author: Crane, Ch. J.

text:
    In the Matter of Cecilia Danker, Respondent, against The Department of Health of the City of New York et al., Appellants.

      (Argued January 4, 1935;
    decided March 5, 1935.)

      Paul Windels, Corporation Counsel (Paxton Blair and Edmund L. Palmieri of counsel), for appellants.
    The fact that municipal authorities have permitted the administration of a relief project which entails the partial performance of duties theretofore performed by a civil service employee, does not constitute a violation of section 16 of chapter 178 of the Laws of 1934. (Gurney v. Atlantic & Great Western Ry. Co., 58 N. Y. 358; Conner v. Mayor, 5 N. Y. 285; Wilson v. City of New York, 31 Misc. Rep. 693; Chittenden v. Wurster, 152 N. Y. 345; Matter of Grosso v. Benninger, 240 App. Div. 1019.)

      Mitchell Jelline and Max D. Steuer for respondent.
    The alternative order of mandamus was properly granted. The use of relief workers to perform petitioner’s duties constitutes a violation of section 16 of chapter 178 of the Laws of 1934. (People ex rel. McClelland v. Roberts, 148 N. Y. 360; People ex rel. Shields v. Scannell, 48 App. Div. 69; Matter of Jones v. Willcox, 80 App. Div. 167; Matter of Levinson v. Rice, 152 Misc. Rep. 813.)
   Crane, Ch. J.

The question which "the Appellate Division has certified, to this court embodies most all of the material facts. Breads:

Do the following facts appearing from the petition and affidavits herein:
(1) The petitioner was on May 16, 1934, a duly appointed and qualified Civil Service nurse’s assistant employed in the Bureau of Child Hygiene of the Department of Health of the City of New York, performing the duties of that position under the direction of the registered nurse in charge of the Baby Health Station at which she was employed.
(2) As of" May 16, 1934, her position was abolished by the Board of Estimate and Apportionment of the City of New York allegedly by authority of Chapter 178 of the Laws of 1934.
“ (3) From and after May 16, 1934, all the duties until that date performed by the petitioner, except for the weighing of babies, were and are now being performed by three workers from emergency relief rolls at the same Baby Health Station at which the petitioner had performed them and under the direction of the same registered nurse in charge of said Station.
“ (4) These Emergency Relief workers are designated and assigned, with the consent of the Department of Health of the City of New York, from the emergency relief rolls by the Temporary Emergency Relief Administration; are assigned to their duties by the Department of Health of the City of New York; are compensated from a fund administered by the Temporary Emergency Relief Administration, 25% of which fund is contributed by the City of New York; and are subject to being removed from their positions at any time by the Department of Health of the City of New York, constitute a violation by the Department of Health of the City of New York of Section 16 of Chapter 178 of the Laws of 1934? ”

We shall consider this question although the answer may not justify the relief prayed for by the petitioner.

The Economy Act (Laws of 1934, chap. 178) was passed for the purpose of empowering the Board of Estimate of New York city to effect economies in and to increase the efficiency of the operation of government. It may:

(a) Abolish, in whole or in part, any such agency and/or any or all of the functions thereof;
(b) Transfer, in whole or in part, any such agency and/or any or all of the functions thereof, to the jurisdiction and control of any other agency;
(c) Consolidate or merge two or more agencies and /or any or all of the functions thereof;
(d) Designate, change and/or fix the name or functions of any existing, or consolidated or merged agency and the title and powers and/or duties of its executive head or staff; * * *.” (§ 3.)

The Civil Service Laws of the State and City were to be in no way crippled or affected even if they could be under our State Constitution.

“ § 9. Application of civil service law. An action taken under the provisions of this act shall be subject to and in accordance with the civil service law.”

To preserve the proper functioning of the Civil Service Law (Cons. Laws, ch. 7) and to protect civil service employees from illegal and unnecessary removal, section 16 becomes the safeguard.

§ 16. Replacement of employees. No person shall be employed from any emergency relief rolls to perform the duties of any employee whose office shall have been eliminated or who shall have been discharged or suspended from employment pursuant to the provisions of this act.” In 1931 the Legislature enacted the Emergency Relief Act, chapter 798 of the Laws of 1931, as amended by chapter 567 of the Laws of 1932, chapter 2 of the Laws of 1933, and chapter 9 of the Laws of 1933. After declaring what constitutes the emergency, section 9 provides for relief by municipal corporations, in that it gives them power to furnish Work relief to needy persons who are unemployed or, if employed, whose compensation therefrom is inadequate to provide the necessaries of life. The city is to receive financial aid from the State to the extent provided in the law for payments made to these emergency workers. No person given work under the act is to be subject to the provisions of the Civil Service Law.

All these three acts and the Constitution of the State must work in harmony. The Civil Service Law, the Economy Act and the Emergency Relief Act are not antagonistic or a substitution, one for the other, which means that civil service employees are not to be removed solely to make way for emergency workers, and positions are not to be abolished, merely that others from the relief rolls, however taken, may do the same work.

In February, 1922, the petitioner was appointed to the position of nurse’s assistant in the baby health stations of the Department of Health, after successfully passing a competitive examination for the position. She kept this position continuously from that date till May 15, 1934, when, by resolution of the Board of Estimate and Apportionment, adopted on April 30, 1934, all the positions of nurse’s assistants, including that of the petitioner, were abolished. Her duties, as recited by her, consisted in taking complete charge of the medicine closet, checking mothers and children as they arrived at the clinic, assisting them in dressing and undressing babies, weighing and charting the babies, taking care of the children, sterlizing needles for injection and preparing arms for inoculations. She prepared dressings for inoculations and vaccinations and performed all the duties of a doctor’s assistant. On non-clinic days she visited the delinquent cases. To these other duties she added the preparation of the cards and history charts. This position of the petitioner was abolished by the resolution, above stated, as being unnecessary under the economy program. The petitioner alleges that in truth and in fact the position has not been abolished, but that others, taken from the emergency relief rolls, are performing all her duties and doing the same work that she did before; that she, a civil service employee, has been removed under the guise of abolishing her office, and three others have been taken on to do her work and to take her place; that the abolition of the position was a mere form of words lacking substance and in truth and in fact false.

Assuming the petitioner’s statements and allegations to be true ■— and they are in brief embodied in the Appellate Division’s question — the selection of these three emergency relief workers to do the work performed by the petitioner was illegal under section 16, above quoted, and they are not entitled to do this work or to receive pay therefor. We answer the question in the affirmative; the performance of all the petitioner’s duties by the three workers from the emergency relief rolls constitutes a violation by the Department of Health of the city of New York of section 16 of chapter 178 of the Laws of 1934. The saving of money to the city of New York is no justification for the fictitious abolition of a position as unnecessary. The Economy Act does not contemplate the substitution of emergency relief workers for civil service employees.

The petitioner has been granted a writ of alternative mandamus because all her allegations have been denied. The Commissioner of Health challenges her statements. In affirming this order, we do so merely that the facts may be determined. If the statement regarding these relief workers is incorrect that ends the petitioner’s case. The reinstatement of the petitioner, however, does not follow as matter of course even if her petition sets forth the true facts, and for this reason. Her position has apparently been abolished in the interest of economy authorized by the above legislation. There is no appropriation for the place and no money to pay her. She, therefore, could not be reinstated without showing that the position exists and that there is an appropriation to cover it.

This question was not raised by counsel, and we refer to it merely as a matter of caution.

Although we must answer the certified question put to us by the Appellate Division in the affirmative, yet we do so with this explanation, and affirm the alternative order of mandamus which has been granted by the Special Term.

The order should be affirmed, without costs, upon the ground stated in the opinion and the question certified answered in the affirmative.

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

Ordered accordingly.


source: Caselaw Access Project

author: Finch, J. Lehman, J.

license: Public Domain

text:
    Edward McClare, Doing Business under the Name of Brown Printing Co., Appellant, v. Massachusetts Bonding and Insurance Company, Respondent.

      (Argued January 17, 1935;
    decided March 5, 1935.)

      Edward G. Dillon for appellant.
    Plaintiff’s amended complaint sufficiently alleges a cause of action for breach of contract. (People v. Newberry, 152 Mich. 292; State v. Cochrane, 264 Mo. 581.) Plaintiff’s amended complaint sufficiently alleges a cause of action for the breach of a contract made by others for the benefit of plaintiff. (Lawrence v. Fox, 20 N. Y. 268; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Merrill v. Equitable Surety Co., 131 Misc. Rep. 541; Buffalo Cement Co., v. McNaughton, 90 Hun, 74; Matter of Bedini v. Hodges, 238 App. Div. 530; Finley v. Tucson, 7 Ariz. 108; Emanuel v. McNeil, 87 N. J. L. 499;
      Spriggs v. State, 161 Ind. 225; Bowen v. Lovewell, 119 Ark. 64; Pond v. New Rochelle Water Co., 183 N. Y. 330; DeCicco v. Schweizer, 221 N. Y. 431; Riordan v. First Presb. Church, 3 Misc. Rep. 553; Kessler v. Haile Motor Co., 127 Misc. Rep. 413; Coster v. Mayor, 43 N. Y. 399; Root v. City of Saratoga Springs, 218 App. Div. 237.) Defendant is estopped. (Adee v. Adee, 16 Hun, 46.)

      George H. Rothlauf for respondent.
    The bond is not in the form required by section 18 of chapter 714 of the Laws of 1921, and no power or authority was vested in the State Athletic Commission to require or to take the bond in suit. (Richardson v. Crandall, 48 N. Y. 348; Cook v. Freudenthal, 80 N. Y. 202; Matter of Bedini v. Hodges, 238 App. Div. 530; Mellon v. Rochester Can Co., 220 App. Div. 487; 247 N. Y. 521.) The plaintiff cannot recover upon the bond as a simple contract made by a third party for his benefit. (Vrooman v. Turner, 69 N. Y. 280; French v. Vix, 143 N. Y. 90; Townsend v. Rackhan, 143 N. Y. 516; Gifford v. Corrigan, 117 N. Y. 257.)
   Finch, J.

