author: Lewis, J.

text:
    The People of the State of New York, Respondent, v. Dominick Taddio, Appellant.
    Argued 2, 1944;
    decided May 25, 1944.

      Peter F. Qulotta for appellant.
    The People failed to prove its case beyond a reasonable doubt,

      Farrell M. Kane, District Attorney (Joseph A. McKinney of counsel), for respondent.
    I. The defendant committed the crime. II. The facts, circumstances and the inferences which naturally flow therefrom, prove defendant guilty beyond a reasonable doubt. (People v. Weiss, 290 N. Y. 160; Greenfield v. People of the State of N. Y., 85 N. Y. 75; People v. Willett, 213 N. Y. 368; The People v. Conroy, 97 N. Y. 62; People v. Place, 157 N. Y. 584.)
   Lewis, J.

The dead body of Mary Rycoitch was found at nine o’clock on the morning of December 29, 1942, lying in a field west of an unpaved lane which leads southerly from Bloomfield Avenue in the Borough of Richmond, New York City. The decedent had suffered three wounds. On the right side of the skull was a fracture so extensive as to cause a large blood clot within the brain cavity; on the left side of the neck were two deep lacerations. Two days later the defendant was arrested and now stands convicted of murder in the first degree under an indictment which charged that on or about December 28, 1942, a lane off Bloomfield Avenue ” he wilfully, feloni-ously and of malice -aforethought, struck and killed one Mary Rycoitch with a certain instrument, the nature of which * * * is unknown * *

Concededly the defendant’s conviction rests upon circumstantial evidence — a process of decision by which a court or jury may reason from circumstances which are known or proved, to establish by inference the reality of the principal fact. If in a criminal case circumstantial evidence is to be given legal effect the facts from which the inference of guilt is drawn must themselves be proved, not assumed; the controlling inference must be clear and strong, pointing logically to defendant’s guilt and excluding to a moral certainty every other reasonable hypothesis. (The People v. Kennedy, 32 N. Y. 141, 145, 146; People v. Harris, 136 N. Y. 423, 429; People v. Fitzgerald, 156 N. Y. 253, 258; People v. Razezicz, 206 N. Y. 249, 269, 270; People v. Galbo, 218 N. Y. 283, 293, 294; People v. Lewis, 275 N. Y. 33, 39; People v. Suffern, 267 N. Y. 115, 127; People v. Weiss, 290 N. Y. 160, 163; People v. May, 290 N. Y. 369, 373.) We apply that test to the record at hand.

There is no evidence that the decedent had more than a slight acquaintance with the defendant which was gained from the following circumstances. At the time of her death the decedent was nineteen years of age and lived with her family at Mariners Harbor, Staten Island, N. T. Por a period of months, in company with a young woman — a neighbor who was called by the People as a witness at the trial — the decedent had crossed by ferry from Staten Island to Elizabeth, New Jersey, where they were both employed. Ordinarily they reached the ferry by a bus route which passed near their homes. However, there were occasions when, while standing at a bus-stop awaiting transportation, they accepted invitations to ride with automobile drivers who were crossing by ferry to New Jersey. Within the month preceding the decedent’s death the young women rode at least eight times with a neighbor with whom they had a prior acquaintance. They also rode approximately fifteen times with the defendant with whom they had no prior acquaintance. On each occasion when they were in the defendant’s car en route to the ferry and during the crossing to New Jersey they occupied the rear seat until the ferry reached its New Jersey terminus where they left the'defendant’s car and he proceeded on his way alone. The evidence is undisputed that during those rides the defendant was “ respectful ” and made no remark which could be considered as ‘ improper. ’ ’ The last occasion when it is known that the decedent rode in the defendant’s car was on the morning of December 24, 1942.

There is no direct proof that the defendant ever saw Mary Kycoitch after the morning ride of that date. The record is silent as to what occurred in her life during the days which followed until the evening of December 27th which she spent in the company of friends and returned to her home about two o’clock in the morning of Monday, December 28th. Pour hours later — shortly before six o’clock in the morning of the day when the People claim she met her death — the decedent was awakened by her father who gave her breakfast and prepared two sandwiches for her lunch. She left her home as usual at about 6:15 a. m. but promptly returned to ask for a newspaper to serve as protection against the rain. Eesponsive to this request her father gave her a copy of the Staten Island Advance which he took “ out of the pile ” without noticing its date. She then bade him good-bye and left the house — that being the last time her father saw her alive.

There is no direct evidence of what befell the decedent after she left her home at that early hour. As a result of an autopsy the coroner’s physician was unable to fix the time of her death more definitely than at some hour between 5 a. and noon of December 28th. The place where her death occurred was not the subject of direct evidence. When her body was discovered on the morning of Tuesday, December 29th, there were found between wheel ruts in the lane twenty feet away, a pocketbook, a purse and a small compact. The two sandwiches which her father had prepared for her on the previous Monday morning were on the ground near her body, a single bite having been taken from one sandwich. Although her clothes were disarranged to an extent the autopsy disclosed that she was a virgin, and revealed no evidence that she had been the subject of assault incidental to a sex crime. The coroner’s physician was permitted to give it as his opinion that the skull fracture had been caused by a dull instrument which might ” have been a hammer and that the two neck wounds, which he described as insufficient to cause death, could ” have been caused by a pair of scissors.

Such, in brief outline, is the evidence which relates to the decedent’s death which the People charge was homicidal, committed deliberately and with premeditation by the defendant.

The theory of the prosecution was that on the morning of the day when the decedent was killed she had entered the defendant’s car, as she had done on prior occasions, expecting to be taken directly to the ferry and thence to Elizabeth, N. J.; that instead of following the usual route to the ferry the defendant drove to the lane leading southerly from Bloomfield Avenue; that improper advances were there made to the decedent which she resisted and in doing so escaped from the car; that she was overtaken by the defendant who, after stabbing her with a scissors and striking her with a hammer, dragged her body to the point in an adjoining field where it was found the following morning. Such, I repeat, was the theory of the People’s case — but concededly there was a total lack of direct proof of any one of the several incidents mentioned above. There was no direct evidence that the decedent was in the defendant’s car on the day of her death; indeed there was no direct evidence that she had seen the defendant on that day. Accordingly onr problem is to search the record for circumstantial evidence which is sufficient in law to sustain the judgment of conviction. If, as a jury has found, the defendant’s guilt was established beyond a reasonable doubt, and in the conceded absence of direct proof to sustain the charge, there must be proof of facts from which a clear inference may be drawn pointing to defendant’s guilt. That inference may not be based upon conjecture or speculation but must follow logically from proven facts; it must be not only consistent with and point to defendant’s guilt but must be inconsistent with his innocence. (People v. Weiss, supra, p. 163.)

With direction thus given to our inquiry we examine first the evidence descriptive of the defendant himself and then the proof of his movements on the day when the People claim the decedent’s death occurred and during a short period prior to that event. The defendant, a man thirty-nine years of age, resided at Stapleton, Staten Island, N. Y. He had a grammar school education, was temperate and had never before been convicted of a crime. For several years prior to December 28, 1942, he had been employed as a drill press operator in a plant at Somerville, N. J. In July, 1942, his wife had left his home after which time the defendant maintained a home for his three children, one of whom was confined in a local hospital at the time with which we are concerned. In a statement made to a detective after his arrest — in which he denied-any connection with the death of Mary Eycoitch — the defendant said that the last time he saw her on Thursday, December 24th, which date was concededly the last day he gave transportation to the decedent and her companion from Staten Island to Elizabeth. It also appears from the defendant’s statement to the police that while he was at work on Saturday, December 26th, he became ill; that when he reported that fact to his foreman he was permitted to go to his home. That statement is corroborated by the foreman. The defendant stated further that he remained at home until Sunday afternoon when lie went to the hospital to visit his child; that on the morning of the following day — Monday, December 28th, the day when the prosecution claims the decedent was killed — he planned to return to his regular work and had set his alarm for 5:30 a. m. ; that when the alarm failed to sound he scolded his children for fooling with the clock and causing him not to go to work.” When the defendant’s thirteen-year-old daughter was called as a witness for the People she denied that her father had scolded her about the clock. It was her testimony on direct examination that while she and her brother were eating their breakfast at ten o’clock the defendant came into the house wearing a maroon jacket, a sweater and a pair of corduroy trousers. On direct examination she stated that she then saw that He wiped something off his jacket.” On cross-examination however she stated that she had not seen him wipe something from his jacket her statement on direct examination having been “ something someone had told [her].”

From testimony given by witnesses called by the People it appears that on this same morning of Monday, December 28th, between ten and eleven o’clock, the defendant went to a garage operated by the People’s witness Schweitzer. He told the proprietor that he “ had a touch of the grippe ” and asked whether repairs to the clutch of his automobile could then be made. The proprietor was unable at that hour to do the work but in the afternoon of that day the defendant’s car was brought into the garage and repairs were started. The defendant remained at the garage in the afternoon during which time the mechanic, in the course of his repair work, had occasion to remove the front seat of the defendant’s car and in doing so observed that in the tool compartment were a hammer and a pair of scissors. Subsequently, when questioned by the police, the defendant admitted that those were tools which belonged to him and which he always carried in the car, the scissors being used to cut tire patches.

