jay Leo Rothschild and Walter S- Beck for respondent.
    The Election Law does not grant any power to the Supreme Court to conduct a general recount. (People ex rel. Fiske v. Bants, 181 App. Div. 702; 222 N. Y. 676; Matter of Medbury, 234 App, Div, 26; Matter of Friedman, 238 App. Div, 341; Matter of Barrett, 209 App, Div. 217; Matter of Weinfeld, 203 App. Div. 778; People ex rel. McCowt v. Whalen, 199 App. Div, 861; People ex rel. Brown v. Freisch, 215 N. Y. 356; People ex rel. Widmeyer v, Gmnert, 122 Mise. Rep, 1; People ex rel. Brink y. Way, 179 N, Y, 174; Matter of Mellen v. Board of Elections, 262 N, Y. 422; Matter of Lauer v. Board of Elections, 262 N. Y. 416.)
   Per Curiam.

The Legislature by section 330 of the Election Law (Cons. Laws, ch. 17), has conferred upon the Supreme Court broad power to determine any question * ⅜ ⅜ arising * ⅝ * [and] make such order as justice may require ” in respect to the matters enumerated in the succeeding subdivisions of that section. The field of its powers is limited to the specified matters; within that field the power is plenary. Among the matters specified in respect to which this plenary power has been granted is the nomination of any candidate.” (Subd. 2.) The provision in the same subdivision that the court may direct a re-assembling of any convention or the holding of a new primary election where a convention or primary election has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was nominated or elected,” is not a limitation on the plenary power of the court to make such order as justice may require in respect to the nomination of a candidate where a determination as to who rightfully was nominated is not impossible. The cases in which this court has held that no order for a general recount or recanvass of the votes may be ordered did not concern the nomination of candidates, but their election to office, in respect to which the statute has not given plenary power to the court.

The consent of the respondent to the entry of orders for re-examination of ballot boxes cures irregularities, if any, in the application of the appellant, Holley. That consent could not be withdrawn after both sides had acted upon it. We do not decide whether a recount of all the boxes should have been made if the respondent, berg, had made timely demand.

The order of the Appellate Division should be reversed and the orders of the Special Term affirmed, without costs.

Crane, Ch. L, Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Ordered accordingly.


author: Per Curiam,

text:
    In the Matter of John M. Haviland, Appellant, against Louis N. Ellrodt et al., Constituting the Board of Elections of the County of Westchester, Respondents.
    (Argued October 24, 1935;
    decided October 25, 1935.)

      Gerald V. Reynolds for appellant.
    Section 249 of the Election Law gives to the independent voters of New Castle the right to a separate row on the ballot and entitles the petitioner to have his name appear therein. (.Matter of Crane v. Voorhis, 257 N. Y. 298,)

      William A, Davidson, County Attorney (Thomas M. Smith of counsel), for respondents.
    The independent nominees, being the same as the party nominees, are not entitled to a separate row on the voting machine, (.Matter of Haskell v, Voorhis, 246 N, Y. 256; Matter of Callaghan v, Voorhis, 252 N. Y, 14; Matter of Crane v, Voorhis, 257 N. Y. 298; Matter of Shaeffer, 237 App, Div, 278.)
   Per Curiam,

Section 249 of the Election Law (Cons. Laws, ch. 17) provides: “ The names of all candidates nominated by any party or independent body for an office shall always appear in the row or column containing generaEy the names of candidates nominated by such party or independent body for other offices except as hereinafter provided.”

The exceptions thereinafter provided do not include a case where the same person has been nominated by one party and one independent body.

The orders should be reversed and the application of the petitioner granted, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Ordered accordingly.


text:
    John J. Smith, Appellant, v. George J. Zimmermann, as Mayor of the City of Buffalo, et al.,
    (Argued April 29, 1935;
    decided May 28, 1935.)

      William E. Barrett and George C. Riley for appellant.

      Gregory U. Harmon, Corporation Counsel (Fred C. Maloney and Elmer S. Stengel of counsel), for George J. Zimmermann, as Mayor of the City of Buffalo, et al., respondents.

      John J. Bennett, Jr., as Attorney-General (.Henry Epstein and Vincent Kiebala of counsel), respondent.
   Judgment affirmed, with, costs, on the authority of Robertson v. Zimmermann (268 N. Y. 52). No opinion.

