text:
    Edwin V. Hellawell, as Receiver of the First National Bank of Hempstead, Respondent, v. William F. Fowler, Appellant.
    (Submitted January 20, 1936;
    decided January 28, 1936.)

      Ferdinand I. Haber for motion.

      William F. Fowler, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


source: Caselaw Access Project

license: Public Domain

text:
    Guaranty Trust Company of New York, as Trustee, et al., Respondents, v. Mary L. C. Fisk et al., Appellants, Impleaded with Others.
    (Argued January 15, 1936;
    decided January 31, 1936.)

      Henry B. Johnson and Frederick C. Bangs for appellants.

      Frank C. Laughlin, Dudley Miller and Stewart W. Bowers for Lewis L. Clarke, as successor trustee, respondent.

      Logan Fulrath and Otis T. Bradley for Guaranty Trust Company of New York, as trustee, respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Thomas H. Cornell, as Executor of Thomas G. Cornell, Deceased, Respondent, v. Rouvime Poliakoff, Appellant.
    (Argued January 15, 1936;
    decided January 31, 1936.)

      Borris M. Komar for appellant.

      Hugh S. Williamson, William C. Breed, Jr., and Edward A. Craighill, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Rotberg et al., Copartners under the Firm Name of Rotberg & Krieger, Appellants, v. M. S. & J. A. Workman, Inc., Respondent.
    (Submitted January 16, 1936;
    decided January 31, 1936.)

      Addison S. Pratt for appellants.

      David W. Kahn and Herbert P. Wilson for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    Matthew Leonard, Respondent, v. Ireab Holding Corporation, Appellant.
    (Argued January 16, 1936;
    decided January 31, 1936.)

      Alvin R. Cowan and Harold M. Phillips for appellant.

      Herman A. Gray and Maxwell M. Booxbaum for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Stella Norwood, Appellant, v. Fannie Schacher, as Administratrix of the Estate of Samuel Schacher, Deceased, Respondent.
    (Argued January 16, 1936;
    decided January 31, 1936.)

      Henry J. Farrell and Reginald B. Williams for appellant.

      Alvin R. Cowan and Harold M. Phillips for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Mary C. Eager, Appellant, v. New York Rapid Transit Corporation, Respondent.
    (Argued January 16, 1936;
    decided January 31, 1936.)

      Morris Pottish, Elias Bernstein and Harold M. Weiss for appellant.

      Harold L. Warner and George D. Yeomans for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Antonie Boettcher, Appellant, v. Victor J. Dowling et al., as Receivers of the Interborough Rapid Transit Company, Respondents.
    (Argued January 16, 1936;
    decided January 31, 1936.)

      Robert G. Shelter and Desmond T. Barry for appellant.

      James Hess and James L. Quackenbush for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    John S. Kennedy, Respondent, v. Union Agricultural Society, Appellant.
    (Argued January 16, 1936;
    decided January 31, 1936.)

      Charles T. Ennis for appellant.

      James M. Ryan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles A. O’Toole, Respondent, v. Crane & Clark, Appellant.
    (Argued January 17, 1936;
    decided January 31, 1936.)

      Abraham L. Doris for appellant.

      John J. O’Leary and Thomas A. Kane for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Karol Buczkowski et al., Appellants, v. The Prudential Insurance Company of America, Respondent.
    (Argued January 17, 1936;
    decided January 31, 1936.)

      Walter A. Kendall for appellants.

      Manly Fleischmann and Alger A. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Commercial Casualty Insurance Company, Appellant, v. Harry A. Roman, Respondent.
    (Submitted January 27, 1936;
    decided January 31, 1936.)
   Motion for reargument and to amend the remittitur granted to the following extent, that the remittitur herein is hereby amended by striking out the provision reversing the judgments of the Appellate Division and Trial Term and granting a new trial, and substituting in place thereof the following:

" Judgment of Appellate Division reversed and that of Trial Term affirmed, with costs in this court and in the Appellate Division.” (See 269 N. Y. 451.)


text:
    In the Matter of John T. Mullane, Respondent, against John McKenzie, as Commissioner of Docks of the City of New York, et al., Appellants.
    (Submitted January 27, 1936;
    decided January 31, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 369.)


text:
    In the Matter of the Application of James W. Kerwin, an Infant, by Patrick T. Kerwin, His Guardian ad Litem, Respondent. William S. Brady, Appellant.
    (Submitted January 27, 1936;
    decided January 31, 1936.)

      Leo O. Coupe and Henry F. Coupe for motion.
    No one opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, without prejudice to a motion for reargument of motion for leave to appeal at the Appellate Division. The order is not a final order determining a special proceeding. (Cf. Matter of Attorney-General, 155 N. Y. 441.)


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, Respondent, for an Order to Take Possession of the Property and Liquidate the Business of the Southern Surety Company of New York. Bessie Villa et al., Appellants.
    (Submitted January 30, 1936;
    decided January 31, 1936.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding the following: that the judgment heretofore, on March 26, 1935, entered in the office of the Clerk of the Comity of New York in favor of George S. Van Schaick, Superintendent of Insurance of the State of New York, as Liquidator of the Southern Surety Company of New York against the claimants appellants, Bessie Villa and Max Peterson, be vacated and set aside, and that a judgment be entered in the office of the Clerk of the County of New York upon the final judgment of the Court of Appeals as herein on this date made, reciting the proceedings heretofore had herein, said judgment to bear the date of its actual entry in the office of the Clerk of the County of New York.” (See 266 N. Y. 589; 269 N. Y. 562.)


text:
    Luc Rochefort, Appellant, v. James A. Stillman, Respondent, Impleaded with Another.
    (Submitted January 27, 1936;
    decided January 31, 1936.)

      James F. Doyle for motion.

      Luc Rochefort, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant within thirty days files and serves undertaking on appeal, in which event the motion is denied.


text:
    In the Matter of Henry W. Mumm, Respondent, against Thomas W. Whittle et al., Composing the Board of Assessors of the City of New York et al., Appellants.
    (Argued November 19, 1935;
    decided March 3, 1936.)

      Paul Windels, Corporation Counsel (Alfred D. Jahr and Paxton Blair of counsel), for appellants.

      Joseph B. Kenny, Harry B. Chambers and Harry H. Chambers for respondent.
   Appeal dismissed, with costs, on the ground the order appealed from is not a final order. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Nick Bukvich, Appellant.
    (Argued January 13, 1936;
    decided March 3, 1936.)

      Gregory F. Mills and Carlyle B. Newcomb for appellant.

      Daniel J. O’Mara, District Attorney (Clarence J. Henry of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Peter Mohlsick and Howard Eickler, Appellants.
    (Argued January 15, 1936;
    decided March 3, 1936.)

      William R. Hogan and Lester J. Albertson for Peter Mohlsick, appellant.

      J. Lester Albertson and William R. Hogan for Howard Eickler, appellant.

      Walter A. Ferris, District Attorney (William F. Horan of counsel), for respondent.
   As to each defendant, judgment of conviction affirmed; no opinion.

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


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Plaintiff, v. Max Aaron et al., Defendants; Lillian B. Walder, Respondent, and Benjamin H. Roth et al., Copartners under the Firm Name of D. H. Roth & Co., Appellants.
    (Argued January 15, 1936;
    decided March 3, 1936.)

      Sidney Squire for appellants.

      Theodore A. Delman for respondent.
   Judgment affirmed, with costs, on the authority of Broderick v. Adamson (Greif) (270 N. Y. 260). No opinion.

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


text:
    F. C. Sheldon Slate Company, Respondent, v. Union National Bank of Troy, Appellant.
    (Argued January 20, 1936;
    decided March 3, 1936.)

      Edward H. Pattison for appellant.

      Henry W. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael Nee, as Administrator of the Estate of Michael Nee, Jr., Deceased, Respondent, v. Matthias Sloboda, Appellant.
    (Argued January 21, 1936;
    decided March 3, 1936.)

      John W. Jordan, Harold R. Medina, F. J. Canty and Archibald R. MacKennan for appellant.

      Peter Cantline for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Benjamin F. Foster, Appellant, v. Wm. A. White & Sons, Respondent.
    (Argued January 21, 1936;
    decided March 3, 1936.)

      Harry Bijur, A. S. Cutler and Norman Roth for appellant.

      Alexander Pfeiffer and Morris G. Duchin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Royal Indemnity Company, Appellant, v. The Travelers Insurance Company, Respondent.
    (Argued January 21, 1936;
    decided March 3, 1936.)

      William E. Lyons and Barnett Cohen for appellant.

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

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


text:
    Anna K. Hansen, as Administratrix of the Estate of Hans Hansen, Deceased, Respondent, v. George Colon & Company et al., Appellants and Respondents, Impleaded with Another.
    (Argued January 21, 1936;
    decided March 3, 1936,)

      Frederick Mellor for George Colon & Company, appelant and respondent.

      Jaynes I. Cuff, Jaynes I. McGuire and Jaynes A. Hughes for The Stone & Webster Building, Inc., appellant and respondent.

      Peter F. McAllister and John P. Coffin for plaintiff-respondent.
   Judgment affirmed, with costs to plaintiff-respondent. No opinion.