When the defendant was taken into custody on December 31st, two days after the discovery of the decedent’s body, there were found in his automobile the same hammer and scissors which had been there while repairs were in progress during the afternoon of December 28th. There were also found a copy of the Staten Island Advance, a number of contraceptives and a catheter. The fact that a hammer and a scissors were in the defendant’s car on the afternoon of December 28th is cited by the People in connection with the testimony by the coroner’s physician that the skull fracture suffered by the decedent might ” have been caused by a hammer and that the two lacerations on the neck “could” have been caused by a scissors.

Opposed to the inference of the defendant’s guilt, which the People draw from the finding of a hammer and scissors in his car, we are referred to evidence from which the defendant’s innocence may be as reasonably inferred. That the hammer and scissors were never put to the felonious use claimed by the People is said to be shown by the undisputed fact, mentioned above, that within a few hours after the time when it is claimed the decedent' met her death, the defendant was present in a garage where he had taken his automobile for repairs; that while there, in the process of work which required the removal of the front seat cushion, the hammer and scissors were observed by the mechanic in their accustomed place. Prom this circumstance, it is said, the inference is reasonable that nothing had occurred that day or at any time which prompted the defendant to put his automobile hammer and scissors out of range of discovery. In addition there is the more important evidence that, although each of the three wounds suffered by the decedent had produced profuse hemorrhage, the mechanic noticed no blood on the hammer and scissors; also that appropriate chemical tests made thereafter by the People’s expert revealed no indication of blood on either hammer or scissors.

Upon the assumption that the copy of the Staten Island Advance found in the defendant’s car was the same copy of that local newspaper which the decedent’s father had taken “ from the pile ’ ’ and had given to her when she left home in the early morning of December 28th, the People draw the inference that the decedent had been in the defendant’s car on the morning of December 28th after she left her father. But doubt is cast upon such an inference by the conceded, fact that the copy of the newspaper found in the defendant’s car bore the date of December 23, 1941, — more than a year prior to the decedent’s death — and contained the following advertisement published over the defendant’s name and concerning a matter which naturally would prompt to retain the publication:

“ Personal. I will no longer be responsible for any bills contracted by my wife, Susan Tatavano Taddio, 62 Thompkins Street, Stapleton.
Dominick Taddio.”

From the fact that in a compartment of the defendant’s car were found contraceptives and a catheter the prosecution, by the use of multiple inferences, also contends that the defendant was possessed of a lecherous desire to which the decedent, on the morning of her death, became a victim. But the record reveals no factual bases for such inferences and there is no direct proof that the decedent was thus victimized.

Although the mechanic who worked on the defendant’s car during the afternoon of December 28th had occasion to remove the front seat cushion and to take up the floor mat, he saw no blood stains. However, the People produced a pharmaceutical chemist who was an expert in the application of the benzidine test by which the presence of blood may be detected. By direction of the police he applied that test to the right side of the front seat cushion and the inside lining of the right front door of the defendant’s automobile; also to various articles of clothing worn by the defendant on December 28th and to scrapings taken from under the defendant’s fingernails. These tests afforded the witness information upon which the following testimony was adduced: “ Q. In each instance [referring to the several tests made by him] all that you can tell us at this time was that there was a possible presence of blood in those areas ? A. That is right.” (Italics supplied.)

The People also called a serologist who, from tests made, found indications of the presence of blood on various articles of the defendant’s clothing, some of which were worn by him on December 28th. This witness tested the blood grouping of the defendant and the decedent from which he determined that the blood of the defendant was of group and that of the decedent was of group “ B ”. He found human blood of group “ B ” on the cushion of the front seat of defendant’s automobile and a spot of human blood on the floor mat — A very tiny spot * * # about a pin head in size but he was unable to say that the human blood he had detected in any of the tests was that of the decedent.

There was also expert testimony that a single strand of human hair, which was found attached to the upper surface of the right running board of defendant’s automobile, was of texture, length and type of pigmentation similar to the hair of the decedent. But the expert whose testimony related to this subject gave it as his opinion that no reliance can be placed upon conclusions drawn from the appearance presented by a single hair as to the identity of the individual to whom it belonged. Indeed, if it be assumed that the single strand was the decedent’s hair — of which there is no direct evidence — there was no proof that it had not become lodged on the running board on December 24th, when the decedent and her neighbor last rode together in the defendant’s car to their New Jersey destination.

A detective examined and measured the impression of tire marks made by some automobile on an undisclosed date on or prior to December 29th in the unpaved lane near which the decedent’s body was found. After photographing these impressions and examining the front tires of the defendant’s automobile the detective testified that — “Those front tires [on defendant’s car] could have produced those markings.” He admitted, however, that the ‘ ‘ impressions in this case * were not sufficiently good to determine unique characteristics of any particular tire,” and that other tires of similar make and design could have left the imprint found.

To establish defendant’s guilt beyond a reasonable doubt it was of first importance to prove the hour of the decedent’s death. The only evidence upon this subject came from the coroner’s physician who on direct examination fixed the time of decedent’s death “ somewhere about seven or eight o’clock ” of the morning of December 28th. On cross-examination, however, after reviewing the factors which had led him to fix that early hour as the time of death, he gave the following testimony: “ Q. So that, basing your finding on the lividity and the absence of rigor in the shoulders and upper portions of the body and the presence of rigor in the knees and the ankles, •wouldn’t it be fairer to say that death occurred at some time between seven and twelve o’clock on the preceding day? A. Possibly.” (Italics supplied.) In determining the question of defendant’s guilt the testimony last quoted must be considered with the undisputed evidence that between the hours of 10:00 and 11:00 a. m. of December 28th the defendant was at his home in Stapleton, Staten Island, and had visited a garage and a tailor shop at locations about seven miles from the place where the decedent’s body was found.

In this case where the prosecution, of necessity, resorted to circumstantial evidence to. establish the defendant’s guilt, there was imposed upon the People an unusual burden which required not only the elimination of “ reasonable doubt whether his guilt is satisfactorily shown ” (Code Crim. Pro. § 389) but also the elimination of uncertainty as to those asserted facts from which inferences of defendant’s guilt were drawn. Close scrutiny of this record reveals however that in vital phases of the proof uncertainty abounds where certainty is required. The instances to which we have referred, and others not mentioned, leave us unconvinced that the evidence upon which the judgment of conviction rests satisfies the test for circumstantial evidence. (People v. Woltering, 275 N. Y. 51, 61, and cases cited supra.) Here, as in People v. Galbo (supra) p. 294, “ * * * conjecture has filled the gaps left open by the evidence, and the presumption of innocence has yielded to a presumption of guilt.”

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

LbhmaN, Ch. J., LottghraN, Rippey, CoNWay, DesmoNd and Thacher, JJ., concur.

Judgment of conviction reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Ernest Carpenito, Respondent.
    Argued April 19, 1944;
    decided May 25, 1944

      Thomas Cradock Hughes, Acting District Attorney (Henry J. Walsh of counsel), for appellant.
    The evidence was sufficient to establish guilt beyond a reasonable doubt. {People v. Soshtain, 288 N. Y. 658; People v. Richardson, 287 N. Y. 563; People v. Marra, 289 N. Y. 703; People v. Dansilo, 276 N. Y. 480; Bur-net v. Coronado Oil & Gas Co., 285 TJ. S. 393.)

      People y. Richardson (287 N. Y. 563) have so affected the enforcement of section 986 of the Penal Law as to impel a clarification by the Court of Appeals of its decision in that case. (Pennsylvania Publications v. Penn. Public Utilities Gom’n, 32 A. 2d 40; People [Lennon] v. Gamio, 165 Mise. 134; People v. Busco, 46 N. Y. S. 2d 859; Kerr v. Kerr, 134 App. Div. 141.)

      Harry Gittleson for respondent.
    The People have failed to prove defendant guilty beyond a reasonable doubt. (People v. Soshtain, 288 N. Y. 658; People v. Richardson, 287 N. Y. 563.)
   Per Curiam.

A police officer observed the defendant for thirty-five minutes at the corner of 69th Street and 8th Avenue. It does not appear that the defendant had loitered at the same point on other occasions, or indicated in any way to wayfarers on the street or to the general public that he would accept bets on horse races. During the time he was watched by the police officer five persons approached him, and each handed him a dollar bill after examining a “ scratch sheet.” It does not appear that this was done in a furtive manner. Circumstantial evidence in a criminal case is of no value if the circumstances are consistent with the hypothesis of innocence. They must point logically to defendant’s guilt “ excluding to a moral certainty every other reasonable hypothesis. ’ ’ (People v. Taddio, 292 N. Y. 488, decided herewith.) Prom the facts proven at the trial the Court of Special Sessions has drawn “ the inference of guilt ” against the defendant, but we agree with the Appellate Division that the evidence was not sufficient to warrant the finding of guilt beyond a reasonable doubt. The inferences from the facts shown are not sufficiently conclusive * * * to exclude all other inferences and to justify the judgment obtained against him.” (People v. Razezicz, 206 N. Y. 249, 273.) No general rule can be formulated which will enable the trier of the facts to measure mechanically the probative force of the evidence in each case where a person is accused of violation of section 986 of the Penal Law. The testimony varies with each case, and the probative force of circumstantial evidence depends upon the totality of the facts shown. Notation of bets by the accused may furnish convincing evidence of guilt, but a writing is not an essential element of the statutory misdemeanor. Where there is no writing, other circumstances may be convincing evidence of guilt.

