author: Hubbs, J. Crane, J.

text:
    The Trustees of Columbia University in the City of New York, Appellant, v. Nathan Kalvin, Respondent. (Actions 1 and 2.)

      (Argued March 21, 1929;
    decided April 16, 1929.)

      Frank C. Laughlin and John Godfrey Saxe for appellant.
    The plaintiff was not called upon to make any election until the appraisers should make their decision. (Hammann v. Jordan, 129 N. Y. 61.) Where a party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which may hinder or obstruct the other in doing that thing. (Patterson v. Meyerhofer, 204 N. Y. 96.) The defendant has no right of election. (Duffield v. Whitlock, 26 Wend. 55; Reformed Church v. Parkhurst, 4 Bosw. 491; Wood v. Sheehan, 68 N. Y. 365; Smith v. Rector, 107 N. Y. 610; Bamman v. Binzen, 65 Hun, 39; 142 N. Y. 636; Trustees v. Connell, 179 App. Div. 821.)

      Nathan L. Miller and Harold Otis for respondent.
    By the lease in question the plaintiff agreed at the end of the term either to renew at a reasonable ground rent or to pay the value of the building, at its election; and completion of the arbitration to fix such rent or value was not a condition precedent to that obligation so as to extend the time for the plaintiff’s election substantially beyond the end of the term without the defendant’s consent, but only so as to extend the time for the plaintiff’s performance of the alternative elected. (Zorkowski v. Astor, 156 N. Y. 393; Van Beuren v. Wotherspoon, 164 N. Y. 368; Sage v. Hazard, 6 Barb. 179; Renoud v. Daskam, 34 Conn. 512; Thiebaud v. Vevay Bank, 42 Ind. 212; Dickinson v. Robinson, 272 Fed. Rep. 77; Mutual Life Ins. Co. v. Stephens, 214 N. Y. 488; Matter of Coatsworih, 160 N. Y. 114; Trustees of Columbia University v. Kalvin, 133 Misc. Rep. 270.) The plaintiff having failed and refused to make its election at the end of the term as it agreed to do, the defendant’s election thereupon to renew was effective. (McNitt v. Clark, 7 Johns. 465; Gilbert v. Danforth, 6 N. Y. 585; Storm v. Rosenthal, 156 App. Div. 544; Coles v. Peck, 96 Ind. 333; Atlantic Coast Line R. Co. v. Hallowed, 2 Fed. Rep. [2d] 674; Paichin v. Swift, 21 Vt. 292; Childs v. Fischer, 52 Ill. 205; Corbin v. Fairbanks, Barlow & Co., 56 Vt. 538; Amanda G. M. Co. v. People’s M. Co., 28 Col. 251; Ellison v. Boyd, 125 S. E. Rep. 493; Virginian Export Coal Co. v. Rowland Land Co., 131 S. E. Rep. 253; Collins v. Whigham, 58 Ala. 438.)
   Hubbs, J.

On January 1, 1907, the plaintiff and defendant’s assignor executed a lease, for a term of twenty-one years, of premises in New York city. The plaintiff will be hereinafter referred to as the landlord, and the defendant as the tenant. The lease contained a provision to the effect that 120 days before the end of the term the parties would select appraisers in the usual way, who should appraise the value of the building placed upon the premises by the tenant, and also the fair rental value of the premises for another term, and that the landlord would at the end and expiration of the term either pay the tenant the value of the building as appraised, or at its option grant a new lease for a term of twenty-one years.

At the expiration of the term on December 31, 1927, the appraisers, without fault of either the landlord or tenant, had failed to compute the valuation of the building, or determine a fair rental for another term. They were still engaged in the performance of their duties as appraisers and had not determined that they differed in judgment, or that they would be unable to agree. The landlord could not, therefore, pay the ascertained value of the building, as the value had not been ascertained, neither could it tender to the tenant a lease for another term, as a fair rental ” had not been fixed. The tenant remained in possession of the premises and on January 12, 1928, twelve days after the expiration of the term, served notice on the landlord that its failure to elect prior to the expiration of the term operated as a renewal of the lease, and that he would pay the rent for a second term of twenty-one years. Thereafter, the landlord commenced this action for a declaratory judgment, praying that it be adjudged that its option still exists. The defendant counterclaimed and asked that it be adjudged that he has a lease for another term of twenty-one years. Upon a motion for judgment upon the pleadings the tenant succeeded, and it was adjudged that the tenant is entitled to a new lease for a term of twenty-one years at a rental to be determined by the appraisers, and that the landlord has lost its option to purchase the building at its appraised value. Did the landlord’s option survive the expiration of the term? If so, it was in existence when the tenant served the notice in an attempt to end it and the judgment must be reversed.

The provision for an appraisal contained in the lease is a condition upon which the agreement by the landlord to choose depends. There is also a promise, to wit, that the landlord will choose either to renew the lease at the rental fixed by the appraisers or purchase the buildings at a valuation fixed by them. Bach of those terms is vital in the interpretation of the lease. Neither can be deleted without destroying the spirit and intent expressed in the lease. The discussion of the question of the right to elect having passed to the tenant is beside the mark. That right, if such a right exists, does not come into operation until the landlord is in default. (Hood v. Hartshorne, 100 Mass. 117.) Here the landlord is not in default because the condition of the lease to be fulfilled before its obligation to choose will come into effect has not been carried out. The appraisal has not been completed. The value of the building has not been determined. The rental for the new term has not been fixed. Until the condition of the lease requiring an appraisal is carried out, the dependent obligation of the landlord to choose will not become operative. The landlord’s obligation to choose is conditional upon the fixing of the values by the appraisers. Until such values are fixed by the appraisers, the obligation of the landlord to choose is pending and its obligation to choose remains conditional, but nevertheless remains, to be exercised when the condition of an appraisal has been fulfilled. There can be no breach of the landlord’s obligation to choose until the time for the performance of that obligation has arrived, to wit, the completion of the appraisal. The failure of the appraisers to make their report relates to a particular obligation in the lease but not to the contract as a whole. That remains in full force and effect. The failure to report simply extends the landlord’s time to choose and excuses its failure to choose before.

It is a general rule, subject to exceptions, that where a contract requires successive acts to be performed by the parties, the covenants which relate to those proceedings are dependent, and neither party can maintain an action against the other without proving performance of such dependent covenants.

At the expiration of the lease the tenant remained in possession. He had a right to do so until the completion of the appraisal and the choice by the landlord under its option to grant a new lease or pay for the building on the premises. For the use of the premises during such period he is liable to the landlord for an amount equivalent to the rental reserved in the lease, and not for the amount fixed by the appraisers as a fair rental. (Van Beuren v. Wotherspoon, 164 N. Y. 368; Doyle v. Fish Corp., 144 App. Div. 131; affd., 214 N. Y. 633; opinion on motion for reargument, 216 N. Y. 627; Paine v. Rector, etc., 7 Hun, 89.)

If the landlord violates its implied obligation of good faith by preventing an appraisal, the tenant may continue in possession, being liable to pay for the use of the premises the amount reserved as rent, in the lease or vacate the premises and maintain an action to recover his damages. Upon the completion of the appraisal, if the landlord-fails and neglects to make a choice, it may be compelled to do so in an action by the tenant. (Smith v. Rector, etc., 107 N. Y. 610.)

The fact that the appraisal had not been completed at the end of the term was not the fault of the landlord and the tenant cannot, therefore, put it in default by the service of a notice.

“ He must continue to act till he puts the lessor in the wrong, or else makes it manifest that no suitable persons can be obtained to do the service [act as appraisers] within a reasonable time.” (Hood v. Hartshorne, supra.)

As in the case of Zorkowski v. Astor (156 N. Y. 393) there is no covenant in the lease on the part of the tenant to accept a tender by the landlord of the value of the building, or a new lease. In that case (at p. 397) Judge Vann wrote: “The lessor was bound, after a valid appraisal, to elect to purchase or to renew, but when he had made his election the lessee was not bound to accept the offer on his part in either form because she had not agreed to If he elected to purchase, self-interest would, doubtless, induce her to accept the money, but if he elected to renew the lease she might prefer to decline it, as the rent might be so high that she would rather lose her building than agree to pay it for the long period named.”

When the landlord expresses its choice the only right left n the tenant, under the terms of the lease, is to accept or reject the offer. If the landlord offers a renewal and the tenant rejects it he loses the building and cannot compel the landlord to pay the value of the building as fixed by the appraisal. If that were not so the landlord would not have an option but the option would be with the tenant, and he could elect in any event to compel the landlord to purchase the building. Clearly that was not the intent of the parties.

In each action the judgment of the Appellate Division and that of the Special Term should be reversed and judgment directed in favor of the plaintiff, declaring plaintiff’s option still in force, with costs in all courts.

Crane, J.

(dissenting). I am for affirmance.

The one definite date in the minds of the parties to this lease was the date of the expiration of the term. About that there was no doubt; it was a fixed time. “At the end and expiration of the term hereby granted,” says the lease, “ either pay to the said party of the second part, her executors, administrators or assigns, the just and full value, at that time, of any building built and constructed in the maimer hereinbefore mentioned, and in conformity with the covenants hereinbefore contained, which may be standing upon the said demised premises at the expiration of the said term, such value to be ascertained in the manner hereinafter mentioned or, at the option of the said parties of the first part, their successors or assigns, grant a new lease to the said party of the second part, her executors, administrators or assigns, at her or their expense, for a further term of twenty-one years, to commence from the expiration of the term hereby granted, at a reasonable yearly ground rent, payable half-yearly, to be ascertained as hereinafter mentioned.”

The method provided for ascertaining the value of the buildings or the amount of the renewal rent was by arbitrators to be nominated by the parties at least one hundred and twenty days before the expiration of the term.

