author: Per Curiam.

text:
    In the Matter of Mount Hope Development Corporation, Appellant, against Darwin R. James et al., as Members of the State Board of Housing of the State of New York, Respondents. Academy Housing Corporation, Respondent.
    (Argued February 9, 1932;
    decided March 3, 1932.)

      Harold R. Medina, Gerard M. Bloomfield and Rufus C. Van Akin for appellant.
    The determination and findings of the State Board of Housing with respect to sites and projects are subject to review by certiorari. (People ex rel. Dawley v. Wilson, 232 N. Y. 12; People ex rel. Depew R. Co. v. Commissioners, 4 App. Div. 259; People ex rel. N. Y. C. & H. R. R. R. Co. v. Public Service Comm., 195 N. Y. 157; People ex rel. Steward v. Board of Railroad Commissioners, 160 N. Y. 202; People ex rel. Harris v. Commissioners, 149 N. Y. 26; Matter of Application of

      Syracuse, Binghamton & New York R. R. Co. v. Van Amburgh, 223 App. Div. 485; 251 N. Y. 548.)

      John J. Bennett, Jr., Attorney-General (Walter H. Pollak, Carl S. Stern and Henry Epstein of counsel), for Darwin R. James et al., as members of the State Board of Housing, respondents.
    The action of the State Housing Board in approving the project was discretionary and administrative and is not reviewable by certiorari. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of L. I. R. R. Co. v. Hylan, 240 N. Y. 199; People ex rel. North v. Featherstonhaugh, 172 N. Y. 112; Matter of Standard Bitulithic Co., 161 App. Div. 191; 212 N. Y. 179; Matter of Kersburg, 101 Misc. Rep. 241; 179 App. Div. 969; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; People ex rel. Mayor v. McCarthy, 102 N. Y. 630; Santa Clara Lumber Co. v. Commissioners of Land Office, 209 App. Div. 705; Mayor & City Council of Baltimore v. Williams, 129 Md. 290; Hanifen v. Armitage, 117 Fed. Rep. 845; People ex rel. O’Connor v. Board of Supervisors, 153 N. Y. 370; People ex rel. Republican Journal Co. v. Wiggins, 199 N. Y. 382; People ex rel. Utica Sunday Tribune Co. v. Williams, 200 N. Y. 425.)

      Bernard Trencher for Academy Housing Corporation, respondent.
    The approval by the State Housing Board, being an administrative, not a judicial act, is not subject to review by certiorari. (People ex rel. Trustees v. Board of Supervisors, 131 N. Y. 468; Matter of L. I. R. R. Co. v. Hylan, 240 N. Y. 199; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; People v. Hugo, 101 Misc. Rep. 481; 182 App. Div. 904; 223 N. Y. 714; Santa Clara Lumber Co. v. Commissioners of Land Office, 209 App. Div. 705; People ex rel. McNulty v. Maxwell, 123 App. Div. 591; People ex rel. Shaw v. Williams, 185 N. Y. 92; Matter of Standard Bitulithic Co., 212 N. Y. 179; People ex rel. Mayor v. McCarthy, 102 N. Y. 631; Matter of Kersburg, 101 Misc. Rep. 241; 179 App. Div. 969.)
   Per Curiam.

We think that the State Board of Housing, in approving the projects of the Academy Housing Corporation for the construction of housing accommodations, in giving its approval to the sites selected as being adjacent to congested areas, in which housing conditions should be corrected and improved, in approving of the plans and specifications submitted, as designed to provide accommodations which might be rented for the monthly rental charge of eleven dollars or less, and in otherwise giving to the project the sanctions required by the State Housing Law, acted in an administrative capacity, rather than a judicial, and, therefore, that a review of certiorari, at the instance of the petitioner, should not be had.

The order should be affirmed, with costs.

Cakdozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur; Lehman, J., not voting.

Order affirmed.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    Van Rensselaer Halsey et al., Individually and as Copartners under the Firm Name of C. D. Halsey & Co., Respondents, v. Clinton D. Winant, Defendant, and W. A. Harriman & Company, Inc., Appellant.

      (Argued February 10, 1932;
    decided March 3, 1932.)

      Martin Conboy, John Vance Hewitt and Bernard Sobol for appellant.
    The finding of fact, that the transfer of the shares of stock, in full settlement of the indebtedness was for a fair consideration, was not against the weight of evidence. (Virginia v. West Virginia, 238 U. S. 202; Hussey v. Flanagan, 237 N. Y. 227; Nash v. Bengtson, 228 N. W. Rep. 177; Schlect v. Schlect, 168 Minn. 176; Steinberg Co. v. Pastive, 129 Atl. Rep. 201; Castellano v. Osborne, 16 Fed. Rep. [2d] 187; Bliss Co. v. Progressive Smelting & Metal Corp., 208 App. Div. 346; Murray v. Judson, 9 N. Y. 73; Pratt v. Adams, 7 Paige, 615.) The pledge of 450,000 shares of the capital stock of the Falcon Oil Corporation with defendant-appellant, as security for the loan, was valid and is not subject to attack by the plaintiffs. The transactions between the defendants were not schemes by which defendant-appellant could obtain usurious interest rates. (Brown v. Robinson, 224 N. Y. 301; Clarke v. Sheehan, 47 N. Y. 188; Cockle v. Flack, 93 U. S. 344; Valentine v. Connor,
      40 N. Y. 248; Orvis v. Curtiss, 157 N. Y. 657; Hall v. Ditson, 5 Abb. N. C. 198; Matthews v. Coe, 70 N. Y. 239; Spain v. Talcott, 165 App. Div. 815; Blackburn v. Hayes, 59 Ark. 366; Browne v. Vredenburgh, 43 N. Y. 195; Grannis v. Stevens, 216 N. Y. 583; Diehl v. Becker, 227 N. Y. 318.) A lender, not intending to make a usurious contract, may be paid for Ms trouble, time and expense m obtaming the money for the loan. (Hartley v. Eagle Ins. Co., 222 N. Y. 178; Brown v. Robinson, 224 N. Y. 301; Thurston v. Cornell, 38 N. Y. 281; Bennett v. Ginsburg, 141 App. Div. 66; DeMoltke-Huitfeldt v. Garner & Co., 145 App. Div. 766; Miller & Co. v. Claridge Manor Co., 14 Fed. Rep. [2d] 859; Stewart v. Miller & Co., 132 S. E. Rep. 535; Atlanta Mining & Rolling Mill Co. v. Gwyer, 48 Ga. 9.) Only the borrower personally can come into equity and ask for affirmative relief without offering to pay the amount borrowed with legal Mterest. (Post v. Bank of Utica, 7 Hill, 391; Vilas v. Jones, 1 N. Y. 274; Rexford v. Widger, 2 N. Y. 131; Schermerhorn v. Talman, 14 N. Y. 93; Allerton v. Belden, 49 N. Y. 373; Wright v. Clapp, 28 Hun, 7; Dickson v. Valentine, 25 Jones & Spencer, 128; Wheelock v. Lee, 64 N. Y. 242; Buckingham v. Corning, 91 N. Y. 525; Marsh v. House, 13 Hun, 126; Alden v. Diossy, 16 Hun, 311; O’Brien v. Ferguson, 37 Hun, 368; Rice v. Schneck, 189 App. Div. 877; 228 N. Y. 561; Decalcomanie Transfer Ornaments Co., v. Hajin, 131 Misc. Rep. 646; Fort v. 415 Central Park West Corp., 131 Misc. Rep. 774; Matter of Fishel, 198 Fed. Rep. 464; Lubetkin v. Stern & Co., 223 App. Div. 770; Yormarck v. Waldman, 127 Misc. Rep. 748.) The plaintiffs should not be permitted to recover on any techmcal theory of a judgment creditor’s lien because of their own wrongful conduct and refusal to do equity. (Hall v. Ditson, 5 Abb. N. C. 198; Bliss Co. v. Progressive Smelting & Metal Corp., 208 App. Div. 346; Security Bank v. Geoghegan, 174 App. Div. 195; Mallouk v. American Exchange Nat. Bank, 157 App. Div. 711; 216 N. Y. 670.)