Concur: Lehman,O’Brien, Hubbs, Crouch, Loughran and Finch, JJ. Crane, Ch. J., dissents on the ground he is unable to find any negligence as to The Stone & Webster Building, Inc.


text:
    Gasper Occhiuto et al., Appellants, v. Title Guarantee and Trust Company, Respondent.
    (Argued January 21, 1936;
    decided March 3, 1936.)

      Moses H. Rothman, Isidore Moses and Jess J. Lappner for appellants.

      Richard S. Holmes for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Annie A. Sears, Appellant, v. The State of New York, Respondent. Bertha S. Francis, Appellant, v. The State of New York, Respondent.
    (Claim No. 23245.)
    (Claim No. 23246.)
    (Argued January 22, 1936;
    decided March 3, 1936.)

      Charles Roden and Robert C. Fulton, Jr., for appellants. John J. Bennett, Jr., Attorney-General (Leon M. Layden and Burns F. Barford of counsel), for respondent.
   In each case, order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Maria Assalone, as Administratrix of the Estate of Domenick Assalone, Deceased, Respondent, v. Thomas Hazel et al., Appellants.
    (Argued January 22, 1936;
    decided March 3, 1936.)

      William B. Davis and E. C. Sherwood for Forsythe Bros., Inc., appellant.

      David Levine for Thomas Hazel, appellant.

      Austin G. Cocuzza for respondent.
   As to Forsythe Bros., Inc., appeal dismissed, with costs; as to Hazel, judgment affirmed, with costs. No opinion.

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


text:
    William H. Hunt et al., Appellants, v. William L. Tuller et al., Respondents, and Cora L. Welsh et al., Appellants, Impleaded with Others.
    (Argued January 22, 1936;
    decided March 3, 1936.)

      H. H. Snedeker for plaintiffs, appellants.

      Francis S. Stickle for defendants, appellants.

      Robert P. Smith for William L. Tuller et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bel H. Gould, Appellant, v. The Travelers Insurance Company, Respondent.
    (Argued January 23, 1936;
    decided March 3, 1936.)

      Nathan Frankel, Jacob Saul Barshay and Nathan A. Rothstein for appellant.

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

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


text:
    Paino Bros., Inc., Appellant, v. Central National Bank of Yonkers, Respondent.
    (Argued January 23, 1936;
    decided March 3, 1936.)

      Charles H. Kelby and Henry E. Stohldreier for appellant.

      William, F. McNulty, Harold R. Medina, W. Chantler Arbuckle and William Warburton Scrugham for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Annette Kuhn, Appellant, v. Auto Cab Mutual Indemnity Company, Respondent.
    (Argued January 23, 1936;
    decided March 3, 1936.)

      Henry E. Stohldreier and Walter W. Westall for appellant.

      John C. MacCarthy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gertrude C. Solez, Respondent, v. The Commercial Travelers Mutual Accident Association of America, Appellant.
    (Argued January 24, 1936;
    decided March 3, 1936.)

      Charles J. Nehrbas and Henry C. Moses for appellant.

      Frederic B. Coudert, Jr., Walter R. Barry and Francis D. Wells for respondent.
   Order affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Joseph M. Lowe, as Executor of Jacob S. Klein, Deceased, Appellant, v. Leo N. Fairberg, Defendant, and Van Praag & Co., Respondent.
    (Argued January 24, 1936;
    decided March 3, 1936.)

      Alfred W. Meldon, Samuel Singerman and Meyer Feldman for appellant.

      Maurice Rubinger and Jacob N. Geffen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Colonial Beacon Oil Company, Incorporated, Appellant, against James F. Finn, as Superintendent of Buildings of the City of Albany, et al., Respondents.
    (Argued January 24, 1936;
    decided March 3, 1936.)

      Patrick C. Dugan and John J. McManus for appellant.

      George A. Reilly, Corporation Counsel (Robert E. Whalen of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The National City Bank of New York et al., Appellants and Respondents, v. Charles D. Waggoner et al., Defendants, and Central Hanover Bank and Trust Company, Respondent and Appellant.
    (Argued January 27, 1936;
    decided March 3, 1936.)

      Carl A. Mead, John A. Garner and Frank A. F. Severance for plaintiff's, appellants and respondents.

      Nathan L. Miller, Harold Otis, Theodore J. Miller and Frederic Cunningham for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    Gabrielle H. Mills, as Administratrix of the Estate of Frederick L. Mills, Deceased, Appellant, v. The Society of the New York Hospital, Respondent.
    (Argued January 27, 1936;
    decided March 3, 1936.)

      John J. Dillon and Alfred M. Bailey for appellant.

      John W. Davis and J. Paschall Davis for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jesse Spier et al., Copartners under the Firm Name of Jesse Spier & Co., Appellants, v. American Surety Company of New York, Respondent.
    (Argued January 27, 1936;
    decided March 3, 1936.)

      E?nil Goldmark and Chester Rohrlich for appellants.

      Louis J. Wolff and Harding Cowan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John H. Allen, as Receiver of American Foreign Banking Corporation, Appellant, v. United States Fire Insurance Company of New York, Respondent.
    (Argued January 28, 1936;
    decided March 3, 1936.)

      Louis Connick, Thomas R. Strahan and Hamilton Rogers for appellant.

      John M. Harlan and Rupert Warren for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John H. Hampton, Plaintiff, v. Village of Freeport et al., Appellants, and John Roselle et al., Respondents, Impleaded with Others. Progressive Clay Company, Plaintiff, v. Village of Freeport et al., Appellants, and John Roselle et al., Respondents, Impleaded with Others.
    (Argued January 29, 1936;
    decided March 3, 1936.)

      Martin A. Schenck, Harold C. McCollom and Ralph C. Williams, Jr., for Village of Freeport, appellant.

      Frederic White Shepard for Long Island Labor Service Corporation, appellant.

      Harvey J. George for Irving Trust Company, as trustee, respondent.

      J. Franklin Tausch and Arthur Schneider for John Roselle et al., lienors, respondents.
   Judgment affirmed, with costs. The question as to whether the Long Island Labor Service, Inc., could file a lien as a subcontractor for furnishing labor is not here. No opinion.

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


text:
    Laurabelle G. Selover, Respondent, v. Ætna Life Insurance Company Appellant.
    (Argued January 28, 1936;
    decided March 3, 1936.)

      P. Sidney Hand for appellant.

      Myron S. Melvin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Millard E. Theodore, Respondent, v. News Syndicate Co., Inc., Appellant.
    (Argued January 28, 1936;
    decided March 3, 1936.)

      Howard Ellis, Stuart N. Updike and James W. Rodgers for appellant.

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

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


text:
    Florence Blaufeld, Respondent, v. Dorothy Hyams, Appellant.
    (Argued January 29, 1936;
    decided March 3, 1936.)

      Henry A. Blumenthal for appellant.

      Sidney I. Prager for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Detlef C. Mohr, Respondent, v. J. C. Penney Company, Inc., Appellant and Respondent, and United States Fidelity and Guaranty Company et al., Appellants.
    (Argued January 29, 1936;
    decided March 3, 1936.)

      John B. Butler, Jr., and Caleb C. Curtis for J. C. Penney Company, Inc., appellant and respondent.

      Alfred J. L’Heureux and Thomas A. Sully for The Bank, of America National Association, appellant.

      William J. McArthur for United States Fidelity and Guaranty Company, appellant.

      Chester B. McLaughlin and Benjamin J. Brown for plaintiff, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Max Shapiro, Appellant, against Paul Moss, as Commissioner of Licenses of the City of New York, Respondent.
    (Submitted January 30, 1936;
    decided March 3, 1936.)

      Paul Windels, Corporation Counsel (Alvin McKinley Sylvester and Paxton Blair of counsel), for respondent.
   Order affirmed, with costs, by default under rule 15. No opinion.

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


text:
    Morris Roth, Respondent, v. Rachel Fish, Appellant.
    (Argued January 31, 1936;
    decided March 3, 1936.)

      Saul Rubin for appellant.

      Gertrude Caesar and Frank M. Nicolosi for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Fred H. Taylor et al., Appellants, v. United States Casualty Company, Respondent.
    (Submitted March 2, 1936;
    decided March 10, 1936.)
   Motion for reargmnent denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 360.)


text:
    In the Matter of The North American Cement Corporation, Appellant, against Mark Graves et al., Constituting the State Tax Commission of the State of New York, Respondents.
    (Submitted March 2, 1936;
    decided March 10, 1936.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: “A question under the Federal Constitution was presented and necessarily passed upon by this court, viz.: that section 214, article 9-A, of the Tax Law of the State of New York as the same was enacted and in force between the years 1925 and 1930 in so far as the said law is construed to apply the statutory segregation of assets formula in making the annual assessments against the relator for the tax years 1926, 1927, 1928 and 1930 on the net income of the petitioner is repugnant to the Constitution of the United States in that it offends section 1 of the 14th Amendment thereto. This court held the statute aforesaid valid.” (See 269 N. Y. 507.)


text:
    Rose Steindl, Appellant, v. John J. Cosgrove, Respondent.
    (Submitted March 2, 1936;
    decided March 10, 1936.)

      John J. McGinty for motion.