Two things the parties clearly had in mind. One was the expiration of the term. Whatever was to be done was to be finished or completed by the end of the term. The second was that the arbitration would be complete by that time. The money was to be paid, or the lease renewed by or at the end of the term. When the lessee signed this lease prepared by the owner, he had every reason to expect from its terminology that at the end of the term he. would know his exact position. The owner, not he, was the one to speak and make this certain.

The lease did not use in this connection the word “ elect ” or “ election.” It said the lessors were to pay or to give a lease. As both of these acts were to be done before the end of the term, the acts themselves embodied or included the “ election.” The main, underlying, fundamental idea, however, was the determining, finally settling by the end of the term, what these two parties were to do for the future. There was to be no period of suspension; the lessors were to settle for the lessee whether he would get cash for his buildings or get a new lease.

That “ election ” was in the minds of the parties and contemplated by them is evidenced by other portions of the lease, such as that which reads as follows: “ That if the party of the first part * * * having, before the expiration of any term, elected to pay for any such building, * * * shall neglect to pay or offer to pay for the same, according to the valuation made as above provided, then the said party of the second part * * * shall and may hold and continue in the possession of the said demised premises until such payment shall be made.”

And again, at the end of a renewal of the lease, it is provided that the lessee at the end of such third term or within twenty days thereafter may take down and remove the buildings “ unless the said parties ,of the first part * * * shall elect to purchase and take to their own use such building or buildings, at two-thirds of the just value thereof, to be ascertained in the manner hereinafter mentioned.”

Surely in this latter instance, the lessors, would be obliged to “ elect ” within the twenty days, although the value might be ascertained thereafter.

. “ Election,” therefore, was contemplated by the parties. The one contingency which the lessors failed to provide for in their lease was the failure of the arbitrators to determine the value or renewal rental before the expiration of the term. The contingency has happened, but the underlying purpose and object remain the same. The lessors could have “ elected,” even though they could not completely perform by the end of the term. Nothing in the world prevented their election.” They could not pay the value for the buildings, as that has not yet been ascertained; they could have given a lease at a rental to be subsequently fixed by arbitration, but whether they could or not, they could have “ elected ” by or at the expiration of the term to purchase at the price subsequently to be fixed, or to give a lease at a rental to be fixed as provided for. The lessee upon such election ” and notification would be obliged to act as provided for in the lease; that is, he would be obliged to take subsequently the amount determined by the arbitrators; or he would be obliged to take a lease thus “ elected ” to be given, or lose his buildings. In other words, at the end of the term the rights of the parties were to be determined, the position was to be made known. Although the lessors could not pay an exact sum of money or give a lease with a definite rental, they could have done the next best thing, which, for all practical purposes, would be just as good. They could have “ elected ” and declared their position or decision, leaving the amounts to be subsequently determined.- This is not new or unusual in leases or agreements.

To take the position that the lessors could wait perhaps months or years for the decision of the arbitrators would be extremely unfair and unreasonable to the lessee. At the end of his term, he would not know whether he was a lessee or what he was. What would be his position? What estate would he have? I confess I do not know. The hold-over could not be a tenancy at will. The lessee could not leave the premises or give up the tenancy-without forfeiting the buildings. He would be held in suspense at the will of the lessor or the arbitrators for an indefinite time; a suspense against his will. He could not give subleases; his subtenants would have no assurance of staying on; he would have an empty building on his hands, awaiting the slow measure of arbitration machinery. Neither could he make improvements or repairs if he were a manufacturer; value was to be determined as of the end of the term. This uncertainty would be hanging over his head with no means whatever of making it certain until the decision of the arbitrators. At any moment they might fix the value and the renewal rent, the lessors then could take the buildings, or offer a lease at their “ election.” The time, however, when they could do these things, would be absolutely beyond-the determination of man, whereas the lease prepared by these parties fixed a definite time for such determination, to wit, the end of the term.

The courts below, in my judgment, have properly disposed of this case in holding that the lessors, having taken the position that they would not “ elect,” even within a reasonable time after the expiration of the lease, the lessee had the right to “ elect ” for himself. I feel that no injustice will be done by the affirmance of this judgment.

Pound, Lehman and Kellogg, JJ., concur with Hubbs, J.; Crane, J., dissents in opinion; O’Brien, J., not voting; Cardozo, Ch. J., not sitting.

Judgments reversed, etc.


source: Caselaw Access Project

author: Cardozo, Ch. J.

license: Public Domain

text:
    James Murphy, an Infant, by John Murphy, His Guardian ad Litem, Respondent, v. Steeplechase Amusement Co., Inc., Appellant.
    (Submitted March 25, 1929;
    decided April 16, 1929.)

      Gardiner Conroy and Reginald S. Hardy for appellant.
    There was no proof of any negligence on the part of the appellant. (O’Toole v. Thousand Island Park Assn., 206 App. Div. 31; Tryon v. Chalmers, 205 App. Div. 816; Dunning v. Jacobs, 15 Misc. Rep. 85; Flynn v. Central R. R. Do. of N. J., 142 N. Y. 439; Dwyer v. Hills Brothers Co., 79 App. Div. 45; Horton v. Vulcan, 13 App. Div. 508; Camp v. Wood, 76 N. Y. 92; Hart v. Grennell, 122 N. Y. 371; Larkin v. O’Neill, 119 N. Y. 221; Essig v. Lumber Operating & Mfg. Co., 183 App. Div. 198.) The risks incident to the “flopper” were open and obvious and assumed by the respondent as a matter of law. (Knottnerus v. North Park Street R. Co., 93 Mich. 348; Lumsden v. Thompson Scenic Railway Co., 130 App. Div. 209; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310; Matter of Maloney v. Cunard Steamship Co., 217 N. Y. 278.)

      Charles Kennedy for respondent.
    The negligence of the appellant was clearly established. (Barrett v. Lake Ontario Beach Co., 174 N. Y. 310; Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 297; Cleveland v. Steamboat Co., 125 N. Y. 299; Donnelly v. City of Rochester, 166 N. Y. 315; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310.) The plaintiff did not assume the risk of defendant’s negligence. (Penn Co. v. Backes, 133 Ill. 255; Dowd v. N. Y., O. & W. R. R. Co., 170 N. Y. 459; Lumsden v. Thompson Scenic R. R. Co., 130 App. Div. 209.)
   Cardozo, Ch. J.

The defendant, Steeplechase Amusement Company, maintains an amusement park at Coney Island, New York.

One of the supposed attractions is known as The Flopper.” It is a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power.

Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as every one understood, than the slowly-moving escalator that is common in shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiff’s wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. I took a chance,” she said when asked whether she thought that a fall might be expected.

Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee cap. He states in his complaint that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a fast and dangerous rate of speed and was not supplied with a proper railing, guard or other device to prevent a fall therefrom. No other negligence is charged.

We see no adequate basis for a finding that the belt was out of order. It was already in motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such circumstances by the addition of the facile comment that it threw him with a jerk. One who steps upon a moving belt and finds his heels above his head is in no position to discriminate with nicety between the successive stages of the shock, between the jerk which is a cause and the jerk, accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power was transmitted smoothly, and could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere descriptive epithet, a summary of the sensations of a tense and crowded moment (Matter of Case, 214 N. Y. 199; Dochtermann v. Brooklyn Heights R. R. Co., 32 App. Div. 13, 15; 164 N. Y. 586; Foley v. Boston & Maine R. R. Co., 193 Mass. 332, 335; Work v. Boston El. Ry. Co., 207 Mass. 447, 448; N. & W. Ry. Co. v. Birchett, 252 Fed. Rep. 512, 515). But the jerk, if it were established, would add little to the case. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen (Lumsden v. Thompson Scenic Ry. Co., 130 App. Div. 209, 212, 213).

Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball (Pollock, Torts [11th ed.], p. 171; Lumsden v. Thompson Scenic Ry. Co., supra; Godfrey v. Conn. Co., 98 Conn. 63; Johnson v. City of N. Y., 186 N. Y. 139, 148; McFarlane v. City of Niagara Falls, 247 N. Y. 340,349; cf. 1 Beven, Negligence, 787; Bohlen, Studies in the Law of Torts, p. 443). The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.

A different case would be here if the dangers inherent in the sport were obscure or unobserved (Godfrey v. Conn. Co., supra; Tantillo v. Goldstein Bros. Amusement Co., 248 N. Y. 286), or so serious as to justify the belief that precautions of some kind must have been taken to avert them (cf. O’Callaghan v. Dellwood Park Co., 242 Ill. 336). Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe. A different case there would also be if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change. The president of the amusement company says that there had never been such an accident before. A nurse employed at an emergency hospital maintained in connection with the park contradicts him to some extent. She says that on other occasions she had attended patrons of the park who had been injured at the Flopper, how many she could not say. None, however, had been badly injured or had suffered broken bones. Such testimony is not enough to show that the game was a trap for the unwary, too perilous to be endured. According to the defendant’s estimate, two hundred and fifty thousand visitors were at the Flopper in a year. Some quota of accidents was to be looked for in so great a mass. One might as well say that a skating rink should be abandoned because skaters sometimes fall.

There is testimony, by the plaintiff that he fell upon wood, and not upon a canvas padding. He is strongly contradicted by the photographs and by the witnesses for the defendant, and is without corroboration in the testimony of his companions who were witnesses in his behalf. If his observation was correct, there was a defect in the equipment, and one not obvious or known. The padding should have been kept in repair to break the force of any fall. The case did not go to the jury, however, upon any such theory of the defendant’s liability, nor is the defect fairly suggested by the plaintiff’s bill of particulars, which limits his complaint. The case went to the jury upon the theory that negligence was dependent upon a sharp and sudden jerk.

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.