The judgment should be affirmed.

LehmaN, Ch. J., LoughbaN, Lewis, DesmoND and Thaoher, JJ., concur; Rippey and Conway, JJ., taking no part.

Judgment affirmed.


text:
    County of Seneca, Appellant, v. State of New York, Respondent. Town of Ripley, Appellant, v. State of New York, Respondent.
    (Claim No. 26299.)
    (Claim No. 26606.)
    Argued October 14, 1943;
    decided January 20, 1944.

      George B. Fearon and M. Harold Dwyer for appellants.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Henry 8. Manley of counsel), for respondent.
   Judgments affirmed, without costs; no opinion.

Concur: Lehmajj, Ch. J., LoughraN, Rippey, Lewis, CoN-way, DesmoND and Thacher, JJ.


text:
    Argued December 7, 1943;
    decided January 20, 1944.

      Nathaniel H. Brower and Jesse Friedman for appellant.

      Robert L. Bobrick for respondent.
   Orders reversed and matters remitted to the Appellate Division for compliance with Civil Practice Act, section 602 (as amd. by L. 1942, ch. 297), without costs. Although we find in the record some evidence which supports the order of Special Term, the order of the Appellate Division fails to state whether the determination of that court is upon the law, or upon the facts, or upon the law and the facts. (See 292 N. Y. 582.)

Concur: Lehman, Ch. J., LoughraN, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


author: CoNway, J.

text:
    People of the State of New York, Respondent, v. John Pavlisak and William Jones, Appellants.
    Argued October 20, 1943;
    decided January 20, 1944.

      Harry 8. Travis for John Pavlisak, appellant.

      Alec Rosefsky for William Jones, appellant.

      Robert 0. Brink, District Attorney, for respondent.
   The judgments should be affirmed on the ground that there was no prejudicial error in the charge as to reasonable doubt when read in its entirety or in any other rulings of the trial court to which exceptions were taken. We may not consider rulings to which no exceptions were taken. (People v. Cummins, 209 N. Y. 283; People v. Pindar, 210 N. Y. 191.)

Lehman, Ch. J., Loughran, Lewis, Desmond and Thacher, JJ., concur; Conway, J., dissents in the following memorandum in which Rippey, J., concurs:

CoNway, J.

(dissenting). I vote to reverse and for a new trial. The errors here are numerous and flagrant. We fear a repetition of them in cases which may not reach an appellate court. (See People v. Miller, 257 N. Y. 54, 56.) The jury was told that it could make a finding of guilt on a confession made under the influence of fear produced by threats — that that fact would only affect the weight to he given to the confession. The jury was told that the failure of the defendants to testify left the issue of guilt to be determined on the proof of the prosecution. The jury was told that an ordinary doubt would not justify an acquittal — that it must be a reasonable doubt. To this latter charge there was an exception to the “ second definition of reasonable doubt ” as given by the Court to the jury. There are no other exceptions. It seems to us that the exception was meant to be applicable to the following as constituting the second definition”: “ In other words, if you have a doubt in your minds as to the guilt of these defendants, and you can give no logical, reasonable reason for that doubt, then you cannot interpret it as being a reasonable doubt, and one to which the defendants would be entitled.” Six sentences prior to the quoted sentence the court charged: “ In the first place, if from the evidence, you have a doubt as to the guilt of these defendants, that is not sufficient unless that doubt is a reasonable doubt.” These were fundamental errors affecting substantial rights. (People v. Marendi, 213 N. Y. 600, 619, 620.) There is no need to enumerate other serious errors to which there are no exceptions. The foregoing is sufficient to require reversal of the judgment of conviction and the granting of a new trial.


text:
    The People of the State of New York, Respondent, v. Joseph Palmer, alias Peter Santoro, and Vincent Sollami, Appellants.
    Argued November 23, 1943;
    decided January 20, 1944.

      Edward J. Reilly, Samuel Goldstein and Isidore Goetz for Joseph Palmer, appellant.

      Theodore Chamas, Leo Healy and Charles H. Dash for Vincent Sollami, appellant.

      Thomas Cradoch Hughes, Acting District Attorney (Solomon A. Klein of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.


text:
    The People of the State of New York, Respondent, Phillips, Appellant, et al., Defendant.
    Submitted December 6, 1943;
    decided January 20, 1944.

      George Phillips, appellant, in person.

      Frank S. Hogan, District Attorney (Ferdinand J. Wolf, Stanley H. Fuld and Charles H. McHugh of counsel), for respondent.
   Judgment affirmed; no opinion.


text:
    In the Matter of Thomas J. Walsh, Appellant and Respondent. Thomas F. Cosgrove, Respondent and Appellant. S. Howard Cohen et al., as Commissioners of Elections of the City of New York, Respondents.
    Argued January 13, 1944;
    decided January 20, 1944.

      Irving BivTdn and Jerome 0. Ellis for Thomas J. Walsh, appellant and respondent.

      A. David Benjamin and Irving Ginsberg for Thomas F. Cos-grove, respondent and appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Thomas W. A. Crowe of counsel), for S. Howard Cohen et al., as Commissioners of Elections of the City of New York, respondents.
   Order affirmed, without costs. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    In the Matter of the Claim of Mary Walsh, as Administratrix of the Estate of Mildred D. Graves, Deceased, and as Guardian of Joan Graves, an Infant, Respondent, against Tidewater Oil Sales Company et al., Appellants. State Industrial Board, Respondent.
    Submitted January 3, 1944;
    decided January 20, 1944

      Joseph Saidel for motions to dismiss appeals and in opposition to appellants’ motions for leave to appeal.

      John J. Conners, Jr., for motions for leave to appeal and in opposition to motions to dismiss appeals.
   Motion to dismiss appeal from order of Appellate Division, entered March 25, 1942, granted and appeal dismissed.

Motion to dismiss appeal from order of Appellate Division entered September 30, 1943, denied.

Motion for leave to appeal from order of Appellate Division entered March 25, 1942, dismissed.

Motion for leave to appeal from order of Appellate Division entered September 30, 1943, denied on ground an appeal lies as of right.


text:
    V. Taylor, Plaintiff, v. Harry Sessions, Defendant. Eunice V. Taylor, Plaintiff, v. Edward G. Whipple, Defendant. Eunice V. Taylor, Plaintiff, v. Florence Williams, Defendant. Eunice V. Taylor, Plaintiff, v. Henry Copenhagen, Defendant.
    Submitted January 10, 1944;
    decided January 20, 1944.

      Eunice V. Taylor, in person, for motions.

      Thomas E. Clearwater opposed.
   Motions dismissed on the ground that the proposed appeals are not from judgments finally determining the actions within the meaning of the Constitution.


text:
    In the Matter of Nicholas T. Rogers, as Administrator of the Estate of Burn, Deceased, Judgment Creditor, Respondent, against Albert F. Coyle, Judgment Debtor, Appellant.
    Submitted January 17, 1944;
    decided January 20, 1944.

      Albert F. Coyle, in person, for motion for leave to prosecute appeal as a poor person and in opposition to motion to dismiss appeal.

      Seymour J. Wilner for motion to dismiss appeal and in opposition to appellant’s.motion.
   Motion to prosecute appeal as a poor person granted.

Motion to dismiss appeal denied.


text:
    In the Matter of the Accounting of Catherine M. Mascher et al., as Trustees under the Will of John Ewald, Deceased, Appellants. Grace E. Odom et al., Respondents.
    Submitted January 17, 1944;
    decided January 20, 1944.

      Charles Margett and George 1. Janow for motions.

      David Michelsolm opposed.
   Motions denied, with ten dollars costs.


text:
    United States Trust Company of New York, Respondent, v. Helen V. Anthony et al., Appellants.
    Submitted January 10, 1944;
    decided January 20, 1944.

      Eli J. Blair for motion.

      M'Cready Sykes opposed.
   Motion denied, without costs. (See 292 N. Y. 513, 514.)


text:
    United States Trust Company of New York, Respondent, v. Helen V. Z. Anthony et al., Appellants.
    Submitted January 10, 1944;
    decided January 20, 1944.

      M’Cready Sykes for motion.

      Eli J. Blair opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion unless appellants file and serve undertaking on appeal and pay ten dollars costs, within ten days, in which event the motion is denied. (See 292 N. 513, 514.)


text:
    United States Trust Company of New York, Respondent, v. Helen V. Z. Anthony et al., Appellants.
    Submitted January 27, 1944;
    decided January 27, 1944.

      Eli J. Blair for appellants.

      M’Cready Sykes for respondent.
   Motion to resettle order granted. Order resettled to provide that the motion to dismiss the appeal is granted and the appeal is dismissed, without costs.


text:
    In the Matter of Thomas F. Walsh, Jr., Appellant, against Harry W. Marsh et al., Constituting the Municipal Civil Service Commission of the City of York, et al., Respondents.
    Argued January 3, 1944;
    decided February 24, 1944.

      Samuel D. Smoleff for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel and Cyrus C. Perry of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Ch. J., Loughran, Rippey, Lewis,, Desmond and Thacher, JJ.


text:
    Mary et al., Appellants, v. H. Nelson Flanagan & Co., Incorporated, Respondent.
    Argued January 4, 1944;
    decided February 24, 1944

      Irving J. Bland and Sydney A. Syme for appellants.