The motion of defendant for judgment on the pleadings has been granted and the amended complaint of plaintiff has been dismissed for insufficiency. In consequence, the allegations of the complaint must be taken for the purposes of this action as established by the facts, which, paraphrased, are as follows:

The Collar City Athletic Club, Inc., of Troy, New York, is the holder of a license to conduct boxing, sparring and wrestling matches. It first issued a surety bond to the State of New York in the penal sum of $5,000 for the faithful performance of the provisions of the act providing for professional boxing bouts. Next, as a substitute for the postiag of cash deposits with the State Athletic Commission, it procured from the defendant as a compensated surety another bond, in the like sum of $5,000, to act as surety for the deposit by the athletic club, on the demand of the State Athletic Commission, of the amount of any forfeit or other indebtedness that may be determined by the State Athletic Commission to be applicable to any boxing, sparring or wrestling match or exhibition conducted by the athletic club. Likewise, upon the demand of the State Athletic Commission, to pay and discharge any and all indebtedness or liability by the athletic club due and owing to any person, firm or corporation by reason of any matter or thing arising out of any sparring or wrestling match or exhibition conducted by the athletic club during the period of the license.

The plaintiff, who conducts a general printing business, knew of the existence of the bond and in reliance thereon furnished the athletic club with work, labor, services and materials in printing admission tickets, advertising circulars, cards, etc., while the bond was in force.

The State Commission has duly determined that this sum was owed by the athletic club to the plaintiff" and that it was applicable to boxing, sparring or wrestling matches or exhibitions conducted by the athletic club and has made due demand that the same be paid. In other words, the express language of the bond was formally carried out by the State Commission. A judgment against the athletic club remains unpaid and defendant, after demand, has likewise refused to pay.

The Special Term dismissed the complaint upon the ground that the bond was not specifically provided for in the statute creating and defining the powers of the State Athletic Commission (Laws of 1921, chap. 714); therefore, the bond is not enforceable as a statutory bond and no recovery may be had on it as a common law obligation. The Appellate Division affirmed, two justices dissenting.

A case is thus presented where a surety bond has been issued by a compensated surety. This surety urges that the bond is void now, was void when issued, and in substance that the premiums were received and retained without consideration. It is true that the bond is not a statutory bond and that the State Athletic Commission may have allowed its zeal to outrun its power in requiring the athletic club, if it desired to avoid the deposit of cash, to file this bond to secure payment of its forfeits and such debts as arose out of its professional bouts. To restore boxing contests in popular estimation it was necessary to assuage public opinion outraged by the repudiations and irresponsibilities of promoters and hangers-on. The State Athletic Commission was created for the purpose of having a body upon which could be centered the sole responsibility for the management of these contests. The defendant surety, when it solicited this bond, must have been aware of the terms of the statute creating the State Athletic Commission, and all the other circumstances under which the bond was given, and yet voluntarily sought the premium and gave the bond in the light of this knowledge. This bond was not made conditional, depending upon the validity of the regulations of the State Athletic Commission. The statute and the circumstances under which the bond was issued have not changed. The only change is that the liability provided for in the bond has arisen. Under these conditions, the surety either knew the law or it cannot now plead ignorance of it and obtain the aid of a court in holding void a bond duly executed, which for the purposes of receiving premiums, it held out as valid then. Provided the bond shows an unmistakable intention on the part of this surety to benefit the two classes of creditors for whose protection the bond was given, this compensated surety should be estopped to deny liability now. Particularly is this true when the plaintiff as one of the creditors for whose benefit this bond was given, knew of it, accepted it, relied upon it and because of that reliance supplied labor and material to the athletic club, and thereby suffered damage. This defendant limited its obligation to pay and discharge the debts of these two .classes of creditors by requiring the Athletic Commission to perform two functions before that liability should attach, namely, to make a determination that the debts arose out of boxing, sparring or wrestling matches or exhibitions conducted by the athletic club, and to demand the payment of these debts. The State Athletic Commission has performed these two functions of determination and demand. Plaintiff has sustained damage. This defendant as compensated surety has received the premiums for which it bargained. The holding out by this defendant of this bond, and the reliance thereon by this plaintiff thereby sustaining damage, is sufficient to create an estoppel against the plea of this defendant that the bond is void and has always been void. (Adee v. Adee, 16 Hun, 46; Emanuel v. McNeil, 87 N. J. L. 499; United States v. Hodson, 77 U. S. 395.)

In the case at bar we have a bond showing a clear intention on the part of this defendant to benefit two classes of creditors, namely, those who were creditors because of debts arising on account of cash forfeits, and those who were creditors because they had furnished work, labor and services in connection with the staging of boxing bouts. To the latter of these plaintiff belongs. Also it cannot be denied that the bond was exacted by the State Athletic Commission for the very purpose of assuring to the plaintiff and others similarly situated the benefit of this security. Whether in seeking this bond the State Athletic Commission exceeded its powers is beside the point, so far as concerns the intention to benefit these two classes of creditors on the part of the State Athletic Commission, the athletic club and the compensated surety. Something more is here than a mere incidental benefit, or a mere indirect or collateral advantage, a lucky find or windfall, the accidental consequence of a promise conceived for the good of some one else. Security to those who fell within the two classes of. creditors above named was the end and aim of this transaction. If the promise was not for the benefit of these two classes of creditors, it may truly be said that it was an idle act or gesture. As already noted, another bond was given for the benefit of the State in which the State was the sole beneficiary. Therefore, no competition arises between the State and another beneficiary, as was the case in Fosmire v. National Surety Co. (229 N. Y. 44). Not only is the benefit to these two classes of creditors the primary purpose of this bond but it is also the paramount purpose. To benefit them is the performance which was contracted for by the State Athletic Commission and the athletic club.

To cull from the bond its true meaning and intention it must be read in its entirety, and the purpose and effect of the bond as a whole must be considered. No other purpose appearing than to benefit the two classes of creditors named, they are to be considered beneficiaries if the bond is to be given any effect whatsoever. In addition the bond contains a valid promise by the athletic club, for whose obligations the defendant is surety, that the creditor beneficiaries will be paid. No one can deny that this is the reasonable implication expressed in the bond. Light is shed upon this intention and purpose from a consideration of those to be benefited. In a case such as that at bar, where a bond is obviously given for the benefit of two classes of creditors, the words of the bond should be read together and interpreted liberally in favor of third parties. The trend of authority followed in a majority of States is that where a compensated surety has issued a standard form of bond, it is to be interpreted liberally, and all ambiguities are to be resolved in favor of those for whose benefit the bond is given. (Corbin, Third Parties as Beneficiaries of Contractors’ Surety Bonds, 38 Yale Law Journal, 1.)

Moreover, as between these two classes of creditors, neither class is preferred in the bond over the other. Nor does anything in the bond militate against equality as between these two classes of creditors. The intention on the part of all those joining in the making of the bond being unmistakably to benefit the plaintiff, we are not concerned with the motive for this intention.

The benefit of these two classes of creditors being what was contracted for by the State Athletic Commission and the athletic club, the bond may be enforced by this plaintiff. In Fosmire v. National Surety Co. (supra), where a similar bond was under consideration, this court, through Chief Judge Cardozo, said: “ For the purpose of tins opinion, we assume, without attempting to decide, that when such an intention is revealed, there is no legal obstacle in the way of its enforcement ” (p. 48). (Seaver v. Ransom, 224 N. Y. 233; Lawrence v. Fox, 20 N. Y. 268; 1 Williston on Contracts, §§ 372, 402.)

In that case no recovery was allowed to a laborer, not because he could not sue, if such was the intention, but because it was clear that the dominant purpose of the bond was protection for the State. If it had been there held that the plaintiff and bis fellow laborers had a right of suit, “ They may then sue for wages as often as there is default, and exhausting the penalty of the bond, leave nothing for the state.” In other words, the court found that it could not have been intended in that bond to give a right of action independent of that of the State because so to do would magnify and expand the bond so as to render nugatory its main purpose of protecting the State. In denying the plaintiff his right to sue, the court said: “In so holding, we put our decision on the single ground that the bond, read in its entirety, is inconsistent with an intention that the plaintiff and others in like position should have the right to sue upon it ” (p. 47). In the case at bar a totally different situation is presented. Here, as already noted, a separate bond provided for claims of the State. No obstacle to recovery lies in the fact that this bond is under seal. (Pond v. New Rochelle Water Co., 183 N. Y. 330; Rigney v. N. Y. C. & H. R. R. R. Co., 217 N. Y. 31, at p. 39.)

The defendant next urges that no effect may be given to this bond, since there is lacking consideration moving from the plaintiff, as well as privity. Starting with the decision in Lawrence v. Fox (supra), permitting a recovery by a third party beneficiary, the courts have tended to permit a recovery where there was revealed a clear intention in the obligation so to do. The requirement of some obligation or duty running from the promisee to the third party beneficiary has been progressively relaxed until a mere shadow of the relationship suffices, if indeed it has not reached the vanishing point. (Corbin, Third Parties as Beneficiaries of Contractors’ Bonds, 38 Yale Law Journal, 1.)

As Chief Judge Cabdozo said in Ultramares Corp, v. Touche (255 N. Y. 170, at p. 180): “ The assault upon the citadel of privity is proceeding in these days apace. * * * In the field of the law of contract there has been a gradual widening of the doctrine of Lawrence v. Fox (20 N, Y. 268), until to-day the beneficiary of a promise, clearly designated as such, is seldom left without a remedy (Seaver v. Ransom, 224 N. Y. 233, 238).”

Indeed the authorities on this subject maintain that the plaintiff may recover where he is shown to be a creditor of the promisee or of some other person, and the contract calls for the performance by the promisor in satisfaction of the obligation. (Corbin, supra, 38 Yale Law Journal, 1.)