Pound, Crane, Lehman, Kellogg and Hubbs, JJ., concur; O’Brien, J., dissents on the authority of Tantillo v. Goldstein Brothers Amusement Co. (248 N. Y. 286).

Judgments reversed, etc.


author: Kellogg, J.

text:
    George Baker, Appellant, v. Henry Hull et al., Respondents.

      (Submitted March 25, 1929;
    decided April 16, 1929.)

      Samuel W. Eager for appellant.
    Under the common law and the express terms of the statute the plaintiff’s title was good as against the levy. (Goetschius v. Bright-man, 245 N. Y. 186; Cole v. Mann, 62 N. Y. 1; Fennikoh v. Gunn, 59 App. Div. 132; Burchett v. Green, 6 Misc. Rep. 236; 80 Hun, 602; Friedman v. Phillips, 84 App. Div. 179; Whitney v. Biggs, 92 Misc. Rep. 424; Jones v. City of Albany, 151 N. Y. 223; Rosin v. Lidgerwood Mfg. Co., 89 App. Div. 245; Mlodzik v. Ackerman Oil Co., 210 N. W. Rep. 694; Depew v. Depew Co., 98 N. J. Eq. 461.)

      Herbert B. Royce and Philip A. Rorty for respondents.
    The lien of a judgment creditor attaches to the property of the debtor from the time of the delivery of the execution to the sheriff. (Civ. Pr. Act, § 679; Home Bank v. Brewster & Co., 15 App. Div. 338; Stewart v. Beale, 7 Hun, 405; 68 N. Y. 629; Gavazzi v. Dryfoos, 110 App. Div. 90.) The delay in filing the conditional sale contract rendered it void as to the judgment creditor in this case. (Tucker v. Siegel-Cooper Co., 194 N. Y. 442; Karst v. Gane, 136 N. Y. 316; Seger & Gross Co. v. Maclaire, 165 N. Y. Supp. 423.)
   Kellogg, J.

On the 10th day of June, 1927, the plaintiff sold and delivered an automobile to Jesse B. Earle. Contemporaneously, Earle executed and delivered to the plaintiff a conditional sale contract. The instrument engaged Earle to pay to the plaintiff an agreed purchase price; it provided that title to the automobile should remain in the plaintiff until payment had been made. On the 22d of July, 1927, Samuel T. Randall recovered a judgment against Earle, which was docketed in the county of Orange, within which Earle resided. An execution against the property of Earle was issued on the 23d day of July, 1927, to Henry Hull, the defendant herein, as sheriff of the county. On the 11th day of August, 1927, at 11:45 a. m., the plaintiff filed, in the office of the clerk of the city wherein Earle resided, the written contract evidencing the sale. Later, shortly after the noon hour of the same day, the defendant Hull, as sheriff of the county, and the defendant Pugsley, as under sheriff, levied upon the automobile and took the same into their possession. This action of replevin was thereupon brought to recover possession of the automobile. At Trial Term the complaint was dismissed, and, at the Appellate Division, the judgment of dismissal was affirmed.

Under a conditional sale contract, at common law, no title passed to the buyer until the contract price had been paid. Consequently, neither an execution issued against the property of the buyer, nor a levy thereunder, gave rise to a hen upon the chattel sold. (Herring v. Hoppock, 15 N. Y. 409; Hasbrouck v. Lounsbury, 26 N. Y. 598; Ballard v. Burgeti, 40 N. Y. 314; Cole v. Mann, 62 N. Y. 1; Goetschius v. Brightman, 245 N. Y. 186.) The common-law rule, with exceptions stated, has been declared by statute. (Personal Property Law [Cons. Laws, ch. 41], §§ 64, 65.) Section 64 states the rule: " Every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided.” Section 65 states the exceptions: Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the Contract or a copy thereof shall be filed as hereinafter provided.” As to all creditors, except those who acquire a lien by levy or attachment, the condition remains valid, and no title passes to become subject to the lien of an execution. In our case, the contract was filed after the execution was issued but before the levy was made. Consequently, without filing, the condition survived the issuance of the execution; with filing, it survived the levy.

The defendants mistakenly urge that, under the provisions of section 679 o' the Civil Practice Act, a lien arose simultaneously with the issuance of the execution, irrespective of a levy. That section provides: “ The goods and chattels of a judgment debtor, not exempt, by express provision of law, from levy and sale by virtue of an execution, and his other personal property which is expressly declared by law to be subject to levy by virtue of an execution, are bound by the execution, when situated within the jurisdiction of the officer to whom an execution against property is delivered, from the time of the delivery thereof to the proper officer to be executed, but not before.” The Code of Civil Procedure, enacted in the year 1876, contained an identical provision. (L. 1876, ch. 448, § 1405.) The enactment was derived from the Revised Acts of 1801, wherein it was provided that no writ of execution shall bind the property of the goods of any person against whom such writ shall be issued, but from the time that such writ shall be delivered to the sheriff * * (L. 1801, ch. 105, § 7.) This latter provision was substantially a transcription of the English statute of 29 Car. II, ch. 3, § 16. (Hotchkiss v. M’Vickar, 12 Johns. 403.) Thus, from the earliest period in our history, it was the law of the State that a lien arises, not when a levy is made but at the moment when an execution is delivered to an officer. (Hendricks v. Robinson, 2 Johns. Ch. 281, 296; Hotchkiss v. M’Vickar, supra; Lambert v. Paulding, 18 Johns. 311; Stewart v. Beale, 7 Hun, 405; affd., 68 N. Y. 629.) Nevertheless it was concurrently the rule, that neither an execution nor a levy thereunder created a hen against chattels in the hands of a conditional buyer; for, since the buyer acquired no title, the chatte s were not “ goods or chattels of a judgment debtor ” to which the hen of an execution might attach. (Herring v. Hoppock, supra.) Consequently, the Civil Practice Act section, which merely continued an existing rule, had no effect to bestow a hen not theretofore existing. For that result, we may look to no other statutory provisions than those contained in section 65 of the Personal Property Law. As we have seen, under those provisions, a condition, by which title is reserved in the seller, becomes invalid, as to a creditor of the buyer, only when such a creditor has acquired a hen, not by issuance of an execution, but through a levy under an execution.

Equally mistaken are the defendants in their reliance upon the cases of Karst v. Gane (136 N. Y. 316) and Tooker v. Siegel-Cooper Co. (194 N. Y. 442). Those cases deal with a wholly unrelated subject, viz., the validity of a chattel mortgage under the provisions of section 230 of the Lien Law (Cons. Laws, ch. 33.) That section provides that every chattel mortgage, not accompanied by an immediate delivery, and a continued change of possession, of the chattel mortgaged, is absolutely void as against the creditors of the mortgagor ” unless the mortgage is duly filled. The cases cited merely hold that a mortgage, who has unreasonably delayed the filing of his mortgage, cannot, as against creditors at large, save the mortgage, by filing it previously to the acquisition of a lien by such creditors. It will be noted that a chattel mortgage, not promptly filed, is absolutely void as against the creditors of the mortgagor,” not merely as against judgment creditors having executions; whereas, in a conditional sale, the condition reserving title is void only as against creditors who acquire “ by attachment or levy a lien ” upon the chattels sold “ before the contract or a copy thereof ” is filed. The authorities are not relevant to the point in issue.

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.

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

Judgments reversed, etc.


author: Pound, J.

text:
    In the Matter of William Baldwin, an Alleged Incompetent, by Mary L. Baldwin, His Guardian ad Litem, against William J. Tiffany, Superintendent of Kings Park State Hospital, et al., Respondents.

      (Argued March 18, 1929;
    decided April 16, 1929.)

      Warren I. Lee and L. Hyler Connell for appellant.
    The petitioner-appellant here was a resident of the State of New York at the time the order of the Supreme Court was made and was entitled to hospitalization under the provisions of the Mental Hygiene Law of this State. (Pannell v. Roanoke Times Co., 252 Fed. Rep. 910.) Even though petitioner-appellant should not be entitled to hospitalization in this State as a resident, as respondents contend, he is entitled to hospitalization under section 60 of the Mental Hygiene- Law. (Bassett v. Wheeler, 84 N. Y. 466; Matter of Honeyman, 117 Misc. Rep. 653; People ex rel. Rausch v. Rausch, 193 N. Y. Supp. 235; Kennedy v. Ryall, 67 N. Y. 379; Silvey v. Lindsay, 107 N. Y. 55; Matter of Curtiss, 199 N. Y. 36.)

      Hamilton Ward, Attorney-General (George W. Davis and Borden H. Mills of counsel), for respondents.
    The petitioner-appellant herein was not a resident of the State of New York and was not entitled to hospitalization under the provisions of the Mental Hygiene Law of this State. (Cons. Laws, ch. 27, § 2, subd. 7.)
   Pound, J.

The State hospitals are for the care and treatment of the poor and indigent insane of the State. Care and treatment in a State hospital is limited to residents of this State, except in the case of persons whose residence cannot be determined or who, for humane reasons, are received pending their acceptance by the State or country in which they have a legal residence. (Mental Hygiene Law [L. 1927, ch. 426; Cons. Laws, ch. 27], § 60.)

Prior to March 6,1929, when the word continuously ” was inserted in the definition by chapter 63 of the Laws of 1929, it was provided that:

“ ‘ Resident ’ means a person who shall have lived in this State at least one year, exclusive of the time spent in public or private institutions.” (Mental Hygiene Law, § 2, subd. 7.)

The transfer of patients who have not obtained a legal settlement in this State is provided for by section 87 of the Mental Hygiene Law as follows:

If an order be issued by any judge, committing to a state hospital a poor or indigent person, who has not acquired a legal settlement in this state, the commissioner [of mental hygiene] shall return such insane person, either before or after his admission to a state hospital, to the country or state to which he belongs, and for such purpose may expend so much of the money appropriated for the care of the insane as may be necessary, subject to the audit of the comptroller.”