      Alexander Orr, Jr., for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

Concur: LehmaN, Ch. J., LoughraN, Rippey, Lewis, CoNway, DesmoNd and Thacher, JJ.


text:
    In the Matter of the Accounting of Lawyers Trust Company, as Executor of and Trustee under the Will of Mary A. Delamater, Deceased, Respondent. Sarah D. Geer et al., Appellants.
    Argued January 5, 1944;
    decided February 24, 1944.

      Edmond B. Butter and Raymond D. O’Connell for Sarah D. Geer, appellant.
   Order affirmed, with costs payable out of the estate. No opinion.

Concur: Ch. J., Loughban, Rippey, Lewis, CoNway, DesmoNd and Thacheb, JJ.


text:
    Argued January 6, 1944;
    decided February 24, 1944.

      Harry Becker, Samuel M. Gytryn and Harold M. Steinmetz .for appellant.

      Walter J.,Carlin and William F. Mathias, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughbaN, Rippey, Lewis, CoNway, DesmoNd and Thacheb, JJ.


text:
    Robert W. Christie, Respondent, v. 46th St. Theatre Corp., et al., Appellants.
    Argued January 7, 1944;
    decided February 24, 1944.

      Milton R. Weinberger, William Klein, Laurence V. Benedict and Adolph Lund for appellant.

      Charles M. Hughes for respondent.
   Judgment affirmed; no opinion. (See 292 N. Y. 643.)

Concur: LehmaN, Ch. J., LotjghraN, Rippey, CoNway, Des-moNd and Thacher, JJ. Taking no part: Lewis, J.


text:
    In the Matter of the Claim of Elizabeth Gentner, Respondent, against Rice & Whaley et al., Appellants. State Industrial Board, Respondent.
    Argued January 11, 1944;
    decided February 24, 1944.

      Fred Van Aernam for appellants.
   Concur: LehmaN, Ch. J., Rippey, Lewis, Couway, DesmoNd and Thachee, JJ.


text:
    James H. Tierney, Respondent, v. State of New York, Appellant.
    (Claim No. 25823.)
    Argued January 14, 1944;
    decided February 24, 1944.

      Nathaniel L. Goldstein, Attorney-General (Arthur W. Matt-son, Orrin G. Judd and Donald G. Glenn of counsel), for appellant.

      Harold E. Blodgett and Howard Murrin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, CoNway, DesmoNd and Thacher, JJ.


text:
    In the Matter of the Liquidation of The General Insurance Company, Ltd., of Trieste & Venice. Cabell & Cabell, Appellant; Superintendent of Insurance of the State of New York, as Liquidator of the General Insurance Company, Ltd., of Trieste and Venice, Respondent.
    Argued January 4, 1944;
    decided February 24, 1944.

      Hartwell Cabell, appellant, in person.

      Alfred C. Bennett and Isaac Goldstein for remonden!.
   Order affirmed, with costs; no opinion.

Concur: LehmáN, Ch. J., LoughraN, Rippey, Lewis, CoNWay, DesmoNd and Teacher, JJ.


text:
    Richard J. Mackey, Individually, et al., Appellants and Respondents, v. Passaic Stone Co., et al., Respondents and Appellants.
    Argued January 5, 1944;
    decided February 24, 1944.

      Richard J. Mackey, in person, for plaintiffs, appellants and respondents.

      John A. Murray, Jr., for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

Concur: Lehmaet, Cli. J., Rippey, Lewis, Couway, DesmoNd and Teaches, JJ.


text:
    rtinitz, Appellant, v. John Trainer et al., Respondents.
    Argued January 11, 1944;
    decided February 24, 1944.

      Eugene M. Parter, Emil Weitsner, Bernard Braun and' Aram D. Manuelian for appellant.

      E. B. Brumley and Moses Ely for respondents.
   Judgment of Appellate Division reversed and that of Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground that the weight of the evidence lies with the decision of the Trial Term. No. opinion.

.Concur: Lehman, Ch. J., Loughran, Rippey, Conway, Desmond and Thacher, JJ.


text:
    Argued January 3, 1944;
    decided February 24, 1944.

      Salvatore C. Salvo for appellant.

      Nathaniel L. Goldstein, Attorney-General (Wortley B. Paul and Orrin G. Judd of counsel), for respondents.
   Order affirmed; no opinion.

Concur: LoughraN, Lewis, DesmoND and Thacher, JJ. Dissenting: LehmaN, Ch. J., Rippey and CoNway, JJ.


text:
    In the Matter of Herman De Vries, Appellant, against Mark Graves et al., Constituting the State Tax Commission of the State of New York, Respondents.
    Argued January 4, 1944;
    decided February 24, 1944.

      David M. Marlwwits for appellant.

      Nathaniel L. Goldstein, Attorney-General (John G. Grary, Jr., Orrin G. Judd and Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughbaN, Rippey, Lewis, CoN-" way, DesmoNd and Thachee, JJ.


text:
    Argued January 5, 1944;
    decided February 24, 1944.

      James -N, Gehrig and Edwin J. Loewy for appellant.

      Denis M. Hurley and Albert Hutton for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., LoughbaN, Lewis, CoN-DesmoNd and Thacher, JJ.


text:
    In the Matter of the Accounting of Gerald F. Beal et al., as Executors of Prentiss N. Gray, Deceased. William A. Nunlist et al., as Trustees for Hazel W. Nunlist, Appellants; Gerald F. Beal et al., as Executors of Prentiss N. Gray, Deceased, et al., Respondents. In the Matter of the Construction of the Will of Prentiss N. Gray, Deceased. William A. Nunlist et al., as Trustees for Hazel W. Nunlist, Appellants; Gerald F. Beal et al., as Executors of and Trustees under the Will of Prentiss N. Gray, Deceased, et al., Respondents.
    Argued January 10, 1944;
    decided February 24, 1944.

      Qullie B. Goldin and William A. Nunlist for appellants.

      John F. Booling, Jr., and John G. Hover for Gerald F. Beal and others, as executors and trustees, respondents.

      Americus Delli-Paoli, special guardian for Prentiss N. Robinson and another, infants, and others, respondents.
   Order affirmed, with costs payable out of the estate. No opinion.


text:
    Louis Schefflin, Appellant, v. Title Guarantee and Trust Company, Respondent.
    Submitted January 11, 1944;
    decided February 24, 1944.

      Alexander H. Rochmore for appellant.

      G. Elmer Spedich and Arthur L. Reuter for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., Rippey, Lewis, CoN-way, and Thacher, JJ.


text:
    John Mullins & Sons, Inc., Plaintiff, v. Bertha Epstein et al., Defendants.
    Submitted January 12, 1944;
    decided February 24, 1944.

      Benjamin E. Siff and David D. Beibstein for appellant.

      Maurice F. Miller for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., LoughraN, Rippey, Lewis, CoN-way, DesmoND and Thacher, JJ.


text:
    Kate Weissberger, Respondent, v. Harry Weissberger, Appellant.
    Argued January 4, 1944;
    decided February 24, 1944.

      B. Leo Schwarz for appellant.

      Michael Diemert for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

Concur: Lehman, Ch. J., Rippey, Lewis, way, DesmoNd and JJ.


text:
    Jack Linsky et al., Copartners under the Name of Speed Products Company, Appellants, v. Irving Hirsch et al., Respondents.
    Argued January 5, 1944;
    decided February 24, 1944.

      Isidor E. Schlesinger for appellants.

      J. George Levy, Irving S. Ottenberg and Samuel Rudy for respondents.
   Judgment affirmed, with costs; no opinion.


text:
    Roger F. Williams, an Infant, by Roger O. Williams, His Guardian ad Litem, Respondent, v. City of Poughkeepsie, Appellant. Roger O. Williams, Respondent, v. City of Poughkeepsie, Appellant.
    Argued January 7, 1944;
    decided February 24, 1944.

      Charles O’Donnell, Corporation Counsel (Bernard J. McCoy of counsel), for appellant.

      William A. Mulvey and Paul A. Bieser for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, CoNway, Desmond and Thacher, JJ. Taking no part: Lewis, J.


text:
    Sarah M. O’Brien, as Administratrix of the Estate of Thomas F. O’Brien, Deceased, Respondent, v. B. H. Transportation Company, Inc., et al., Appellants.
    Argued January 10, 1944;
    decided February 24, 1944.

      Ward N. Truesdell for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LoughbaN, Rippey, CoNway, DesmoNd and Thacheb, JJ. Dissenting: Ch. J., and Lewis, J.


text:
    In the Matter of the Claim of Eileen Mashaw, Respondent, against Joseph Fex et al., Appellants. State Industrial Board, Respondent.
    Argued January 11, 1944;
    decided February 24, 1944.

      Edward Johnson for appellants.

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum and Orrin G. Judd of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.


text:
    In the Matter of Irving Mandelcorn, Respondent, against Henry E. et al., Constituting the State Liquor Authority, Appellants.
    Argued January 5, 1944;
    decided February 24, 1944.

      Frederick A. Sperling and Elvin N. Edwards for appellants.

      Edward H. Wolkind for respondent.
   Order affirmed, with costs; no opinion.


text:
    The People of the State of New York, Respondent, v. Arthur Kassin, Appellant.
    Argued January 6, 1944;
    decided February 24, 1944.