      Carroll G. Walter and J. Frederick Eagle for respondents.
    The findings of the Appellate Division that the value of the stock was at least $7.50 per share, that defendant-appellant’s loan was not a fair equivalent for the stock, and that the stock was transferred to defendant-appellant without a fair consideration, are amply sustained by the evidence. (Canaday v. Arch Amusement Co., 179 App. Div. 842; Brown v. Montgomery, 20 N. Y. 287; Yates v. Hoffman, 5 Hun, 113; Fuller v. Brown, 76 Hun, 557.) The findings show an actual intent to defraud the plaintiffs, and the transfer consequently is void even if there were an adequately valuable consideration. (Brody v. Pecoraro, 250 N. Y. 56; Baldwin v. Short, 125 N. Y. 553; Billings v. Russell, 101 N. Y. 226; Weiser v. Kling, 38 App. Div. 266; Levy v. Hamilton, 68 App. Div. 277; Isham v. Post, 141 N. Y. 100; Coursey v. Morton, 132 N. Y. 556; Riker v. Gwynne, 129 App. Div. 112; Ford v. Johnston, 7 Hun, 563; Cole v. Tyler, 65 N. Y. 73; First Nat. Bank v. Miller, 163 N. Y. 164; Sandman v. Seaman, 84 Hun, 337; 156 N. Y. 668; Morris v. Morris, 71 Hun, 45; Maasch v. Grauer, 58 App. Div. 560; Bryan v. Baldwin, 52 N. Y. 232; Roach v. Duckworth, 95 N. Y. 391.) If defendant-appellant’s debt be usurious, then the transfer was entirely voluntary and without any consideration, and is fraudulent as to creditors for that reason. (Ga Nun v. Palmer, 216 N. Y. 603; Coleman v. Burr, 93 N. Y. 17; Wilson v. Bajardi, 10 Fed. Rep. [2d] 922; Sabine v. Paine, 223 N. Y. 401.) The loan agreements between the defendants were usurious. (Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Hartigan v. Casualty Co., 227 N. Y. 175; Matter of Thompson, 217 N. Y. 111; Smyth v. Brooklyn Union El. R. R. Co., 193 N. Y. 335; Browne v. Vredenburgh, 43 N. Y. 195; Vilas v. McBride, 62 Hun, 324; 136 N. Y. 634; Sweet v. Spence, 35 Barb. 44; Leavitt v. De Launy, 4 N. Y. 364; Tyng v. Commercial Warehouse Co., 58 N. Y. 308; Hungerford Brass Co. v. Brigham, 47 Misc. Rep. 240; Diehl v. Becker,
      227 N. Y. 318; Webster v. Roe, 212 App. Div. 756; 241 N. Y. 570.) The plaintiffs, as judgment creditors of defendant Winant, have a right to avoid appellant’s alleged prior hen by showing it to be usurious. (Mason v. Lord, 40 N. Y. 476; Thompson v. Van Vechten, 27 N. Y. 568; Carow v. Kelly, 59 Barb. 239; Dix v. Van Wyck, 2 Hill, 522; Matter of Kendrick, 107 N. Y. 104; Hammond v. Hudson River Co., 20 Barb. 378; Massachusetts Co. v. Cane Creek Township, 155 U. S. 283; Wilson v. Oswego Township, 151 U. S. 56; Brooks v. Avery, 4 N. Y. 225; Schermerhorn v. Talman, 14 N. Y. 93; Bullard v. Raynor, 30 N. Y. 197; Buckingham v. Corning, 91 N. Y. 525; O’Brien v. Ferguson, 37 Hun, 368; Bostwick v. Menck, 40 N. Y. 383; Knapp v. Crane, 14 App. Div. 120; Lees v. Hayden, 78 Hun, 370; Comyns v. Riker, 83 Hun, 471; Railroad Co. v. Soutter, 13 Wall. 517.)
   Hubbs, J.

The defendant Winant defaulted in paying a bill of exchange for $300,000, held by the plaintiffs. The obligation became due on October 1, 1928. Prior thereto and commencing in May, 1928, Winant and the defendant W. A. Harriman & Co., Inc. (hereinafter referred to as Harriman), had made certain loan agreements whereby $2,600,000 was loaned to Winant and 450,000 shares of stock of the Falcon Oil Corporation were pledged as collateral. The 450,000 shares so pledged represented a substantial majority of the outstanding shares of the Falcon Oil Corporation.

The loan agreement gave to the defendant Harriman full voting rights on the stock and provided that three employees of Harriman should be elected directors. The defendant Harriman, therefore, prior to Winant’s default on his obligation to plaintiffs, was in possession of the Falcon stock and in control of the corporation. The last of the loan, agreements expired on December 1, 1928. The time of payment was extended for one month. The loan not having been paid on January 9, 1929, Harriman served a notice on Winant that pursuant to article IX of the Lien Law (Cons. Laws, ch. 33), it would sell the 450,000 shares of Falcon at public auction on February 6, 1929. The notice of sale purported to reserve for Harriman the right to buy at its own sale. On January 25, 1929, the plaintiffs commenced an action to recover upon the bill of exchange. Winant, who is an attorney, appeared personally, admitted the allegations of the complaint and consented to the entry of judgment. Judgment was duly entered on February 1, 1929, and an execution thereon was returned unsatisfied prior to the commencement of this action.

The summons and complaint in the present action, brought to subject to the payment of plaintiffs’ said judgment the 450,000 shares of Falcon, were served upon both Harriman and Winant on February 2, 1929. In January, 1929, Winant offered to transfer the Falcon stock to Harriman in satisfaction of his indebtedness but Harriman refused the offer. After the commencement of this action and on February 5, 1929, the plaintiffs advised Harriman that they would make a public announcement at the proposed sale that the purchaser would not obtain good title to the Falcon stock. Winant, having repeated his offer to Harriman, the latter on February 6th, accepted the stock in satisfaction of the indebtedness and the transfer was made on the same date.

In the latter part of February, 1929, the plaintiffs served a supplemental complaint, praying that the transfer be set aside under the Debtor and Creditor Law (Cons. Laws, ch. 12). It is alleged in the original complaint that the loan was usurious because a. loan at six per cent interest was coupled with an option agreement permitting Harriman to buy the stock at a specified figure and take forty per cent of possible profits from a proposed deal between Winant and the Venezuelan government. But in their supplemental complaint the plaintiffs alleged that the transfer of the stock to Harriman was not for a fair consideration within the meaning of section 272 of the Debtor and Creditor Law. That, therefore, the transfer was in violation of that law.

The trial court resolved the issues in favor of the defendant Harriman. The Appellate Division, two justices dissenting, reversed certain findings of fact and held that the transfer was made in fraud of the plaintiffs within the meaning of the sections of the Debtor and Creditor Law, and directed a money judgment in favor of the plaintiffs for the full amount of their claim. The Appellate Division sustained the trial court’s finding that the transaction was not tainted with usury and the serious question presented upon this appeal is whether the Appellate Division was justified in reversing the findings of the trial court to the effect that the transfer of the stock to the defendant Harriman was based upon a fair consideration.

The Debtor and Creditor Law provides as follows:

Section 272: “ Fair consideration is given for property, or obligation, (a) when in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied.”

Section 273: Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.”

Section 278: Where a conveyance * * * is fraudulent as to a creditor, such creditor, when his claim, has matured, may, as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase * * * (a) Have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim.”

The Falcon Oil Corporation had acquired the interest of the Venezuelan National Petroleum Corporation in certain concessions upon some 370,000 acres of oil lands in Venezuela and East Venezuela. The concessions were entered on the books of the Falcon Oil Corporation at a valuation of $2,000,000, and that corporation gave in exchange for the concessions 200,000 shares of its stock. Subsequently, the Venezuelan National Petroleum Corporation entered into an agreement to purchase from certain individuals the five per cent underlying royalty on oil produced from certain property belonging to the Lago Petroleum Corporation, and to pay therefor $2,700,000 in cash. Thereafter, the royalty was transferred to Falcon Oil Corporation for $1,250,000, payable in cash at the time of the transfer and 335,000 shares of Falcon Oil Corporation stock. The royalty was at first set up on the books of the Falcon Oil Corporation at $4,600,000, making a total property account for concessions and royalty of $6,600,000.

These various transactions occurred during the period from April 1, 1927, to June 30, 1927. In August, 1927, the royalty was by resolution of the board of directors of Falcon written up by an additional $1,175,000. The amount paid to the original owners was $4,050,000, in cash and $175,000 in stock of the Venezuelan National Petroleum Corporation. An additional acreage was purchased by the Falcon Oil Corporation for $50,000. These properties constituted substantially all of the assets of the Falcon Oil Corporation.

In the spring of 1927 Winant had become the principal officer of the Venezuelan National Petroleum Corporation and he subsequently caused the Falcon Oil Corporation to be organized. Winant, acting on behalf of the Venezuelan National Petroleum Corporation, pledged the 200,000 Falcon shares issued for the concessions and the 275,000 shares issued on the royalty contract to obtain the cash needed by the Venezuelan National Petroleum Corporation to pay for the concessions and royalties. In December, 1927, when Harriman first became interested in Falcon affairs, the Falcon Oil Corporation was indebted for a loan of $1,250,000 for which the Falcon royalty, the shares of Falcon stock delivered to the Venezuelan National Petroleum Corporation and Winant’s individual credit were pledged. Winant went to Harriman to attempt a plan of financing. Neither Winant nor the Venezuelan National Petroleum Corporation had placed any funds of their own in the properties. Harriman refunded the Falcon indebtedness above mentioned by underwriting $1,200,000 of notes of the Falcon Oil Corporation.

Subsequently, Winant disclosed to Harriman that there was a large additional indebtedness and it subsequently became apparent that in order to free the stock from pledges, it would be necessary to raise $1,400,000 over and above the $1,200,000 already underwritten by Harriman. Harriman, after extended negotiations, organized a syndicate which advanced $1,400,000. The syndicate was later reorganized for an additional $1,200,000. Four hundred and fifty thousand shares of Falcon stock were pledged and in addition to the agreement of Winant to pay the defendant Harriman $6,000 as commissions for negotiating the loan, Harriman was given a six months’ option to purchase 350,000 shares of Falcon stock at $7.50 a share with a renewal privilege at $9 a share. It was also provided that Harriman was to receive forty per cent of the profits from a new Venezuelan deal that Winant was negotiating. The $2,600,000 was lent under this contract. The debts were paid and the 450,000 shares of stock were turned over to Harriman. After August 29, when the final agreement was made, Harriman continued its efforts to market the stock or the physical properties. The effort was unsuccessful.

There is evidence of efforts, from February, 1929, to August of that year on the part of Harriman to dispose of the Falcon stock or the properties which it represented. In those negotiations Harriman met with an obstacle which grew out of the fact that in the five per cent royalty contract between Falcon and Lago an option was given to Lago to take the oil in kind from Falcon for the entire life of the property and pay the current market price therefor; that Lago had the right for thirty days to purchase the royalty at the same price offered by a purchaser, and that if there were any increase in the Venezuelan government taxes or royalty, the Falcon royalty would bear the entire burden of the increase. Finally, in August, Harriman, through the efforts of its vice-president in Paris and others, successfully consummated a sale of the royalty to Crédito Nacional Peninsular y Americano for $6,600,000, upon condition that Harriman succeed in negotiating a new contract with Lago eliminating the most objectionable clauses. This was finally accomplished upon a payment of $200,000 cash.

The contract with the Spanish company provided for installment payments of $100,000 on August 10, 1929, $150,000 on August 29,1929, $750,000 on August 30,1929, $2,800,000 on December 31, 1929, and $2,800,000 on March 31, 1930.