William Baldwin became a resident of the State of New York in September, 1926. He was adjudged insane on April 21, 1927, when he was 23 years of age, and was committed to the Kings Park State Hospital, a State hospital for the insane. Thereafter, the Commissioner of Mental Hygiene returned him to the State of Georgia, on the ground that he belonged to that State. In July, 1927, Baldwin returned to the State of New York. On December 19, 1927, he was again adjudged insane and committed to the State hospital. On January 18, 1928, he was again returned to Georgia. On or about March 15, 1928, he again returned to the State of New York. On March 30, 1928, he was for the third time adjudged insane and committed to the Central Islip State Hospital. On the threat of the State authorities that he would be again returned to Georgia, his mother placed him temporarily, on April 9, 1928, in the Long Island Home, a private institution at Amityville, New York, where he remained until he was received in Kings Park State Hospital under the order of the Appellate Division, pending his acceptance by the State of Georgia.

The Attorney-General concedes that Baldwin, at the time this proceeding was instituted, had lived in the State of New York, exclusive of the time spent in institutions, for fourteen months, divided into three periods of seven months, five months and two months respectively, following each of which periods he was committed to an institution for the insane.

The question is whether the incompetent is entitled to care and treatment in a State hospital for the insane as a resident of the State or as a non-resident, pending his return to Georgia, the State of which he was a resident some time before he came to New York.

As it appears that Baldwin had been living in the State for less than eight months at the time of his first commitment, he had not then gained a settlement within the meaning of the Mental Hygiene Law. He was entitled to care and treatment in a State hospital pending his acceptance by the State or country to which he belonged. His acceptance by the State of Georgia had not been arranged for and “ for humane reasons ” he should not have been taken to that State without previous assurance that he would be received. Without such an arrangement, it might be expected that he would return, as he did, to his mother in New York. Again adjudged insane and committed, he was again returned to Georgia. Again he returned and again this homicidal maniac was adjudged insane and committed. Again he was threatened with deportation when this proceeding was instituted. These unseemly efforts to discharge the insane person within the limits of the State of Georgia have become a scandal and should cease. Either he should receive care and treatment as a resident of New York, as the Special Term directed, or he should receive such care and treatment as a non-resident pending his acceptance by the State of Georgia, as the Appellate Division ordered. It is fair to say that such was the position taken on the argument' by the Attorney-General.

The word reside ” is capable of different meanings. We are dealing here with a statutory definition. The insane person, to gain a legal settlement, must have lived in the State at least one year, exclusive of the time spent in public or private institutions. We are dealing with the care and treatment of the poor and indigent insane. The purpose of the statute is to prevent the State from becoming the dumping ground of non-resident pauper insane. With this object in view, the statute requires a reasonable interpretation to give it practical effect and to guard against abuse.

When Baldwin came to Brooklyn in 1926 he did not gain a settlement in New York. He initiated a residence which might ripen into a settlement if he lived here for a year. When he was forced to leave the State by the Commissioner of Public Hygiene, he had no intention of giving up his residence in New York. It remained his residence until he should manifest a contrary purpose by an actual change of residence with the intention of remaining permanently away. (Dupuy v. Wurtz, 53 N. Y. 556; People v. Platt, 117 N. Y. 159; deMeli v. deMeli, 120 N. Y. 485.) He did not cease to be a resident of New York when under compulsion he left the State.

True it is that the incompetent did not subsist in New York when he was without its boundaries. Clear it is that he had no home or fixed place of abode in New York at the time when he was taken out of the State. Yet, within the letter of the statute, he had lived in New York for one year before his third commitment.

He had lived in New York for a period of fourteen months, not continuous, but broken only by his enforced and involuntary absences from the State. He had acquired no residence elsewhere during such absences. He had thus gained a legal settlement in this State by living therein at least one year, exclusive of the time spent in public or private institutions.” Continuity of physical presence for one year is not required. The word “ continuously ” should not be written into the statute by implication in cases where nothing appears to break the continuity of voluntary residence. Otherwise a settlement might be prevented by forcibly removing any resident poor person beyond the .boundaries of the State and leaving him to find his way back home.

It follows that Baldwin is entitled to care and treatment in a State hospital as a resident patient.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

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

Ordered accordingly.


author: Hubbs, J.

text:
    The Brooklyn Public Library, Appellant, v. The City of New York, Respondent.
    (Argued March 25, 1929;
    decided April 16, 1929.)

      Meier Steinbrink and Harold M. Kennedy for appellant.
    Plaintiff was entitled to recover in an action based on contract the amounts which the defendant was liable to pay under its agreement. (Hunt v. City of Utica, 18 N. Y. 442; People ex rel. O’Loughlin v. Prendergast, 219 N. Y. 377; Davidson v. Village of White Plains, 121 App. Div. 287; Dannat v. Mayor, 66 N. Y. 585; Swift v. Mayor, 83 N. Y. 528; Reilly v. City of Albany, 112 N. Y. 30; Cumming v. City of Brooklyn, 11 Paige, 596.) There can be no claim of waiver, acquiescence or “ practical construction ” in this case. (Giles v. Comstock, 4 N. Y. 270; Kinny v. McBride, 88 App. Div. 92; Maloney v. Iroquois Brewing Co., 63 App. Div. 454; Sharp v. Behr, 117 Fed. Rep. 864; Russell v. Young, 94 Fed. Rep. 45; Marshall v. Modern American Fraternal Order, 184 Ill. App. 224.) The defendant breached its contract by its failure to pay mortgage interest and insurance charges. (Dodge v. Cornelius, 168 N. Y. 242; Matter of Brooklyn Public Library v. Craig, 201 App. Div. 722.)

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict and J. Joseph Lilly of counsel), for respondent.
    Failure to pay mortgage interest and insurance premiums on a building which annually produced for the plaintiff rents in excess of such charges, did not constitute a breach of the contract between the city and the library. (Schoonmaker v. Hoyt, 148 N. Y. 425; People ex rel. R. T. S. Const. Co. v. Craven, 210 N. Y. 443; Hunt v. City of Utica, 18 N. Y. 442; Donovan v. City of New York, 33 N. Y. 291; McDonald v. Mayor, etc., 68 N. Y. 23; Smith v. City of Newburg, 77 N. Y. 130; Keane v. City of New York, 88 App. Div. 542; Village of Ft. Edward v. Fish, 156 N. Y. 363; Ontario Knitting Co. v. State of New York, 205 N. Y. 409; Matter of Zittel v. Furmann, 101 Misc. Rep. 109; 183 App. Div. 448; Matter of Hirshfield v. Cook, 227 N. Y. 297; Matter of Emerson v. Buck, 230 N. Y. 380.) There has been a practical construction of this contract by the parties hereto in a manner contrary to the claims set forth in the complaint. (City of New York v. New York City Ry. Co., 193 N. Y. 543; Carthage T. P. Mills v. Village of Carthage, 200 N. Y. 1; City of New York v. Union Railway Co., 206 App. Div. 472; 238 N. Y. 571.)
   Hubbs, J.

Prior to 1901 Andrew Carnegie offered to give to the city of New York $5,000,000 for the purpose of erecting branch circulating public libraries upon condition that the city should furnish the sites. As a result of that offer, chapter 580 of the Laws of 1901 was enacted. It authorized the city, through its Board of Estimate and Apportionment, to enter into contracts with Mr. Carnegie or his representatives for the building and maintenance of new libraries and for the maintenance of existing libraries. There existed in the borough of Brooklyn two library corporations, the Brooklyn Library ” and the “ Public Library,” which it was deemed expedient to consolidate under one management. In pursuance of such purpose, chapter 606 of the Laws of 1902 was enacted, and amended by chapter 500 of the Laws of 1903. The statute incorporated the Brooklyn Public Library ” which corporation took over the property of the other two libraries, and the direction and control thereof. It was authorized to make contracts with the city for the construction and maintenance of public libraries, and the city was empowered to contract with the Brooklyn Public Library for the maintenance of the free public library system in the borough of Brooklyn. The expense of maintenance, by the statute, was made a city charge to be included in the annual budget and tax levy of the city. Acting under the authority conferred by said statute, the city and the Brooklyn Public Library entered into the contract which is the basis of this action. It was dated June 5, 1903. It recites that it was entered into for the purpose of making the library property of the Brooklyn Library, a private corporation, a part of the free public library system of the city of New York, and that for such purpose the Brooklyn Library, a private corporation, would transfer to the new corporation, Brooklyn Public Library, its library property upon certain conditions. The property so to be transferred by the Brooklyn Library was estimated to be worth $850,000. It also recites that the Brooklyn Library would transfer certain real property adjacent to its main library building, and used in connection with it. At the time there were mortgages amounting to $120,000 upon one parcel, which property was at the time in part rented to tenants and the contract so states. By said contract the Brooklyn Public Library agreed to administer all free public libraries in the borough of Brooklyn, including the Brooklyn Library so acquired. The city agreed that, in addition to the amount it is obligated to pay and appropriate under the agreement of September 11, 1901, above referred to, and pursuant to the provisions of the act, Chapter 580, Laws of 1901, it will appropriate and pay for the maintenance and support of said Brooklyn Public Library such sums as may be requisite for the proper maintenance of the libraries theretofore under the administration of the Board of Directors of the Brooklyn Public Library, and of the corporation ‘ Brooklyn Library above mentioned, such amounts to constitute a city charge, and to be provided for in the annual budget and tax levy of the City.”

The contract also provides: “ It is understood that any taxes and assessments upon any of the property of said Brooklyn Public Library, insurance charges, interest upon mortgages above recited and reasonable cost of repairs are to be regarded as part of the cost of maintenance and of the said free library system.”