      Frank 8. Hogan, District Attorney (Bernard L. Alderman and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Rippey, Lewis, CoNway, DesmoNd and Thacher, JJ.


text:
    The People of the State of New York, Respondent, v. Speros Panagoulokos, Appellant.
    Submitted January 7, 1944;
    decided February 24, 1944.

      Harry Gittleson and Hyman Bar shay for appellant.

      Thomas Cradock Hughes, Acting District Attorney (Edward H. Levine of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: LehmaN, Ch. J., Loughrah, Rippey, CoNway, Des-and JJ. Taking no part: Lewis, J.


text:
    The People of the State of New York, Respondent, v. Alexander Picone, Appellant.
    Submitted January 7, 1944;
    decided February 24, 1944.

      Nicholas P. Iannussi and Ralph J. Barra for appellant.

      Thomas Cradock Hughes, Acting District Attorney (Edward H. Levine of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Ch. J., LoughraN, Rippey, CoNway, Des-moptd and Thacher, JJ. Taking no part: Lewis, J.


text:
    Hazel M. Kory, Respondent, v. Board of Higher Education of the City of New York, Appellant. Clara B. Parodneck et al., Respondents, v. Same, Appellant. David M. Sharefkin et al., Respondents, v. Same, Appellant. Benjamin Brickman et al., Respondents, v. Same, Appellant.
    Argued January 11, 1944;
    decided February 24, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Nicholas Bucci and James Hall Prothero of counsel), for appellant.

      Osmond K. Fraenkel for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Rippey, Lewis, CONWAY., and DesmoNd, JJ. Taking no part: Thachee,, J.


text:
    Elizabeth Nezbeda, as Administratrix of the Estate of Wenzel Nezbeda, et al., Appellants, v. Port of New York Authority, Respondent, et al., Defendants.
    Argued January 3, 1944;
    decided February 24, 1944.

      Harry A. Spiegelman and M. Wilson for appellants.

      Bert W. Hendrickson for respondent.
   Judgment affirmed, with costs; no opinion.


text:
    William S. et al., Respondents, v. Samuel Kronsky, Individually, et al., Appellants.
    Argued January 11, 1944;
    decided February 24, 1944.

      Ira Slcutch and Lee JEL. Burton for appellants.

      Harry Bijur for respondents.
   Judgment affirmed, with costs; no opinion.

Ooncnr: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, DesmoNd and Thachee, JJ.


text:
    Lottie Wyka, as Administratrix of the Estate of Wladyslaw Wyka, Deceased, Appellant, v. John Benedicks, Respondent.
    Submitted January 17, 1944;
    decided February 24, 1944.

      Michael M. Platsman for motion.

      Samuel Berloff and Abraham Engelman opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action within the meaning of the Constitution, and is an order of reversal.


text:
    In the Matter of Alma M. Fabricius, Appellant, against Board of Education of the City of New York, Respondent.
    Submitted January 17, 1944;
    decided February 24, 1944.
   Motion by appellant for reargument denied. (See 291 N. Y. 787.)


text:
    Equitable Life Assurance Society of the United States, Respondent, v. David L. Milman et al., Appellants.
    Submitted January 17, 1944;
    decided February 24, 1944.
   Motion by appellants for reargument denied with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 90.)


text:
    The People of the State of New York, Respondent, v. Louis Buchalter, Emanuel Weiss and Louis Capone, Appellants.
   Motion by appellants for reargument denied. (See 289 N. Y. 181.)


text:
    Argued October 18, 1943;
    decided March 2, 1944.

      Samuel J. Levinson, Frank Weinstein, Nathaniel Phillips and Jay H. Kanarek for appellants.

      John W. Davis, Paul H. Arthur, Morris E. Dry and S. Hazard Gillespie, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., LoughraN, Reppey, Lewis, CoN-way and JJ. Taking no part: Thacheb, J.


text:
    Argued October 18, 1943;
    decided March 2, 1944.

      Samuel J. Levinson, Frank Weinstein, Nathaniel Phillips and J ay H. Kanarek for appellant.

      John W. Davis, Paul H. Arthur, Morris E. Dry and S. Hazard Gillespie, Jr., for United States Rubber Company, respondent.

      John G. Laylin and George Buhlee for E. I. du Pont de Nemours & Co., respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., Loughrah, Rippey, Lewis, CoN-way and DesmoNd, JJ. Taking no part: Thaoher, J.


text:
    In the Matter of Emil J. Sonderlick, an Attorney, Appellant. Bronx Bar Association, Respondent.
    Argued January 12, 1944;
    decided March 2, 1944.

      Jacob W. Friedman for appellant.

      Louis Susman for respondent.
   Order affirmed; no opinion.

Concur: Ch. J., LoiighraN, Rippey, Lewis, .Conway, Desmond and Thachee, JJ.


text:
    The People of the State of New York, Respondent, v. Harold Rosenthal, Appellant.
    Argued January 20, 1944;
    decided March 2, 1944.

      J. Maurice Wormser, Leonard Bronner, Jr., and Boland Segal for appellant.

      Leo J. Hagerty, District Attorney (Maurice Frey and Alfred R. Pacini of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: LehmaN, Cb. J., Rxppey, Lewis, Cost-way, DesmoND and JJ.


text:
    William H. Dusenbury, Appellant, v. State of New York, Respondent.
    (Claim No. 25817.)
    Argued January 12, 1944;
    decided March 2, 1944.

      Joseph P. Keenan for appellant.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Herman F. Nehlsen of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., LoughraN, Bippey, Lewis, CoN-way, DesmoNd and Thacher, JJ.


text:
    John Sloan et al., Copartners under the Name of & Robertson, Appellants and Respondents, v. State of New York, Respondent and Appellant.
    (Claim No. 25816.)
    Argued January 12, 1944;
    decided March 2, 1944.
   Judgment affirmed, without costs; no opinion.

Concur: Lehmau, Ch. J., Rippey, Lewis, way, DesmoND and Thacher, JJ.


text:
    Shirley Seltzer, an Infant, by Pauline Seltzer, Her Guardian ad Litem, Appellant, v. City of New York, Respondent.
    Submitted January 14, 1944;
    decided March 2, 1944.

      Schulman for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Fred Iscol and James Hall Prothero of counsel), for respondent.
   Judgment affirmed without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, CoN-way and DbsmoND, JJ. Taking no part: Thacher, J.


text:
    Celia Kaupferstein, Appellant, v. Brooklyn Edison Inc., Respondent, and City of New York, Appellant and Respondent.
    Submitted January 14, 1944;
    decided March 2, 1944.

      Benjamin H. Siff and Isidore L. Nitsberg for plaintiff, appellant,

      Ignatius M. Wilkinson, Corporation Counsel (Murray Sen-dler and James Rail Prothero of counsel), for City of New York, appellant and respondent.

      Arthur A. Kaye and John D. Monroe for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughkaN, Lewis and DesmoND, JJ. Dissenting: Rippey and CoNWay, JJ. Taking no part: Thacheb, J.


text:
    Kathryn Missall et al., Respondents, Joseph A. Palma, as President of the Borough of Richmond, et al., Appellants. Alice B. Elliott, Respondent, v. Joseph A. Palma, as President of the Borough of Richmond, et al., Appellants.
    Argued January 19, 1944;
    decided March 2, 1944.

      Ignatius M, Wilkinson, Corporation Counsel (Paxton Blair and James Hall Prothero of counsel), for appellants.

      Joseph B. Handy for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Ch. J., LoughraN, Rippey, Lewis, CoN-Desmond, JJ. Taking no part: Thacher, J.


text:
    Ottilia Miller, as Executrix of Wilhelmina Spitzbart, Deceased, Appellant, v. Ethel H. Friar et al., Respondents, et al., Defendants.
    Argued January 11, 1944;
    decided March 2, 1944.

      Lawrence Buonomo and Alexander 8. Sardo for appellant.

      Benjamin Machinist and Lawrence T. Grosser, Jr., for respondents.
   Jndgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., Loughran, Rippey, Lewis, ' Conway, DesmoNd and Teacher, JJ.


text:
    Leo J. Ryan, Appellant, v. Phoenix Mutual Life Insurance Company, Respondent.
    Argued January 17, 1944;
    decided March 2, 1944.

      Jonas J. Shapiro, Jerome Handler and Milton Ross for appellant.

      William F. Bleahley and Roswell P. C. May for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., Loughran, Lewis, way, Desmond and Thacher, JJ.


text:
    Michael F. Allen, Respondent, v. City of New York, Appellant.
    Argued January 19, 1944;
    decided March 2, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Paxton Blair and W. Bernard Richland of counsel), for appellant.

      Alfred J. Talley and James A. McKaigney for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehmak, Ch. J., Loughean, Bippey, Lewis, Conway and DesmoNd, JJ. Taking no part: Thaohee, J.


text:
    The People of the State of New York, Respondent, v. Louis Parisi, Appellant.
    Argued December 6, 1943;
    decided March 2, 1944.

      Peter L. F. Sabbatino, Thomas J. Todarelli and Fdivard J. Fontana for appellant.