It is said, however, that no recovery may be had under the third party beneficiary rule where the class designated to be benefited is so broad as to include the general public or is indeterminate. But here the class consists of creditors of the Collar City Athletic Club who have supplied work or materials applicable to boxing, sparring and wrestling matches or exhibitions. Clearly the class is sufficiently narrow in scope. (Johnson Service Co. v. Monin, Inc., 253 N. Y. 417, 419; Pond v. New Rochelle Water Co., 183 N. Y. 330.) It is not essential to the creation of a right in a creditor beneficiary or even in the case of a donee beneficiary that he be identified when the obligation is made. (American Law Institute, Restatement of the Law of Contracts, § 139.)

The foregoing equities which arise in favor of the plaintiff, the close resemblance between the facts in the case at bar and those found in the average unilateral contract, the holding out and the filing with the State Athletic Commission of the bond in suit as a valid bond, the knowledge of it possessed by plaintiff, its reliance thereon and its damage thereby sustained, would justify, if it were necessary, a holding that in such a case it is not essential that there exists an obligation running from the named promisee to the beneficiary. (Seaver v. Ransom, 224 N. Y. 233; American Law Institute, Restatement of the Law of Contracts, §§ 135, 136, 139; 1 Willis-ton on Contracts, §.§ 373, 402; State v. Cochrane, 264 Mo. 581; People v. Newberry, 152 Mich. 292; Corbin, Third Parties as Beneficiaries on Contractors’ Surety Bonds, [1928] 38 Yale Law Journal, 1.)

The judgment appealed from should be reversed, with costs in all courts and the motion denied.

Lehman, J.

(dissenting). The State Athletic Commission is purely an administrative body. It is vested with the “ sole direction, management, control and jurisdiction ” over all boxing, sparring and wrestling matches and exhibitions, and has power to issue annual permits in writing for holding such boxing, sparring or wrestling matches, but only to corporations thereunto duly licensed by another administrative body designated as the license committee. Its field, of operation is limited, and even in the exercise of its administrative functions within that field, the Legislature has laid down definite rules and standards. (Laws of 1921, chap. 714.) Nowhere in the law is there any intimation that it had any duty to protect merchants or artisans who furnished goods or services to holders of licenses, or that it has any power to require any bond for the payment of any liability to such persons as a condition for granting a permit. The only statutory bond authorized by the statute is the bond required before a license is granted. Nevertheless, the board exacted the bond, upon which this plaintiff sues. That bond contains no promise to the plaintiff; it contains no offer that if members of the public will furnish labor or materials in connection with a boxing match the consequent indebtedness will be paid; it contains no promise made for the benefit of the plaintiff or of any other designated person or group. Its promise runs to the State Athletic Commission, and is to pay, but only upon demand of the State Athletic Commission, any and “ all indebtedness or liability' by said principal due or owing to any person, firm or corporation by reason of any matter or thing arising out of any sparring or wrestling match or exhibition conducted by the said principal.” Thus only if the Boxing Commission should choose to assume a duty not intrusted to it expressly or by implication by the Legislature and should proceed to demand payment, for such persons or corporations as it saw fit, of a debt or liability due to them, could any individual or group benefit by the promise. At best, then, we have a bond running to an administrative board, made for the purpose of enabling the board effectively to perform a function which it does not possess, to protect members of the public to whom the board owes no duty. The difficulty here is not merely one of privity between the plaintiff and the defendant. The difficulty is also that the defendant has given its promise only to an administrative board to pay any debt and liabilities of its principal arising out of any boxing, sparring or wrestling matches, after the administrative board has demanded such payment, though the board has no power to determine whether such payments are due, or to demand such payments in behalf of any creditors. The bond cannot be enforced as an official bond, because the board to which the promise is made had no power to exact it, to perform its conditions or to enforce it. It cannot be enforced as a common law bond, because it lacks all the essentials of a common law contract made for the benefit of third parties.

Crane, Ch. J., and O’Brien, J., concur with Finch, J.; Crouch, J., concurs on first ground stated in opinion; Lehman, J., dissents in opinion, in which Hubbs and Loughran, JJ., concur.

Judgment reversed, etc.


author: Per Curiam.

text:
    Mary M. Gunder, Appellant, v. 164 East Seventy-second Street Corporation et al., Respondents.
    (Argued February 25, 1935;
    decided March 5, 1935.)

      Joseph Otis for motion.

      Lester Lyons opposed.
   Per Curiam.

Notice of appeal must be served within thirty days after leave to appeal has been granted. (Frenger v. Katz, 265 N. Y. 515; Parascandola v. Auditore, 242 N. Y. 571.) The sixty-day limitation from the date of service of notice of entry “ of the judgment or order appealed from ” (Civ. Prac. Act, § 592) cannot be applied literally where application for leave is required before an appeal may be taken. Of necessity the time to appeal in such cases is extended by implication so as to permit notice of appeal to be served within a reasonable time after an appeal was granted. In the absence of any other statutory provision fixing what is a reasonable time, this court stated that it may not exceed sixty days. (Lane v. Wheeler, 101 N. Y. 17; Guarantee Trust.& Safe Deposit Co. v. Philadelphia, R. & N. E. R. R. Co., 160 N. Y. 1.) In 1917 the Legislature provided specifically a limitation of thirty days from the date when leave was granted to appeal from a final order or judgment. (Civ. Prac. Act, § 591, formerly Code Civ. Proc. § 1310.) We have held that the practice in applications for leave to appeal from intermediate orders must be assimilated to the statutory practice on applications for leave to. appeal from final orders or judgments where the Legislature has not otherwise provided. (Kessler v. Fligel, 265 N. Y. 289.) Certainly the Legislature could not have intended that appeals from interlocutory orders should proceed in more dilatory fashion. Our decision in Bovin v. Galitzka (249 N. Y. 512) is not inconsistent. There notice of appeal was served within thirty days after the Appellate Division superseded its earlier order granting leave to appeal by changing the certified questions.

The motion to dismiss the appeal should be granted and the appeal dismissed, with costs and ten dollars costs of motion.


author: Loughran, J.

text:
    Martha A. T. Forbes, Respondent, v. Wilkie Todd et al., Appellants, Impleaded with Others.

      (Argued January 10, 1935;
    decided March 12, 1935.)

      Sydney A. Syme for appellants.
    The rule that the statute begins to run when the fraud is discovered has its exceptions. If the fraud could have been discovered at an earlier date in the exercise of reasonable diligence the time begins to run at such date. (Higgins v. Crouse, 147 N. Y. 411; Dyckman v. Dyckman, 230 App. Div. 288; Ford v. Clendenin, 215 N. Y. 10; Wooley v. Stewart, 222 N. Y. 347; Sielcken-Schwarz v. American Factors, Ltd., 265 N. Y. 239.)

      S. Joseph Oxenberg and Irving Kornblum, for respondent.
    The plaintiff has legally proved that the deed of May, 1909, was procured to be delivered by fraud and undue influence and should be set aside. (White v. Benjamin, 150 N. Y. 258; Hickok v. Cowperthwait, 134 App. Div. 617; Soilson v. Nemeth, 184 N. Y. Supp. 627; Eysaman v. Nelson, 79 Misc. Rep. 304; Haviland v. Willets, 141 N. Y. 35; Morris v. Morris, 138 Misc. Rep. 682; Berry v. American Central Ins. Co., 132 N. Y. 49; Simon v. Supreme Council American Legion of Honor, 91 App. Div. 390; Matter of Smith, 95 N. Y. 516; Barnard v. Gantz, 140 N. Y. 249; Ten Eyck v. Whitbeck, 156 N. Y. 341; Comee v. Cornell, 75 N. Y. 91; Sears v. Shafer, 6 N. Y. 268; Case v. Case, 49 Hun, 83; Swanstrom v. Day, 46 Misc. Rep. 311; Allen v. La Vaud, 213 N. Y. 322.)
   Loughran, J.

This action was brought in 1930 to annul a conveyance of real property made May 19, 1909. Plaintiff is the sole heir at law of the deceased grantor. The grantees, nephews of the grantor, are the principal defendants. The trial court dismissed the complaint, holding that the instrument assailed by plaintiff was the free and deliberate act of her ancestor, and that, in any event, the cause of action accrued in 1909 and was barred by the Statute of Limitations. The Appellate Division, two justices dissenting, reversed that ruling and, upon new findings, directed the judgment demanded by plaintiff. We are to search the record and, with appropriate respect for the findings of the trial court, are to review the facts found by the Appellate Division. (York Mortgage Corp. v. Clotar Constr. Corp., 254 N. Y. 128, 134.)

The history of the case goes back to 1906 when the grantor, William Todd, lived on the property, a farm in the town of Cortlandt, Westchester county, which had descended to him after proprietorship in his family for more than a century. William Todd was then contemplating marriage with the woman who kept his house. His nearest kin were bis nephews, the defendants Wilkie Todd and Alpheus Todd. He conveyed the farm to them on November 10, 1906, and they gave back to him a lease for his life of half of it. Those transactions were supervised by Robert McCord, a lawyer to whose professional keeping other affairs of William Todd had been committed. The transfer of title was recorded. The lease, without being recorded, was retained by McCord, at the request of William Todd.

A few months later the marriage of William Todd and his housekeeper became a fact. Their only child is the plaintiff here.

In a proceeding to acquire lands for the Catskill aqueduct, the city of New York in 1908 condemned part of that half of the property which had been let to William Todd for his life by his nephews. An award of $5,500 made to the nephews as owners was paid through McCord, who was their attorney in the proceeding. At that time the wife of William Todd had heard nothing from him of the arrangement he had made with his nephews before his marriage. In her presence, a neighbor asked him where was bis aqueduct money. He made no reply, but his wife took up the inquiry and was then apprised by him of the conveyance of November 10, 1906. The result was that William Todd and his wife demanded of McCord that the condemnation award be paid to them. She recounts a later interview as follows: McCord: “ William, the Todd boys [defendants] are tighter than bark on a tree. All they will give you is the interest on the aqueduct money.” William Todd: “ I will not take it. I want my place and the aqueduct money.” McCord: William, the Todd boys will not give you back your place unless you make out a new deed and have your wife sign it. The Todd boys own the farm, the deed is in their name, and if you don’t make out a new deed and sign it they will drive you off the place.”