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


text:
    Svenska Taendsticks Fabrik Aktiebolaget et al., Plaintiffs, v. Bankers Trust Company of New York, Respondent, and Edward S. Greenbaum, as Trustee in Bankruptcy of Aktiebolaget Kreuger & Toll, Appellant, Impleaded with Others.
    (Argued May 3, 1935;
    decided May 28, 1935.)

      Jonas J. Shapiro and Justin N. Reinhardt for appellant.

      Clarence J. Shearn, Roy Callahan, B. B. Fensterstock and George H. Jaffin for respondent.
   Order affirmed, with costs. First question certified answered No,” and second question certified answered Yes.” (See opinion in Svenska T. F. A. v. Bankers Trust Co., 268 N. Y. 73.) No opinion. (See 268 N. Y. 611.)

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


text:
    (Submitted May 20, 1935;
    decided May 28, 1935.)

      Benjamin S. Thaw for motion.

      Edward J. ■Pigott opposed.
   Motion denied, with ten dollars costs.


text:
    Nathan B. Schreier, Appellant, v. Milton V. Saulpaugh et al., Respondents.
    (Submitted May 20, 1935;
    decided May 28, 1935.)
   Motion for reargument denied, ten dollars costs and necessary printing disbursements. (See 266 N. Y. 652.)


text:
    In the Matter of Mayflower Farms, Inc., Appellant, against Charles H. Baldwin, as Commissioner of Agriculture and Markets of the State of New York, et al., Respondents.
    (Submitted May 20, 1935;
    decided May 28, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 267 N. Y. 9.)


text:
    (Submitted May 20, 1935;
    decided May 28, 1935.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 266 N. Y. 629.)


text:
    Charlotte Metcalf, Respondent, v. Marion Reynolds, Appellant, Impleaded with Others.
    (Submitted May 20, 1935;
    decided May 28, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 267 N. Y. 52.)


text:
    (Submitted May 20, 1935;
    decided May 28, 1935.)
   Motions for reargument denied, with ten dollars costs and necessary printing disbursements. (See 267 N. Y. 265.)


text:
    National City Bank of New Rochelle et al., Respondents, v. County of Westchester et al., Defendants, and John P. Nestler, as Treasurer of the City of New Rochelle, et al., Appellants.
    (Submitted May 20, 1935;
    decided June 4, 1935.)

      Aaron Simmons, Corporation Counsel (Paul M. Crandell of counsel), for appellants.

      Howard C. Fisehbach, Paul S. Fisehbach and George M. Freedman for respondents.
   Order affirmed, with costs, and question answered as follows: The one-year Statute of Limitations does not apply. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Crouch, Loughran and Finch, JJ.


text:
    (Submitted May 20, 1935;
    decided June 4, 1935.)

      William J. Carr for appellants,

      Thomas M. Brassel for respondent.
   Order of the Appellate Division and decree of the Surrogate’s Court reversed and matter remitted to the Surrogate’s Court for a rehearing, with costs to abide the event. The evidence is insufficient to sustain the claim. No opinion.

Concur; Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    The Salvation Army, Respondent, v. Charles S. Simpson, Appellant, Impleaded with Others.
    (Argued May 20, 1935;
    decided June 4, 1935.)

      Charles L. Woody and Alexander R. Kellegrew for appellant.

      R. Keith Kane and Richard N. Crockett for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    (Argued May 20, 1935;
    decided June 4, 1935.)

      Isadore Glauberman, in person, and Theodore Berger for appellant.

      Harry Yarm and Benjamin H. Wicksel for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ. Finch, J., taking no part.


text:
    (Argued May 20, 1935;
    decided June 4, 1935.)

      Bertram Boardman for appellant.

      Maurice Bubinger and Robert Jacobs for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Robert E. Morris, Appellant, against Edward P. Mulrooney, as Police Commissioner of the City of New York, Respondent.
    (Submitted May 20, 1935;
    decided June 4, 1935.)

      Joseph Shalleck and Albert D. Kanfich for appellant.

      Paul Windels, Corporation Counsel {Seymour B. Quel and Paxton Blair of counsel), for respondent.
   Order affirmed, with costs j no opinion.

Concur: Crane, Ch. J., O’Brien, Htjbbs, Crouch and JJ. Finch, J., taking no part.


text:
    (Argued May 21, 1935;
    decided June 4, 1935.)