      Frank S. Hogan, District Attorney (Stanley H. Fuld, Richard Q. Denser and Charles H. McHugh of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: LehmaN, Ch. J., Loughean, Rippey, Lewis, Conway, Desmond and Thaohee, JJ.


text:
    In the Matter of William Ward, as President of New York Typographical Union No. 6, et al., Appellants, against Stephen G. Kelley, as Supervisor of the City Record, Respondent.
    Argued January 19, 1944;
    decided March 2, 1944.

      Alfred J. Talley and Edwin J. Talley for appellants.

      Ignatius M. Wilkinson, Corporation Counsel (Martin V. Cal-lagy and James Hall Prothero of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Loughran, Rippey, Lewis, way and Desmond, JJ. Taking no part: Thacher, J.


text:
    Harry Baker et al., as Stockholders of Tubular Textile Corporation, Appellants and Respondents, v. Samuel Cohn et al., Respondents and Appellants.
    Argued January 12, 1944;
    decided March 2, 1944.

      Joseph ProsJccmer and J. Alvin Van Bergh for Samuel Cohn and others, defendants, respondents and appellants.

      Bernard W. Cohen for Tubular Textile Machinery Corporation, defendant, respondent and appellant.

      Edward Lascmsky, David Haar, Morris Kirschstein and Louis Jersaivit for plaintiffs, appellants and respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, DesmoND and Teacher, JJ.


text:
    Anna Miller, Individually and as Administratrix of the Estate of John T. Miller, Deceased, Appellant and Respondent, v. City of New York, Appellant, and Maurice A. Fitzgerald, Individually and as Sheriff of the County of Queens, Respondent, et al., Defendants.
    Argued January 14, 1944;
    decided March 2, 1944.

      Ignatius M. Corporation Counsel (Murray Sen-dler and James Hall Prothero of counsel), for defendant City of New York, appellant.

      Solomon Pearlman and Paul W. Hessel for plaintiff, appellant and respondent. ,.

      Austin B. Mandel for defendant-respondent.
   On appeal by the City of New York: Judgment affirmed, with costs.

On plaintiff’s appeal: Appeal dismissed, without costs, on the ground that the appeal was never perfected. No opinion.

Concur: LehmaN, Ch. J., Loughrah, Bippey, Lewis, CoN-way and DesmoNd, JJ. Taking no part: Thacher, J.


text:
    The People of the State of New York, Respondent, v. Herman Goldberg, Cohen, Stella Silinsky, Yetta Henrietta Loehman and Ida Cohen, Appellants.
    Argued January 18, 1944;
    decided March 2, 1944.

      Lazarus Joseph, Irving L. Rollins, Charles L. Grad and Joseph Goldberg for appellants.

      Frank 8. Hogan, District Attorney (Ferdinand J. Wolf and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, way, Desmond and Thacher, JJ.


text:
    Minnie Walter et al., Appellants, Patrick Bond, Defendant, and Thomas Ferry, Defendant-Respondent.
    Submitted January 14, 1944;
    decided March 2, 1944.

      John M. Jr., and Irving Ginsberg for appellants.

      Harold, Davis and Lawrence Eichner for respondent.
   Judgment affirmed, with costs; no opinion.


text:
    In the Matter of John Case et al., Doing Business under the Name of Case & Smith Lumber Company, Judgment Creditors, Respondents, against Paul V. Panzarella, Judgment Debtor, Appellant. Anderson Brick and Supply Co., Inc., Appellant.
    Submitted February 21, 1944;
    decided March 2, 1944.

      Morris Wagman for motion.

      Joseph Kramer opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that no leave may be g’ranted by this court. (Civ. Prac. Act, § 589, subd. 1.)


text:
    In the Matter of the Accounting of Schaefer et al., as Administratrices of the Estate of George Schaefer, Deceased. George Schaefer, Jr., Claimant-Appellant; Leona Schaefer, as Coadministratrix, Appellant and Respondent; Katie S. Hall, as Coadministratrix, et al., Respondents.
    Submitted February 21, 1944;
    decided March 2, 1944.

      Vahan E. Kalenderian for motion.

      David S. Konheim, Samuel Halpern, Anthony J, Wolf and Joseph S. Moore? special opposed,
   Motion denied, with ten dollars costs and necessary printing disbursements on the ground that the appeal lies as of right.


text:
    H. Burow, Appellant, v. Orison C. Bouton et al., Respondents.
    Submitted February 21, 1944;
    decided March 2, 1944.
   Motion by respondents for reargument denied, with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 818.)


text:
    The People of the State of New York, Respondent, v. William Wade, Appellant.
    Submitted February 21, 1944;
    decided March 2, 1944.
   Motion by appellant for reargument denied. (See 291 N. Y. 574.)


text:
    Harry B. Miller et al., Plaintiffs, v. S. Reed, as Administrator of the Estate of Annie M. de Camp, Deceased, et al., Defendants.
    Submitted February 21, 1944;
    decided March 2, 1944.

      Beatrice M. Montayne, in person, for motion.

      Daniel Scanlon opposed.
   Motion dismissed on the ground that the order does not finally determine the action within the meaning of the Constitution..


text:
    The People of the State of New York ex rel. Michael Montagno, Appellant, against Vernon A. Morhous, as Warden of Great Meadow Prison, Respondent.
    Submitted February 21, 1944;
    decided March 2, 1944.

      Michael Montagno, in person, for motion to prosecute appeal as a poor person and in opposition to respondent’s motion to dismiss appeal.

      Nathaniel L. Goldstein, Attorney-General (Herman H. Ilar-court of counsel), for motion to dismiss appeal.
   Motion for leave to prosecute appeal as a poor person granted.

Motion to dismiss appeal denied.


text:
    In the Matter of Jacob Bednarsh et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Submitted February 21, 1944;
    decided March 2, 1944.

      Saul Berger for motion.

      Harold L. Hersstein and Andrew M. Lawler for Ben Kassen and others, opposed.

      Ignatius M. Wilkinson, Corporation Counsel (Russell Lord Tarbox and Fred Iscol of counsel), for Board of Elections of tbe City of New York, opposed.
   Motion denied, without consideration of tbe questions of law which tbe appellants seek to present, on the ground that a motion for leave to appeal made at this time should as a matter of public policy be denied.


text:
    Charles S. Scholen, as Limited Administrator C. T. A. of the Estate of Frederick B. Aebly, Deceased, Respondent, v. Guaranty Trust Company of New York, Appellant.
    Submitted February 21, 1944;
    decided March 2, 1944.
   Motion by respondent for reargument denied-, with ten dollars costs and necessary printing disbursements. (See 292 N. Y. 1.)


text:
    Mary Harris, Suing on Behalf of Herself and Other Stockholders of Weiss Engineering Corporation Appellant, v. Weiss Engineering Corporation et al., Respondents, et al., Defendants.
    Submitted February 21, 1944;
    decided March 2, 1944.

      George L. Kobbé for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant serves and files undertaking on appeal and pays ten dollars costs, within ten days, in which event the motion is denied.


text:
    J. Hermon McLear, as Director and Officer of McLear Mines, Inc., Appellant, v. Clara McLear and Herbert G. McLear, Respondents, et al., Defendants.
    Submitted February 21, 1944;
    decided March 2, 1944.
   Motions by respondents to amend the remittitur granted. Return of remittitur requested and when returned it will be amended to provide that the judgments are affirmed with one bill of costs to Clara McLear against the appellant, individually, but that both respondents may tax disbursements against the plaintiff, individually. (See 291 N. Y. 809.)


text:
    Louise M. Appellant, v. National Bank and Trust Company of Skaneateles, N. Y., as Executor of Edward C. Miller, Deceased, Respondent.
    Submitted February 21, 1944;
    decided March 2, 1944.
   Motion by appellant for reargument et cetera, denied. (See 291 N. Y. 667.)


text:
    The People of the State of New York, Plaintiff, v. Forrest Greene, Defendant.
    Submitted February 21, 1944;
    decided March 2, 1944.

      Forrest Greene, in person, for motion.
    No one opposed.
   Motion denied on the ground that it does not appear that there is an appeal pending before the Court of Appeals.


text:
    Samuel Zirn, Appellant, v. Clifton N. Bradley et al., Defendants, and Boudinot Atterbury, Defendant-Respondent.
    Submitted February 21, 1944;
    decided March 2, 1944.

      Neil P. Cullom and Henry W. Sieingarten for motion.

      Henry Cohen and Adolph Peldblum opposed.
   Motion denied, with ten dollars costs.


text:
    Mary Carpink, Also Known as Mary Karpink, Respondent, v. Fred Defendant.
    Submitted February 21, 1944;
    decided March 3, 1944.
   Motion by appellant to cancel the remittitur and for a stay denied. (See 292 N. Y. 502.)


text:
    In the Matter of the Claim of Lapp, Respondent, against Owl Laundry Service, Inc., et al., Appellants. State Industrial Board, Respondent.
    Counsel appeared February 23, 1944;
    decided March 10, 1944.

      George J. Hayes, Victor Fiddler and William F. O’Rourhe for appellants.

      Charles 8. Phillips for claimant-respondent.
   Appeal dismissed without costs; no opinion. (See 292 N. Y. 721.)

Concur: LehmaN, Ch. J., LoughraN, Rippey, Lewis, Corr-way, DesmoNd and Thacher, JJ.


text:
    Charles L. Jr., Appellant, v. Texas Company, Respondent.
    Argued November 29, 1943;
    decided March 10, 1944.