In this crisis, William Todd and his wife went for independent counsel to Charles N. Wells, who had been attorney for other members of the Todd family. It is undisputed that thereafter, on more than one occasion, McCord made opportunities to confer with William Todd, and, in the absence of Wells, undertook to advise William Todd that he was not entitled to the farm or to the principal of the so-called aqueduct money, and that he should accede to the position of his nephews.

The upshot of numerous subsequent negotiations was that on May 19, 1909, William Todd received from his nephews $5,000 as the capitalization of his life interest in the moneys awarded to them in the condemnation proceeding. At the same time they reconveyed the farm property to him and he then and there granted it to them a second time by a deed, in which his wife joined, reserving a life estate in the parcel previously allocated by them to him. Concededly this compromise involved no actual consideration moving to William Todd. There was no change in the situation thenceforth to his death on June 7, 1925. His widow and their daughter, this plaintiff, then removed from the property at the behest of the defendants, the record owners.

This action was commenced five years later. Plaintiff, as sole heir at law of William Todd, has now successfully challenged his second conveyance to his nephews, that of May 19, 1909, as void for fraud and undue influence practiced by them upon him. Defendants, the grantees, appeal from a judgment which declares plaintiff to be owner of the property.

The Appellate Division has adopted a finding of the trial court that the first conveyance by William Todd to defendants, that of November 10, 1906, was procured by their fraudulent representation that they would hold the title in name only for his benefit and would restore it to him upon demand. Plaintiff argues that the fact so found stamps as a falsification McCord’s advice to William Todd, prior to the settlement of May 19, 1909, that defendants were then absolute owners of the property; that William Todd, on May 19, 1909, adjusted his controversy with defendants in reliance upon that false denial of his actionable equitable right against them; and that the compromise of that date was for that reason voidable by him. With all this premised, the contention is that persistence of the erroneous belief so instilled by defendants was no more than acquiescence explained by the lasting compulsion of a fraud unknown to plaintiff until commencement of this action.

In our opinion there is no basis for such an approach to the case. We can discover nothing in the evidence to countenance a finding that the first conveyance by William Todd to defendants, that of November 10, 1906, was impeachable upon any ground. It is true that, antecedently that conveyance, defendants were solicitous lest their uncle’s contemplated marriage should defeat their expectancy of inheritance from him. Equally is it plain that his delivery of that conveyance was begotten of bis desire that the farm title be kept in the Todd name. The conclusion that, by force of those circumstances and nothing else, defendants on November 10, 1906, made themselves trustees for William Todd is mere conjecture. William Todd had reasons of his own for the family settlement of November 10, 1906. It was willingly initiated by him and was concluded in full agreement with his directions to a lawyer of his own selection. In his conduct respecting that arrangement nothing appears to have been involuntary, except perhaps his disclosure of the facts to his wife two years after the event. It follows that McCord’s advice to William Todd that the conveyance of November 10, 1906, vested an indefeasible title in defendants was sound in fact and in law.

Both courts below have found that McCord also said to William Todd that, unless the deed of May 19, 1909, was delivered, defendants would eject William Todd and his family from the property. We must accept this finding, for there is evidence contradictory of McCord’s denial that he made any such statement repudiating the right of William Todd under the life lease given him by defendants on November 10, 1906. The trial court thought that so groundless a threat could not in the circumstances be regarded as in itself an imposition against which equity must afford relief even at this day. We are of that opinion. Another viewpoint is possible only, if for some reason not apparent, incompetence or corruption is imputed to Wells as attorney for William Todd. Wells knew of the life lease of half the property to William Todd by defendants on November 10, 1906. The writing which evidenced that interest was destroyed by McCord at the suggestion of Wells when on May 19, 1909, the deed reserving an equivalent life estate to William Todd was delivered. Wells was dead when the case was tried. Any inference that he was, insensible to his professional trust is unwarranted.

The issue might be different had intimidation by McCord diminished any property right of William Todd; but the fact is that after May 19, 1909, all parties had exactly what they had before and none had received anything to which he was not legally entitled. There was no suppression of the facts of any cause of action which William Todd may have believed he could have maintained. After the first conveyance of November 10, 1906, defendants made use of so much of the farm as they had not set apart to their uncle, the grantor. They have paid their share of taxes upon the property from that time. During the sixteen-year period from May 19, 1909, to his death, no remonstrance came from William Todd.

The trial court was convinced that plaintiff’s ancestor, although he may have conceived that it was perhaps his right to retract the earlier conveyance, chose to confirm it by the later one, and elected to abide by the relations thus established. We are disposed to think that this conclusion is in accord with the weight of the evidence.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The first question should be answered in the affirmative (Piper v. Hoard, 107 N. Y. 67; Valentine v. Richardt, 126 N. Y. 272), and the fifth question in the negative. Answers to the other questions certified are unnecessary.

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

Judgment accordingly.


author: Lehman, J. Crouch, J.

text:
    In the Matter of the Claim of Emma Russell, Respondent, against 231 Lexington Avenue Corporation et al., Appellants. State Industrial Board, Respondent.

      (Argued February 26, 1935;
    decided March 12, 1935.)

      Bernard F. Farley, Jeremiah F. Connor and William, Butler for appellants.
    The payment by the appellants of the sum of $5,000 in the action and the acceptance of her full share of payment by the claimant, constitutes an accord and satisfaction, and bars the claim for compensation. (Brassel v. Electric Welding Co., 239 N. Y. 78; Holland v. Atlantic Stevedoring Co., 239 N. Y. 605; Matter of Petrone v. United States Trucking Corp., 236 App. Div. 531; 262 N. Y. 540.) The election by the claimant, naming the uncle as the employer of the decedent, and the resulting suit against the employer herein, is binding upon the claimant and creates an estoppel in this proceeding. (Joyce v. Eastman Kodak Co., 238 N. Y. 142; O’Brien v. Lodi, 246 N. Y. 46; Lunn v. Andrews, 152 Misc. Rep. 568; Matter of Pavia v. Petroleum Iron Works Co., 178 App. Div. 345; Crinieri v. Gross, 184 App. Div. 817.) The settlement of the suit for damages has the force and effect of judgment, and the question as to whether the deceased was an employee of the employer-appellant herein thereby became res adjudicata. (People ex rel. Everett v. Board of Supervisors, 93 N. Y. 397; Ousterhouet v. Rigney, 98 N. Y. 22; People ex rel. Myers v. Barnes, 114 N. Y. 317; Culross v. Gibbons, 130 N. Y. 447; Canfield v. Harris & Co., 252 N. Y. 502.)

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and John R. O’Hanlon of counsel), for State Industrial Board, respondent.
    The payment of $5,000 by the appellants did not constitute an accord and satisfaction. Nor ■did the action brought against the appellants by the administrator create an estoppel against the claimant in the present proceeding. (Matter of DiDonato v. Rosenberg, 256 N. Y. 412.) It is not res adjudícala as to the claimant herein that the deceased was not an employee of the alleged employer-appellant. (Brown v. Cleveland Trust Co., 233 N. Y. 399; Matter of Morris, 100 App. Div. 479; Collins v. Hydorn, 135 N. Y. 320; United States Fire Ins. Co. v.. Adirondack Power & Light Corp., 206 App. Div. 584; Gerstein v. Fisher, 33 N. Y. Supp. 1120; 35 N. Y. Supp. 1107.)

      William Warren Dimmick for claimant, respondent.
    The evidence sustains the jurisdiction and the findings of the Industrial Board that the deceased was an employee of the alleged employer at the time of the accident. The third-party action was not res adjudícala on the relation of employer and employee. The employer and its carrier are estopped on their alleged defenses by the evidence and by their conduct, admissions, waivers, contentions and settlement during the progress of the third-party suit and during the hearings for compensation benefits. (Matter of Russell v. 231 Lexington Ave. Corp., 236 App. Div. 177; Matter of Burmester v. De Lucia, 263 N. Y. 315; Fox v. Employers’ Liability Assur. Corp., 239 App. Div. 671; Brown v. Cleveland Trust Co., 233 N. Y. 399; Balais v. Brady & Gioe, 189 App. Div. 408; Matter of Di Donato v. Rosenberg, 256 N. Y. 412; O’Brien v. Lodi, 246 N. Y. 46; Matter of Zirpola v. Casselman, Inc., 204 App. Div. 647 ; 237 N. Y. 367.)
   Lehman, J.

The deceased employee died from injuries arising out of and in the course of her employment as an elevator operator in an apartment house owned and maintained by 231 Lexington Avenue Corporation. The superintendent of the apartment house was one Wright Hopkins, the uncle of the deceased. He received a compensation of $140 per month. He was authorized to employ an elevator operator, but her compensation was to be paid by him. Accordingly he employed the deceased, a girl not quite eighteen, at a wage of five dollars per week and tips.

After the accident which caused the death of the employee, there was some doubt as to whether the deceased was in the employ of Hopkins, or of 231 Lexington Avenue Corporation. The dependents of the deceased were her mother and her infant brothers and sisters. If 231 Lexington Avenue Corporation was the employer, then the Workmen’s Compensation Law (Cons. Laws, ch. 67) precluded any action at law for negligence of the employer in causing her death. If, on "the other hand, Wright Hopkins was the employer, then the common law action might be maintained. In such an action a recovery would inure to the benefit of the next of kin. The next of kin in this case were the father and mother of the deceased. The father was not a dependent. Thus, a holding that 231 Lexington Avenue Corporation was not the employer would inure to his benefit., The mother, who was a dependent, could, in that event, make claim against Wright Hopkins as employer and obtain against him an award for any deficiency between the amount of compensation provided by the Workmen’s Compensation Law and the amount she obtained by recovery against the third party.