      John R. Jones opposed.
   Motion denied, without costs.


text:
    In the Matter of the Will of Frances A. Jacobs, Deceased, and of the Accounting of National City Bank of New York, as Trustee. Ruth Jacobs, Appellant; Clara A. Traver, Respondent.
    (Submitted March 2, 1936;
    decided March 10, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 588.)


text:
    Robert Mastruzzi, an Infant, by Concetta Mastruzzi, His Guardian ad Litem, et al., Respondents, v. Salvatore Aloi, Appellant.
    (Submitted March 2, 1936;
    decided March 10, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 637.)


text:
    76 West End Corporation, Respondent, v. Edith Doyle, Appellant, Impleaded with Another.
    (Submitted March 2, 1936;
    decided March 10, 1936.)

      Solomon Traub for motion.

      Oscar S. Mann opposed.
   Motion to dismiss appeal granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property and to Conserve the Assets of the International Reinsurance Corporation, Dover, Delaware, and Independence Indemnity Company; Hoyt Avenue Gardens, Inc., Appellant.
    (Submitted March 2, 1936;
    decided March 10, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y., 507.)


text:
    The City of Buffalo, Appellant, v. The New York Central Railroad Company, Respondent.
    (Argued March 2, 1936;
    decided March 10, 1936.)

      Richard L. Wolf for motion.

      Gregory U. Harmon, Corporation Counsel (Forbes F. Dougherty of counsel), opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    Schering & Glatz, Inc., Respondent, v. American Pharmaceutical Company, Inc., Appellant, and The Chemical Foundation, Incorporated, Respondent.
    (Argued March 2, 1936;
    decided March 10, 1936.)

      Maurice Léon for motion.

      Louis Barnett opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    The People of the State of New York ex rel. John Jobissy, Appellant, against Thomas H. Murphy, as Warden of Clinton Prison, Respondent.
    (Submitted March 3, 1936;
    decided March 10, 1936.)
   Motion for reargument denied. (See 268 N. Y. 695.)


text:
    In the Matter of American DryIce Corporation, Appellant, against Peter Schmuck a Justice of the Supreme Court of the State of New York, Respondent.
    (Argued January 8, 1936;
    decided March 17, 1936.)

      Jay Leo Rothschild, Louis Rivkin and Arthur S. Jarcho for appellant.
    No appearance for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Francis J. Heafy, Appellant, against William H. McCabe, Respondent.
    (Argued March 2, 1936;
    decided March 17, 1936.)

      William J. Wallin for appellant.

      Leonard G. McAneny, Corporation Counsel (Morris L. Rossenwasser and J. Raymond Hannon of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    William H. Lloyd, Appellant, v. W. E. Hedger Transportation Corporation, Respondent, Impleaded with Others.
    (Argued January 10, 1936;
    decided March 17, 1936.)

      Philip A. Sullivan and John R. Weaver for appellant.

      Clayton M. Smith and Fred Van Aernam for respondent.
   Judgment reversed and a new trial granted, with costs to abide the event, on the ground that the agreement of May 13, 1933, imposed upon defendant W. E. Hedger Transportation Corporation the obligation to keep the barge in a reasonably safe condition and that the evidence created an issue of fact in respect to its failure to comply with that obligation. No opinion.

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


text:
    The People of the State of New York ex rel. Dorothy Tull, Appellant, against Honiss A. Tull, Respondent.
    (Argued March 2, 1936;
    decided March 17, 1936.)

      Alexander U. Zinke, Charles W. Silver and L. Zinke for appellant.

      Joseph D. Nunan, Jr. and John Ewen for respondent.
   Order affirmed; no opinion.

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


text:
    Holly Holding Corporation, Respondent, v. Paul Moss, as Commissioner of Licenses of the City of New York, Appellant.
    (Argued March 2, 1936;
    decided March 17, 1936.)

      Paul Windels, Corporation Counsel (William C. Chanler, Ralph W. Thomas and Francis J. Bloustein of counsel), for appellant.

      Jacob I. Goodstein, for respondent.

      Morris L. Ernst and Newman Levy for American Civil Liberties Union, amicus curiæ.

   Order affirmed, with” costs, and the question certified answered in the negative. No opinion.

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


text:
    Hans Tauscher, Plaintiff, v. Titus De Bobula, Defendant. Foster & Cutler, Appellants; Maurice E. Downing, as Receiver, Respondent.
    (Argued March 3, 1936;
    decided March 17, 1936.)

      A. S. Cutler, in person, and Norman Roth for appellants.

      Cornelius J. Smyth for respondent.
   Order affirmed, with costs, no opinion.

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


text:
    In the Matter of the Accounting of The Babylon National Bank and Trust Company, as Successor Trustee under the Will of Prince H. Foster, Deceased, et al., Respondents. Hattie F. Kirby, Appellant and Respondent; Emily E. Kern et al., Respondents and Appellants.
    (Argued March 3, 1936;
    decided March 17, 1936.)

      Robert T. Oliver and Philip E. Barnard for Hattie Kirby, appellant and respondent.

      George E. Darling for Emily E. Kern et al., respondents and appellants.

      George A. Voss and Douglas E. Brown as special guardian, for Henry Foster, respondent.

      Harry Paul Fishel for The Babylon National Bank and Trust Company, as successor trustee, respondent.
   Order affirmed, with costs to respondent Henry Foster payable out of the estate. No opinion.

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


text:
    Alexander Hennig et al., Appellants, v. John J. Abrahams, Respondent, Impleaded with Another.
    (Argued March 3, 1936;
    decided March 17, 1936.)

      Max Ornstein for appellants.

      Morton A. Roth and Maxwell Green for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of John L. Armstrong, as Executor of John Armstrong, Deceased, Appellant; Paul Windels, as Corporation Counsel of the City of New York, Respondent.
    (Argued March 3, 1936;
    decided March 17, 1936.)

      Frederick W. Hottenroth for appellant.

      Paul Windels, Corporation Counsel (Joseph F. Mulqueen, Jr., Paxton Blair and Reuben Levy of counsel), for respondent.
   Order affirmed without costs; no opinion.

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


text:
    Will Lee, as Administrator of the Estate of Josie Lee, Deceased, Appellant, v. Pennsylvania Railroad Company, Respondent.
    (Submitted March 2, 1936;
    decided March 17, 1936.)
   Motion to amend remittitur denied. (See 269 N. Y. 53.)


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, for an Order to Take Possession of the Property of the Title and Mortgage Guarantee Company of Buffalo. Frank T. Hines, as Administrator of Veterans’ Affairs, et al., Appellants; Buffalo Series D Corporation et al., Respondents.
    (Argued March 5, 1936;
    decided March 20, 1936.)

      A. S. Thomson and John H. Dominick for appellants.

      David L. Dandy, S. Fay Carr and William L. Marcy, Jr., for Buffalo Series D Corporation, respondent.

      Thomas R. Wheeler and Louis D. Babcock for The Marine Trust Company of Buffalo, respondent.
   Order affirmed, without costs. We express no opinion upon the question as to whether the participation certificates constituted legal investments for trustees or whether they constituted shares or parts of mortgages.

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


text:
    The People of the State of New York ex rel. Nathan Bellovin, Respondent, v. Sheriff of Kings County et al., Respondents, and Sam Milruth et al., Appellants.
    (Submitted March 3, 1936;
    decided March 20, 1936.)

      Martin Gottlieb and Joseph J. Gottlieb for appellants. Sol I. Smithline and Harry I, Feldman for relator, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Harry Rich, Respondent, against American Radiator Company et al., Appellants. State Industrial Board, Respondent.
    (Argued March 4, 1936;
    decided March 20, 1936.)

      Wallace H. Miller for appellants.

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

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


text:
    In the Matter of the Claim of Emma Simonetti, Respondent, against Capitol Coal Co., Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued March 4, 1936;
    decided March 20, 1936.)

      Herbert F. Hastings, Jr., and Everett F. Warrington for appellants.

      John J. Bennett, Jr., Attorney-General (Leon Freedman and Henry Epstein of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Sam Aloisi, against Charles Hatkoff et al., Appellants. State Industrial Board, Respondent.
    (Argued March 4, 1936;
    decided March 20, 1936.)

      Merton D. Meeker for appellants.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Henry S. Weller et al., Respondents, against Margrethe Callister, as Executrix of Herbert J. Callister, Deceased, Appellant.
    (Argued March 4, 1936;
    decided March 20, 1936.)

      Sol A. Klein and Theodore Reiss for appellant.

      Howard A. Rochford and Stanley F. Maslak for respondents.
   Order affirmed, with costs to respondents payable out of the estate; no opinion.

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


text:
    Henry Zenie et al., Copartners under the Name of Zenie Brothers, Respondents, v. Herbert L. Miskend et al., Appellants.
    (Argued March 4, 1936;
    decided March 20, 1936.)

      Asher Blum for appellants.

      Harold Weill for respondents.
   Order affirmed, with costs. First question certified answered in the affirmative, and second and third questions answered in the negative. No opinion.

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


text:
    The People of the State of New York ex rel. Albert H. Jaffe, Appellant, v. Warren Henderson, as Superintendent of the Monroe County Penitentiary, Respondent.
    (Submitted March 4, 1936;
    decided March 20, 1936.)