      Kenneth, M. Spence and Soia Mentschikoff for appellant.

      Joseph, M. Proskcmer, Oscar J. Dorwin, Theodore J. Miller and Eugene Eisenmann for respondent.
   Judgment affirmed, with costs; no opinion. (See 292 N. T. 719.)

Concur: Lehmah, Ch. J., Loughrah, Rippey, Lewis, Cox-way, Desmoed and Thaoher, JJ.


text:
    In the Matter of Frank J. Hardecker et al., Appellants, against Board of Education of the City of New York, Respondent.
    Argued January 19, 1944;
    decided March 10, 1944.

      John T. DeGraff for appellants.

      Ignatius M. Wilkinson, Corporation Counsel (William S. Lebwohl, James Sail Prothero and Hortense M. Wittstein of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Lewis, CoNWAY and DesmoNd, JJ. Dissentin'g: Rippey, J. Taking no part: Thacher, J.


text:
    In the Matter of the Civil Service Technical Guild et al., Appellants, against Fiorello H. La Guardia, et al., Respondents.
    Argued February 25, 1944;
    decided March 10, 1944.

      Albert B. Breslow for appellants.

      Ignatius M. Wilkinson, Corporation Counsel (William S. Lebwohl and James Eall Brothero of counsel), for respondents.
   Order affirmed, without costs; no opinion.


text:
    Chris Pedersen, Individually and on Behalf of Other Employees of Defendant Similarly Situated, Respondent, v. J. F. Fitzgerald Construction Company, Appellant.
    Submitted February 21, 1944;
    decided March 10, 1944.

      William E. J. Connor for motion.

      Charles E. Nichols opposed.
   Motion denied, with ten dollars costs.


text:
    Clifford Kanner, Respondent, v. Frederick F. Grotz, Appellant.
    Submitted February 28, 1944;
    decided March 10, 1944.

      Vincent J. Loughlm for motion.

      Archibald M. Laidlaw opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action, within the meaning of the Constitution.


text:
    In the Matter of Irving B. Weinstein, Respondent, against The Board of Regents of the University of the State of New York, Appellant.
    Submitted March 6, 1944;
    decided March 10, 1944.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Henry 8. Manley of counsel), opposed.
   Motion to dismiss appeal taken under section 588, subdivision 1, of the Civil Practice Act, granted and appeal dismissed.

Motion to dismiss appeal taken in accordance with the provisions of article VI, section 7, subdivision 3, of the Constitution of the State of New York, as amended and effective January 1,1944, deniéd.


text:
    The People of the State of New York, Respondent, v. Freddie Carroll, Appellant.
    Submitted March 6, 1944;
    decided March 10, 1944.

      Frank S. Kogan, District Attorney (Alan J. Elliott of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Gus Angelos et al., Copartners under the Name of The World Cafeteria, Respondents, v. William Mesevich, Individually and as President of the Cafeteria Employees Union, Local 302, Appellants. Elias Tsakires et al., Copartners under the Name of The Cosmo Cafeteria, Respondents, v. William Mesevich, Individually and as President of Cafeteria Employees Union, Local 302, Appellants.
    Submitted March 6, 1944;
    decided March 10, 1944.

      Louis B. Boudin for motions.

      David L. Delman opposed.
   Reargument of appeal ordered upon the question of what, if any, further proceedings should he taken.


text:
    Charles P. Lockwood et al., Respondents, v. W. Vincent Hall, et al., as Trustees of Series Q-1 Mortgage Investments of the New York Title and Mortgage Company, Appellants, et al., Defendants.
    Argued February 23, 1944;
    decided April 6, 1944.

      Gustave B. Garfield and Daniel M. KrausTcopf for appellants.

      Gordon Miller for respondents.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts. No opinion.

Concur: Ch. J., Lotjghran, Rippey, Lewis, Desmoud and Thacher, JJ.


text:
    Argued February 24, 1944;
    decided April 6, 1944.

      Walter Bruchhausen, Conrad 8. Keyes and John P. McGrath for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Cur-ran and Wendell P. Brown of counsel), for Industrial Commissioner, respondent.

      Charles B. Bloch for claimant-respondent.
   Order affirmed, with costs; no opinion. (See 292 N. Y. 718.)

Concur: LehmaN, Oh. J., LoxjgheaN, Rippey, Lewis, Cohway, DesmoND and Thachee, JJ.


text:
    Samuel Di Simone, by Julian Di Simone, His Guardian ad Litem, Appellant, v. Michael Di Respondent.
    Submitted February 25, 1944;
    decided April 6, 1944.

      'Dominick J. Parry for appellant.

      John P. Gualtieri for respondent,
   Judgment affirmed, with costs; no opinion.


text:
    Argued February 23,
    decided April 6, 1944.

      Charles P. Barre for appellants.

      Charles 8. Phillips for claimant-respondent.
   Appeal dismissed, without costs on the ground that the opinion of the Appellate Division was not intended to conclude the Board upon any debatable issue of fact.

Concur: LehmaN, Ch. J., Loughrah, Rippey, Lewis, Cokway, DesmoND and Thacher, JJ.


text:
    Argued February 24, 1944;
    decided April 6, 1944.

      William B. O’Connor for appellant.

      Samuel J. Cohen for petitioner-respondent.
   Judgment affirmed, with costs; no opinion.


text:
    The People of the State of New York, Respondent, v. Harry M. Appellant.
    Argued February 24, 1944;
    decided April 6, 1944.

      Sydney J. Schwarts for appellant.

      Frank S. Hogan, District Attorney (Ferdinand J. Wolf of counsel), for respondent,
   Judgment affirmed; no opinion.


text:
    In the Matter of Nicholas T. Rogers, as Administrator of the Estate of Bruno Burn, Deceased, Judgment Creditor, Respondent, against Albert F. Coyle, Judgment Debtor, Appellant.
    Argued February 28, 1944;
    decided April 6, 1944.

      Charles Rothenberg and Albert F. Coyle, in person, U>r appellant.

      Seymour J. Wilner for respondent.
   .Order affirmed, without costs. First question certified answered in the affirmative on the ground that section 846 of the Civil Practice Act would be inapplicable even in the absence of the exception. Second question certified answered in the negative. No opinion.

Concur: LehmaN, Ch. J., Rippey, Lewis, Couway, DesmoND and Thacher, JJ.


text:
    Gunnar Appellant, v. Buffalo Niagara Electric Corporation, Respondent.
    Argued February 23, 1944;
    decided April 6, 1944.

      D. W. Earing for appellant.

      A. T. O’Neill and Frank M. Osta for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Cb. J., LoughraN, Rippey, Lewis, Couway, DesmoND and Thacher, JJ.


text:
    School of Commerce, Respondent, v. William Gross, Appellant.
    Argued February 24, 1944;
    decided April 6, 1944.

      Jack Gross for appellant.

      Nathaniel L. Goldstein, Attorney-General (John G. Crary, Jr., Orrin G. Judd and Wendell P. Brown of counsel), appearing under section 68 of the Executive Law.

      Saul Gordon and Reuben S. Levins for respondent.
   Judgment affirmed, with costs. We do not now consider or decide whether the Legislature might have the power to enact a statute appropriately regulating activities of foreign correspondence schools which affect the safety, health and well-being of the people of the State. The statute here challenged is not of that character. No opinion.


text:
    Gussie Gutov, as Administratrix of the Estate of Julius Gutov, Deceased, Respondent, v. Abraham Krasne, Appellant, et al., Defendants.
    Submitted February 28, 1944;
    decided April 6, 1944.

      Joseph F. Murray and Edward L. Johnson for appellant.

      William L. Shumate and Edward J. ELaniver for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LbhmaN, Ch. J., LougheaN, Sippet, Lewis, CoNWAT, DesmoNd and Thachee, JJ.


text:
    Argued February 23, 1944;
    decided April 6, 1944.

      Samuel !ZX Magavern and John M. Gorman for respondent.
   Order affirmed, without costs.; no opinion.

Concur: LehmaN, Ch. J., LoxjgheaN, Ripfey, Lewis, CoNway, DesmoNd and Thacher, JJ.


text:
    In the Matter of the Village of Lawrence, Respondent, against New York State Employees’ Retirement System et al., Appellants.
    Argued February 21, 1944;
    decided April 6, 1944.

      Marcus G. Christ, County Attorney (John J. Knob of counsel), for County of Nassau, appellant.

      Edward 8. Bentley for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Rippey, Lewis, CoNWAY, DesmoND and Thacheb, JJ.


text:
    Argued February 23, 1944;
    decided April 6, 1944.

      Louis Salle, appellant, in person.

      Maximilian Moss, Dimitri G. S. Eristoff and Charles J. Dodd, Jr., for respondent.
   Order affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Rippey, Lewis, DesmoNd and JJ.


text:
    The People of the State of New York, Respondent, v. Frank Irwin, Appellant.
    Submitted February 28, 1944;
    decided April 6, 1944.

      Frank Irwin, appellant, in person.

      Charles P. Sullivan, District Attorney (James F. T. Delaney of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: LehmaN, Ch. J., Loughrah, Rippey, Lewis, CoNWAY, DesmoND and Thacher, JJ.


text:
    Argued February 24, 1944;
    decided April 6, 1944.