Section 29 of the Workmen’s Compensation Law requires an election by the dependents. In view of the doubt as to whether or not 231 Lexington Avenue Corporation was the employer, the dependents, on March 9, 1926, filed three different notices of election. One of the notices named Wright Hopkins as employer and contained an election to sue 231 Lexington Avenue Corporation and Louis Nelson as third parties. The other two notices named 231 Lexington Avenue Corporation as employer and in one case contained an election to sue as third party Louis Nelson and, in the other case, left blank the name of the third party whom the dependents desired to sue. All of these notices were signed by both parents and by the infant dependents.

Pursuant to the notice which named Wright Hopkins as employer, an action was brought by the father, as administrator, against 231 Lexington Avenue Corporation and Louis Nelson. The pleadings are not in the record, but it is undisputed that the answer of 231 Lexington Avenue Corporation contained an affirmative defense that it was the employer of the deceased. That action was settled before trial by payment of $5,000 by 231 Lexington Avenue Corporation and of $750 by Louis Nelson. The father, not a dependent, received one-half and the mother received the remaining one-half of the proceeds of the settlement. Then the dependent mother and dependent brothers and sisters asked an award under the other notices which named 231 Lexington Avenue Corporation as employer. The infant dependents could not share in any recovery in a third party action and their signature on the notice of election to sue 231 Lexington Avenue Corporation as third party is not binding upon them. The award to them is not challenged by the employer, 231 Lexington Avenue Corporation. That employer does, however, contest the right of the dependent mother to receive any award for the deficiency between the amount she would have been entitled to under the Workmen’s Compensation Law and her share of the recovery.

Though an employee may not waive bis right to compensation (Workmen’s Compensation Law, § 32), an employee, or his dependents, can obtain compensation only in the manner and subject to the conditions fixed by the Workmen’s Compensation Law. The action at law brought against 231 Lexington Avenue Corporation could be maintained only if the defendant was not the employer, and a judgment in the action in favor of the plaintiff would have constituted an adjudication that the defendant’s affirmative defense that it was the employer and was covered by insurance was without substance. The settlement of the action, though not a formal adjudication of the issues, constitutes a bargain between the parties that the claim against the defendant should be satisfied by payment of the sum of $5,000. The notice of election signed by the dependent mother evidences conclusive knowledge on her part that no cause of action at law could be maintained against 231 Lexington Avenue Corporation and, at the same time, a right to an award reserved against it as employer. If the election to sue 231 Lexington Avenue Corporation as a third party is binding upon the dependents, then, of course, the mother has no further claim against 231 Lexington Avenue Corporation as employer. Even if that notice of election might now be disregarded as a superfluity, the dependent mother is not helped. Then she must proceed under the notice of election against 231 Lexington Avenue Corporation as employer and in those notices she, of course, did not and could not elect to sue the employer as a third party. In effect, the bringing of the action at law against 231 Lexington Avenue Corporation is the assertion of a claim that it was not the employer and, in effect, the compromise of that action is the settlement of the claim based on that assertion.

The argument seems to me fallacious that the moneys paid under the settlement of the common law action by the defendant in the action may be regarded as a voluntary payment made as employer because the defendant was, in fact, an employer and made the settlement with full knowledge of the facts. In truth, the question of whether the defendant in the action had a defense thereto because it was the employer was still open. So, too, were the questions of whether the defendant was negligent. The plaintiff asserted that the defendant was not the employer; the defendant asserted that it was. If the defendant prevailed on the issue of whether it was an employer, it would still be subject to an obligation to pay compensation to dependents of the deceased employee, but in such compensation neither father nor mother would share unless they proved that they were actually dependents. The parties agreed that they would not carry the issues raised in that litigation to their conclusion, but would settle the respective contentions by payment of $5,000. The mother, sharing in that settlement, should not now be heard to say that as to her the payment in settlement might be regarded as a voluntary payment on account of compensation to which she would be entitled only if the action was without basis. It is not urged that the action at law was brought to evade any provision of the Workmen’s Compensation Law enacted for the benefit of an employee or dependent, or that the settlement was not made in good faith. Indeed, it was approved by the court and it resulted in a payment to the plaintiff as administrator to which the administrator would not be entitled if the Workmen’s Compensation Law applied. When the claimant knowingly shared in the proceeds of the settlement by the administrator, she lost the right to assert that the administrator had no cause of action and without such assertion she is entitled to no award.

The order of the Appellate Division and the award of the State Industrial Board to the mother should be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the State Industrial Board.

Crouch, J.

(dissenting). The effect of this decision seems to me to be contrary to the intent and spirit of the Workmen’s Compensation Law. An employee may not waive his right to compensation. (Workmen’s Compensation Law, § 32.) Compensation or benefits may not be released or commuted except as provided by that law. (Workmen’s Compensation Law, § 33.) We are merely pointing out a method by which those provisions may be circumvented. The record shows that the claimants did not know whether 231 Lexington Avenue Corporation was the employer of the deceased or not. They acted on the best information procurable. But 231 Lexington Avenue Corporation knew its own status and took advantage of that knowledge by a settlement which netted a dependent mother less than the benefits to which she was entitled. To me the award made by the Industrial Board and affirmed by the Appellate Division seems logical enough under the circumstances. Since 231 Lexington Avenue Corporation was in truth an employer and not a third party, the mother was awarded the benefits to which she was entitled and the employer was permitted to offset her share of what it had in reality voluntarily paid. It made its own bargain in the light of complete knowledge of the facts and may not be heard to complain.

Crane, Ch. J., O’Brien, Hubbs and Finch, JJ., concur with Lehman, J.: Crouch, J., dissents in opinion, in which Loughran, J., concurs.

Order reversed, etc.


text:
    Matilda L. Cordts, Individually and as Executrix of John N. Cordts, Deceased, et al., Appellants, v. The Hutton Company et al., Respondents.
    (Argued October 24, 1934;
    decided November 27, 1934.)

      William D. Cunningham, and John J. Dillon for appellants.

      Harry H. Flemming for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Matilda L. Cordts, Individually and as Executrix of John N. Cordts, Deceased, et al., Appellants, v. The Hutton Company et al., Respondents.
    (Argued October 24, 1934;
    decided November 27, 1934.)

      William D. Cunningham and John J. Dillon for appellants.

      Harry H. Flemming for respondents.
   Appeal from order granting an additional allowance dismissed, with costs. Judgment modified by striking out provision for an additional allowance and as so modified affirmed, without costs. Held, that this is not a proper case for an additional allowance under Civil Practice Act, section 1513, subdivision 2. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Leonard Scarnici, Appellant.
    (Argued October 22, 1934;
    decided November 27, 1934.)

      William H. Murray and Milo R. Kniffen for appellant.

      Harry E. Clinton, District Attorney (John J. Kelly, Sharon J. Mauhs and J. Ernest Wharton of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Henry Amster, Appellant, v. Leo M. Mayer, Respondent, Impleaded with Another.
    (Submitted November 19, 1934;
    decided November 27, 1934.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by striking out the provision for costs in the City Court. (See 265 N. Y. 452.)


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance. Appellant, for an Order to Take Possession of the Property of the Lawyers Title and Guaranty Company. City Bank Farmers Trust Company, Respondent. In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, Appellant, for an Order to Take Possession of the Property of the New York Title and Mortgage Company. Central Hanover Bank and Trust Company, Respondent.
    (Submitted November 19, 1934;
    decided November 27, 1934.)
   Motions to amend remittiturs granted. Return of remittiturs requested and when returned they will be amended by answering the 6th, 7th and 8th questions in the Lawyers Title and Guaranty Company case, and the 10th, 11th and 12th questions in the New York Title and Mortgage Company case “ yes,” except as modified by the opinions of this court. (See 265 N. Y. 20, 30, 287.)


text:
    In the Matter of Elizabeth Schmidt, Appellant, against The Chamberlain of the City of New York, Respondent.
    (Submitted November 19, 1934;
    decided November 27, 1934.)

      Andrew F. Van Thun, Jr., for motion.

      Paul Windels, Corporation Counsel (Henry J. Shields and Sherman S. Rogers of counsel), opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that leave to appeal is unnecessary, a constitutional question being involved. (Civ. Pr. Act, § 588, subd. 1.)


text:
    William E. Atkinson et al., as Receivers of Fox Theatres Corporation et al., Respondents, v. William Fox, Appellant, Impleaded with Others.
    (Submitted November 19, 1934;
    decided November 27, 1934.)

      Benjamin Reass for motion.

      Henry A. Uterhart and Archibald R. Watson opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not a final order.


text:
    Lojo Realty Company, Inc., Respondent, v. Estate of Isaac G. Johnson, a Corporation, Appellant.
    (Submitted November 19, 1934;
    decided November 27, 1934.)

      John Jay McKelvey opposed.
   Motion denied.


text:
    Clarence N. Martin et al., Appellants, v. James O. Sebring, Respondent, Impleaded with Another.
    (Submitted November 19, 1934;
    decided November 27, 1934.)

      James O. Sebring, in person, for motion.

      W. Earle Costello opposed.
   Motion granted and appeal dismissed with costs and ten dollars costs of motion, unless within ten days appellants pay ten dollars costs and file undertaking, in which case the motion is denied.


text:
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Opening and Extension of Northern Boulevard in the Borough of Queens. McClenahan Realty Co., Inc., et al., Respondents.
    (Submitted November 19, 1934;
    decided November 27, 1934.)
   Motion to resettle order denying motion for leave to appeal denied on the ground that the decision of the court did not award separate bills of costs. (See 258 N. Y. 136; 265 N. Y. 602.)


text:
    James H. Caan, Appellant, v. Joseph Steir et al., Respondents.
    (Submitted November 19, 1934;
    decided November 27, 1934.)

      Harry H. Lipsig for motion.