      Vincent J. Mulvey for appellant.

      Daniel J. O’Mara, District Attorney (Harry L. Rosenthal of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Benjamin Luft, Respondent, v. Edward T. Flove, as President of the Delicatessen and Restaurant Countermen and Cafeteria Employees’ Union Local 302, Appellant, Impleaded with Others.
    (Argued March 4, 1936;
    decided March 20, 1936.)

      Lawrence Kovalsky and David Goldstein for appellant.

      George A. Rosen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Title Guarantee and Trust Company, Respondent, v. Chambers Development Corporation et al., Defendants, and George E. Seaman, as Receiver, Appellant.
    (Argued March 5; 1936;
    decided March 20, 1936.)

      William, V. Hagendorn, Frederick W. Beyer and Bernard Schwartz for appellant.

      M. Edward Bernstein and Benjamin J. Rabin for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Patrick J. Kane, Jr., Appellant; John A. Biglin et al., Respondents. In the Matter of Patrick J. Kane, Jr., Appellant; Board of Elections of the City of New York et al., Respondents.
    (Argued March 20, 1936;
    decided March 20, 1936.)

      Sidney S. Levine for appellant.

      Paul Windels, Corporation Counsel (Seymour B. Quel, Paxton Blair and Russell Lord Tarbox of counsel), for the Board of Elections of the City of New York, respondent.

      Karl Propper and Samuel W. Phillips for John A. Biglin et al., respondents.
   In each proceeding, order affirmed; no opinion.

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


text:
    Guilio Santa Barbara et al., Respondents, v. Pasquale Avallone and Stefano Miele, Inc., et al., Defendants, and Stefano Miele, Appellant.
    (Submitted March 16, 1936;
    decided March 20, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 1.)


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, for an Order to Take Possession of the Property of The Title and Mortgage Guaranty Company of Sullivan County. Sullivan County Trust Company et al., Appellants; Prescott W. Townsend, Respondent.
    (Submitted March 16, 1936;
    decided March 20, 1936.)

      Frank H. Finn for motion.

      Ellsworth Baker opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the order is not final until the amount of the fund which can be distributed has been determined.


text:
    In the Matter of Bank of Manhattan Trust Company, as Administrator with the Will Annexed of the Estate of Helena Scheuemann, Deceased, Appellant, against Arthur J. W. Hilly, as Corporation Counsel of the City of New York. Paul Windels, Corporation Counsel, Respondent.
    (Submitted March 16, 1936;
    decided March 20, 1936.)

      Paul Windels, Corporation Counsel (Joseph F. Mulqueen, Jr., of counsel), for motion.
    No one 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. Benjamin Jaffe, Appellant.
    (Submitted March 16, 1936;
    decided March 20, 1936.)

      William Copeland Dodge, District Attorney (Ambrose J. Delehanty of counsel), for motions.
    No one opposed.
   Motions granted and appeals dismissed.


text:
    Gertrude B. Silverman, Appellant, v. Sterling National Bank and Trust Company of New York, Respondent.
    (Submitted March 19, 1936;
    decided March 20, 1936.)

      Mildred Claiborne Mebel for motion.

      Leslie Kirsch and Sydney W. Cable opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground an appeal may be taken as of right from the judgment.


text:
    Charles E. Moore, Appellant, v. Wendell P. Barker et al., Constituting the Mortgage Commission of the State of New York, et al., Respondents.
    (Argued January 30, 1936;
    decided April 14, 1936.)

      Richard H. Levet for appellant.

      Lawrence S. Greenbaum, Benjamin J. Rabin, Theodore S. Jaffin and Benjamin Kaplan for Mortgage Commission of the State of New York, respondent.

      Harry Rodwin and Jess H. Rosenberg for Louis H. Pink, as Superintendent of Insurance of the State of New York and as liquidator of Westchester Title and Trust Company, respondent.

      Timothy N. Pfeiffer for Title Guarantee and Trust Company, respondent.
   Judgment affirmed, with costs, on the authority of Wolff v. Mortgage Commission (270 N. Y. 428). No opinion.

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


text:
    Joseph P. Moran, Appellant, v. The City of New York et al., Respondents.
    (Argued March 2, 1936;
    decided April 14, 1936.)

      A. Spencer Feld for appellant.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri and Paxton Blair of counsel), for respondents.
   Order affirmed, with costs.

First question certified answered in the negative, and second question certified not answered. No opinion. (See Matter of Moran v. La Guardia, 270 N. Y. 450.)

Concur: Crane, Ch. J., Lehman, Hubbs and Finch, JJ. Dissenting: O’Brien, 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 Opening and Extending Northern Boulevard (Jackson Avenue-Broadway) in the Borough of Queens. Florence S. Barto et al., Respondents.
    (Argued March. 3, 1936;
    decided April 14, 1936.)

      Paul Windels, Corporation Counsel (Phillip W. Haberman, Jr., Paxton Blair and Reuben Levy of counsel), for appellant.

      Clinton T. Roe and Charles P. Kramer for Florence S. Barto et al., respondents.

      Abraham Daniels for Northprince Boulevard Holding Co., Inc., respondent.
   Order affirmed, with costs. The points raised on the appeal are not before us as not having been presented on the trial. No opinion.

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


text:
    In the Matter of Joseph H. Muller, Respondent, against Kate Jones, Appellant.
    (Submitted March 5, 1936;
    decided April 14, 1936.)

      Samuel W. Dorfman and Jacob R. Schiff for appellant.

      Henry Muller, Joseph H. Muller and Adolph Feldblum for respondent.
   Appeal dismissed, with costs, on the ground that the order appealed from is a discretionary order. No opinion.

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


text:
    George Schor, Appellant, v. New York Life Insurance Company, Respondent.
    (Submitted March 9, 1936;
    decided April 14, 1936.)

      Abraham B. Hertz, Nathan H. Herman and Harold Siegel for appellant.

      Kenneth DeF. Carpenter and Louis H. Cooke for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward B. Parker et al., Copartners Doing Business as Parker & Schwartz, Appellants, v. President and Directors of the Manhattan Company, Individually and as Trustee, et al., Respondents.
    (Argued March 9, 1936;
    decided April 14, 1936.)

      Julius Zizmor and Frank Zizmor for appellants.

      Hugh G. Bergen, Howard A. Rochford and Herman T. Stichman for President and Directors of the Manhattan Company, individually and as trustee, respondent.

      Sidney A. Clarkson for Realty Supply Corporation et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Walter S. Commerdinger, Sr., Appellant, against Thomas Vincent et al., Respondents.
    (Argued March 9, 1936;
    decided April 14, 1936.)

      Harry A. Davidow and Harold Ashare for appellant.

      S. Martin Adelman and Jacob M. Dinnes for Thomas Vincent, respondent.
    ,Guy 0. Walser and Henry Tasker for Board of Canvassers of Town of Smithtown, respondent.

      Edgar F. Haselton and Vahan H. Kalenderian for Board of Elections of County of Suffolk, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Samuel Richman and Charles Macnow,. Appellants.
    (Submitted March 9, 1936;
    decided April 14, 1936.)

      Abraham Reiss for appellants.

      William Copeland Dodge, District Attorney (LeRoy Mandle of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    William Robinson et al., Appellants, v. New York Central Railroad Company, Respondent.
    (Argued March. 9, 1936;
    decided April 14, 1936.)

      Arthur C. Minahan for appellants.

      Richard L. Wolf for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Pearl O. M. Goldberg, Respondent, v. Siegfried Mayer, Appellant.
    (Argued March 10, 1936;
    decided April 14, 1936.)

      H. Russell Winokur and William Winokur for appellant.

      Frederick E. Weinberg and Benedict A. Leerburger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Olshansky Brothers, Inc., Respondent, v. Samuel Schwartz et al., Appellants, and Philip Spina et al., Respondents, Impleaded with Another.
    (Argued March 10, 1936;
    decided April 14, 1936.)

      Meyer Kraushaar, Sylvan D. Freeman and Frank Montrose for appellants.

      Benedict S. Rosenfeld and Ora Copel for plaintiff, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Plaintiff, against Max Aaron et al., Defendants. James F. Bruce, Appellant and Respondent, and Rose Roth, Respondent and Appellant.
    (Argued March 10, 1936;
    decided April 14, 1936.)

      Ralph M. Ketcham and William F. Clare, Jr., for James F. Bruce, appellant and respondent.

      Herman M. Schaap for Rose Roth, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    Morris Talsky, Appellant, v. New York Life Insurance Company, Respondent.
    (Argued March 10, 1936;
    decided April 14, 1936.)

      Albert Hirst for appellant.

      Kenneth deF. Carpenter, Ferdinand H. Pease and Louis H. Cooke for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Isaac Monheit and Abraham Tissenbaum, Appellants.
    (Argued March 11, 1936;
    decided April 14, 1936.)

      Abraham S. Robinson, Meyer C. Solomon and Arthur G. Solomon for appellants.
    ■William Copeland Dodge, District Attorney (Ambrose J. Delehanty of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    In the Matter of Howard L. Pettit, Respondent, against Charles Dietter et al., Constituting the Board of Inspectors of Elections of the Town of Ellicottville, Appellants, Impleaded with Others.
    (Argued March 11, 1936;
    decided April 14, 1936.)