It thus appears that the city in and by said contract agreed to pay for the maintenance and support of the Brooklyn Public Library such sums as might be requisite for the proper maintenance of the libraries, and that the interest on said $120,000 mortgages and the cost of insurance on buildings should be deemed part of the cost of maintenance.

It is conceded that the city has never paid the interest on the mortgages or the cost of insurance. It is also conceded that the Brooklyn Public Library has received sufficient rent from that part of the building which has been rented to fully pay said interest and the cost of insurance.

The status of the plaintiff has been held to be a distinct and separate corporation, receiving budgetary contributions from the city.” (Matter of Brooklyn Public Library v. Craig, 201 App. Div. 722; motion for permission to appeal to the Court of Appeals denied, 202 App. Div. 815.)

The purpose of the contract was as stated therein: To make its [Brooklyn Library] library property a part of the free public library system of the Borough of Brooklyn and of the City of New York.”

The whole tenor and spirit of the contract is to the effect that the new corporation, Brooklyn Public Library, is to hold in trust the property of the old Public Library and Brooklyn Library for the purpose of carrying out the contract between the city and Andrew Carnegie, and for the purpose of making the property a part of the free public library system of the city of New York.

The Brooklyn Public Library became an instrumentality for the carrying out of the plan for building up and maintaining that system. It was an integral part thereof. The provision of the contract providing for maintenance must be construed, with "that situation in mind. The city had the obligation of maintaining its own libraries, the title to which rested in the city. It assumed the same obligation toward the libraries, the title to which was vested in Brooklyn Public Library, but because of the peculiar facts and situation resulting from the contract, by which the title of the property in question vested in the Brooklyn Public Library, although the beneficial use of the same became a part of the free public library system entitled to the financial support of the city, it was doubtless thought expedient or necessary to provide that the city will appropriate and pay for the maintenance and support of said Brooklyn Public Library such sums as may be requisite for the purpose of the maintenance of the libraries,” and that the interest on the mortgage and cost of insurance should be deemed a part of the cost of maintenance.

It was the duty and obligation of the Brooklyn Public Library to maintain itself as far as reasonable from its own income from rent, and there was no duty or obligation on the city to maintain it until it became necessary, that is, until it could not wholly maintain itself. The word requisite must have been used advisedly with’ the intent of limiting the city’s obligation to such sums as should be found necessary or indispensable, otherwise the agreement to maintain would have been absolute. It does not seem reasonable that the city intended to pay the entire cost of maintenance and permit the Brooklyn Public Library to use the rent received for the purpose of purchasing bonds, paying for a portrait and the other purposes for which it has been used. For the first eight years after the date of the contract the Brooklyn Public Library did not include in its estimates presented to the Board of Estimate and Apportionment sums to pay such interest and insurance charges. It did, however, pay the same from its Rental fund ” later called Realty Income Account,” thereby placing a practical construction upon the contract in question.

When the parties to a contract of doubtful meaning, guided by self-interest, enforce it for a long time by a consistent and uniform course of conduct, so as to give it a practical meaning, the courts will treat it as having that meaning, even if as an original proposition they might have given it a different one.” (City of New York v. New York City Ry. Co., 193 N. Y. 543, 548.)

The obligation of the city was to pay each year. The obligation of the Brooklyn Public Library was to submit each year an estimate of the amount requisite for the year. It would be an unauthorized construction to hold that the Brooklyn Public Library might fail for eight years to include such sums in its estimates, wait twenty years and then require the city to pay the sum of $231,307.73, the amount of the judgment awarded by the Special Term.

On the merits, therefore, under the contracts and statutes in question, the plaintiff is not entitled to recover. The conclusion which we have reached makes it unnecessary to discuss the other questions passed upon by the Appellate Division.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Lehman and Kellogg, JJ., concur; O'Brien, J., not sitting.

Judgment affirmed.


text:
    In the Matter of Martha Lendle, as Executrix of August Lendle, Deceased, Respondent.
    Sopie Pfeil et al., Appellants.
    (Argued March 21, 1929;
    decided April 16, 1929.)

      Bernard Hershkopf, Henry P. Velte and James Harte Levenson for Sophie Pfeil et al., appellants.
    The fundamental purpose of a will is to meet the situation with respect to the testator’s property which exists when he dies. It is with that time in mind that a will is drawn, and manifestly it is of that moment that its terms speak and have effect, in the absence of clear language to the contrary. (Matter of Bump, 234 N. Y. 60; Brundage v. Brundage, 60 N. Y. 544; Matter of Sargent, 215 App. Div. 639; Hirsch v. Bucki, 162 App. Div. 659; Waldo v. Hayes, 96 App. Div. 454; Pruyn v. Sears, 96 Misc. Rep. 200; Matter of Ralph, 91 Misc. Rep. 373.) The respondent’s assumption that the various mark legacies to the German relatives are specific legacies is clearly unwarranted. (Brundage v. Brundage, 60 N. Y. 544; Crawford v. McCarthy, 159 N. Y. 514; Matter of King, 122 App. Div. 354; Pruyn v. Sears, 96 Misc. Rep. 20C, Matter of Hess, 120 Misc. Rep. 372; Matter of Thompson, 217 N. Y. 111; Chemical National Bank. v. Butt, 123 Misc. Rep. 575.)

      Thomas D. Austin for Ludwig Lendle, Jr., et al., appellants.
    In the absence of clear and unequivocal language to the contrary a will speaks and has effect as to conditions in existence at the date of the death of the testator. (Byrnes v. Baer, 86 N. Y. 216; Lynes v. Townsend, 33 N. Y. 563; Brundage v. Brundage, 60 N. Y. 544; Matter of Bump, 234 N. Y. 60.)

      Charles J. Lane for respondent.
    The testator’s intention controls the construction of his will. (Davids New York Law of Wills, 923; Matter of Hendrickson, 140 App. Div. 391; Matter of Thompson, 271 N. Y. 111; Matter of Hoffman, 201 N. Y. 247; Matter of Title Guarantee Co., 195 N. Y. 339; Matter of Sargent, 211 N. Y. Supp. 778; Lane v. Albertson, 78 App. Div. 607; Wilson v. Lynt, 30 Barb. 124; Dowd’s Will, 8 Abb. [N. C.] 118; Close v. Farmers Loan & Trust Co., 121 App. Div. 528; 195 N. Y. 92; Wright v. Wright, 140 App. Div. 125; Robinson v. Martin, 138 App. Div. 310; 200 N. Y. 159; Schuler v. Schuler, 137 App. Div. 515; Kahn v. Tierney, 135 App. Div. 897; 201 N. Y. 516; Boardman v. Hitchcock, 136 App. Div. 353; 202 N. Y. 622; Simpson v. Trust Company of America, 129 App. Div. 200; 197 N. Y. 586; Matter of Gilman, 65 Misc. Rep. 409; Matter of Barton, 64 Misc. Rep. 242.)
   Pound, J.

The question is as to the meaning of certain general legacies contained :n the will of testator payable in German marks. Testator was a native of Germany, domiciled in the United States and residing at Forest Hills, New York. On September 17, 1920, he executed his last will and testament. He first gave to his wife, Martha Lendle, a legacy of $50,000, to be paid to her in full before payment of other legacies hereinafter made.” He then gave legacies to his near relatives in Germany; to his mother, Wilhelmine Lendle, 200,000 marks; to his sister, Sofie Pfeil, 100,000 marks; to his brother, Ludwig Lendle, 100,000 marks; to his nephew, Ludwig Lendle, Jr., 25,000 marks; to his niece, Albertina Lendle, 25,000 marks, and to Corps Borussia at the University of Tubingen, 25,000 marks as a memorial to his brother, the income to be used in the purchase of books. These legacies total 475,000 marks. He directed that all transfer taxes on such legacies be paid from the residue of his estate and then devised and bequeathed such residue to his wife for fife, remainder over to his issue or to his heirs and next of kin. He died on March 29, 1927. His mother had predeceased him. Her legacy by the terms of the will passed to his sister and brother. He left no issue.

At the time of executing the will testator had property in Germany and in the United States. It is said that his property in Germany was of the value of 824,053 marks and his property in the United States was of the value of $113,616. When he died he left a net estate of $322,095.23.

In the Surrogate’s Court it was held that the legatees were entitled to be paid in dollars at the prevailing rate of exchange of the mark at the time of testator’s death, viz., $0.2371, amounting to $112,622.50 in all. The Appellate Division held that the testator’s intention was to make the bequests in marks at the current rate of exchange on the day of the execution of the will, viz., $0.0153, amounting to $7,267.50 in all.

The courts below have proceeded on a misconception of the nature of the bequests payable in marks. The bequests were of German marks which are to be regarded, not as a measure of value, but as a commodity. They are like a general bequest of stock or bonds, to be satisfied in kind. (Tifft v. Porter, 8 N. Y. 516; Evans v. Hunter, 86 Iowa, 413; 17 L. R. A. 308.) If the testator had never owned any marks or having had them to the amount of 475,000 marks had disposed of them in his lifetime, it would have been the duty of the executrix to procure German marks with which to satisfy the legacies. The question is one not of the proper measure of damages for breach of a contract payable in foreign money, as in Hoppe v. Russo-Asiatic Bank (235 N. Y. 37), but of the meaning of a bequest payable in specie. At the time of making the will the testator intended that the legacies should be paid in marks when he died. No other intent can be read into it. The will contains no intimation that when testator gave general legacies of marks he intended to give legacies payable in dollars at the prevailing rate of exchange, either at the time he made the will or at the time of his death.