      Alex B. Greenberg opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not a final order.


text:
    Gino Etri, an Infant, by Angelo Etri, His Guardian ad Litem, et al., Appellants, v. Children’s Aid Society, Respondent.
    (Submitted November 19, 1934;
    decided November 27, 1934.)

      Irving Levine for motion.

      F. A. W. Ireland opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not a final order.


text:
    Sidney Cardoner, an Infant, by Rose Cardoner, His Guardian ad Litem, Appellant, v. St. George Paving Corporation, Respondent, Impleaded with Another.
    (Submitted November 19, 1934;
    decided November 27, 1934.)

      Robert G. Shelter for motion.

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


text:
    Edward McClare, Doing Business under the Name of Brown Printing Co., Appellant, v. Massachusetts Bonding and Insurance Company, Respondent.
    (Argued November 19, 1934;
    decided November 27, 1934.)

      George H. Rothlauf for motion.

      Edward G. Dillon opposed.
   Motion denied, with ten dollars costs.


text:
    Eliza F. Coles, Appellant, v. John J. Carroll et al., Respondents, Impleaded with Others.
    (Submitted November 19, 1934;
    decided November 27, 1934.)

      Conrad H. Sullivan and John J. Dillon for motion.
    No one opposed.
   Motion to dismiss appeal on ground that it cannot be taken as matter of right denied as the judgment appealed from is one of modification.

Motion to dismiss appeal on ground no undertaking has been filed granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant within ten days pays ten dollars costs and files undertaking, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Giuseppe Leonti, Appellant.
    (Argued October 23, 1934;
    decided December 4, 1934.)

      Samuel Stark, Joseph S. Gershman and Joseph Pascocello for appellant.

      William Copeland Dodge, District Attorney (John C. McDermott and Ambrose J. Delehanty of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Kerber Straw Hat Corporation, Respondent, v. Frederic W. Lincoln et al., Doing Business under the Name of Henry W. Peabody & Company, Appellants.
    (Submitted November 19, 1934;
    decided December 4, 1934.)

      Benjamin Jaffe for appellants.

      Leon Leighton for respondent.
   Order affirmed, with costs. First and third questions certified answered in the affirmative. Second question certified answered in the negative. No opinion.

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


text:
    In the Matter of Anna M. Reger, as Administratrix of the Estate of Frederick Reger, Deceased, Respondent, v. John F. O’Ryan, as Police Commissioner of the City of New York, Appellant. In the Matter of Arthur H. Knott, Respondent, v. John F. O’Ryan, as Police Commissioner of the City of New York, Appellant. In the Matter of Louis M. J. Eisner, Respondent, v. John F. O’Ryan, as Police Commissioner of the City of New York, Appellant.
    (Argued November 19, 1934;
    decided December 4, 1934.)

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

      Jacob Shientag for respondents.
   In each proceeding, appeal dismissed, with one bill of costs, on the authority of Matter of Gibson (195 N. Y. 466). No opinion.

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


text:
    In the Matter of Jacob Shatter, Appellant, against Robert Moses, as Park Commissioner of the City of New York, Respondent.
    (Argued November 19, 1934;
    decided December 4, 1934.)

      Albert De Roode for appellant.

      Paul Windels, Corporation Counsel (Nelson Rosenbaum and Paxton Blair of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of John O. Nelson, Appellant, against Department of Hospitals et al., Respondents.
    (Submitted November 19, 1934;
    decided December 4, 1934.)

      John O. Nelson, in person, for appellant.

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

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


text:
    In the Matter of Robert G. Furey, as Administrator of the Estate of Mary McKay, Deceased, Appellant, against Mark Graves et al., Constituting the State Tax Commission et al., Respondents.
    (Argued November 19, 1934;
    decided December 4, 1934.)

      Francis H. Warland, Joseph F. McCloy, M. Francis Bravman and Walter J. Egan for appellant.

      John J. Bennett, Jr., Attorney-General (Seth T. Cole and Margaret Duncan of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Metropolitan Life Insurance Company, Plaintiff, v. Ten Park Avenue Corporation, Appellant, Impleaded with Others. Leon Leighton et al., as Receivers, Respondents.
    (Argued November 19, 1934;
    decided December 4, 1934.)

      Herbert M. Rosenberg and Louis Rosenberg for appellant.

      Rulif V. De Nyse for respondents.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Arbitration of The E. Richard Meinig Co., Appellant; Katakura & Co., Ltd., Respondent.
    (Argued November 19, 1934;
    decided December 4, 1934.)

      David Klein, Solomon Jacobson and Henry Fluegelman for appellant.

      Howard F. R. Mulligan and James H. Douglas for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of New York, Ontario and Western Railway Company et al., Respondents; Public Service Commission of the State of New York, Appellant.
    (Argued November 19, 1934;
    decided December 4, 1934.)

      Charles G. Blakeslee and George E. McVay for appellant.

      Elbert N. Oakes and Hyman Josefson for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of The People of the State of New York, by James A. Beha, Superintendent of Insurance of the State of New York, for an Order to Take Possession of the Property of the First Russian Insurance Company. Superintendent of Insurance of the State of New York, as Liquidator, et al., Appellants; Frederick B. Campbell et al., Respondents. In the Matter of the Application of The People of the State of New York, by James A. Beha, Superintendent of Insurance of the State of New York, for an Order to Take Possession of the Property of the First Russian Insurance Company. Superintendent of Insurance of the State of New York, as Liquidator, et al., Appellants; Michael Imchanitzky, Respondent.
    (Argued November 20, 1934;
    decided December 4, 1934.)

      John M. Downes and Alfred L. Green for Superintendent of Insurance, appellant.

      G. Frank Dougherty, Samson Selig and Ruth I. Wilson for George J. Hadjinoff et al., appellants.

      Borris M. Komar for Georg Brusendorff et al., appellants.

      Frederick B. Campbell for respondents in first above-entitled proceeding.

      George Frankenthaler and Alexander Bicks for respondent in second above-entitled proceeding.
   In each proceeding, order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Gene Kipper, Appellant, v. Albert E. Ellinger, Sheriff of Oneida County, Respondent.
    (Argued November 20, 1934;
    decided December 4, 1934.)

      William R. Goldbas and Joseph R. Horigan for appellant.

      Thomas Brown Rudd, District Attorney (Earle C. Bastow of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Claim of Joseph Lawrence against New York Butchers Dressed Meat Company et al., Appellants. State Industrial Board, Respondent.
    (Argued November 20, 1934;
    decided December 4, 1934.)

      Frank J. Horan for appellants.

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

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


text:
    In the Matter of the Claim of Joseph Stolz, Respondent, against Lasher & Lathrop, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Submitted November 20, 1934;
    decided December 4, 1934.)

      John J. Conners, Jr., for appellants.

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

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


text:
    Edna A. Ralph, Respondent, v. Edith S. Cronk, as Administratrix of the Estate of Adelbert D. Cronk, Deceased, Appellant.
    (Submitted November 20, 1934;
    decided December 4, 1934.)

      William H. Means for appellant.

      Franklin R. Brown and Mark N. Turner for respondent.
   Order affirmed, with costs, and questions certified answered in the negative. Held, that the 1933 amendment to section 31 of the Personal Property Law is not to be given a retroactive construction so as to apply it to contracts existing at the date of its passage. No opinion.

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


text:
    In the Matter of Nathaniel Becker, Appellant, against George J. Ryan et al., Constituting the Board of Education of the City of New York, Respondents.
    (Submitted November 19, 1934;
    decided December 4, 1934.)

      Paul Windels, Corporation Counsel (Arthur B. Hoff, Jr., of counsel), for motion.

      Nathaniel Becker, in person, opposed.
   Motion granted and appeal dismissed ,with costs and ten dollars costs of motion, unless appellant files an undertaking and pays ten dollars costs on or before January 7, 1935, in which event the motion is denied.


text:
    Jacob Budnitzky, Appellant, v. K. Arakelian, Inc., Respondent, Impleaded with Others.
    (Submitted November 26, 1934;
    decided December 4, 1934.)

      Jesse Herbert Finkler for motion.

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


text:
    The People of the State of New York ex rel. Harry L. Rohrbach, Respondent, v. Henry D. Cochrane et al., Constituting the Board of Trustees of the Village of Hastings on Hudson, Appellants.
    (Submitted November 26, 1934;
    decided December 4, 1934.)

      John J. Hughes for motion.

      William R. Hogan opposed.
   Motion denied, without costs.


text:
    The People of the State of New York ex rel. Elizabeth G. Pierson, Respondent, v. Thomas M. Lynch et al., as State Tax Commissioners of the State of New York, Appellants.
    (Submitted November 26, 1934;
    decided December 4, 1934.)
   Motion for reargument or, in the alternative, motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 533.)


text:
    The People of the State of New York, Respondent, v. Lancelot M. Berkeley, Appellant.
    (Submitted December 3, 1934;
    decided December 4, 1934.)

      Paul Windels, Corporation Counsel (Henry J. Shields of counsel), for motion.

      Lancelot M. Berkeley, in person, opposed.
   Motion denied and case set down for argument on first Monday of January, 1935, session.


text:
    The People of the State of New York, Appellant, v. Wallace G. Garland, Respondent.
    (Argued November 20, 1934;
    decided December 7, 1934.)

      John J. Bennett, Jr., Attorney-General (Ambrose V. McCall, John F. X. McGohey and Colin McLennan of counsel), for appellant.

      Joseph A. Shay and Edwin M. Reiskind for respondent.
   Appeal dismissed without prejudice to an application by the appellant for appropriate relief in the Appellate Division on the authority of People v. Bergman (252 N. Y. 346). No opinion.

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


text:
    Edwin J. Hiller, Appellant, v. Russo-Asiatic Bank, Respondent.
    (Argued November 20, 1934;
    decided December 7, 1934.)

      Raymond T. Heilpern and Otto C. Sommerich for appellant.

      John J. Curtin and Maurice Léon, appearing specially for respondent.
   Order reversed, without costs and motion granted, without costs.' Question certified answered in the negative on the authority of Issaia v. Russo-Asiatic Bank (266 N. Y. 37). No opinion.