The respondents contend that since Falcon subsequent to the sale had assets aggregating $226,975.20, the sale was equivalent to $9.14 per share upon the 680,000 shares of Falcon stock outstanding. The respondents further contend that the liquidating value of the Falcon stock was $7.63 per share; that Harriman had an investment of $5.98 per share and that it received on the sale a profit of $1.65 per share on its 450,000 shares, making a total excess over the amount it had invested of $742,500. To this they claim should be added commissions claimed by Harriman for a subsidiary, The Petroleum Bond and Share Corporation, totaling $264,000.

There is no other evidence as to a market value for Falcon stock except that subsequent to the sale to the Spanish company, Falcon Oil Corporation purchased 13,627 shares at $5 per share and 14,000 shares at $6.43 per share. These sales, while certainly indicative of value, were apparently not considered by the Appellate Division.

In determining the value of the stock the Appellate Division considered geological investigations and reports by experts as to the value of physical properties; the value arrived at by capitalizing the company’s net earnings on operations up to January 31, 1927; the option prices fixed by the agreements whereby the 450,000 shares were pledged; the price received upon the sale to the Spanish company and book value. It should be borne in mind that the statute which the supplemental complaint alleges to have been violated provides that “ Fair consideration is given for property * * *, (a) when in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied.”

What is fair consideration must, of course, be determined upon the facts and circumstances of each particular case. The Appellate Division has attached considerable importance to the value of the stock as fixed by the sale by Harriman to the Spanish company about six months after the transfer. As bearing upon that element of proof, it should be borne in mind that it was a sale upon credit; that default was made in the payment of early installments, and that an extension of time was required with no proof that the full amount of the contract price will ever be realized. Due to the financial conditions existing it may be that Harriman will never collect the balance. It should further be borne in mind that it was only upon important modifications of an existing contract giving an option to Lago that the sale to the Spanish company was consummated; that it was not known that such modifications could be secured; that the obtaining of those modifications was due to the efforts of Harriman and that previous efforts to obtain such modifications had been unsuccessful. It is further to be borne in mind that value at the date of the transfer of the stock to Harriman was not necessarily the same value which the stock had at a later date. (Huntington v. Attrill, 118 N. Y. 365.)

The Appellate Division attached great importance to the option price at which Harriman was permitted to purchase 350,000 shares under the agreement of August 31, 1928. It will be recalled that the contract resulting in the loan and the pledge of the shares provided that Harriman might purchase up to December 31, 1928, at $7.50 per share and at $9 per share within six months thereafter. The Appellate Division said that these prices clearly showed that Harriman, up to a short time prior to the transfer, considered this stock at a minimum value of $7.50 a share. Obviously the price at which a person takes an option, especially under circumstances where he is involved in a highly speculative transaction such as this, is no reliable criterion of value.

The trial court found that the book value was in excess of $10 a share. It does not appear that great importance was attached to that finding. The appellant pointed out, however, that the book value of the Falcon stock resulted in part from arbitrary writing-up of assets and from sales between corporations based upon sale prices in stock of the purchasing corporations which are not indicative of actual values of the properties acquired and are, therefore, unreliable as evidence of the fair value of the Falcon stock.

The appellant contends that the Appellate Division was in error in the finding that the stock had a value of $7.70 a share, arrived at by capitalizing the company’s net earnings on operations up to January 31, 1929, on a ten per cent basis and adding thereto $2 a share for undeveloped concession oil lands for which $1,340,000 had been paid in cash and $175,000 in stock. Appellant says that that valuation was arrived at by determining the net profits received by Falcon for all the oil it sold, to wit, $885,424.05, and subtracting therefrom only the overhead computed on the basis of $3,000 per month. Appellant says that this omits depletion and amortization of the $120,000 discount on the $1,200,000 note issue and all interest on the note issue. There is testimony to that effect and there is testimony that for the nineteen months of its operation up to November 1, 1929, the net profits were at the rate of 38 cents per share, which, capitalized at ten per cent, would amount to $3.80, and with $2 per share for the value of the concessions would make a total value of $5.80 per share.

There is the positive testimony of the president of Falcon that the net price received by Falcon for the period from July 1, 1927, to February 1, 1929, from the oil produced, amounted to $885,424.05, which was arrived at by deducting from the purchase price 32| cents per barrel transportation charges, commissions and the official gauge inspection charge on each delivery of oil. He further testified that the net profit for the period from July 1, 1927, to July 31, 1928, was $212,478.30, and that the profit from August 1, 1928, to January 31, 1929, was $124,339.35, mating a total net profit of $336,817.65. He testified also that in computing the net profit, depletion had been figured at the rate of 15 cents per barrel, whereas the Federal examiner for income tax purposes allowed 56.36 per cent. This would make the return on the stock 49 cents per share as against 77 cents found by the Appellate Division, and if the depletion rate allowed by the Federal examiner is to be considered as proper, it is apparent that a net loss would be shown.

The same witness testified that the overhead included salaries, the Maracaibo office and other office rent, telephone and cable charges and amounted to an average of $3,000 a month. The respondents say that their average net income'was $46,600 per month. This is one-nineteenth of $885,424.05, the amount of the net price received for the oil. Deducting from that net price $3,000 per month for overhead, which Richards testified included only the specific items mentioned above, leaves a net figure of 77 cents per share, the amount found by the Appellate Division. It is obvious that this does not take into account depreciation, amortization of the discount on the note issue, and interest on the note issue. It would seem that the Appellate Division erred in its capitalization of net earnings in that it took the net price less a part of the expense instead of net profits as the basis for making the capitalization.

This leaves the geological valuation of the properties as the only important element upon which the findings made by the Appellate Division could be sustained.

This geological report was procured by Falcon not as a basis for investment but as a basis for a sale of the property pursuant to its agreement of August 31, 1928. It was, at best, an estimate. Its accuracy is questioned by other experts produced by the defendant-appellant, and in view of all the other evidence of a lower or at least questionable value, should not be taken as conclusive.

There is considerable evidence that this stock was unmarketable at the date of its transfer to Harriman for any such price as that found to be its value by the Appellate Division; that it was valuable only to the extent that the corporation could be made to pay a profit or a purchaser could be found. There is evidence that the price of oil fluctuated materially and that the profits of the corporation and the marketability of the stock were largely dependent upon the market price of oil. In talcing the stock, the defendant Harriman took all the risks, and to say under those circumstances that the price which it paid was not a fair consideration seems to be an improper conclusion.

The respondents contend that the loan in question was usurious upon the grounds heretofore stated.

There is ample evidence that this loan was an incident only in a general plan of refinancing, attempted at the solicitation of Winant by the defendant Harriman. There is testimony that prior to the making of the first loan agreement, negotiations were had between the parties, and that, as a result, Harriman undertook to procure $1,200,000 to cover a note issue which it had underwritten; that it organized a syndicate which took the loan and agreed to take the stock as collateral; that subsequently it developed that the Falcon stock was pledged for a much greater amount and that it organized another syndicate to take the additional amount; that it made consistent and repeated efforts to market the properties or the stock.

It is quite clear that its option agreement was obtained to insure itself of ability to produce the stock to fulfill such contract as it might make, and it seems equally apparent that the commissions and agreement relative to profit on an independent deal were collateral to the loan and not intended as compensation therefor.

The matter has been so viewed by the trial court and as well by the Appellate Division, although the Appellate Division has held that Harriman received an excessive consideration for the stock which it obtained and that to that extent it was a fraud upon the plaintiffs, under the statute but not as a matter of fact. Intent is an important element of usury and the only way that this agreement could be held to be usurious would be to find such intent from the letters written by one party and accepted by the other in which the details of the conditions of the loan and pledge of the stock were set forth. The activities of the appellant Harriman belie the contention that its position was no more than a lender.

Even if it were possible upon the evidence to find that this loan was usurious, the plaintiffs, as judgment creditors, are not entitled to attack the validity of the loan.

It was formerly the rule that not even the borrower could come into equity and secure cancellation of a usurious transaction without paying or offering to pay the lender the sum advanced by the latter with legal interest. (Marsh v. House, 13 Hun, 126.)

This rule has been modified by statute in behalf of the borrower. (General Business Law; Cons. Laws, ch. 20, § 377.)

It has been further provided by statute that a cause of action to. cancel a security for a usurious loan may be transferred where the agreement creates a specific charge upon property, which is also transferred in disaffirmance thereof, and not otherwise; but, in that case, the transferee does not succeed to the right, conferred by statute upon the borrower, to procure relief, without paying, or offering to pay, any part of the sum or thing loaned.” (General Business Law, § 375.)

The courts have given a strict construction to the word borrower.” In Mason v. Lord (40 N. Y. 476) the plaintiff, claiming title in fee as purchaser under an execution issued on his judgment, brought an action of ejectment against the defendant who was in possession as purchaser of a leasehold under a usurious mortgage given by the judgment debtor. It was there held that the action could be maintained without making a tender or offering to pay the indebtedness. That was an action at law, not in equity. In Merchants’ Exchange Nat. Bank v. Commercial Warehouse Co. (49 N. Y. 635) the plaintiffs were permitted to bring an action at law in conversion without such a tender. In Post v. Bank of Utica (7 Hill, 391) judgment creditors who had purchased property on an execution sale filed a bill in chancery to set aside a usurious mortgage given by the judgment debtor or have it declared subsequent to the hen of their judgment, but without offering to pay the loan. There a demurrer was sustained and the complaint dismissed. The court said, Had the legislature, which was composed of sound practical men, intended to have included judgment creditors in the provision in question, they would doubtless have said so expressly ” (p. 396).

In Wheelock v. Lee (64 N. Y. 242) it was held that an assignee in bankruptcy of a borrower could maintain an action to recover the excessive interest upon a usurious loan, but the right so to do did not accrue until after the loan with legal interest had been paid.

It has been held that a devisee of land could not impeach a usurious mortgage without a tender of the principal. (Buckingham v. Corning, 91 N. Y. 525.)