After the testator executed his will the German paper mark depreciated to the vanishing point and became practically worthless. In 1924, before his death, it was withdrawn from circulation and the German government re-established the mark on a gold basis at the value of $0.2371, at which it has since approximately remained. Did the testator intend to make the legacies payable only in depreciated paper marks? If so, the legacies are reduced in value to the nominal sum of six cents, for at the time of his death the paper mark had been withdrawn from circulation. Or, did he intend to make them payable in whatever passed as a German mark at the time of his death? These are the alternatives presented for our choice. If at the time of a depreciated paper currency a testator provides in his will for legacies in dollars, the legacy is payable in any money that is legal tender at the time of his death. The paper dollar may have shrunk in value or it may have risen to a parity with gold, or a gold standard may have been established. True the domestic dollar is regarded as a medium of exchange and not as a commodity but the analogy remains. Testator saw the paper mark dwindle in value. He said in 1923: “ I must change my will because I want to give my relatives something and just now they would not get anything.” He did not change his will. He wanted his relatives to have something. If he had intended the legacies to be payable in marks as of the time when he made the will he could have made them payable in dollars. But he was sagacious and experienced. He made the legacies payable in marks so that if the mark became worthless before his death, the legacies would dwindle in proportion. It is fair to assume that he still had faith in the stabilization of the German currency and that he intended his legatees to have the benefit thereof if it occurred. He had been buying real property in Germany with depreciated marks before he made his will and had profited thereby. He had, between the making of the will and his death, seen the fall and the rise of the mark. It is inconceivable that he intended to cut off his German relatives and enhance the life estate of the wife at their expense. To his mind the normal mark must at all times have been the mark as he knew it before the World War. Fluctuations were the symptoms of a disease which might be fatal but from which the patient might recover. The legacies are payable in marks, not in dollars, and in marks which pass as such in the market at the time the- legacies are paid.

The decree of the surrogate is substantially correct in result although not in form. As no point is made of this irregularity, it may stand.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division.

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

Ordered accordingly.


text:
    In the Matter of the Claim of Henry Schaefer, Respondent, against Buffalo Steel Car Company et al., Appellants. State Industrial Board, Respondent.

      (Argued April 15, 1929;
    decided April 23, 1929.)

      Clarence B. Tippett for appellants.
    The awards and findings of and for decreased earnings are in conflict with the provisions of the Workmen’s Compensation Law, constitute legal error and merit reversal. (Marhoffer v. Marhoffer, 220 N. Y. 543; Hinley v. Brooklyn Heights Railroad Co., 243 N. Y. 52; Hoffman v. Chatham Electric Light Co., 249 N. Y. 433; Pinski v. Superior Fireproof Door & Sash Co., 209 App. Div. 305; Gefers v. N. Y. Window Cleaning Co., 224 App. Div. 792; 249 N. Y. 433.)

      Merritt N. Baker for claimant, respondent.
    After making a schedule award and contemporaneously ordering the continuance of the case for restoration of the claim to the hearing calendar after the expiration of the schedule period, and after payment of such schedule award in full, the Board has the power to rescind such previous schedule award and make an award for permanent partial disability under paragraph u, subdivision 3 of section 15, dating from the day of accident and crediting the employer with all previous payments made. (Schaefer v. Buffalo Steel Car Co., 221 App. Div. 808; Draper v. Draper & Sons, Inc., 201 App. Div. 770; Crisco v. Edgewater Saw Mills Co., 198 App. Div. 458; Soltar v. Neuglass & Co., 228 N. Y. 508; Mosher v. Carlton, 207 App. Div. 84; Tolloid v. Hopeman & Sons Co., 209 App. Div. 719; Kriegbaum v. Buffalo Wire Works Co., Inc., 182 App. Div. 448; Pollucci v. Emerson Norris Co., 195 App. Div. 805.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, respondent.
   Pound, J.

Claimant received a schedule award for temporary partial disability due to loss of the use of an arm, 202.8 weeks disability at $20 per week, total $4,056.00. (Workmen’s Compensation Law [Cons. Laws, eh. 67], § 15, subd. 3, par. s.) The disability period expired on or about August 9, 1925, when this award had been paid in full. Thereafter the case was reopened and, it appearing claimant was suffering from combined injuries to both arm and back, an award was made for permanent partial disability under paragraph u of the same subdivision of section 15, which reads as follows:

u. Other cases. In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the board on its own motion or upon application of any party in interest.”

The award dated from the time of the accident and the employer and insurance carrier were credited on such award with all payments made under the schedule award. A schedule award for temporary partial disability is for a definite limited period of weeks but under the omnibus clause (u), covering multiple injury cases, the compensation is payable during the continuance of the partial disability.

Appellants contend that the Commission was without power to make the award.

Workmen’s Compensation Law, section 123, provides:

§ 123. Jurisdiction of department to be continuing. The power and jurisdiction of the department over each case shall be continuing, and it may, from time to time, make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.”

This section has been given a broad and liberal construction. The State Industrial Board after making an award as compensation for an injury may reopen the case at any time and make a further award when in its opinion the ends of justice require such action (Matter of Eggleston v. Shinola Co., 229 N. Y. 622; Matter of Tolloid v. Hopeman & Sons Co., 240 N. Y. 550), subject to such limitations as may be found elsewhere within the statute.

Appellants urge that such a limitation is found in Workmen’s Compensation Law, section 22, which at the time of the award in question read as follows:

§ 22. Modification of award. Upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, the board may at any time review any award, decision or order and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter, and shall state its conclusions of fact and rulings of law, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys already paid, except that an award for increased wages under subdivision five of section fourteen may be made effective from date of injury.”

The reference to increased wages under subdivision 5 of section 14 deals- with the method of arriving at the average weekly wages of employees who were minors when injured.

When the award is modified on the ground of a change in conditions ” it cannot affect any moneys already paid. (Matter of Salotar v. Neuglass & Co., 228 N. Y. 508.) The increased or diminished award may not take effect prior to the date of the new award, but the period of compensation as defined by section 15 is not affected by this limitation when it appears that the original award was based on a mistake of fact as to the nature of the injuries. Here the findings of the Board are not based on a change in the condition of the claimant, but on the basis of an award improper in its inception. Claimant sustained multiple injuries and should have had an award under paragraph u of subdivision 3 of section 15 and not a schedule award.

Appellants further contend that the action of the Board amounts to a reclassification of disabilities which could be made only under the provisions of section 15, paragraph 6-a, added by chapter 557 of the Laws of 1927, in effect July 1, 1927, which reads as follows:

6-a. Reclassification of disabilities. The Board may, within one year from the date of accident, upon its own motion, or on application of any party in interest, reclassify a disability upon proof that there has been a "change in condition, or that the previous classification was erroneous and not in the interest of justice.”

The application of this provision depends on the meaning of the words reclassify a disability.” Workmen’s Compensation Law, section 15, classifies disabilities generally as (1) permanent total disability; (2) temporary total disability; (3) permanent partial disability; (4) temporary partial disability. Under these classes of disability ” schedules of compensation are established. Section 15, subdivision 3, paragraph u, refers to all other cases “ in this class of disability,” i. e., the class of permanent partial disability. The classification of disabilities refers, not to the schedule period of compensation within a class, but to the general classification as thus indicated. That is to say, a change of the period of compensation within a class may be made but the injuries may not be reclassified by a change, for example, from the class designated as temporary partial disability to the class designated as permanent total disability, or vice versa, except within a year from the date of the accident. No change of classification has been made in this case.

Section 22 was amended by chapter 754 of the Laws of 1928 after the award herein was made so as to permit a review of an award on “ proof of erroneous wage rate ” as well as “ on the ground of a change in conditions,” but the amendment does not affect the construction of the section as hereinbefore set forth.

The order should be affirmed, with costs.

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

Order affirmed.


text:
    Louisa F. Hudson et al., Respondents, v. Church of the Holy Trinity, Appellant.
    (Argued April 25, 1929;
    decided May 3, 1929.)

      Clarence S. Zipp and E. C. Sherwood for appellant.
    There is no evidence of any negligence on the part of the defendant. (Hamblet v. Buffalo Library Garage Co., Inc., 222 App. Div. 335; Corbett v. Spanos, 37 Cal. App. 200; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Carey v. Gray, 98 N. J. L. 217.) Plaintiff was guilty of contributory negligence as a matter of law. (Rohrbacher v. Gillig, 203 N. Y. 413; Lindsley v. Stern, 203 App. Div. 615.)

      James M. Fawcett for respondents.
    Defendant’s negligence was the failure to perform its duty to plaintiff. (Lyman v. Putnam Coal & Ice Co., Inc., 182 App. Div. 705; 230 N. Y. 548; Larkin v. O’Neill, 119 N. Y. 221; Storms v. Lane, 223 App. Div. 79; DeLee v. Pardy Construction Co., 222 App. Div. 374; Campbell v. De Palma, 193 App. Div. 905; Murphy v. Broadway Improvement Co., 189 App. Div. 692; Whithers v. Brooklyn Real Estate Exchange, 106 App. Div. 255; McNally v. Oakwood, 210 App. Div. 612; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Hamblet v. Buffalo L. G. Co., 222 App. Div. 335; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86.) The question of contributory negligence was properly submitted to the jury. (Christensen v. Harmon, 230 N. Y. 205; Kenny v. Rhinelander, 28 App. Div. 246; 163 N. Y. 576; Lee v. Ingraham, 106 App. Div. 167; Clark v. New York Hotel Statler Co., Inc., 223 App. Div. 237; Brown v. Wiitner, 43 App. Div. 135; Totten v. Phipps, 52 N. Y. 354; Kettle v. Turl, 162 N. Y. 255; Conway v. Naylor, 222 N. Y. 437; Eastland v. Clarke, 65 N. Y. 420; Garland v. New York Zoological Society, 135 App. Div. 163; Palmer v. Larchmont Horse Ry. Co., 112 App. Div. 341.)
   Pound, J.