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


text:
    Daniel J. Hynes, Appellant, v. La Gerardine, Inc., Respondent.
    (Argued November 21, 1934;
    decided December 7, 1934.)

      Jay Leo Rothschild, Louis Rivkin and Samuel G. Coler for appellant.

      James I. Guff and James I. McGuire for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bertha Adlersheim, Respondent, v. Frank Salzman, Appellant.
    (Argued November 21, 1934;
    decided December 7, 1934.)

      Frederick Mellor for appellant.

      Jay Leo Rothschild, Louis Rivkin, Walter S. Beck and Frank Padwe for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George Petkinic, Plaintiff, v. Marc Eidlitz & Son, Inc., Appellant, and Edward J. McGratty et al., Copartners under the Firm Name of McGratty & Son, Respondents.
    (Argued November 21, 1934;
    decided December 7, 1934.)

      H, H. Brown and E. C. Sherwood for appellant.

      James A, Nooney and Ralph O. L. Fay for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jennie Parslow, as Administratrix of the Estate of Harvey G. Parslow, Deceased, Appellant, v. Town of Williamson, Respondent.
    (Argued November 21, 1934;
    decided December 7, 1934.)

      Harry A. Sessions for appellant.

      Charles T. Ennis for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Standard Accident Insurance Company, Respondent, v. John J. Ackerman et al., as Administrators with the Will Annexed of Clinton G. Swackhamer, Deceased, Appellants.
    (Argued November 21, 1934;
    decided December 7, 1934.)

      Richard H. Levet and William B. Levet for appellants.

      William Scott, 2nd, for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George S. Van Schaick, Superintendent of Insurance of the State of New York, as Liquidator of the Southern Surety Company of New York et al., Respondents, v. Rex Novelty Works, Inc., Appellant.
    (Submitted November 21, 1934;
    decided December 7, 1934.)

      Jerome A. Strauss for appellant.

      Daniel Combs for respondents.
   Judgment affirmed, with costs; no opinion. (See 266 N. Y. 530.)

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


text:
    The National Savings Bank of the City of Albany, Appellant, v. Fermac Corporation, Respondent, Impleaded with Others.
    (Argued November 21, 1934;
    decided December 7, 1934.)

      Roland Ford for appellant.

      Edward S. Rooney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Empire Carpet Corporation, Respondent, v. Bush Terminal Buildings Company, Appellant.
    (Argued November 22, 1934;
    decided December 7, 1934.)

      Clarence S. Zipp, William S. O’Connor and James B. Henney for appellant.

      I. Maurice Wormser, Edward C. Weinrib and Benjamin Seligman for respondent.
   Judgment affirmed, with costs; ho opinion.

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


text:
    Helen Galligan, Appellant, v. Druidan Real Estate Co., Inc., Respondent.
    (Argued November 22, 1934;
    decided December 7, 1934.)

      Daniel J. Madigan for appellant.

      Clarence S. Zipp and William E. Lowther for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. Held, that the evidence was sufficient to go to the jury on the questions of defendant’s negligence and plaintiff’s freedom from contributory negligence. No opinion.

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


text:
    Herman J. Garms, Appellant, v. The Travelers Insurance Company, Respondent.
    (Argued November 22, 1934;
    decided December 7, 1934.)

      Howard L. Kuttner for appellant.

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

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


text:
    James A. Cardinal, Respondent, v. Mercury Insurance Company, Appellant, and John Roshirt, Inc., et al., Respondents.
    (Argued November 22, 1934;
    decided December 7, 1934.)

      Charles B. Sullivan, Nelson R. Pirnie and Warner M. Bouck for appellant.

      Frank L. Wiswall and Carl O. Olsen for plaintiff-respondent, and John Roshirt, Inc., defendant-respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. Held, that there was, on the findings, no disclosure of the true interest of the assured and the policy was void and not subject to reformation. (Lasher v. St. Joseph Fire & Mar. Ins. Co., 86 N. Y. 423; Skinner v. Norman, 165 N. Y. 565, 571. See, also, Commercial Mut. Fire Ins. Co. v. Crawford, 219 App. Div. 110.) No opinion. (See 266 N. Y. 542.)

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


text:
    In the Matter of John O. Nelson et al., Appellants, v. Henry M. Cummings, Respondent.
    (Submitted December 3, 1934;
    decided December 7, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 265 N. Y. 516.)


text:
    In the Matter of Frank W. Jackson, Appellant. The Association of the Bar of the City of New York, Respondent.
    (Submitted December 3, 1934;
    decided December 7, 1934.)

      Einar Chrystie for motion,

      Horace M. Gray opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Respondent, v. Grant O. Beale, Appellant.
    (Submitted December 3, 1934;
    decided December 7, 1934.)
   Motion "for reargument denied. (See 264 N. Y. 451.)


text:
    Nisel A. Goldberg-Rudkowsky, Appellant and Respondent, v. The Equitable Life Assurance Society of the United States, Respondent and Appellant.
    (Argued November 22, 1934;
    decided December 31, 1934.)

      Botris M. Komar for plaintiff, appellant and respondent.

      John W. Davis, William C. Cannon and David E. Hudson for defendant, respondent and appellant.
   Per Curiam.

The judgment appealed from by the defendant should be reversed, and the complaint dismissed, with costs in all courts, on the authority of Dougherty v. Equitable Life Assur. Society, decided herewith (266 N. Y. 71). The judgment appealed from by the plaintiff should be affirmed, with costs, upon the authority of that case, without discussing the question of sealed instruments, it being unnecessary. (See 266 N. Y. 615.)

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

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Peter Crotty and William Paskowitz, Appellants.
    (Argued October 22, 1934;
    decided December 31, 1934.)

      Emanuel Schwartz, Ira J. Schuster and Julius S. Berg for William Paskowitz, appellant.

      Michael I. Winter for Peter Crotty, appellant.

      Samuel J. Foley, District Attorney (Sol. Boneparth, Herman J. Fliederblum, Edward F. Breslin and Sylvester Ryan of counsel), for respondent.
   As to each defendant, judgment of conviction and order denying motion for new trial affirmed. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Alfred Giallarenzi, Appellant.
    (Argued October 23, 1934;
    decided December 31, 1934.)

      R. J. Shanahan and Paul R. Shanahan for appellant.

      William C. Martin, District Attorney (William H. Bowers of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    In the Matter of Pearl A. Slagle, Appellant and Respondent, against David Paris, Respondent and Appellant.
    (Argued November 19, 1934;
    decided December 31, 1934.)

      Reginald Field for petitioner, appellant and respondent.

      Davis Paris, in person, for defendant, respondent and appellant.
   Order affirmed, without costs; no opinion.

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


text:
    New York Life Insurance Company, Plaintiff, v. Hazlitt Realty Corporation et al., Defendants. Max Aaron, Appellant; Hattie Conay, as Receiver, Respondent.
    fSubmitted November 22, 1934;
    decided December 31, 1934.)

      Irving R. Kass for appellant.

      William H. Chorosh, Emanuel D. Black and Benjamin Shapiro for respondent.
   Order affirmed, with costs, on the authority of Woman’s Hospital v. Loubern Realty Corp. (266 N. Y. 123). No opinion.

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


text:
    Rose D. Bush, as Administratrix of the Estate of William C. Bush, Appellant, v. The Delaware and Hudson Railroad Corporation, Respondent.
    (Argued November 22, 1934;
    decided December 31, 1934.)

      Alfred L. Simon for appellant.

      Joseph Rosch and Raymond L. Carr for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank M. Best, Appellant.
    (Argued November 26, 1934;
    decided December 31, 1934.)

      William F. Unger and Irving K. Rubin for appellant.

      John J. Bennett, Attorney-General (Ambrose V. McCall, John F. X. McGohey and Harry Greenwald of counsel), for respondent.
   Judgment affirmed; no opinion. (See 266 N. Y. 542.)

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


text:
    Charles Feltman, Respondent, v. Louis Manesse et al., Copartners under the Firm Name of Manesse & Co., Appellants, Impleaded with Another.
    (Argued November 26, 1934;
    decided December 31, 1934.)

      John M. Blake for appellants.

      Wilber W. Chambers for respondent.
   Judgment affirmed, with costs; no opinion,

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


text:
    Lee Tire & Rubber Co. of New York, Inc., Appellant, v. Banque D’Industrie, Respondent.
    (Argued November 27, 1934;
    decided December 31, 1934.)

      Stephen B. Vreeland for appellant.

      Aristotle Souval and William O. Robertson for respondent.
   Judgment affirmed, with costs; no opinion,

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


text:
    In the Matter of Fairchild Sons, Inc., Appellant and Respondent, against Allan H. Rogers, Building Inspector of the Village of Garden City, Respondent, and Charles G. Reinhart, Jr., et al., Constituting the Board of Trustees of the Village of Garden City, Respondents and Appellants.
    (Argued November 27, 1934;
    decided December 31, 1934.)

      Almet Reed Latson for petitioner, appellant and respondent.

      George L. Hubbell, Jr., for the Board of Trustees of the Village of Garden City, respondents and appellants.
   Order affirmed, without costs; no opinion.

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


text:
    Anna Gundersen et al., Respondents, v. The Great Atlantic and Pacific Tea Company, Appellant.
    (Argued November 27, 1934;
    decided December 31, 1934.)

      H. Spencer Bregoff for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Albert French, Respondent, v. Margaret F. Fenn, Appellant.
    (Argued November 28, 1934;
    decided December 31, 1934.)

      Ephraim, Berliner, Samuel E. Darby, Jr., Joseph J. Zeiger and Morton Roth for appellant.

      J. Ard Haughwout for respondent.
   Order affirmed, with costs. Ninth question certified answered in the affirmative. Other questions certified not answered as unnecessary to the decision. No opinion. (See 266 N. Y. 673.)