In Union Dime Savings Institution v. Wilmot (94 N. Y. 221) it was said that the law in this State authorizes a subsequent lien holder by mortgage or judgment or mechanic’s Hen to avail himself of the defense of usury against a prior mortgage. But that was as to real property as to which a judgment would constitute a Hen.

In Rice v. Schneck (189 App. Div. 877; affd., 228 N. Y. 561) it was held that a receiver in bankruptcy did not take the immunity given to the borrower in an action to recover securities pledged for a usurious loan without a tender of the amount of the debt. It is quite clear that subsequent Hen holders may defend an action brought on the aUeged usurious contract and set up the defense which would be available to the borrower, and that while a borrower may bring an action to set aside the usurious agreement, a cause of action can only be transferred where a specific charge upon property has been created and the property is transferred in disaffirmance thereof, in which case the transferee does not succeed to the right conferred by statute upon the borrower to procure refief without paying any part of the sum or thing borrowed.

No case is cited nor has one been found where a judgment creditor, not having by sale acquired a Hen upon property transferred or attempted to be transferred, has been permitted in a court of equity to have a prior Hen set aside on the ground of usury without the payment of the legal amount due.

In the instant case the plaintiffs had no Hen on the specific property transferred except such equitable Hen as resulted from the institution of this action. The defendant Harriman was a pledgee in possession and had a Hen irrespective of the transfer sought to be set aside. If the transfer were to be set aside, the Hen of Harriman as pledgee would stiff exist. The plaintiffs are seeking equitable refief without an offer on their part to do equity.

Thompson v. Van Vechten (27 N. Y. 568) was an action brought by the holder of a usurious chattel mortgage seeking injunctive relief for the appointment of a receiver and for payment into court for distribution. The defendants were lien holders under mortgages and executions on judgments. It was held that the plaintiff could not use his usurious mortgage to attack their hens.

With the exception of Thompson v. Van Vechten, these cases are all actions at law, and in that case the plaintiff was seeking to enforce his usurious contract against lien holders.

In Post v. Bank of Utica (supra) it was distinctly held that the purpose of the statute was* to protect the borrower and that the borrower’s right is personal to him and cannot be asserted by a stranger to the transaction; that the law was made to prevent oppression and to rescue the party oppressed. It is said: “ What has the grantee of the borrower to do with the original contract of loan? How is he hable upon that contract to pay the money borrowed? What connection in law exists between the lender of the money, and a purchaser of the mortgaged premises from the mortgagor? * * * How are the respondents to be connected with a loan made four years before they recovered their judgment * * *?” (p. 405).

It seems to us that reasoning applies to the instant case. The statute is not designed to permit third parties to prefer their claims over the just indebtedness of a person who in connection with that indebtedness has made a usurious contract. It is designed to permit the borrower and those hable on the borrower’s debt to avoid the obligation of the usurious contract. (Buckingham v. Corning, 91 N. Y. 525.)

If the plaintiffs, under their judgment, had caused the property to be sold, it is quite clear that the defendant Harriman, assuming its contract to have been usurious, could not have sustained an action for conversion of the property. It could not have used the usurious contract as a weapon to defeat the right of one who had acquired a hen or title.

That is substantially the situation of the plaintiff in each of the cases cited by the respondents. Here, no hen having been acquired by the plaintiffs, they cannot be held to be in the position of the borrower.

A very interesting summary of the authorities upon the question as to who can avail himself of the plea of usury is to be found in the opinion of Jones, J., at Special Term, in Merchants’ Exchange Nat. Bank v. Commercial Warehouse Co. (reprinted in 49 N. Y. at p. 642).

A note in 17 A. L. R. (pp. 130 and 131), referring to the New York rule, states that the courts have given the word “ borrower,” as used in this State, a strict construction and have held that any person other than the party bound by the original contract to pay the loan, is obliged to tender the principal of the debt and legal interest thereon as a condition of equitable relief against a usurious loan, and cites authorities showing the application of the principle to a subsequent mortgagee; to the original mortgagor, having lost his status as borrower by selling the equity of redemption; a surety of the principal debtor; assignee in bankruptcy of the borrower; heir or devisee of the borrower; grantee of a mortgagor; subsequent lienor; assignee for creditors, and trustee in bankruptcy.

In Hubbard v. Tod (171 U. S. 474) a situation somewhat similar to that involved in the instant case was presented. The respondent was pledgee of certain shares of stock. A trust company claiming a prior right to have the stock pledged to it, sought to set aside a transfer, and the court said, “ it was petitioner who sought the affirmative aid of equity which he could only obtain by doing equity” (p. 502).

The opinion refers to the New York statute and states that the act has been rigidly confined to the borrower himself, citing: Wheelock v. Lee (supra); Buckingham v. Corning (supra); Allerton v. Belden (49 N. Y. 373).

We feel that the result reached by the trial court was right upon the merits; that, under all of the circumstances, the consideration paid by Harriman was a fair considera-. tion, a fair equivalent for the stock, and that the contract was made in good faith. Winant and the Venezuelan National had not invested a cent of their own money. The whole transaction was an extremely hazardous one, involving oil concessions in a foreign country; concededly no one could be found who would pay more. After diligent effort to sell the highest price offered was $4 a share. Even after the Spanish contract had been consummated, the only two sales made of the stock were a block of 13,625 shares at $5 a share and another block at $6.43, or an average'of $5.72|, which was less than Harriman paid. The wide difference in the price at which those two blocks of stock were sold indicates the uncertainty existing at the time as to the real value of the stock. To hold, long after the transaction, upon the grounds advanced, that the transaction was fraudulent under the statute seems to us to disregard the realities and substitute therefor pure speculation.

The question of usury was properly decided by the trial court and Appellate Division. There was no usurious intent found and the plaintiff was seeking equity without an offer to do equity. The defense of usury is personal to the borrower, and in any event it could not recover without a tender of payment to Harriman of the legal amount due.

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

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

Judgment accordingly.


text:
    In the Matter of Joseph Plaut, Respondent, against Thomas M. Lynch et al., Constituting the State Tax Commission, Appellants.
    (Submitted November 16, 1931;
    decided December 1, 1931.)

      John J. Bennett, Jr., Attorney-General (F. R. Chant of counsel), for appellants.

      Leon Lauterstein, Isaac Lande and Emanuel Dankowitz for respondent.
   Appeal dismissed, with costs, upon the ground the order is not final; 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. Clark L. Boulware, Respondent, v. William C. Martens et al., Appellants.
    (Argued November 16, 1931;
    decided December 1, 1931.)

      Jeremiah D. Toomey for appellants.

      Joseph D. Karp for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of Earl A. Gillespie, Inc., Respondent, against Alfred D. Olena et al., Constituting the Board of Zoning Appeals of the Village of Garden City, Appellants.
    (Argued November 16, 1931;
    decided December 1, 1931.)

      George L. Hubbell. Jr., and Malcolm C. Law for appellants.

      Clarence G. Bachrach, Herman S. Bachrach and Samuel S. Bisgyer for respondent.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the ground that the evidence sustains the finding of the Board of Zoning Appeals that the proposed building was a saw mill or planing mill within the meaning of the zoning ordinance; no opinion.

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


text:
    In the Matter of the Estate of Hugh Glenn, Deceased. Utica Trust and Deposit Company, Individually and as Executor of the Will of Hugh Glenn, Appellant; Jane P. Hodge et al., Respondents.
    (Argued November 16, 1931;
    decided December 1, 1931.)

      P. C. J. DeAngelis for appellant.

      Thayer Burgess for respondents.
   Order affirmed, with costs against the appellant individually and not as executor; no opinion.

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


text:
    In the Matter of the Claim of John Mar, Respondent, against New York Central Railroad Company, Appellant. The State Industrial Board, Respondent.
    (Argued November 17, 1931;
    decided December 1, 1931.)

      Robert E. Whalen for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin and John R. O’Hanlon of counsel), for respondent.
   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 Claim of Clara B. Atkins, Respondent, against Julius Joelson Enterprise et al., Appellants. The State Industrial Board, Respondent.
    (Submitted November 17, 1931;
    decided December 1, 1931.)

      Jeremiah F. Connor and John F. Foley for appellants.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin and Roy Wiedersum of counsel), for respondent.
   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 Claim of Sarah J. Fish, Respondent, against Wickwire Spencer Steel Company et al., Appellants. The State Industrial Board, Respondent.
    (Argued November 17, 1931;
    decided December 1, 1931.)

      Roy P. Ohlin and Mason O. Damon for appellants.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for respondent.
   Order of the Appellate Division reversed and claim dismissed, with costs against the State Industrial Board in the Appellate Division and in this court on the ground that the evidence does not show that the death was due to an accident arising out of the employment; no opinion.

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


text:
    In the Matter of the Claim of the Commissioner of Taxation and Finance, Respondent, against Howard R. Cox et al., Appellants. The State Industrial Board, Respondent.
    (Argued November 17, 1931;
    decided December 1, 1931.)

      Sylvester E. Hevers, Leo F. Potts and Henry L. Ughetta for appellants.

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

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


text:
    In the Matter of the Claim of Arthur J. Whelan, Jr., Respondent, against Iroquois Gas Corporation, Appellant. The State Industrial Board, Respondent.
    (Argued November 17, 1931;
    decided December 1, 1931.)

      William M. Fay for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for respondent.
   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 Claim of Margaret Underhill, Respondent, against William Keener et al., Appellants. The State Industrial Board, Respondent.
    (Submitted November 17, 1931;
    decided December 1, 1931.)

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

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

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


text:
    In the Matter of the Claim of Vasiliki A. Amaxis et al., Respondents, against N. A. Vassilaros, Inc., et al., Appellants. The State Industrial Board, Respondent.
    (Argued November 17, 1931;
    decided December 1, 1931.)