      Henry P. Nevins and Ernest C. Hornburg for appellants.

      James P. Quigley for respondent.
   Order affirmed; no opinion.

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


text:
    Mary E. Steinreich, Respondent, v. Kenneth P. Steinreich, Appellant.
    (Argued March 12, 1936;
    decided April 14, 1936.)

      Archibald R. Watson, J. Bertram Wegman and Jesse Climenko for appellant.

      Louis D. Frohlich and Nathan Burkan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Adelaide C. Moulthrop, Appellant, v. Schreier Contracting Co., Inc., Respondent.
    (Argued March 12, 1936;
    decided April 14, 1936.)

      Charles W. Strong for appellant.

      John J. Bennett, Jr., Attorney-General (James P. Cotter of counsel), for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Coral Gables, Inc., Appellant, v. Harry F. Mayer, Respondent.
    (Argued March 12, 1936;
    decided April 14, 1936.)

      Stephen B. Vreeland for appellant.

      Theodore J. Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rose Steindl, Appellant, v. John J. Cosgrove, Respondent.
    (Argued March 12, 1936;
    decided April 14, 1936.)

      Walter E. Warner and John R. Jones for appellant.

      John J. McGinty and Joseph C. Thomson for respondent.
   Judgment affirmed, with costs; no opinion.

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


author: Crane, Ch. J. Hubbs, J.

text:
    W. H. H. Chamberlin, Inc., Respondent and Appellant, v. Elmer F. Andrews, as Industrial Commissioner of the State of New York, et al., Appellants and Respondents. E. C. Stearns & Co., Respondent and Appellant, v. Elmer F. Andrews, as Industrial Commissioner of the State of New York, et al., Appellants and Respondents. Associated Industries of New York State, Inc., Respondent, v. The Department of Labor of the State of New York et al., Appellants.

      (Argued March 19, 1936;
    decided April 15, 1936.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for Elmer F. Andrews, as Industrial Commissioner of the State of New York, et al., defendants, appellants and respondents.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John C. Crary of counsel), for The Department of Labor of the State of New York et al., appellants.

      Henry S. Fraser and G. Everett De More for W. H. H. Chamberlin, Inc., et al., plaintiffs, respondents and appel-ants.

      A. S. Andrews, amicus curise.

      James McCormick Mitchell for Associated Industries of New York State, Inc., respondent.
   Crane, Ch. J.

The complaint in each of the actions herein asks for a declaratory judgment that the New York unemployment insurance law (Laws of 1935, ch. 468; Labor Law, art. 18; Cons. Laws, ch. 31) is unconstitutional under both the Federal and the State Constitutions.

The plaintiffs moved for judgment on the pleadings under rule 112 of the Rules of Civil Practice, and the court in the first two cases granted the motions to the extent of holding that subdivision 2 of section 504 of the statute violates section 6 of article I of the New York Constitution, and section 1 of the Fourteenth Amendment to the Federal Constitution. The court upheld the statute otherwise and granted judgment in favor of the defendants to that extent.

In a companion case, Associated Industries of New York State, Inc., v. Department of Labor et al., the Special Term, after issue joined, adjudged the said act to be unconstitutional and void in its entirety as depriving the plaintiff of its property without due process of law, and denying to it the equal protection of the law. These cases come directly to this court, pursuant to subdivision 3 of section 588 of the Civil Practice Act, a constitutional question being solely presented for review. We do not share the doubts expressed by these Special Terms.

The courts can take judicial notice of the fact that unemployment for the last five or six years has been a very acute problem for State and Federal government. There have always been from earliest times the poor and unfortunate whom the State has had to support by means of money raised by taxation. We have had our homes for the poor and the infirm, hospitals, infirmaries and many and various means for taking care of those who could not take care of themselves. The institutions housing our insane have grown to be an enormous expense, illustrating that the legality of the expenditure of public moneys for vast numbers of those who were without paeans of support or help has never been questioned.

Another problem has faced society which has been a source of study, discussion, agitation and planning. Unemployment, from whatever cause, has increased enormously in every part of the country, if not throughout the world. Is there any means possible to provide against unemployment, the loss of work, with its serious consequences to the family, to the children and to the public at large? When such a matter becomes general and affects the whole body politic, a situation has arisen which requires the exercise of the reserve power of the State, if there be a practical solution. Some have suggested that for the periodical recurrence of panics and hard times, 'the actuary might be able to work out a scheme of insurance. We need not pause to determine whether this can be done or not. The fact is that in the past few years enormous sums of State and Federal money have been spent to keep housed and alive the families of those out of work who could not get employment. Such help was absolutely necessary, and it would be a strange kind of government, in fact no government at all, which could not give help in such trouble.

The Legislature of the State, acting after investigation and study and upon the report of experts, has proposed what seems to it a better plan. Instead of solely taxing all the people directly it has passed a law whereby employers are taxed for the help of the unemployed, the sums thus paid being cast upon the public generally through the natural increase in the prices of commodities. Whether relief be under this new law of the Legislature or under the dole system the public at large pays the bill.

We may concede that much of -unemployment is due to other factors than business depression. Just what does cause slumps in business, panics and unemployment has never been satisfactorily explained, but a very large percentage of those who are out of work have lost their jobs or positions by reason of poor business conditions and hard times. I can see, therefore, nothing unreasonable or unconstitutional in the legislative act which seeks to meet the evils and dangers of unemployment in the future by raising a fund through taxation of employers generally.

This act in brief taxes a certain class of employers three per cent on their payrolls. This class of employer includes those who have employed at least four persons within each of thirteen or more calendar weeks in the year 1935, or any subsequent calendar year. The employment of farm labor, of one’s spouse or minor child, or employment in certain charities are excluded.

Unequal protection of the laws and unfair classification are charged against this act because employers who have had no unemployment are obliged to contribute to a fund to help those who have lost positions in failing or bankrupt businesses; also because the line is drawn at four employees instead of including all and any employer. We do not think that this narrow view is required by any constitutional provision. People have to live and when they cannot support themselves someone has to look after them. When able-bodied, willing men cannot find work they may be treated as a class, irrespective of their particular calling or trade. The peril" to the State arises from unemployment generally not from any particular class of workers. So likewise, employers generally are not so unrelated to the unemployment problem as to make a moderate tax upon their payrolls unreasonable or arbitrary. As stated before, unemployment and business conditions generally are to a large extent linked together. Keasonable classification has been explained in Truax v. Corrigan (257 U. S. 312, p. 337). Quoting from Southern Ry. Co. v. Greene (216 U. S. 400, 417), the court said: “ While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and classification cannot be arbitrarily made without any substantial basis.”

That the purpose of this law is to help those who have worked when they could get work- — -the working class at present out of work — is apparent from the limitation to the benefits. Section 503 of the act reads as follows:

“ Liability for payment of benefits. 1. Benefits shall be paid from the fund to each unemployed employee entitled thereto.
2. Benefits shall become payable two years from the date on which contributions by employers become payable under this article.
“ 3. No employee shall be entitled to any benefits unless he
“ (a) is suffering total unemployment as defined in this article; and
“ (b) has, as provided in this article, registered as totally unemployed and reported for work or otherwise given notice of the continuance of his unemployment; and
“ (c) has had not less than ninety days of employment as defined in this article within the twelve months preceding the day on which benefits are to commence, or (in the alternative) unless he has had not less than one hundred and thirty days of employment during the twenty-four months preceding the day on which benefits are to commence; and
“ (d) in no case shall the fund be liable to pay benefits to an employee for any unemployment occurring more than twelve months after the date on which such employee was in employment, and in no case in which the claim for benefit has not been filed in the local state employment office as provided in section five hundred and ten, subdivision three, within two years of the last day of employment preceding the period for which such claim is made.
“ (e) The fund shall pay benefits to employees in the ratio of one week of benefit for each fifteen days of employment within the fifty-two weeks preceding the beginning of the payment of benefits.”

Further limitations are found in the sections following:

§ 504. Waiting period. 1. An employee shall be entitled to benefits on account of unemployment which continues subsequent to a waiting period of three weeks after notification of unemployment: Provided that not more than five weeks of unemployment for which no benefit is paid shall be required as a waiting period within any calendar year (except as otherwise provided under subdivision two of this section). No week of unemployment shall count as a waiting period in any case except weeks of unemployment as to which notification of unemployment has been given.
“2. An employee shall not be entitled to benefits except for unemployment which continues subsequent to a waiting period of ten weeks:
“ (a) if he has lost his employment through misconduct in connection with his employment; or
“ (b) if he has lost his employment because of a strike, lockout or other industrial controversy in the establishment in which he was employed.
§ 505. Amount of benefits. 1. Benefits shall be payable on account of total unemployment after the specified waiting period at the rate of fifty per centum of the employee’s full-time weekly wages, but not to exceed a maximum of fifteen dollars per week, nor to be less than a minimum of five dollars per week. * * *
“ § 506. Disqualification for benefits. 1. No benefits shall be payable to any employee who refuses to accept an offer of employment for which he is reasonably fittéd by training and experience, including employments not subject to this article; provided, however, that no employee otherwise qualified to receive benefits shall lose the right to benefits by reason of a refusal to accept employment if
(a) acceptance of such employment would either require the employee to join a company union or would interfere with his joining or retaining membership in any labor organization; or
(b) there is a strike, lockout or other industrial controversy in the establishment in which the employment is offered; or
“ (c) the employment is either not within the state or at an unreasonable distance from his' residence, or travel to and from the place of employment involves expense substantially greater than that required in his former employment unless the expense be provided for; or
“ (d) the wages, hours and conditions offered are substantially less favorable to the employee than those prevailing for similar work in the locality, or are such as tend to depress wages or working conditions.
§ 507. Limitation of amount of benefits. The total amount of benefits to which an employee shall be entitled in any consecutive fifty-two weeks shall not exceed sixteen times his benefit for one week of total unemployment. ’ ’

Seasonal occupations are to be provided for by rules and regulations after further investigation.