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


text:
    Rose Rubin, Respondent, v. B. F. Keith Corporation, Appellant.
    (Argued November 28, 1934;
    decided December 31, 1934.)

      Walter L. Glenney, Bertrand L. Pettigrew and Chauncey L. Grant for appellant.

      Harry A. Gair and Nathan Hochroth for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elizabeth Venable, Respondent, v. The City of New York, Appellant.
    (Argued November 28, 1934;
    decided December 31, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair, Samuel A. Bloom and James E. O’Reilly of counsel), for appellant.

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

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


text:
    Mabel H. Stilwell, Respondent, v. Holland Duell, Appellant.
    (Argued November 28, 1934;
    decided December 31, 1934.)

      Clayton R. Lusk, Frank Harvey Field and Reginald Field for appellant.

      Frank A. Fritz and Arthur C. Patterson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Marcelle S. Mason, by Merle I. St. John, Her Guardian ad Litem, Appellant, v. Guaranty Trust Company of New York et al., as Executors of and Trustees under the Will of Marguerite D. Mason, Deceased, et al., Respondents.
    (Argued December 3, 1934;
    decided December 31, 1934.)

      Merle I. St. John for appellant.

      John B. Butler, Jr., and John F. LeViness, Jr., for Guaranty Trust Company of New York et al., as executors and trustees under the will of Marguerite D. Mason, deceased, respondents.

      Langdon P. Marvin and Thomas B. Fenlon for Yvonne M. Westfried et al., respondents.
   Judgment affirmed, with one separate bill of costs for each respondent payable out of the estate. No opinion.

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


text:
    Isidor Gainsburg, Appellant, v. Benjamin Bachrack, Respondent.
    (Argued December 3, 1934;
    decided December 31, 1934.)

      Joseph P. Segal and Isidor Gainsburg (in person) for appellant.

      Abraham, N. Geller, Bernard A. Saslow and Irving J. Galpeer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elsworth B. Lewis, Respondent, v. Sarah M. Petersen, Individually and as Executrix of Josephine Lewis, Deceased, Appellant, Impleaded with Another.
    (Argued December 4, 1934;
    decided December 31, 1934.)

      Joseph P. Walsh and Frank H. Innes for appellant.

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

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


text:
    Charles F. Hart, Appellant, v. J. Cheever Cowdin, Respondent, Impleaded with Another.
    (Argued December 4, 1934;
    decided December 31, 1934.)

      Joseph P. Walsh and Frank H. Innes for appellant.

      Paul Austin Crouch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Abraham Karp, an Attorney, Appellant; The Association of the Bar of the City of New York et al., Respondents. In the Matter of Emanuel A. Busch, an Attorney, Appellant; The Association of the Bar of the City of New York et al., Respondents.
    (Argued December 4, 1934;
    decided December 31, 1934.)

      I. Maurice Wormser and Ralph O. L. Fay for appellants.

      Samuel Seabury, Einar Chrystie, George Trosk and George R. Adams for respondents.
   In each proceeding, order affirmed; no opinion.

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


text:
    I. Walter Godnick, Appellant, v. Marcus Cohn, Doing Business under the Firm Name of U. S. Standard Chemical Company, Defendant, and Harry K. Grigg, Respondent.
    (Argued December 4, 1034;
    decided December 31, 1934.)

      Sidney J. Feltenstein, for appellant.

      F. A. W. Ireland for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Beryl Mitchell, Respondent, v. Charles Reichman et al., Doing Business under the Firm Name of Reichman & Faust, Defendants, and Paragon Laboratories, Inc., et al., Appellants. James Mitchell, Respondent, v. Charles Reichman et al., Doing Business under the Firm Name of Reichman & Faust, Defendants, and Paragon Laboratories, Inc., et al., Appellants.
    (Argued December 5, 1934;
    decided December 31, 1934.)

      P. Sidney Hand for appellants.

      Charles J. Engel and Joseph B. Murphy for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Anna Denue, Respondent, v. Whelan Drug Stores, Inc., Appellant. Charles Denue, Respondent, v. Whelan Drug Stores, Inc., Appellant.
    (Argued December 5, 1934;
    decided December 31, 1934.)

      George F. Roesch 2d, and Earl S. Jones for appellant.

      David Fishman for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Byron C. Clark, Appellant, v. Globe Indemnity Company, Respondent.
    (Argued December 6, 1934;
    decided December 31, 1934.)

      Allan L. Gurley for appellant.

      Donald V. Carr for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    The People of the State of New York, Respondent, v. John Scotti, Earl Loucks, Lawrence Gearty and Mime Graef, Appellants.
    (Argued December 4, 1934;
    decided December 31, 1934.)

      Louis Waldman, James J. Armstrong and David I. Ashe for appellants.

      William Copeland Dodge, District Attorney (Ambrose J. Delehanty of counsel), for respondent.
   As to defendant Gearty: Judgment affirmed.

As to defendants Scotti, Loucks and Graef: Judgment reversed and new trial ordered on the ground that there is no evidence sufficient to sustain the judgment of conviction. No opinion.

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


text:
    Joseph O. Sivin et al., Appellants, v. John Gaston, Respondent, Impleaded with Others.
    (Argued December 5, 1934;
    decided December 31, 1934.)

      Mark G. Holstein and Harry A. Yerkes, Jr., for appellants.

      Leonard P. Moore, J. Arthur Leve and David S. Hecht for respondent.
   Judgment so far as appealed from affirmed, with costs; no opinion.

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


text:
    Abraham Sirvint, Appellant, v. Fidelity and Deposit Company of Maryland, Respondent.
    (Argued December 6, 1934;
    decided December 31, 1934.

      Abraham Greenberg and Irving A. Scheinberg for appellant.

      William E. Robinson and Thomas E. White for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Chemical Bank and Trust Company, as Trustee under Trust Agreement Executed by Charles H. Raymond, Respondent, v. Victoria F. Reynaud et al., Appellants, and Marie R. Maxwell, Individually and as Executrix of Charles H. Raymond, Deceased, Respondent. (Actions Nos. 1 and 2.)
    (Argued December 5, 1934;
    decided December 31, 1934.)

      Harold H. Bowman, Vincent Gilroy, Le Roy S. Perkins, Fitz John Porter and Carroll H. Brewster for appellants.

      Carroll G. Walter for respondent.
   In each action, judgment affirmed, with costs; no opinion.

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


text:
    Edith M. Stevens, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    (Argued December 6, 1934;
    decided December 31, 1934.)

      Frederick E. Weinberg, Louis Weinberger and Franklin P. Trautmann for appellant.

      Charles B. La Voe for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Herman Lieberman, Respondent, v. Morris Segal et al., as Executors of Aaron Segal, Deceased, Appellants.
    (Argued December 6, 1934;
    decided December 31, 1934.)

      Harry G. Anderson and Louis J. Merrell for appellants.

      Emil N. Boar, Arthur Block and John P. Hurley for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph E. Marx Company, Inc., Appellant, v. Estelle Hatton et al., Defendants, and Louis A. Cerf et al., Respondents.
    (Argued December 6, 1934;
    decided December 31, 1934.)

      Alexander Pfeiffer and Joseph Lotterman for appellant.

      Isidor Enselman and Benjamin G. Bain for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mack, Miller Candle Company, Appellant, v. The Macmillan Company, Respondent.
    (Argued December 6, 1934;
    decided December 31, 1934.)

      Ernest I. White for appellant.

      Walbridge S. Taft and Malcolm S. Langford for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Laura M. Brackett, Respondent, v. Valentine W. Smith et al., as Executors of Josephine A. Dutcher, Deceased, Appellants.
    (Argued December 6, 1934;
    decided December 31, 1934.)

      Maurice Brandt and Victor Levin for appellants.

      M. M. Leichter and John L. Ketcham for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lillian Feldman, Respondent, v. The Hebrew Hospital Association of Sullivan County, Appellant.
    (Argued December 7, 1934;
    decided December 31, 1934.)

      Philip A. Rorty for appellant.

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

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


text:
    David Richman, Respondent, v. Stanley Mark Strand Corporation et al., Appellants. Rose Richman, Respondent, v. Stanley Mark Strand Corporation et al., Appellants.
    (Argued December 7, 1934;
    decided December 31, 1934.)

      J. F. Lucey for appellant.

      Ely S. Koplovitz for respondents.
   In each case, judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman. 0’Brie.n, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title to Real Property Required for Widening Boscobel Avenue, in the Borough of The Bronx. Gustav Halpern et al., Respondents.
    (Argued December 7, 1934;
    decided December 31, 1934.)

      Paul Windels, Corporation Counsel (George S. Parsons, Anson Getman and Joseph F. Mulqueen, Jr., of counsel), for appellant.

      Harold Swain for Gustav Halpern, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The Waite Nursery and Development Company, Appellant, v. Edith L. Just, Respondent.
    (Submitted December 7, 1934;
    decided December 31, 1934.)

      Robert A. Fosdick and J. Ben Fuqua for appellant.
    No one for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    David Kaufman, Respondent, v. Investors Syndicate, Appellant.
    (Submitted December 4, 1934;
    decided December 31, 1934.)

      Jacob Gould Schurman, Jr., Bertram F. Willcox and Jonathan Edwards for appellant.

      Emil Weitzner and Samuel H. Kaufman for respondent.
   Judgment reversed, with costs in all courts, and application for summary judgment denied on the authority of Fosdick v. Investors Syndicate, Inc, (266 N. Y. 130). No opinion.

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


text:
    The People of the State of New York, Respondent, v. Harold Stearn, Appellant.
    (Argued November 27, 1934;
    decided December 31, 1934.)

      Clarence Unckless for appellant.

      William C. Martin, District Attorney (Donald M. Mawhinney and William H. Bowers of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Vincent DeLeo, Appellant.
    (Argued December 3, 1934;
    decided December 31, 1934.)

      Deane Ramey, Henry E. Kalium and Jeremiah W. Davern for appellant.

      Andrew W. Ryan, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion. (See 266 N. Y. 612.)

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