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

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for respondent.
   Order of Appellate Division reversed and claim dismissed, with costs against the State Industrial Board in the Appellate Division and in this court on the authority of Matter of Cameron v. Ellis Const. Co. (252 N. Y. 394); Matter of Copeland v. Foundation Co. (256 N. Y. 568); no opinion.

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


text:
    In the Matter of the Claim of Charles Boardway, against John P. Kellas, Respondent. The State Industrial Board, Appellant.
    (Argued November 17, 1931;

    decided December 1, 1931.)

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

      L. M. Kellas for respondent.
   Order affirmed, with costs against the State Industrial Board; no opinion.

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


text:
    George Leary et al., Respondents, v. Village of Lawrence, Appellant.
    (Argued November 18, 1931;
    decided December 4, 1931.)

      Edward S. Bentley for appellant.

      Ferdinand I. Haber for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of William D. Parsons, Deceased. City Bank Farmers Trust Company, as Trustee, Appellant; Christine H. Parsons et al., as Executors, et al., Respondents.
    (Argued November 18, 1931;
    decided December 4, 1931.)

      Edwin W. Cooney and Elmer J. Hoare for appellant.

      Joseph Steven Frank and Freeman T. Hulse for petitioners, respondents.

      Nathan O. Petty for infant respondents.
   Order affirmed, with costs payable out of the estate to each party filing a brief in this court; no opinion.

Concur: Crane, Lehman, Kellogg and Hubbs, JJ. Dissenting: Cardozo, Ch. J., Pound and O’Brien, JJ., who vote to modify the order by charging the debts and expenses upon the residuary estate.


text:
    Morris Kesten, an Infant, by Harry Kesten, His Guardian ad Litem, Respondent, v. Einhorn & Singer Development Corporation, Appellant, Impleaded with Others. Harry Kesten, Respondent, v. Einhorn & Singer Development Corporation, Appellant, Impleaded with Others.
    (Argued November 18, 1931;
    decided December 4, 1931.)

      Benjamin C. Loder for appellant.

      William C. Chanler and Allison Choate for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Charlotte L. Fox, Appellant, v. City of Syracuse, Respondent, Impleaded with Another. Henry J. Fox, Appellant, v. City of Syracuse, Respondent, Impleaded with Another.
    (Argued November 18, 1931;
    decided December 4, 1931.)

      Jesse E. Kingsley for appellants.

      Charles V. Byrne and J. C. Tormey for respondent.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Peoples Broadcasting Corporation, Appellant, v. George Batten Company, Inc., Respondent.
    (Argued November 19, 1931;
    decided December 4, 1931.)

      Wayne M. Musgrave and Jeremiah A. O’Leary for appellant.

      Jeremiah T. Mahoney, Harry J. Sondheim and Edgar B. Bronson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Francesca F. Schaefer, Respondent, v. William N. Ridge, Defendant, and Metropolis Land Company, Appellant.
    (Argued November 19, 1931;
    decided December 4, 1931.)

      Francis L. Field, Harold G. Aron and David A. Buckley, Jr., for appellant.

      Benjamin C. Ribman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel A. Guiberson, Jr., Appellant, v. Percy M. Chandler, Respondent.
    (Argued November 20, 1931;
    decided December 4, 1931.)

      Caruthers Ewing for appellant.

      Martin Conboy, Edward Ward McMahon and David Asch for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Anna A. Donnelly, as Administratrix of the Estate of Edward J. Donnelly, Jr., Deceased, Appellant, v. The State of New York, Respondent. Sarah C. Dunphy, Appellant, v. The State of New York, Respondent. Daniel Redmond, Appellant, v. The State of New York, Respondent. Marie Hogan, Appellant, v. The State of New York, Respondent.
    (Argued November 20, 1931;
    decided December 4, 1931.)

      J. S. Carter for appellants.

      John J. Bennett, Jr., Attorney-General (John L. Campbell of counsel), for respondent.
   Judgments 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. Gavino Demiar, Appellant.
    (Argued November 23, 1931;
    decided December 4, 1931.)

      David F. Price, Ralph E. Roberts and William Leibowitz for appellant.

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment of conviction affirmed; 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. Harry D. Watterson, Appellant.
    (Submitted November 23, 1931;
    decided January 5, 1932.)

      George H. Combs, Jr., and John J. Babé, for appellant.

      Thomas C. T. Crain, District Attorney (Felix C. Benvenga and A. A. De Vito of counsel), for respondent.
   Judgment of Appellate Division and that of the Court of General Sessions reversed and new trial ordered on opinion in People v. Reese (258 N. Y. 89).

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


text:
    Susan V. Schilling, Appellant, v. Philip T. Coffey Respondent, Impleaded with Others.
    (Argued December 2, 1931;
    decided January 5, 1932.)

      Morris Cukor and Maurice I. Rappaport for appellant.

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

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


text:
    Daisy E. Canute, Appellant, v. Burdette M. Minor et al., as Executors of and Trustees under the Will of Rachel J. C. Parks, Deceased, Respondents.
    (Argued December 2, 1931;
    decided January 5, 1932.)

      William MacFarlane for appellant.

      Hampton H. Halsey and Joseph H. Engel for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    John Werle, Appellant, v. Fred Stockinger et al., Respondents.
    (Argued December 3, 1931;
    decided January 5, 1932.)

      Richard Rogers and James F. Hart for appellant.

      Ellsworth Baker for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Schuyler County Board of Supervisors, Appellant, for the Condemnation of Lands for Highway Purposes. Anna Van Zile, Respondent.
    (Argued December 4, 1931;
    decided January 5, 1932.)

      Arthur B. Ellison for appellant.

      Charles H. Newman for respondent.
   Appeal dismissed, without costs; no opinion.

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


text:
    Peoples Bank of Hamburg, Appellant, v. Gates, Inc., Defendant, and Columbia Casualty Company, Respondent.
    (Argued December 4, 1931;
    decided January 5, 1932.)

      John W. Ryan and Harold V. Cook for appellant.

      Hamilton Ward and Julius A. Schreiber for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles Miller et al., as Executors of and Trustees under the Will of Arthur Moser, Deceased, Respondents, v. Madeline Moser, Appellant, and Arthur M. Moser et al., Respondents, Impleaded with Others.
    (Argued December 4, 1931;
    decided January 5, 1932.)

      Harry W. Moore for appellant.

      William J. Smith for plaintiffs-respondents.

      Harry P. Solomon for defendants-respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    P. J. Tierney Sons, Inc., Respondent, v. Michael Bajowski, Appellant.
    (Argued November 23, 1931;
    decided January 5, 1932.)

      Samuel Silinsky for appellant.

      Abraham Shamos, Eugene Untermyer and Edward M. Bratter for respondent.
   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. Pietro Matera and Peter Sardini, Appellants.
    (Argued November 24, 1931;
    decided January 5, 1932.)

      Jacob Shientag for appellants.

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment of conviction as to each defendant affirmed; no opinion.

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


text:
    Edward Stokes, as Administrator of the Estate of George Stokes, Deceased, Respondent, v. The City of New York, Appellant.
    (Argued November 24, 1931;
    decided January 5, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and George E. Draper of counsel), for appellant.

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

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


text:
    In the Matter of William L. O’Malley, Respondent, against Charles W. Berry, as Comptroller of the City of New York, Appellant.
    (Submitted November 24, 1931;
    decided January 5, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Henry J. Shields and George H. Cowie of counsel), for appellant.

      Arthur M. Shorwitz for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Anna Guglielmo, as Administratrix of the Estate of Michael Guglielmo, Deceased, Respondent, v. Church Engineering Corporation, Appellant, Impleaded with Others.
    (Argued November 24, 1931;
    decided January 5, 1932.)

      Clarence E. Mellen and Bernard J. Vincent for appellant.

      Milton M. Gettinger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rose Colombo, Respondent, v. John Hancock Mutual Life Insurance Company, Appellant.
    (Argued November 25, 1931;
    decided January 5, 1932.)

      Roy P. Ohlin and Mason O. Damon for appellant.

      John V. Maloney, Robert J. Summers and Charles F. Martina for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and complaint dismissed, with costs in all courts, on the ground that the employment of Louis Colombo by the United States Gypsum Company had terminated before his death; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph De Vore, Thomas Tobin, Robert Walsh and Louis Boy, Appellants.
    (Argued November 30, 1931;
    decided January 5, 1932.)

      James D. C. Murray, Paul L. Corwin and Jacob J. Sachs for Joseph De Vore, appellant.

      Edward J. Reilly for Thomas Tobin, appellant.

      Keyes Winter, Joseph Steinberg and A. Edward Moskowitz for Robert Walsh, appellant.

      Herman Hoffman and Frank P. Catinella for Louis Boy, appellant.

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

Concur: Cardozo, Ch. J., Pound, Lehman, O’Brien and Hubbs, JJ. Kellogg, J., dissents as to the defendant Boy on the ground that the witness Roland was an accomplice as matter of law. Not sitting: Crane, J.


text:
    Mary J. Lewis et al., Appellants, v. State of New York, Respondent.
    (Argued November 30, 1931;
    decided January 5, 1932.)

      Albert C. Jordan for appellants.

      John J. Bennett, Jr., Attorney-General (James Gibson of counsel), for respondent.

      Kenneth Creble for New York Central Railroad Company, intervening.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of James M. Hoyt, Appellant. Attorney-General of the State of New York, Respondent.
    (Argued December 1, 1931;
    decided January 5, 1932.)

      Emil Weitzner and Samuel H. Kaufman for appellant.

      John J. Bennett, Jr., Attorney-General (Abraham N. Davis and Paul J. McCauley of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Myra Shaw, Appellant, v. Atlantic Amusement Company, Respondent.
    (Argued December 1, 1931;
    decided January 5, 1932.)

      Henry Fabricant and Harry S. Austin for appellant.

      Murray G. Jenkins and William Dike Reed for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Paul Roth, Respondent, v. Stuard Hirschman, Appellant.
    (Argued December 2, 1931;
    decided January 5, 1932.)