      John J. Bennett, Jr., Attorney-General (Boy Wiedersum of counsel), for appellant.

      Evan Hollister for respondent.
   Order affirmed, with costs against the State Industrial Board. No opinion.

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


text:
    (Argued May 21, 1935;
    decided June 4, 1935.)

      Barney Bernstein, Michael Feiring and Max E. Sanders for appellants.

      Irving E. Kanner and Morris Laufgraben for respondent.
   Orders affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Lou.ghran and Finch, JJ.


text:
    (Argued May 21, 1935;
    decided June 4, 1935.)

      Earl C. Berger, in person, and Christy George Peters for appellant.
   Appeal dismissed, with costs. The order appealed from is not a final order in a special proceeding. No opinion.

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


text:
    In the Matter of Florence G. Mullins, Respondent, against Charles Gulden, Inc., et al., Appellants.
    (Argued May 21, 1935;
    decided June 4, 1935.)

      Lester S. Kafer, Ward B. Chamberlin and Thomas H. Finney for appellants.

      Tobias A. Keppler and Julian C. Keppler for respondent.
   Order affirmed, with costs; no opinion.

Concur; Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    (Argued May 21, 1935;
    decided June 4, 1935.)

      Charles P. Barre for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.

      Henry Redman Dutcher and Leonard Marafioti for claimant, respondent.
   Order affirmed, with, costs; no opinion. (See 268 N. Y. 668.)

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


text:
    (Argued May 21, 1935;
    decided June 4, 1935.)
   Order affirmed, with costs; no opinion.

Concur: Grane, Ch. J., Lehman, O’Brien, Htjbbs, Crouch, Loughran and Finch, JJ.


text:
    In the Matter of the Claim of Gustave Bederman, Respondent, against Walter T. McNamara, Appellant. State Industrial Board et al., Respondents.
    (Submitted May 21, 1935;
    decided June 4, 1935.)

      Jeremiah F> Connor for appellant.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.

      Paul J. Carr for claimant-respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’BrieNj Hubbs, Crouch, Loughran and Finch, JJ.


text:
    (Argued May 21, 1935;
    decided June 4, 1935.)

      William E. Lyons for appellants.

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

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


text:
    (Argued May 21, 1935;
    decided June 4, 1935.)

      Robert C. Winchell for appellant.

      John J. Bennett, Jr., Attorney-General (Hector A. Robichon of counsel), for State Industrial Board, respondent.
   Order of the Appellate Division and award of the State Industrial Board reversed and claim dismissed, with costs in all courts. There is no evidence to sustain the finding of accidental death growing out of the employment. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hhbbs, Crouch, Loughran and Finch, JJ.


text:
    In the Matter of the Probate of the Will of Abraham L. Erlanger, Deceased. Mitchell L. Erlanger et al., Appellants; Charlotte P. Erlanger, Respondent.
    (Submitted May 27, 1935;
    decided June 4, 1935.)
    I. Gainsburg and Joseph P. Segal for motion.

      Max D. Steuer and Mitchell Jelline opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    The People of the State of New York, Respondent, v. Maurice Fellerman, Appellant. The People of the State of New York, Respondent, v. Abraham Koslow, Appellant.
    (Submitted June 3, 1935;
    decided June 4, 1935.)

      Samuel J, Foley, District Attorney (Sol Boneparth of counsel), for motions.

      Lee Bazen opposed.
   Motions denied and cases set down for argument in third week of October, 1935, session.


text:
    The Bowery Savings Bank, Respondent, v. Janet W. Nirenstein et al., Appellants, Impleaded with Others.
    (Submitted May 27, 1935;
    decided June 4, 1935.)

      Sydney Bernheim for motion.

      Harris Jay Qriston opposed.
   Motion denied, with ten dollars costs.


text:
    Charles L. Meckenberg, as Trustee in Bankruptcy of Sam Scheinblum Building Corporation, Appellant and Respondent, v. T. H. Fraser Mortgage Corporation, Respondent and Appellant, Impleaded with Another.
    (Argued May 28, 1935;
    decided June 11, 1935.)

      Samuel Ohin for plaintiff, appellant and respondent.

      Lloyd B. Kanter for defendant, respondent and appellant.
   Per Curiam.

The findings of the Special Term were justified on the evidence as to East Thirty-first street parcel and Kings highway parcel. The record does not disclose any legal error requiring a reversal as to those parcels.