What shall we say about this act? At least it is an attempt to solve a great and pressing problem in government. We have had such problems thrust upon our attention arising out of emergencies such as the rent laws (People ex rel. Durham. Realty Corp. v. La Fetra, 230 N. Y. 429), the housing laws (Adler v. Deegan, 251 N. Y. 467), and the milk laws (People v. Nebbia, 262 N. Y. 259). The Legislature seeks to meet the future now without waiting for the emergency to arise. Can it do so? Unless there is something radically wrong, striking at the very fundamentals of constitutional government, courts should not interfere with these attempts in the exercise of the reserve power of the State to meet dangers which threaten the entire common weal and affect every home. No large body of men and women can be without work and the body politic be healthy.

The fund, known as the Unemployment Insurance Fund, created under this law, is to be deposited in or invested in the obligations of the unemployment trust fund of the United States government. This is merely a form of security, the moneys never leaving the power or control of the State authorities. Whether we consider such legislation as we have here a tax measure or an exercise of the police power seems to me to be immaterial. Power in the State must exist to meet such situations, and it can only be met by raising funds to tide over the unemployment period. Money must be obtained and it does not seem at all arbitrary to confine the tax to a business and employment out of which the difficulty principally arises.

It is said thgyt this is taxation for the benefit of a special class, not the public at large, and thus the purpose is essentially private. The Legislature, after investigation, has found the facts to be that those who are to receive benefits under the act are the ones most likely to be out of employment in times of depression. The courts cannot investigate these facts and should not attempt to do so. The briefs submitted show that the classification or selection made by the Legislature has followed investigation and has sought to reach the weakest spot. Experience may show this to be a mistake. No law can act with certainty; it measures reasonable probabilities. Judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question whether it so lacks any reasonable basis as to be arbitrary. (Standard Oil Co. v. Marysville, 279 U. S. 582, 586, 587.)” (Mr. Justice Roberts in Borden's Farm Products Co. v. Ten Eyck, 297 U. S. 251, 263.)

Fault is also found, perhaps with some justification, with the benefit allowed, after a period of ten weeks’ idleness, to those who have been discharged or left because of strikes. Here again the Legislature must exercise its judgment, and a full scheme or plan cannot be condemned because the courts may not approve of certain details.

So too, the right to refuse other work of a certain kind when offered has come in for criticism. There may be a diversity of views as to the wisdom of these provisions, but again, these are not matters for the courts to consider unless they become so extreme as to become arbitrary.

Whether or not the Legislature should pass such a law or whether it will afford the remedy or the relief predicted for it, is a matter for fair argument but not for argument in a court of law. Here we are dealing simply with the power of the Legislature to meet a growing danger and peril to a large number of our fellow citizens, and we can find nothing in the act itself which is so arbitrary or unreasonable as to show that it deprives any employer of his property without due process of law or denies to him the equal protection of the laws.

I am of the opinion that the decision in Railroad Retirement Board v. Alton A. A. Co. (295 U. S. 330) is not applicable here. The- Railroad Retirement Act of June 27, 1934, held to be unconstitutional, related to the pensioning of a certain class of employees. It could not be sustained as a police regulation or within the police power as no such power exists in the Federal government and the act failed to come within the field of interstate commerce as stated in the opinion. Even the police power of the State might fall far short of enabling the Legislatures of the States to provide for pensioning employees in favored industries or employment.

In the first two above-entitled actions, the judgments in so far as appealed from by the plaintiffs should be affirmed, without costs; and the judgments in so far as appealed from by the defendants should be reversed, without costs, and plaintiffs’motions for judgment on the pleadings denied, without costs, and final judgment ordered herein in favor of defendants and against the plaintiffs dismissing the complaints herein upon the merits, without costs, and adjudging and declaring that as to the plaintiffs chapter 468 of the Laws of 1935 of the State of New York does not in any respect violate section 6 of article I of the Constitution of the State of New York and does not in any respect violate section 1 of the Fourteenth Amendment to the Constitution of the United States and does not violate any other provision of the Constitution of the State of New York and does not violate any other provision of the Constitution of the United States.

A question under the Federal Constitution was presented and necessarily passed upon by this court. The plaintiffs contended that chapter 468 of the Laws of 1935 of the State of New York is repugnant to section 1 of the Fourteenth Amendment to the Constitution of the United States. This court held the aforesaid law of the State of New York is not repugnant to section 1 of said Fourteenth Amendment to the Constitution of the United States.

In the third above-entitled action, the judgment should be reversed and the complaint dismissed, without costs, and motion for judgment on the pleadings denied, without costs.

A question under the Federal Constitution was presented and necessarily passed upon by this court. It was contended by the plaintiff that chapter 468 of the Laws cf 1935 of the State of New York is repugnant to section 1 of the Fourteenth Amendment to the Constitution of the United States. This court held the aforesaid law of the State of New York is not repugnant to section 1 of the Fourteenth Amendment to the Constitution of the United States.

Hubbs, J.

(dissenting). It is asserted by the defendants that unemployment is a matter of public concern and that a system of insurance to relieve its burdens tends to promote the public welfare and that it is within the reserved police power of the State to enact statutes to accomplish that end. Based on that premise the defendants contend that the LNew York Unemployment Insurance Law (Laws of 1935, ch. 468) is constitutional in all its parts. The statute covers employers and employees in every kind of industry excepting six classes: (a) Agricultural employments; (b) family relationship; (c) religious, charitable and educational work; (d) non-manual or white collar occupations where the salary or wage is over fifty dollars per week; (e) employment by the State or governmental subdivisions; (f) employers employing less than four persons. The statute excludes from its operation all unemployed employees belonging to a class, other than manual laborers, employed at a rate of wages of more than twenty-five hundred dollars ajyear or more than fifty dollars .a week.

All employers must pay annually three per cent of the total annual payroll of those entitled to benefits to a State fund called the unemployment insurance fund, the payment for 1936 to be one per cent; for 1937, two per cent, and thereafter three per cent annually, the entire fund to consist of such payments.

Benefits from the fund thus established can only be paid to one who has first established total loss of employment as defined in the statute and who has been employed for a specified period in the year or two years just preceding his unemployment. The amount of benefits from the fund and their duration are limited to fifty per cent of the prior wage but not less than five dollars a week nor more than fifteen dollars per week and for not longer than sixteen weeks. A waiting period of three weeks must intervene between the filing of a notice of unemployment and the commencement of benefits.

In cases of discharge for misconduct or on account of strikes or industrial disputes the waiting period is ten weeks. An unemployed person who refuses employment loses his right to benefits provided the offered employment is not objectionable on the specific grounds specified in the statute. Contributions from all employers covered by the statute are pooled by deposit in one fund. Administration is by the Industrial Commissioner with an advisory council. The Commissioner is to set up local offices throughout the State to act as agencies for employment and for the distribution of benefits. Such in a general way is the plan which it is contended by the defendants will promote public welfare and prosperity.

It is well to have in mind some of the things which the statute was not enacted to accomplish. The statute is not limited in its application to involuntary unemployment. One who voluntarily leaves employment or is discharged for valid cause may still be entitled to benefits.

The statute deals entirely with the effect of unemployment. It contains no provisions to prevent or limit its spread. It provides benefits for a defined class of unemployed employees. It does not deal with the causes of unemployment or cause more employment except it creates more offices which must be filled.

Neither the State nor employees contribute to the fund. A merit rating system under which an employer contributes to the fund with reference to unemployment in his business is not provided for as in all other statutes on the subject enacted by other States. One in whose business there is no unemployment pays into the fund on the same basis as one in whose business there exists an unusually large proportion of unemployment.

Benefits are not based upon need of financial assistance. One with an assured income is entitled to the same benefits as one without any income at all. The statute also permits the payment of benefits to one who quits a job without excuse or justification; to one discharged for misconduct; to one who went out on a strike; to one wrongfully discharged who may have a valid cause of action to recover damages for such wrongful discharge; to one to whom employment is available if such employment falls within the exceptions specified in the statute. The statute also requires payments into the fund by the employer of four or more persons in cases where the employers have no business whatever as in the case of domestic servants.