      A. S. Gilbert and Jerome E. Malino for appellant.

      William Rasquin, Jr., Henry Rosenbloom and Samuel Perlo for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Kathryn A. Reynell, Respondent, v. Indemnity Insurance Company of North America, Appellant.
    (Argued November 25, 1931;
    decided January 5, 1932.)

      Arthur T. Pammenter for appellant.

      Samuel B. Dicker for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and complaint dismissed, with costs in all courts, on the authority of Silverstein v. Metropolitan Life Insurance Company (254 N. Y. 81).

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


text:
    Jeanette H. Kaplan et al., Respondents, v. Armin Herman, Appellant, and Interborough Rapid Transit Company, Respondent.
    (Argued December 3, 1931;
    decided January 5, 1932.)

      Leo C. Weiler, Max Ash and William E. Lowther for appellant.

      Jacob Kaplan for plaintiffs-respondents.

      B. H. Ames and James L. Quackenbush for defendant-respondent.
   On appeal by defendant Herman from the judgment in favor of plaintiffs, judgment affirmed, with costs. On appeal by the defendant Herman from the order granting new trial as to his co-defendant Interborough Rapid Transit Company, appeal dismissed, with costs on authority of Ward v. Iroquois Gas Corporation (258 N. Y. 124).

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


text:
    Van Rensselaer Halsey et al., Individually and as Copartners under the Firm Name of C. D. Halsey & Co., Respondents, v. Clinton D. Winant, Defendant, and W. A. Harriman & Co., Inc., Appellant.
    (Submitted January 4, 1932;
    decided January 5, 1932.)

      J. Frederick Eagle and Carroll G. Walter for motion.

      Martin Conboy and Bernard Sobol opposed.
   Motion denied and argument of appeal postponed until the February, 1932, session. (See 258 N. Y. 512.)


text:
    John Moller, Respondent, v. The Peoples National Bank of Brooklyn, Appellant.
    (Submitted January 4, 1932;
    decided January 6, 1932.)

      Lester J. Moller for motion.

      Marshall McLean opposed.
   Motion denied as to the judgment and granted as to the order.


text:
    Hunts Point Finance Corporation, Appellant, v. Joseph A. Broderick, as Superintendent of Banks of the State of New York, et al., Respondents.
    (Submitted January 4, 1932;
    decided January 6, 1932.)

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of E. Gerli and Company, Inc., Appellant, v. Oscar Heineman Corporation, Respondent.
    (Argued January 4, 1932;
    decided January 6, 1932.)

      Ralph M. Ketcham for motion.

      John F. Caskey opposed.
   Motion to dismiss appeal taken as of right granted and appeal dismissed, with ten dollars costs.

Motion to dismiss appeal taken on questions certified denied.


text:
    In the Matter of the Accounting of The First Trust and Deposit Company et al., as Administrators of the Estate of Marie E. Pratt, Deceased. Benjamin W. Jones, Appellant; Esther B. Mooney et al., Respondents.
    (Argued January 4, 1932;
    decided January 6, 1932.)

      John Goodrum Miller for motion.
    No one opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion.


text:
    James Keon, Respondent, v. Saxton & Company, Appellant.
    (Submitted January 4, 1932;
    decided January 12, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 257 N. Y. 412.)


text:
    Salvatore Citarella, Respondent, v. President and Directors of the Manhattan Company et al., Appellants.
    (Submitted January 4, 1932;
    decided January 12, 1932.)
   Motion denied, with ten dollars costs and necessary printing disbursements. The court affirmed the judgment upon the ground that there was no evidence of any negligent conduct upon the part of the depositor.


text:
    Albert C. Wills, Respondent, v. Investors Bankstocks Corporation, Appellant. (Actions 1 and 2.)
    (Submitted January 4, 1932;
    decided January 12, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 257 N. Y. 451.)


text:
    Francesca A. Schaefer, Respondent, v. William N. Ridge, Defendant, and Metropolis Land Company, Appellant.
    (Submitted January 4, 1932;
    decided January 12, 1932.)
   Motion for reargument denied, with ten dollars costs and neeessary printing disbursements. (See 258 N. Y. 552.)


author: Crane, J.

text:
    George C. Diehl, C. E., Inc., Appellant, v. City of Lackawanna, Respondent.
    (Argued December 3, 1931;
    decided February 9, 1932.)

      Wortley B. Paul for appellant.

      Rudolph S. Weinstein, Corporation Counsel (Charles Diebold, Jr., of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Lehman, Kellogg and O’Brien, JJ. Crane, J., dissents in the following memorandum in which Pound and Hubbs, JJ., concur.

Crane, J.

(dissenting). I cannot agree with the result reached in this case. The Statute of Limitations has been too strictly timed. Let me state my views.

The contract made by the city of Lackawanna with George C. Diehl, the engineer, called for more than plans and specifications. These were to be prepared, and the engineer was to do the work, if the sewer drainage system was to be built. The engineer made his surveys over hundreds of acres, attended many times before the departments of state at Albany, modified his plans to meet their approval, and finally submitted them to the city authorities. This did not terminate his work, nor was he to be paid at this time; there was nothing due until there was a definite determination upon the part of the authorities to end the project. After the submission of the plans it was part of his duty to appear and explain and to modify them if those in authority so directed. He did appear at the meetings of the taxpayers and explained the work. His contract was a continuing contract; to do anything in connection with his plans and specifications called for and to do the work if the plant was to be built. If the city decided not to build, he was to be paid for his work to date. There was no discontinuance or authoritative termination of his employment until November 29, 1929, when the Mayor told him that they were not going on with the work. The Mayor, W. H. Lohr, gives this testimony:

Mr. Diehl wanted to know whether we were going to go through with our sewer, and I said ‘ I don’t think so, because the people don’t seem to care to have it put in.’ Then the question of the payment for the plans and specifications came up, Mr. Diehl said it was customary to charge three per cent for the plans and specifications, and six per cent if the work was gone through with. So I said to Mr. Diehl, ‘ You send in a voucher.’

“ Q. You told him that right after that meeting in July, 1928? A. In Mr. Diehl’s office, after I was called in there.

“ Q. In 1929? A. In 1929.

“ Q. The time that he wrote you to come in? A. Yes.” (This is conceded to be November 29, 1929.)

This was the first official notice that Diehl had from the city of Lackawanna that the project was dropped, and that the city would pay for the work already done. Under no circumstances can I see how he would be justified in presenting a bill or demanding payment before the authoritative termination of his contract. This was given by the Mayor, November, 1929.

The meetings of the taxpayers, held in the summer of 1929, were advisory, and no part of the local machinery for the awarding of this contract or the building of a sewer disposal plant. The charter of the city of Lackawanna, sections 82 and 86, providing for extraordinary expenditures, does not apply to this work. The General City Law (Cons. Laws, ch. 21), sections 20 and 22, did apply, and empowers the Common Council to incur indebtedness for a municipal purpose, and to make the same payable out of, or, a° charge, or a lien upon specific property, to wit, the sewer district. The provisions of the charter applied to expenditures to be raised by taxation upon the entire city.

The Common Council of the city of Lackawanna, and the Mayor, acting under the powers conferred by the General City Law, legally executed the contract with Diehl. The nature of it I have stated. The payments under it, or because of it, were not due until November of 1929. This was within one year of the bringing of the action, which was commenced August 21, 1930. The defendant’s charter (Laws of 1909, ch. 574, § 220) provides: “All actions brought against the city upon any contractual liability, expressed or implied, must be commenced within one year from the time that the cause of action accrued.” This action was commenced within the year from the time this cause of action accrued, which was November 29, 1929, when the plaintiff was notified that the sewer disposal plant project was not to be put through. While Diehl might reasonably have supposed after a taxpayers’ meeting in July, that the city authorities would abandon the job, he was not legally justified in making this assumption. Under the General City Law, the city of Lackawanna could have built the sewer in spite of the taxpayers’ vote. Their opinion was advisory, not a prerequisite. The Mayor and the Common Council were the ones to notify the plaintiff and to terminate his contract, which, as I have said, was a continuing one, lasting until definite action was taken.

The Appellate Division reversed only one finding. This read: “ That the plaintiff’s cause of action accrued upon the auditing and approval of its claim by the defendant’s Council on November 29, 1929,” and this was stated in the opinion. The order contains no reversals of any findings. All the other findings ■ are, therefore, affirmed. The tenth finding reads as follows:

" 10. That the plaintiff in this action was engaged and hired by the defendant to, and was under obligation, to make the necessary plans and specifications for the sewage disposal plant and sewer system in the Fourth Ward of the defendant and to do and perform as a part of said contract all the necessary engineering work consisting of alteration or changing of the plans and doing all the necessary engineering work required down to the time when the actual letting of the contract by the defendant for the improvement should take place.” Then we have the following:

19. That in the year 1928 two public meetings were held of residents of the defendant interested in the building of the improvement; that these meetings were called by the defendant’s City Clerk and that a representative of the plaintiff attended each of said meetings. These meetings were not called for the purpose of complying with the provisions of defendant’s charter.

“ 22. There were no acts or events prior to November 29th, 1929, which would cause the plaintiff to believe that the defendant had abandoned the intention to construct the sewer improvement project, or that definitely indicated to the plaintiff that the sewer improvement project was not to be carried out by defendant.

“ 23. That the plaintiff’s contract to prepare plans and specifications for a sewer system and sewage disposal plant was not completely and fully performed by the plaintiff until either the contract was let for the construction of the sewer improvement project or until the plaintiff was notified by the defendant that the defendant was not going to proceed with the making of the improvement, or that the plaintiff’s services were no longer needed or desired by the defendant.

26. The plaintiff was requested by the defendant’s Mayor to submit a verified voucher for the amount of its claim which was presented to the defendant in the sum of $15,000 and acted upon by the defendant’s Council at a meeting of said Council held on November 29, 1929, when the plaintiff’s claim in such amount was audited, approved and ordered paid by the defendant’s Council, and a bond issue was authorized by the Council to pay the same.”