Defendant, a religious corporation, maintains premises on Pierrepont street in Brooklyn, where sewing is given out to women who call for it. If the material is returned the women are paid for their sewing. If it is kept they pay for it. The completed work is sent to the hospitals and other places. Plaintiff, Louisa F. Hudson, came to the premises on January 9, 1925, to pay for some material she had from the week before and to get some more. She asked someone,” wholly unidentified, where the ladies’ toilet was and was told to go down stairs. Just around the corner there is a door and you go in.” She testified: I went down and everything was in perfect darkness. I did not open the door but I pushed it and I went in and went down.” She felt her way through the darkness to the end of the hall, pushed open the cellar door and fell down stairs, sustaining injuries. There were two or three doors along the hall, one of which opened into the ladies’ toilet. She has obtained a judgment for damages and her husband, plaintiff Herbert F. Hudson, has recovered a judgment for expenses and loss of services.

.. Assuming that the injured woman had permission from the defendant to go into the basement to make use of the toilet for her own convenience, in connection with the business which brought her to the premises, her status was that of an invitee. (Vaughan v. Transit Development Co., 222 N. Y. 79.) As such the defendant owed her a duty of reasonable care. While it was subject to no statutory duty to light the hall, it should refrain from directing the women who came to its premises to transact business with it into an unlighted hallway to find a toilet room in the dark, without instructing them as to the danger.

Plaintiff’s duty in the circumstances was to look out for herself and not to feel her way where it was “ so black and dark that she could not see anything.” She should have refrained from proceeding down the unlighted hallway in unfamiliar surroundings without finding out where she might safely go. She elected to feel her way along in the darkness. She was guilty of contributory negligence as a matter of law. (Rohrbacher v. Gillig, 203 N. Y. 413.)

We fail, however, to find any evidence in the case to establish the fact that defendant gave plaintiff an invitation to walk into the darkness or any assurance of safety or was responsible in any way for the accident. The unidentified someone ” who directed her to the toilet might have been any one on the premises, not connected with the defendant. Nor does it appear that the toilet was maintained for the convenience of the women who came to the premises to receive or return materials or to pay for them.

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

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

Judgments reversed, etc.


author: Per Curiam.

text:
    Claire Sugg, Respondent, v. George Wandling, Appellant.
    (Argued December 7, 1928;
    decided December 31, 1928.)

      Joseph Schotlland for appellant.

      Maurice B. Blumenthal and Daniel W. Blumenthal for respondent.
   Per Curiam.

The findings of fact support the conclusions of law made at Special Term. There are no exceptions whatever to these findings or conclusions. There are no requests to find. There are no exceptions to the admission or rejection of evidence which deserve consideration. Under these circumstances we cannot consider the questions which the appellant seeks to raise before us.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    M. S. & J. A. Workman, Inc., Appellant, v. Frederick W. Lincoln et al., Copartners under the Firm Name of Henry W. Peabody & Company, Respondents.
    (Submitted November 23, 1928;
    decided December 31, 1928.)

      David W. Kahn for appellant.

      Lemuel Skidmore for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O'Brien, JJ.


text:
    The People of the State of New York, Respondent, v. Philip Kastel, Appellant.
    (Submitted November 26, 1928;
    decided December 31, 1928.)

      George Z. Medalie, George Sylvester and W. Arthur Kline for appellant.

      Andrew J. Culick, District Attorney, for respondent.
   Judgment affirmed; no opinion.

, Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Maud C. Gray et al., Appellants, v. Islay V. H. Gill, Individually and as Executor of Harry C. Gray, Deceased, et al., Respondents.
    (Argued November 26, 1928;
    decided December 31, 1928.)

      James A. Leary for appellant.

      Joseph A. Kellogg for executor and trustee of Harry C. Gray, deceased, respondent.

      Daniel F. Imrie for Adirondack Power and Light Corporation et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    John Kubat, Respondent, v. 77th Street-West End Avenue Corporation, Appellant.
    (Argued November 26, 1928;
    decided December 31, 1928.)

      Otho S. Bowling and William Dike Reed for appellant.

      Arthur T. O’Leary for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Cedar Brook Corporation, Plaintiff, v. Gylmann Realty Company et al., Defendants, and Commerce Corporation of America, Respondent. Commonwealth Bank, Appellant.
    (Submitted November 27, 1928;
    decided December 31, 1928.)

      Murray L. Jacobs and Herman N. Finkelstein for appellant.

      Barnet Kaprow for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    In the Matter of the Accounting of Milton J. Bach et al., as Executors and Trustees under the Will of Jerome B. Scofield, Deceased, Respondents. Thomas D. Hanley, Appellant.
    (Argued November 27, 1928;
    decided December 31, 1928.)

      David L. Podell and Myron Kommel for appellant.

      Isaac H. Levy and Milton J. Bach for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J,, Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    The People of the State of New York ex rel. Delaware and Hudson Company, Appellant, v. James L. Wells et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    (Argued November 27, 1928;
    decided December 31, 1928.)

      Morgan J. O’Brien, Edwin J. Freedman and H. T. Newcomb for appellant.

      George P. Nicholson, Corporation Counsel (William H. King and Eugene Fay of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Bryan L. Kennelly, Inc., Appellant, v. Benjamin Shapiro et al., Doing Business under the Firm Name of Bandell Supply Company, Respondents, and Jacob Boltan, Appellant.
    (Argued November 27, 1928;
    decided December 31, 1928.)

      William Burr DeLacy and Bertram L. Kraus for appellants.

      Benjamin Tuska, Joseph L. Stein and David I. Shapiro for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Brown’s Auto Auction Sales Company, Inc., Respondent, v. Lily Braunstein, Individually and as Administratrix of the Estate of Jacob Braunstein, Deceased, Appellant.
    (Argued November 27, 1928;
    decided December 31, 1928.)

      John W. Davis, I. Maurice Wormser and Abraham J. Halprin for appellant.

      Samuel Seabury, Abraham Brill and George Trosk for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Stephen Galanis, Respondent, v. Philip Simon, Appellant.
    (Argued December 4, 1928;
    decided December 31, 1928.)

      George P. Keating for appellant.

      George E. Phillies for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Stephen Peabody, Jr., and Company, Appellant, v. Travelers Insurance Company, Respondent.
    (Argued December 4, 1928;
    decided December 31, 1928.)

      Francis R. Holmes and Julian S. Eaton for appellant.

      William J. Moran and Louis P. Galli for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Amy L. Wright, as Administratrix of the Estate of Peter J. Wright, Deceased, Appellant, v. Union Railway Company of New York, Respondent.
    (Argued December 4, 1928;
    decided December 31, 1928.)

      Benjamin C. Loder for appellant.

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

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Nicholas Ferrari, as Administrator of the Estate of Dominick Ferrari, Deceased, Respondent and Appellant, v. New York Central Railroad Company, Respondent, and Rochester Gas and Electric Corporation, Appellant.
    (Argued December 4, 1928;
    decided December 31, 1928.)

      Paul Folger for appellant.

      Harold G. Hutchens and John B. Abbott for plaintiff, respondent and appellant.

      William Mann and Alexander S. Lyman for defendant, respondent.
   Judgment affirmed, with costs to the plaintiff against Rochester Gas and Electric Corporation and with costs to defendant New York Central Railroad Company against plaintiff; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Nora A. Telford, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    (Argued December 4, 1928;
    decided December 31, 1928.)

      John J. Finn and Donald McLean Somers for appellant.

      Marlin T. Nachtmann for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Susie J. Allendorf, Appellant, v. The Fidelity and Casualty Company of New York, Respondent.
    (Argued December 5, 1928;
    decided December 31, 1928.)

      Stewart F. Hancock and Henry S. Fraser for appellant.

      Joseph B. Murphy and John Carroll Young for respondent.
   Judgment affirmed, with costs, on the ground that the accident, if any, was not the exclusive cause of the injury; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Jesse B. Earle, Appellant.
    (Argued December 5, 1928;
    decided December 31, 1928.)

      Henry Hirschberg for appellant.

      Elmer H. Lemon, District Attorney, for respondent.
   Judgment affirmed; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Lena Nichitta, Appellant, v. The City of New York, Respondent.
    (Argued December 6, 1928;
    decided December 31, 1928.)

      Jay Leo Rothschild, Edwin J. Lukas and Louis Rivkin for appellant.

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly and Henry J. Shields of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Lottie D. Large, Appellant, v. Wire Wheel Corporation of America, Respondent.
    (Argued December 5, 1928;
    decided December 31, 1928.)

      Dana L. Spring for appellant.

      John Lord O’Brian and Ralph Ulsh for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    In the Matter of the Sagamore Road Corporation, Appellant, against Harry M. Lee et al., Constituting the Board of Appeals of the Village of Bronxville, Respondents.
    (Argued December 6, 1928;
    decided December 31, 1928.)

      Burt D. Whedon for appellant.

      Thomas G. Flaherty for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Benjamin Gratz et al., Doing Business under the Firm Name of Warren, Jones & Gratz, Appellants and Respondents, v. M. M. Graves Company, Inc., Respondent and Appellant.
    (Argued December 6, 1928;
    decided December 31, 1928.)

      Thomas F. Magner for plaintiffs, appellants and respondents.

      Moses H. Grossman and Walter B. Kuhn for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Barnett Weingold, Respondent, v. New Amsterdam Casualty Company, Appellant.
    (Argued December 7, 1928;
    decided December 31, 1928.)

      Sidney J. Loeb and Leon M. Prince for appellant.

      Frank C. Laughlin, Alfred B. Nathan and Stewart W. Bowers for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Abraham Braunstein, Appellant.
    (Submitted December 31, 1928;
    decided December 31, 1928.)
   Motion to amend remittitur so as to show that upon the argument of the appeal to this court the validity of section 601 of the Education Law was questioned, as violative of the Fourteenth Amendment to the Federal Constitution, and that this court, in its decision, passed upon that question and held that the statutory provision in question was in all respects valid. (See 248 N. Y. 308.)