Broadly, the defendants contend that the statute will have the effect of alleviating the evils of unemployment, promote industrial security and the general welfare. To sustain such contention the defendants have submitted to the court charts, documents and extra judicial opinions tending to sustain such contention. The plaintiffs have also submitted literature of like nature, tending to establish exactly the opposite contention. Interesting as such literature is, I suppose it is only competent as tending to establish the fact that reasonable persons may entertain different views and that, therefore, the question was one for the determination of the Legislature and not for the courts. See opinion of Justice Holmes in Adkins v. Children’s Hospital, 261 U. S. 525, 570, 571, also opinion of Justice Sutherland at pp. 559, 560.

There can be no doubt about the general principles which govern courts in passing upon the constitutionality of statutes which depend upon the existence of facts which have been investigated by the Legislature. There always exists a presumption in favor of the findings of the Legislature and the validity of its acts. Courts must, however, be able to discern that there is a reasonable basis for the Legislature’s findings and that its action has a real and substantial relation to the public welfare. (Jacobson v. Massachusetts, 197 U. S. 11; O’Gorman and Young, Inc., v. Hartford Fire Ins. Co., 282 U. S. 251.)

While the plaintiffs question the constitutionality of various separate provisions of the statute, their principal contention strikes at the very heart of the act and asserts that the act is unconstitutional as a whole because it constitutes a violation of section 1 of the Fourteenth Amendment of the Constitution of the United States which provides that no State shall “ deprive any person of life, liberty, or property, without due process of law nor deny to any person the equal protection of the laws. Also that it violates section 6 of article 1 of the State Constitution which provides that no person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.”

The court below (Special Term, Albany county) in the action brought by the Associated Industries of New York State, Inc., sustained the plaintiff’s contention upon those broad grounds; in the actions brought by W. H. . H. Chamberlin, Inc., and E. C. Stearns & Co. the court below (Special Term, Onondaga county) sustained _ the plaintiffs’ contention to the extent of invalidating the statute in so far as benefits are made payable thereby to employees discharged for misconduct or unemployed due to a strike, lock-out or other industrial controversy, but upheld the statute otherwise. The questions presented are whether the statute deprives plaintiffs of their property without due process of law, whether it denies to plaintiffs the equal protection of the laws, whether it deprives plaintiffs of their liberty of contract without due process of law and whether it takes plaintiffs’ property for public use without just compensation.

If the statute violates the constitutional provisions in either respect, it cannot be sustained no matter how persuasive the arguments may be that it promotes the public welfare, and is, therefore, within the police power. First the constitution ap.d then the police power ” is the test that courts are required to apply.

If the United States Supreme Court has in principle decided the questions involved we should follow such decision without regard to our personal views. (People ex rel. Tipaldo v. Morehead, 270 N. Y. 233.)

The statute contains a declaration of the policy of the State which is declared to be that economic insecurity due to unemployment is a serious menace to the health, welfare and morals of the people of this state;” also involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the .legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family” (§ 500).

The statute, however, is not limited in its application to involuntary unemployment and it does not contain any provision which tends to prevent its spread. It is limited to the effects of unemployment and provides benefits for a limited class of unemployed employees.

It does not by its provisions tend to prevent unemployment or to bring about greater employment. In fact, it is urged by plaintiffs that the effect of the statute will necessarily be to increase unemployment because those employing four persons will get along with the assistance of three so as to avoid the necessity of contributing to the fund and that all employers subject to the statute will reduce the number of employees and the amount of the payroll as much as possible and thereby keep the amount of contributions to the fund as low as possible.

The statute recites that “ the well-being of the wage earners of this state require (s) the enactment of this measure for the compulsory setting aside of financial reserves for the benefit of persons unemployed through no fault of their own” (§ 500). Nevertheless, the statute provides for benefits to those who may be unemployed through their own fault.

Concededly, the act does not purport to have been ínacted for the benefit of the wage earners of the State as a whole but its benefits are limited to a certain class of unemployed wage earners. Those not included in the act under the operation of well-settled economic laws will be injuriously affected as employers will, as far as possible, add the three per cent of the Wage roll which they are compelled to pay into the fund to the selling price of goods or services and a portion of tlie increased cost will be borne by the wage earners not covered by the act.

The three per cent of the payroll which every employer is required to pay into the fund is not paid for the benefit of his own unemployed employees only. He may not have any unemployed employees and his entire contributions to the fund may be used for the unemployed employees of others even though such unemployed employees are not in need of financial assistance. It is, therefore, urged that general welfare cannot be promoted by the act; that only the limited class entitled to share in the fund are benefited, but that even though there is some benefit to the general public, it is indirect. Finally, it is urged that there is no way that unemployment may be lessened or benefited by placing increased burdens on employers. It is pointed out that under the act the employer who employs the most help and pays the highest wages and contributes most to the welfare of wage earners is penalized by being required to pay most into the fund.

It seems clear that the statute cannot be sustained as a tax law. The statute does not levy or assess a tax. It is a part of the Labor Law and it prescribes penalties contrary to the provisions of the Tax Law (Cons. Laws, ch. 60) making it a misdemeaner for an employer willfully to refuse to pay three per cent of his payroll into the fund. “A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the purpose of the Government. The word has never been thought to connote the expropriation of money from one group for the benefit of another.” (United States v. Butler, 297 U. S. 1.)

If the statute is to be sustained, it must be because it is deemed to be within the police power of the State. That power, however, is limited by the Constitution and it has always been held that the Legislature could not, under the guise of the police power, enact a valid law the effect of which would be to take the property of one class and give it to another class. (Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555, 601; Lake Shore & Michigan Southern Ry. Co. v. Smith, 173 U. S. 684; Railroad Retirement Board v. Alton R. R. Co., 295 U. S. 330.)

The statute clearly indicates that the purpose of the Legislature was not the relief of the poor and needy but the benefit of a limited class of employees temporarily out of work.

The benefit to the general public, if any, would be indirect and incidental. Such benefit does not make the statute one for the general welfare.

I am unable to distinguish this case from the principle decided in the case of Railroad Retirement Board v. Alton R. R. Co. (supra) which decided that the act of Congress was in conflict with the due process clause of the Fifth Amendment which is the same as the due process clause of the Fourteenth Amendment applicable to State legislation. (Nebbia v. New York, 291 U. S. 502, 525.)

The decision in that case was placed upon two grounds: First, as above stated, and, second, upon the ground that the statute did not constitute a regulation of interstate commerce. The decision on the first ground is as binding upon this court as the decision upon the second ground. I agree with Justice Russell, who presided at Special Term in the action brought by Associated Industries of New York State, Inc., that the principle decided is applicable and controlling in this case. The provisions of the Federal act and the statute here involved are very similar. The Federal act provides for compulsory contributions by railroads to a fund to be distributed as pensions to retired employees, the fund to be a single pooled fund, the fund to be made up of contributions of employers and employees. All interstate carriers are treated as a single employer and all employees as employees of a single employer; the benefits under the fund to be at a given rate; the contributions of individual carriers to the fund to be at a disparate rate. The Federal act applies only to interstate carriers subject to Federal regulation. It requires each carrier to contribute a fixed amount annually without regard to the number of employees who become superannuated and, therefore, entitled to the benefits of the fund. It provides that former employees no longer in the service who may have been discharged for cause shall be entitled to the benefits. It also provides that an employee shah be entitled to benefits without regard to his need for financial assistance. It will be observed that those provisions are in substance contained in the statute here in question. Mr. Justice Roberts, writing the opinion for a majority of the court, said: “ It is arbitrary in the last degree to place upon the carriers the burden of gratuities to thousands who have been unfaithful and for that cause have been separated from the service, or who have elected to pursue some other calling, or who have retired from the business, or have been for other reasons lawfully dismissed. * * * Certain general features of the system violate the fifth amendment. . Under the statutory plan the draft upon the pension fund will be at a given rate, while the contributions of individual carriers to build up the fund will be at a disparate rate. This results from the underlying theory of the act, which is that all the railroads shall be treated as a single employer. * * * There is no warrant for taking the property or money of one and transferring it to another without compensation, whether the object of the transfer be to build up the equipment of the transferee or to pension its employees. * * * We conclude that the provisions of the act which disregard the private and separate ownership of the several respondents, treat them all as a single employer, and pool all their assets regardless of their individual obligations and the varying conditions found in their respective enterprises, cannot be justified as consistent with due process.” (Railroad Retirement Board v. Alton R. R. Co., supra, pp. 349, 355, 357, 360.)

The opinion also points out that the act is intended to furnish assurance of payments of pensions to employees of all the carriers so that solvent railroads are required to furnish the money necessary to meet the demands of the system upon insolvent carriers. The effect of the decision is to hold that the act is invalid because in conflict with the due process clause of the Fifth Amendment.

The defendants rely largely on the cases involving workmen’s compensation statutes to sustain the validity of the present act. I think those cases have no application. They are distinguished in the opinion of Justice Roberts, who also distinguishes the case of Dayton-Goose Creek Ry. Co. v. United States (263 U. S. 456) and Noble State Bank v. Haskell (219 U. S. 104).

The head money case (Edye v. Robertson, 112 U. S. 580) involved the regulation of foreign commerce involved in immigration, a subject of regulation by the Federal government. The sheep-dog cases are based upon the nature of the animals which makes it legal to regulate and limit their keeping and to encourage the raising of sheep. (Longyear v. Buck, 83 Mich. 236; Nicchia v. People, 254 U. S. 228, 230, 231.)