In view of these established facts approved by the Appellate Division, how can we hold that the dismissal of the complaint was justified? I think this case should be reversed and the judgment of the Trial Term affirmed.


text:
    In the Matter of the Accounting of George S. Allen, as Executor of Marian E. Perry, Deceased, Respondent. Lena Marquardt, Appellant.
    (Argued January 4, 1932;
    decided February 9, 1932.)

      Andrew Veleber, Jr., for appellant.

      Charles T. Ennis and Jesse C. Petteys for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Carol E. LeVae, Respondent, v. Duff & Conger, Inc., Appellant.
    (Argued January 4, 1932;
    decided February 9, 1932.)

      Peter W. Quinn for appellant.

      John J. McBride and Salvatore Viscardi for respondent.
   Judgment of Appellate Division and that of Special Term reversed, with costs in Appellate Division and in this court, and motion for summary judgment denied, with ten dollars costs, on the ground that without determining the validity of the counterclaims there is an issue of fact to be tried as to the existence of an account stated; no opinion.

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


text:
    Irving Trust Company, as Trustee under a Trust Mortgage, Appellant, v. Realty Sureties, Inc., Respondent.
    (Argued January 4, 1932;
    decided February 9, 1932.)

      William O. Robertson for appellant.

      Meyer C. Solomon for respondent.
   Appeal dismissed, with costs, on the ground that the order appealed from is not a final order; no opinion.

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


text:
    Frank P. Kobert, Appellant, v. National Machinery Company, Respondent.
    (Argued January 4, 1932;
    decided February 9, 1932.)

      Morris H. Wolsky and Edward M. Evarts for appellant.

      E. Robert Willcox and George H. Porter for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of Robert L. Jaycox, Deceased. John L. Jaycox et al., Appellants; Carrie M. Jaycox et al., Infants, by Arthur F. Curtis, Their Guardian ad Litem, Respondents.
    (Argued January 4, 1932:
    decided February 9, 1932.)

      Vere H. Multer for John L. Jaycox, appellant.

      Vincent N. Elwood for Bertia M. B. White, as executrix, appellant.

      Arthur F. Curtis for Carrie M. Jaycox et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Dallas S. Townsend et al., Appellants; Isabel D. McHie, Respondent.
    (Argued January 4, 1932;
    decided February 9, 1932.)

      Herbert Barry and George Gordon Battle for appellants.

      Charles G. Coster and William J. Rapp for respondent.
   Order affirmed, with costs, in so far as it vacates the appointment of the ancillary committee and directs the delivery by such committee of the property in their possession or subject to their control. In so far as the order directs an accounting by the committee and defines the rules or principles to be adhered to thereon, the appeal is dismissed; no opinion.

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


text:
    The People of the State of New York ex rel. Harway Improvement Company, Appellant, v. Charles W. Berry, as Comptroller of the City of New York, et al., Respondents.
    (Argued January 5, 1932;
    decided February 9, 1932.)

      James R. Deering and James J. Dunn for appellant.

      Arthur J. W. Hilly, Corporation Counsel (William H. King and Isaac Phillips of counsel), 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 Maude B. Wetherby et al., Appellants. Fenton State Savings Bank, as Executor of Elsie W. Snow, Deceased, et al., Respondents.
    (Argued January 5, 1932;
    decided February 9, 1932.)

      Murle L. Rowe for appellants.

      Joseph C. White for Fenton State Savings Bank, as executor of Elsie W. Snow, deceased, et al., respondents.
    • Carl E. Darling for Kittle Wright, as executrix of John W. Wright, deceased, respondent.

      William H. Hurley for Sarah A. Lay, respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Brooklyn Trust Company, as Executor of William T. Barr, Deceased, Respondent. Theodore G. Clarke, as Special Guardian for Henry B. Barr et al., Appellants; Frank S. Barr et al., Respondents.
    (Argued January 5, 1932;
    decided February 9, 1932.)

      Walter J. A. Mack and Theodore G. Clarke for appellants.

      Edward A. Ingraham and George S. Ingraham for respondents.
   Order affirmed, with costs payable out of the estate, on the ground stated in the concurring memorandum at the Appellate Division; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Charles Lodico and Sam Lodico, Appellants.
    (Argued January 6, 1932;
    decided February 9, 1932.)

      Frank H. Mott and John M. Roach for appellants.

      John S. Leonard, Assistant District Attorney, for respondent.
   Judgment affirmed; 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. Charles D. Baisley et al., Respondents, v. Gustave C. Joachim, Appellant, Impleaded with Others.
    (Submitted January 6, 1932;
    decided February 9, 1932.)

      George S. Raymond for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph F. Haher of counsel), 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 John B. Doyle, Appellant. United States Bond and Mortgage Corporation, Respondent.
    (Argued January 6, 1932;
    decided February 9, 1932.)

      Charles H. Kelby and John B. Doyle for appellant.

      George Link, Jr., and Charles H. Buckley for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Caroline M. Gavin, Appellant, v. Peter Aitken, as Executor of Mary J. Driver, Deceased, Respondent, Impleaded with Another.
    (Argued January 6, 1932;
    decided February 9, 1932.)

      Joseph L. Weiner, Herbert R. Limburg and Arthur A. Segall for appellant.

      William Gold, George Goldberg and Zarah Williamson for respondent.
   Judgment reversed, with costs in the Appellate Division and in this court. (See Middleworth v. Ordway, 191 N. Y. 404; Ansley v. Ansley, 154 Ga. 357); no opinion.

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


text:
    Howard M. Githens, Respondent, v. Public Industrials Corporation, Appellant.
    (Argued January 6, 1932;
    decided February 9, 1932.)

      R. Randolph Hicks and William C. Scott for appellant.

      Rudolph Stand for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and new trial granted, with costs to abide the event, on the ground that there is no evidence that the conduct of the defendant in reducing the number of shares available for sale resulted to the plaintiff’s damage; no opinion.

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


text:
    Bernard Lutsky, Appellant, v. Roger Dunscombe et al., Copartners, Doing Business under the Name of Dunscombe & Co., Respondents.
    (Argued January 6, 1932;
    decided February 9, 1932.)

      Michael M. Helfgott and M. Arthur Helfhat for appellant.

      Conrad J. Ruby for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Cooper & Cooper, Inc., Appellant, v. The National Park Bank of New York, Respondent.
    (Argued January 7, 1932;
    decided February 9, 1932.)

      Harold Wisan and Arnold A. Jaffe for appellant.

      Emmett F. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Central Hanover Bank and Trust Company et al., as Executors of John Raabe, Deceased, Respondents, v. Peter S. Duffy, Appellant, Impleaded with Others.
    (Argued January 7, 1932;
    decided February 9, 1932.)

      Peter W. Quinn for appellant.

      Mildred C. Mebel and Bertram L. Kraus for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alfonso D’Amore, Respondent, v. Larry Carello et al., Appellants. Michael D’Amore, an Infant, by Alfonso D’Amore, His Guardian ad Litem, Respondent, v. Larry Carello et al., Appellants.
    (Argued January 8, 1932;
    decided February 9, 1932.)

      James T. Cross for appellants.

      Michael J. Larkin for respondents.
   Judgments 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. Uliano Salvatori, Appellant.
    (Submitted January 11, 1932;
    decided February 9, 1932.)

      Caesar B. F. Barra and Ralph J. Barra for appellant.

      Frank H. Coyne, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Rose S. Geller, Respondent. Mark H. Schneider, Appellant.
    (Submitted February 8, 1932;
    decided February 9, 1932.)

      George W. Israel for motion.

      Mark H. Schneider opposed.
   Motion denied on condition that appellant file and serve the papers on appeal within five days and within same time pay ten dollars costs of motion; otherwise, motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Canadian Industrial Alcohol Company, Ltd., Respondent, v. Dunbar Molasses Company, Appellant.
    (Submitted January 11, 1932;
    decided February 9, 1932.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 258 N. Y. 194.)


text:
    The People of the State of New York, Respondent, v. David Kaplan, Appellant.
    (Argued January 11, 1932;
    decided February 9, 1932.)

      Walter R. Hart for appellant.

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Penelle Associates, Inc., Appellant, v. Rosefein Realty Corporation, Respondent.
    (Argued January 11, 1932;
    decided February 9, 1932.)

      Harry Bijur for appellant.

      Jacob S. Demov and Lazarus Joseph for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Waitt Operating Company, Inc., Respondent, v. Ada Content, Appellant.
    (Argued January 12, 1932;
    decided February 9, 1932.)

      George Gordon Battle and James C. Goggin for appellant.

      Frederic H. McCoun for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    C. Ludwig Baumann, Appellant, v. DeWitt Stetten et al., as Trustees, et al., Appellants, and Berenice L. Baumann et al., Respondents.
    (Submitted January 11, 1932;
    decided February 16, 1932.)
   Motion by plaintiff for reargument denied, with ten dollars costs and necessary printing disbursements.

Motions to amend remittitur granted to the following extent; return of remittitur requested and when returned it will be amended, first, so as to provide that the respondents Berenice L. Baumann, Elizabeth Baumann and Charles Baumann are not entitled to costs at the Appellate Division as against the defendants Stetten and Greenbaum; and, second, so as to provide that the matter of compensation of the special guardian be remitted to the Special Term there to be dealt with as that court may be advised. (See 257 N. Y. 480.)


text:
    Theodore Haebler, Appellant, v. Gilbert H. Crawford, as Receiver of Roland Steel Company, Inc., Respondent.
    (Submitted February 8, 1932;
    decided February 16, 1932.)
   Motion for reargument denied, without costs.