Motion granted. Recall of remittitur requested and the remittitur, when recalled will be amended accordingly.


text:
    The People of the State of New York, Respondent, v. S. Reid Spencer, Appellant.
    (Submitted December 7, 1928;
    decided December 31, 1928.)

      S. Reid Spencer appellant in person.

      Joab H. Banton, District Attorney (John C. McDermott of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Fred W. Silberkraus, Respondent, v. Schaffer Stores Company, Inc., Appellant.
    (Argued December 7, 1928;
    decided December 31, 1928.)

      Harry M. Schaffer for appellant.

      Charles G. Fryer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Mandella M. Cahill, as Executrix of William P. W. Haff, Deceased, Respondent, v. Harmon B. W. Haff, Appellant.
    (Submitted December 3, 1928;
    decided December 31, 1928.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 377; 249 N. Y. 509, 528.)


text:
    The People of the State of New York ex rel. The City of New York, Appellant and Respondent, v. John R. Yale et al., as Assessors of.the Tax District of the Town of Southeast, Putnam County, Respondents and Appellants.
    (Submitted January 7, 1929;
    decided January 8, 1929.)
   Motion to amend remittitur granted and remittitur amended so as to direct the striking out of the award of costs and extra allowance. (See 249 N. Y. 150.)


text:
    In the Matter of the Claim of Elsie Caniano, Respondent, against Yellow Taxi Corporation, Appellant. The State Industrial Board, Respondent.
    (Submitted January 7, 1929;
    decided January 15, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 249 N. Y. 521.)


text:
    Samuel C. Irvin et al., Respondents, v. Citizens Trust Company et al., as Administrators of the Estate of Mary S. Coddington, Deceased, Appellant.
    (Submitted January 7, 1929;
    decided January 15, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 249 N. Y. 578.)


text:
    William F. Augustine, as Administrator of the Estate of John B. Augustine, Deceased, Appellant, v. Town of Brandt, Respondent, Impleaded with Others.
    (Submitted January 7, 1929;
    decided January 15, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 249 N. Y. 198.)


text:
    First National Bank of Bridgeport, Connecticut, Appellant, v. Nathan Blackman et al., Copartners under the Firm Name of Nathan Blackman & Company, Respondents.
    (Submitted January 7, 1929;
    decided January 15, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 249 N. Y. 322.)


text:
    In the Matter of the Accounting of Guisippina Parascandola, as Administratrix with the Will Annexed of Joseph Auditore, Deceased, Respondent, v. National Surety Company et al., Appellants. Mechanics Bank, as Trustee, et al., Respondents.
    (Submitted January 7, 1929;
    decided January 15, 1929.)
   Motion to amend remittitur denied, without costs. (See 249 N. Y. 335.)


text:
    Isidore Scheinberg et al., Respondents, v. Beatrice Scheinberg, Appellant, Impleaded with Another.
    (Submitted January 7, 1929;
    decided January 15, 1929.)
   Motion to amend remittitur. (See 249 N. Y. 277.)

Motion for restitution granted, with ten dollars costs of motion.

Recall of remittitur requested, and when recalled ordered that it be amended by adding thereto the following: “ A motion having been made for an order herein directing and compelling restitution to defendant Beatrice Scheinberg of the title to premises now recorded in the name of Scheinberg Estates, Inc., a corporation owned and controlled by the plaintiffs herein, Ordered that said motion be and it is hereby granted and that plaintiffs cause their nominee Scheinberg Estates, Inc., to execute and deliver to defendant Beatrice Scheinberg a deed of conveyance in usual form, duly acknowledged for recording, of the premises described in the deed from Beatrice Scheinberg to Scheinberg Estates, Inc., being the premises described in the complaint herein, said premises to be held by her subject to the further order of the court herein, and that it be remitted to the Supreme Court to make such orders and issue such process or mandates as may be necessary and appropriate to effect the restitution herein ordered.”


text:
    P. Pastene & Co., Inc., et al., Respondents, v. Irving National Bank, Appellant.
    (Submitted January 7, 1929;
    decided January 15, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 249 N. Y. 272.)


text:
    Gertrude J. Hine, Respondent, v. F. Worthington Hine, Appellant.
    (Argued January 7, 1929;
    decided January 15, 1929.)

      Jackson A. Dykman for motion.

      Michael D. Reilly opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York ex rel. The City of New York, Respondent, v. John W. Birdsall et al., as Assessors of the Town of Yorktown, County of Westchester, Appellants.
    (Argued January 7, 1929;
    decided January 16, 1929.)

      James Dempsey for appellants.

      George P. Nicholson, Corporation Counsel (I. J. Beaudrias of counsel), for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Max Avitz, Appellant, v. George G. Darling et al., Respondents.
    (Argued January 7, 1929;
    decided January 16, 1929.)

      Morris Orenstein and Isidore Lapan for appellant.

      Gardner LeRoy, District Attorney (John D. Lyons and Nellie Childs Smith of counsel), for respondents.
   Appeal dismissed; no opinion.

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


text:
    Isidore Scheinberg et al., Respondents, v. Beatrice Scheinberg, Appellant, Impleaded with Another.
    (Submitted January 14, 1929;
    decided January 16, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 249 N. Y. 277.)


text:
    In the Matter of Emil Lenc, as President of the Supreme Lodge C. S. B. P. J. Bohemian Slavonic Fraternal Benefit Union et al., Respondents, v. August R. Zicha et al., Appellants.
    (Argued January 7, 1929;
    decided February 13, 1929.)

      Osmond K. Fraenkel and Charles Recht for appellants.

      John Proctor Clarke and Reginald F. Isaacs for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Town of West Seneca, Appellant. The City of Lackawanna, Respondent.
    (Argued January 7, 1929;
    decided February 13, 1929.)

      George T. Vandermeulen for appellant.

      Thomas L. Newton and George B. Doyle for respondent.

      Evan Hollister for Bethlehem Steel Company, amicus curiæ.

   Order affirmed, with costs; no opinion.

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


text:
    Brooklyn, Queens County and Suburban Railroad Company, Appellant and Respondent, Impleaded with Another, v. City of New York, Respondent and Appellant.
    (Argued January 15, 1929;
    decided February 13, 1929.)

      Charles L. Woody and George D. Yeomans for plaintiff, appellant and respondent.

      George P. Nicholson, Corporation Counsel (William H. King and Joseph A. Dodin of counsel), for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of the Claim of Esther Greenberg, Respondent, against Nellie Voit et al., Appellants. The State Industrial Board, Respondent.
    (Argued January 7, 1929;
    decided February 13, 1929.)

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

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    George A. Carden et al., Individually and as Copartners under the Firm Name of Carden, Green & Co., Appellants, v. James M. Kerr, Individually and as Surviving Partner of the Firm of E. A. Manice & Co. et al., Respondents.
    (Argued January 9, 1929;
    decided February 13, 1929.)

      Charles L. Woody for appellants.

      Ellery O. Anderson for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. David Zeidman, Appellant.
    (Argued January 9, 1929;
    decided February 13, 1929.)

      Joseph Katz and Henry D. Levy for appellant.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Charles R. Yahn, Respondent, v. Minnie A. Yahn, Appellant.
    (Argued January 10, 1929;
    decided February 13, 1929.)

      Vincent J. Loughlin for appellant.

      Valentine E. O’Grady for respondent.
   Judgment affirmed; no opinion.

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


text:
    The Tiffany Realty Company, Appellant, v. Estey Construction Corporation, Respondent.
    (Argued January 10, 1929;
    decided February 13, 1929.)

      Frank C. Laughlin, Stewart Bowers, Henry Waldman and Joseph G. Abramson for appellant.

      Harold R. Medina and William F. McNulty for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ida Sanberg, Respondent, v. Delia A. Reilly, Appellant.
    (Argued January 10, 1929;
    decided February 13, 1929.)

      A. E. Ellenbogen for appellant.

      William L. O’Brion and Webster F. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Aron Ellman et al., Appellants, v. M. E. G. Realty Corporation, Respondent.
    (Submitted January 10, 1929;
    decided February 13, 1929.)

      Meyer D. Siegel for appellants.

      Maurice L. Albert and Jacob Rieger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Leo F. Simpson, Appellant, v. Kamos Realty Co., Inc., Respondent.
    (Argued January 11, 1929;
    decided February 13, 1929.)

      Charles E. Callahan for appellant.

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

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


text:
    John Wiesner, Jr., an Infant, by John Wiesner, His Guardian ad Litem, Respondent, v. City of Albany, Appellant.
    (Submitted January 11, 1929;
    decided February 13, 1929.)

      George A. Reilly, Corporation Counsel (Charles J. Duncan of counsel), for appellant.

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

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


text:
    John Wiesner, Respondent, v. City of Albany, Appellant.
    (Submitted January 11, 1929;
    decided February 13, 1929.)

      George A. Reilly, Corporation Counsel (Charles J. Duncan and Anthony DeStephano of counsel), for appellant.

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

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


text:
    Rebecca Friedman et al., Respondents, v. Louis Baron et al., Appellants.
    (Argued January 15, 1929;
    decided February 13, 1929.)

      Samuel Dickstein, L. Loyd Brown and Alexander H. Mandeltort for appellants.

      Stewart Engel for Rebecca Friedman et al., respondents.

      Charles H. Kelby for Mary L. McElroy et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob Schwartz, Respondent, v. Esther Fishman, Appellant.
    (Argued January 15, 1929;
    decided February 13, 1929.)

      Isidor Enselman and Harry G. Fromberg for appellant.

      Charles H. Kelby for respondent.
   Judgment affirmed, with costs; no opinion.

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