The case of Cooley v. Board of Wardens (12 How. [U. S.] 299) was decided upon the principle that the purpose of the statute was the regulation of navigation in the interest of public safety. The principles involved in those cases are not applicable in this case.

The tax or contribution is not against industry or employers. It is against a certain class of individuals and corporations who are engaged in employing wage earners. The term industry ” is a mere concept. The burden is placed not upon industry but on those of a certain class who are engaged in industry and upon others not so engaged. It is placed not alone upon those who have unemployed wage earners but also upon those who have no unemployed workers. No one questions the obligation and duty of the State. That question is not involved. The question here involved is whether the State may place that burden upon a certain class of. individuals and corporations for the benefit of another class for whose condition they are in no way responsible.

If the statute is unconstitutional in its main features, no part of the act can be sustained. We cannot rewrite the statute.

So much of the judgments as were appealed from by W. H. H. Chamberlin, Inc., and E. C. Stearns & Co. should be reversed, without costs, and so much of the said judgments as were appealed from by the defendants therein should be affirmed, without costs, and the plaintiff’s motions for judgment on the pleadings granted, without costs. The judgment in the action brought by Associated Industries of New York State, Inc., should be affirmed, without costs and its motion for judgment on the pleadings granted, without costs.

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

Judgment accordingly.


author: ■ Hubbs, J.

text:
    The People of the State of New York, Respondent, v. Louis Lazar, Appellant.
    (Argued March 16, 1936;
    decided April 15, 1936.)

      David F. Price and Joseph Weissman for appellant.

      William F. X. Geoghan, District Attorney {Henry J. Walsh of counsel), for respondent.
   ■ Hubbs, J.

In the indictment the appellant is charged with the crime of murder in the first degree in the following language: The defendant on August 12, 1933, in the County of Kings, wilfully, feloniously and of malice aforethought, shot and killed Morris Saskowitz, with a revolver.”

The appellant made a written confession which was received in evidence in which he stated that in an attempt to compel the deceased to pay a claim, he assaulted the deceased by striking him on the head with the butt of a revolver. The deceased seized a shovel with which to defend himself and in the affray the appellant shot the deceased without premeditation or deliberation; that he did not intend to shoot deceased when he assaulted him.

The case was submitted to the jury by the county judge upon two theories. The jury was told that it could find the defendant guilty of murder in the first degree if it found that he shot the deceased after deliberation and premeditation. It was also instructed that it could find him guilty of murder in the first degree if it found that he shot the deceased while engaged in committing a felony, i. e., an assault in the second degree upon the deceased even though without premeditation, without deliberation, without the intent to effect death.”

The first ground submitted was fully justified by the evidence. The second ground submitted was entirely without justification in law and directly contrary to numerous decisions of this court. It is difficult to understand why trial judges in criminal cases continue to make the serious error disclosed by the record in this case in view of the fact that it has been repeatedly pointed out that such a charge absolutely requires a reversal of a conviction.

The record discloses that a clear question of fact was presented and that the finding of the jury would have been fully justified were it not for the serious error of the trial judge in charging upon the question of felony murder. In that part of the charge the court instructed the jury that if the appellant assaulted the deceased and during the affray he fired the shot which killed the deceased, he was guilty of murder in the first degree even though he had not fired the shot with a deliberate and premeditated design to kill. That is not the law of this State as evidenced by repeated decisions of this court. (People v. Hüter, 184 N. Y. 237; People v. Spohr, 206 N. Y. 516; People v. Van Norman, 231 N. Y. 454; People v. Koerber, 244 N. Y. 147; People v. Wagner, 245 N. Y. 143; People v. Moran, 246 N. Y. 100; People v. Grieco, 266 N. Y. 48.)

Not every intentional killing by means of a dangerous weapon constitutes the crime of murder in the first degree. Deliberation and premeditation are necessary elements of the crime except in those cases where the defendant is engaged at the time in the commission of an independent felony.

In the case of People v. Hüter (supra, p. 244) it was said: “In order, therefore, to constitute murder in the first degree by the unintentional killing of another while engaged in the commission of a felony, we think that while the violence may constitute a part of the homicide, yet the other elements constituting the felony in which he is engaged must be so distinct from that of the homicide as not to be an ingredient of the homicide, indictable therewith or convictable thereunder.”

In the case at bar the jury might have found that the defendant while engaged in an assault in- the second degree, killed the deceased without deliberation and premeditation. If so the act becomes a constituent part of the homicide and is merged in the charge therefor.” (People v. Hüter, supra.)

The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e. g., robbery or larceny or burglary or rape.” (People v. Moran, supra, p. 102.)

We are unable to determine from the record before us on what ground the jury found the defendant guilty. It may have decided that the shot was fired without deliberation and premeditation but that the defendant was guilty nevertheless of murder in the first degree because he was engaged in the commission of a felony, ■ e. g., assault in the second degree. On the other hand, it is possible that the jury decided that the shot was fired with intent to effect death after deliberation and premeditation.

The case was submitted to the jury on two distinct theories, one of which was basically wrong. We cannot speculate as to which theory it adopted. A person charged with the crime of murder has the absolute right to be tried in conformity with law.

The judgment of conviction should be reversed and a new trial ordered.

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

Judgment of conviction reversed, etc.


author: Lotjghran, J.

text:
    Morris Barth, Individually and on Behalf of Others, Respondent, v. The Addie Co., Inc., Appellant, and Harry Sherman, as President of Moving Picture Machine Operators Union of Greater New York, Local No. 306 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Respondent.

      (Argued March 16, 1936;
    decided April 15, 1936.)

      Melvin A. Albert and Milton C. Weisman for appellant.

      Henry H. Silverman for plaintiff, respondent.

      Samuel M. Birnbaum and Copal Mintz for defendant-respondent.
   Lotjghran, J.

Plaintiff was a member of a union of moving picture machine operators in the city of New York. Defendant, an owner of motion picture theatres in that city, made a contract with the union for the exclusive employment of its members as moving picture machine operators for the year beginning September 1, 1933. On that date the plaintiff and five other members of the union became employed by the defendant under the contract, each at a weekly wage thereby fixed.

On September 3,1933, the defendant, without notice to any one, undertook to reduce the wage schedules established by the contract. Against their protest, the six union employees were paid thenceforth at lower rates so declared.

On January 26, 1934, the plaintiff brought this action, alleging the breach by the defendant of its contract with the union and praying injunctive relief and damages/, -On February 14, 1934, he received a written notice in which it was stated that after two weeks his services would not be required by the defendant. Still protesting the decrease in his pay, he continued to work until March 4, 1934. He was then discharged by the defendant without cause. Two days later the union put another man in his place.

Meantime and on February 8, 1934, the union had been granted leave to intervene as a party defendant in this action. It alleged that each of the five of its members employed with the plaintiff under the contract had been paid by the defendant less than the stipulated weekly wage in breach, of the agreement, and, in their behalf, it demanded damages accordingly in addition to the same equitable relief sought by the plaintiff.

On February 11,1935, the trial court rendered judgment for the plaintiff and for the union. On appeal by the defendant, the Appellate Division affirmed the judgment in so far as it awarded damages against the defendant, the matter of other relief having at that stage become academic (246 App. Div. 618). This appeal by the defendant was taken by permission of this court.

For the period up to his discharge, the plaintiff recovered the difference between what he was paid and his wage as fixed by the contract ($360.89). This was right. For the balance of the contract term (26 weeks) he recovered his contract wage ($52.65 per week) in the sum of $1,368.90. This, in his case, was error.

The contract made this provision: “ The party of the first part [defendant] shall not discharge any member of the party of the second part [the union] whose salary is payable weekly, unless the party of the first part shall, two weeks prior to such discharge, give to the party of the second part notice in writing of such intention to so discharge such employee; except that any employee may be discharged at any time by paying to him, in advance, two weeks’ salary.” Nothing was paid to the plaintiff in accordance with this stipulation and we assume that he was discharged without the prescribed notice to the union. Even so, we think the words that have been quoted plainly said that any loss to the plaintiff consequent upon his being discharged was to be liquidated at the money equivalent of what he would have earned under the contract in the next two weeks. (See Watson v. Russell, 149 N. Y. 388; Worth v. Liebovitz, 179 N. Y. 200, 204; 2 Labatt on Master and Servant [2d ed.], §§ 473, 477.) The amount of the recovery by the plaintiff should, therefore, be reduced to $466.19, with interest, costs and disbursements.

We have not overlooked the fact that this action was begun before the plaintiff was discharged. It is hard to see how that circumstance could add to the value of the contract to the plaintiff or diminish a privilege reserved by the contract to the defendant.

The case of the union stands differently. None of the members for whom it intervened was discharged by the defendant during the contract term. Each of them was properly allowed the difference between what the defendant paid to him and what he should have received under the contract.

The judgment should be modified in accordance with this opinion and as so modified affirmed, with costs to the intervener-respondent against the defendant-appellant, and with costs to the defendant-appellant against the plaintiff in this court and in the Appellate Division. (See 271 N. Y. 615.)

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

Judgment accordingly.