Motion to amend remittitur granted; return of remittitur requested, and when returned it will be amended by deducting from the amount of the judgment the sum of $500 erroneously awarded under Civil Practice Act, section 323. (See 258 N. Y. 130.)


text:
    M. Arthur Helfhat, Respondent, v. J. Norman Whitehouse et al., Copartners, under the Firm Name of Whitehouse & Co., Appellants.
    (Submitted February 8, 1932;
    decided February 16, 1932.)

      Robert W. Bernard for motion.

      M. Arthur Helfhat opposed.
   Motion granted.


text:
    In the Matter of Public Service Interstate Transportation Company, Inc., Respondent, v. Public Service Commission of the State of New York et al., Appellants.
    (Submitted February 8, 1932;
    decided February 16, 1932.)

      Ernest W. Hofstatter for motion.

      B. Meredith Langstaff and Russell B. Burnside opposed.
   Motion denied.


text:
    In the Matter of Pine Street Realty Company, Inc., against Nik Coutroulas, Appellant.
    (Submitted February 8, 1932;
    decided February 16, 1932.)

      Alfred Ekelman for motion.

      Joseph M. Proskauer and J. Alvin Van Bergh opposed.
   Per Curiam.

The case is not one where an appeal lies as of right. (Markiewicz v. Thompson, 246 N. Y. 235; Civ. Prac. Act, §§ 1463, 1464.)

Upon the merits the application for leave to appeal, and the application to dispense with the printing of the record should be denied, with ten dollars costs and necessary printing disbursements.


text:
    In the Matter of the Accounting of Brooklyn Trust Company, as Trustee under the Will of Theodore F. Jackson, Deceased, Respondent. Stewart M. Neff, as Executor of Cornelia B. Jackson, Deceased, Appellant; Joseph H. Jackson et al., Respondents.
    (Submitted February 15, 1932;
    decided February 16, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 258 N. Y. 281.)


text:
    In the Matter of the Application of the City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property Required for the Opening and Extension of Northern Boulevard in the Borough of Queens. Christian Reis, Appellant; Margaret Mahoney et al., Respondents.
    (Submitted February 15, 1932;
    decided February 16, 1932.)
   Motion by Christian Ries for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements.

Motion by Addie E. Gibbons and Rowland A. Gibbons, Louis Reis and Christian Reis for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 258 N. Y. 136.)


text:
    Charles S. Wood & Company, Inc., Respondent, v. Alvord & Swift, Appellant.
    (Submitted February 8, 1932;
    decided March 3, 1932.)

      Francis X. Fallon and William S. Beers for appellant.

      George B. Greenough and F. Carroll Taylor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Zinbar Realty Co., Inc., Respondent. City Masons Supply Co., Inc., Appellant. (Two cases.)
    (Argued February 8, 1932;
    decided March 3, 1932.)

      Samuel Okin for appellant.

      Aaron Powsner for respondent.
   Orders affirmed, with costs; no opinion.

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


text:
    In the Matter of Josephine C. Fimiani, Respondent, against Parton Swift et al., Constituting the Board of Appeals of the City of Buffalo, Appellants. Stover Properties, Inc., Appellant.
    (Argued February 8, 1932;
    decided March 3, 1932.)

      Charles L. Feldman, Corporation Counsel (Charles S. McDonough of counsel), for Parton Swift et al., appellants.

      Gordon Steele for Stover Properties, Inc., appellant.

      William C. Carroll for respondent.
   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 Accounting of City Bank Farmers Trust Company, as Trustee under the Will of Emily A. Maxwell, Deceased, Respondent. Mary S. Darrow et al., as Executors of Emily A. Humphrey, Deceased, Appellants; City Bank Farmers Trust Company, as Executor of Annie S. Maxwell, Deceased, et al., Respondents.
    (Argued February 9, 1932;
    decided March 3, 1932.)

      Henry W. Jessup, Frederick E. W. Darrow and Louis F. Reed for appellants.

      James D. Ouchterloney, Earle J. Starkey and Walter E. Cooper for City Bank Farmers Trust Company, as executor, respondent.

      Lee McCanliss and Jeannette Freund for John W. Auchincloss et al., respondents.
   Order affirmed, with costs to the respondents payable out of the estate; no opinion.

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


text:
    Louis F. Mentz, Appellant, v. Efficient Building Corporation et al., Defendants, and Arville M. Turner et al., Respondents.
    (Argued February 9, 1932;
    decided March 3, 1932.)

      Albert C. Bickford for appellant.

      Monroe J. Cahn and Humphrey J. Lynch for respondents.
   Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Claim of William T. Priestley, Appellant, against H. Hentz & Company et al., Respondents. The State Industrial Board, Respondent.
    (Argued February 9, 1932;
    decided March 3, 1932.)

      John S. V. Kilmartin for appellant.

      William S. Pendleton for H. Hentz & Company and Globe Indemnity Company, 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 Claim of Bridget Ayers, Appellant, against Hanna Furnace Company, Respondent. The State Industrial Board, Appellant.
    (Argued February 9, 1932;
    decided March 3, 1932.)

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

      Ernest S. Carnes for claimant-appellant.

      Clarence B. Tippett for respondent.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of Alfonsina Malgieri, against General Electric Company, Respondent. The State Industrial Board, Appellant.
    (Argued February 9, 1932;
    decided March 3, 1932.)

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

      Edward Jerome for respondent.
   Order of Appellate Division reversed and award confirmed, with costs in the Appellate Division and in this court, on the ground that there is evidence tending to establish a causal connection between the accidental injury and the death.

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


text:
    In the Matter of the Claim of Alvin J. Van Buren, Respondent, against Howard Loucks & Sons et al., Appellants. The State Industrial Board, Respondent.
    (Argued February 9, 1932;
    decided March 3, 1932.)

      Clarence B. Tippett for appellants.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for respondent.
   Order of Appellate Division reversed and claim dismissed, with costs in this court and in the Appellate Division against the State Industrial Board, on the ground that there is no evidence that the relation of employer and employee existed between the appellants and the claimant. (Matter of Schweitzer v. Thompson & Norris Co., 229 N. Y. 97); no opinion.

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


text:
    The People of the State of New York, Respondent, v. Antonio Cellini, Appellant.
    (Argued February 10, 1932;
    decided March 3, 1932.)

      Henry Hirschberg for appellant.

      Franklin A. Schriver, District Attorney (Samuel W. Eager of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Henry E. Wood, Appellant, v. R. Henry Depew et al., Respondents.
    (Argued February 10, 1932;
    decided March 3, 1932.)

      Hugo Wintner, Robert J. Fox and Robert P. Schur for appellant.

      Ralph O. L. Fay and Philip J. Dunn for R. Henry Depew, John D. Depew and Bale-Snedeker Company, respondents.

      E. V. Daly for James E. Bale, respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Yama Haar, Appellant, v. Thomas Daly, Respondent.
    (Argued February 10, 1932;
    decided March 3, 1932.)

      Jay Leo Rothschild and Robert A. Pines for appellant.

      Samuel C. Whitman and Edward J. Neary for respondent.
   Judgment affirmed, with costs, on the ground that there is no evidence the title is unmarketable; no opinion.

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


text:
    George C. Diehl, C. E., Inc., Appellant, v. William F. Sheehan, Respondent.
    (Argued February 11, 1932;
    decided March 3, 1932.)

      Edward N. Mills for appellant.

      Joseph T. Wilson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Daniel Spiegel, Respondent, v. Samuel D. Jacobs, Appellant, Impleaded with Another.
    (Submitted February 11, 1932;
    decided March 3, 1932.)

      John P. Smith and Thomas D. Scoble, Jr., for appellant.

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

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


text:
    Catherine L. Cameron, Respondent, v. Cornelius Cameron, Appellant.
    (Argued February 15, 1932;
    decided March 3, 1932.)

      Sidney J. Loeb and John McLaren for appellant.

      Paul Abbott and Sydney H. Harris for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Hannah J. Thompson, Appellant, v. Robert H. Thompson, Respondent.
    (Argued February 15, 1932;
    decided March 3, 1932.)

      George Gordon Battle and James C. Goggin for appellant.

      John Burlinson Coleman for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    In the Matter of the Probate of the Will of Morris Levine, Deceased. Anna Hamberger et al., Appellants; Louis Levine et al., Respondents.
    (Argued February 15, 1932;
    decided March 3, 1932.)

      Bennett E. Aron and Dewey D. Blicksilber for appellants.

      Joseph R. Jackson and John J. Curtin for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    Louise Buscher, Respondent, v. John B. Gorman, as Supervisor of Roman Catholic Cemeteries, Diocese of Brooklyn, et al., Appellants.
    (Argued February 15, 1932;
    decided March 3, 1932.)

      Franklin M. Tomlin for appellants.

      Henry Waldman for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Kellogg and Hubbs, JJ. Crane and O’Brien, JJ., dissent as to the two bodies interred in the defendant cemetery. Not sitting: Lehman, J.


text:
    Kelvinator-Syracuse, Inc., Appellant, v. William Evans, Respondent.
    (Argued February 16, 1932;
    decided March 3, 1932.)

      Jesse E. Kingsley for appellant.

      Ransom H. Gillett for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ada Reibstein, Appellant, v. Abraham Schwartz, Respondent. Leonard Reibstein, Appellant, v. Abraham Schwartz, Respondent.
    (Argued February 16, 1932;
    decided March 3, 1932.)

      Isidor Cohn for appellants.

      Clarence E. Mellen and Meyer J. Cantor for respondent.
   Appeal in each action dismissed, with costs; no opinion. Concur: Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Lehman, J.


text:
    The City of New York, Appellant, v. Martin J. Every et al., Assessors of the Town of Olive, et al., Respondents. The City of New York, Appellant, v. T. S. Lennox et al., Assessors of the Town of Hurley, et al., Respondents. The City of New York, Appellant, v. Lorin C. Coddington et al., Assessors of the Town of Marbletown, et al., Respondents.
    (Argued February 16, 1932;
    decided March 3, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (Frank T. Fitzgerald and Jacob W. Block of counsel), for appellant.

      John W. Eckert and Robert G. Groves for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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