The reversal by the Appellate Division as to the West Third street parcel was the result of a misunderstanding of the facts. The situation as to that parcel was the same as to the other two parcels in regard to which the Appellate Division affirmed.

The judgment of the Special Term entered pursuant to the judgment of reversal as to the West Third street parcel should be reversed and the complaint dismissed, with costs in all courts to the defendant, respondent, appellant.

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

Judgment accordingly.


text:
    In the Matter of Thomas O’Keefe, Respondent, against Joseph H. Wilson, as Warden of Great Meadow Prison, Appellant.
    (Argued May 22, 1935;
    decided June 11, 1935.)

      John J. Bennett, Jr., Attorney-General (Caleb Candee Brown, Jr., of counsel), for appellant.

      A. Stanley Copeland for respondent.
   Order affirmed; no opinion. (See 268 N. Y. 632.)

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


text:
    The People of the State of New York ex rel. New York Central Railroad Company, Appellant, against State Tax Commission, Respondent.
    (Argued May 22, 1935;
    decided June 11, 1935.)

      Kenneth 0. Mott-Smith, Frederick L. Wheeler and Clive C. Handy for appellant.

      John J. Bennett, Jr., Attorney-General (Edward J. Grogan, Jr., and Timothy F. Cohan of counsel), for respondent.
   Orders affirmed, with one bill of costs. (Appeals from four orders were withdrawn.) No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Crouch, Loughran and Finch, JJ.


text:
    In the Matter of Susan G. O’Meara, Appellant, against Felix Corscadden, as County Treasurer of the County of Albany, et al., Respondents.
    (Argued May 22, 1935;
    decided June 11, 1935.)
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Julius Lehrenkrauss et al., as Executors of Wilhelmine Doring, Deceased. Frieda H. Leiding et al., Appellants; Julius Lehrenkrauss et al., as Executors, et al., Respondents.
    (Argued May 22, 1935;
    decided June 11, 1935.)

      Joseph Steven Frank and Rudolph Loreck for appellants.

      J. Jolles for Consul General of Republic of Poland, respondent.
   Order affirmed, with costs payable out of the estate. No opinion. (See 268 N. Y. 668.)

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Lottghran and Finch, JJ.


text:
    In the Matter of the Application of Samuel Rose, Appellant, for Reinstatement to the Bar. The Association of the Bar of the City of New York, Respondent.
    (Argued May 22, 1935;
    decided June 11, 1935.)

      Chandler Bennitt for appellant.

      Kenneth M. Spence and Binar Chrystie for respondent.
   Order affirmed, without costs; no opinion.

Concur: Grane, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ. Finch, J., taking no part.


text:
    The People of the State of New York ex rel. Town of Bedford et al., Appellants, v. The State Tax Commission of the State of New York et al., Respondents.
    (Argued May 22, 1935;
    decided June 11, 1935.)

      William D. Cunningham, Frank M. Gagliardi, John J. Dillon and Harrison T. Slosson for appellants.

      Arthur F. Driscoll and Paul D. O’Brien for Town of Pelham, respondent.

      Warren W. Cunningham and Haig H. Davidian for Town of Scarsdale, respondent.

      Leonard 0. McAneny, Corporation Counsel (Morris L. Bosenwasser and J. Raymond Hannon of counsel), for City of Yonkers, respondent.
   Orders affirmed, with costs; no opinion.

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


text:
    Edward Klumbach, Respondent, v. Silver Mount Cemetery Association, Appellant.
    (Argued May 23, 1935;
    decided June 11, 1935.)

      Jonas J. Shapiro, Samuel L. Scholer and Benjamin J. Rabin for appellant.

      Joseph P. Walsh and Frank H. Innes for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dutchess Tool Company, Respondent, v. Frank W. Krakowka et al., Copartners under the Name of Great Bend Bakery, Appellants.
    (Argued May 23, 1936;
    decided June 11, 1935.)

      D. Daniel Pananicles, Oliver D. Burden and Russell E. Harrington for appellants.

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

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


text:
    George C. Bewley, Appellant, v. The City of Lockport, Respondent.
    (Argued May 24, 1935;
    decided June 11, 1935.)

      Ellsworth Storrs for appellant.

      James J. Sullivan, Corporation Counsel, for respondent.
   Judgment affirmed, with costs; no opinion.

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