      Michael Catalano and Burt G. Weber for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis E. Cur-ran, Orrin G. Judd and W. Gerard Ryan of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Teacher, JJ.


text:
    Horn & Hardart Company, Plaintiff, v. 115 East 14th Street Company, Inc., Defendant-Respondent, and Third Holding Corporation, Defendant-Appellant.
    Argued February 28, 1944;
    decided April 6, 1944.

      Charles H. Tuttle, Stoddard B. Colby and Charles Fredericks for appellant.

      William D. Embree and Samuel R. Ballin for respondent.
   Judgment affirmed, with costs. Motion to dismiss appeal denied. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, CoNWay, Desmond and Thacher, JJ.


text:
    Staten Island Edison Corporation, Appellant, v. Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents, and City of New York, Intervener, Defendant-Respondent.
    Argued March 2, 1944;
    decided April 6, 1944.

      Jackson A. Dykman, Edmund B. Naylon, Boyal F. Shepard and George Foster, Jr., for appellant.

      Philip Halpern for Public Service Commission, respondent.

      Ignatius M. Wilkinson, Corporation Counsel {Harry Hertzoff and Francis J. Bloustein of counsel), for City of New York, intervener, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughbaN, Eippey, Lewis, CoNway, DesmoND and Thachee, JJ.


text:
    Argued February 21, 1944;
    decided April 6, 1944.

      George K. Jack for appellant.

      Walter J. Carlin for Lafayette National Bank of Brooklyn in New York, respondent.

      George Bosling, special guardian for infants, respondents.
   Order of Appellate Division modified to the extent that the decree o'f the Surrogate is further modified by reducing surcharge number 4 from $5,125 to $4,125, and, as so modified, affirmed without costs. No opinion.

Concur: LehmaN, Ch. J., LoixghbaN, Rippey, Lewis, DesmoND and Thacher, JJ. Taking no part: CoNway, J.


text:
    Marion H. Wells, Judgment Creditor, Appellant, v. Paul M. Hollister, Judgment Debtor, Respondent.
    Argued February 23, 1944;
    decided April 6, 1944.

      J ohn B. Boyle and David W. Kahn for appellant.

      J. Karlin O’Connell for respondent.
   Order affirmed, without costs; no opinion.


text:
    Marion H. Wells, Judgment Creditor, Appellant and Respondent, v. Paul M. Hollister, Judgment Debtor, Respondent and Appellant.
    Argued February 23, 1944;
    decided April 6, 1944.

      John B. Doyle and David Kahn for plaintiff-appellant and respondent.

      J, Harlin O’Connell for defendant-respondent and appellant.
   Order affirmed, costs; no opinion.


text:
    Argued February 24, 1944;
    decided April 6, 1944.

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran, Orrin G. Judd and W. Gerard Ryan of counsel), for appellant.

      Mildred Satler for respondent.
   Order affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Eippey, Lewis, CoNway, DesmoNd and J J.


text:
    Theodore C. Lawrence, Respondent, v. Henry M. Calam et al., (Substituted in place of T. Henry Calam, Deceased), et al., Appellants.
    Submitted February 28, 1944;
    decided April 6, 1944.
   Motion by respondent for reargument denied, without costs. (See 236 N. Y. 168.)


text:
    In the Matter of New York State Labor Board, Petitioner, against Toffenetti Restaurant Company, Inc., Respondent. In the Matter of the People of the State of New York ex rel. New York State Labor Relations Board, Respondent, against Toffenetti Restaurant Company, Inc., et al., Appellants.
    Submitted March 13, 1944;
    decided April 6, 1944.

      Morris Teitelbaum for motion.

      William E. Grady, Jr., Philip Eeldblum and Daniel Kornblum opposed.
   Motion by Toffenetti Restaurant Company, Inc., dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.

Motion by individual appellants denied.


text:
    The People of the State of New York, Respondent, v. Rocco Appellant.
    Submitted March 6, 1944;
    decided April 6, 1944.

      jFrank 8. Hogan, District Attorney {Alan J. Elliot of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Edwin C. Nothiger, Suing as an Owner and Holder of Preferred Stock of Corroon & Reynolds Corporation, on Behalf of All the Owners and Holders of Said Stock, Appellant, v. Corroon & Reynolds Corporation, Respondent.
    Argued April 3, 1944;
    decided April 6, 1944.

      Moses S. Finsilver for motion.

      Edward M. Garloch opposed.
   • Motion granted and appeal dismissed, with costs and ten dollars costs of motion unless appellant serves, and files undertaking on appeal and pays ten dollars' costs within ten days, in which event the motion is denied.


text:
    In the Matter of Henry K. Astwood, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents, and Patrolmen’s Benevolent Association of the City of New York et al., Interveners, Appellants.
    Submitted March 6, 1944;
    decided April 6, 1944.
   Motion by William J. Allsopp and others, appellants and respondents, for reargument denied. (See 291 N. Y. 484.)


text:
    Abraham B. Block et al., Appellants, v. Standard Insurance Company of New York, Respondent.
    Submitted April 3, 1944;
    decided April 6, 1944.

      Martin M. Kolbrener for motion.
    No one opposed.
   Motion granted. (See 292 N. Y. 270.)


text:
    The People of the State of New York, Respondent, v. Gordon Cooke and Winston A. Sealy, Appellants.
    Submitted April 3, 1944;
    decided April 12, 1944.


text:
    The People of the State of New York, Respondent, v. Arthur L. Kelhoffer, Appellant.
    Submitted March 2, 1944;
    decided April 13, 1944.

      George V. Fleckenstem for appellant.
   Judgment affirmed; no opinion.

Concur: LehmaN, Ch. J., Loughran, Rippey, Lewis, CoNway, Desmond and Thacher, JJ.


text:
    The People of the State of New York ex rel. Joan P. Gaines, Appellant, against Henry T. Luria, Respondent.
    Argued March 8, 1944;
    decided April 13, 1944.

      Arthur G. Hays and Oscar Stabmer for appellant.

      John J. Gunneen and 8. F. Peavey, Jr., for respondent.
   Order of Appellate Division modified by striking- therefrom the provisions as to the custody of the infant, and, as so modified, affirmed, without costs, on the ground that the infant is outside the State of New York, living with her father. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, CoNway, Desmond and Teacher, JJ.


text:
    Kay Sherman, Appellant, v. Albert Sherman, Respondent.
    Argued March 9, 1944;
    decided April 13, 1944.

      Charles Bothenberg and Harold Meltzer for appellant.
    No appearance for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., LougheaN, Rippey, Lewis, DesmoND and Thacher, JJ.


text:
    Ernest Panunzio, as Administrator of the Estate of Thomas Panunzio, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 24900.)
    Argued March 2, 1944;
    decided April 13, 1944.

      Bernard Ellenbogen and Andrew J. Malatesta for appellant.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.


text:
    Louise Rizik, Appellant, v. Incorporated Village of Lynbrook, Respondent.
    Argued March 6, 1944;
    decided April 13, 1944.

      Joseph Sand, Henry H. Shepard, Harry Sand and Samuel Wulwiclc iox appellant.

      Clarence S. Zipp and Francis T. Lynch for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Teacher, JJ.


text:
    The People of the State of New York ex rel. Adolph Ehrman and Dominick Nardolillo, Appellants, against Eugene J. Kearney, as Warden of the City Prison of the City of New York, Raymond Street Jail, Brooklyn, Respondent.
    Submitted February 25, 1944;
    decided April 13, 1944.

      Joseph H. Goldstein for appellants.

      Thomas Gradock Hughes, Acting District Attorney (Edward H. Levine of counsel), for respondent.
   Order affirmed; no opinion.


text:
    Agnes S. Gilmartin et al., as Executors of Thomas D. GilDeceased, Respondents, v. Osborne Trust Company, Appellant.
    Argued March 2, 1944;
    decided April 13, 1944.

      Benjamin Michne and Harry G. Stephens for appellant.

      David Glickman and Edgar F. Hazleton for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Rippey, Lewis, CoNway, DesmoNd and Thacher, JJ.


text:
    Lucy W. Wood, Respondent, v. Vogor Realty Corporation, Appellant.
    Submitted March 6, 1944;
    decided April 13, 1944.

      William L. Shumate for appellant.

      Royal E. Mygatt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Edna Robison, Respondent, v. State of New York, Appellant.
    (Claim No. 27106.)
    Argued February 29, 1944;
    decided April 13, 1944.

      Nathaniel L. Goldstein, Attorney-General (Arthur W. Matt-son, Orrin G. Judd and Donald G. Glenn of counsel), for appellant.

      John W. Miles for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Leemae, Ch. J., Loughbah, Rippey, Lewis, CoNway, DesmoNd and JJ.


text:
    The People of the State of New York, Appellant, v. Samuels, Respondent.
    Argued March 6, 1944;
    decided April 13, 1944.

      Thomas Gradock Hughes, Acting District Attorney (William 1. Siegel and Henry J. Walsh of counsel), for appellant.

      Albert Washor for respondent.
   Order affirmed. See People v. Bellows (281 N. Y. 67, 73). No opinion.

Concur: Lehman, Ch. J., LoughbaN, Rippey, Lewis, CoNway, Desmond and Thacheb, JJ.


text:
    Justino Albert, Respondent, v. Public Service Mutual Casualty Insurance Corporation, Appellant.
    Argued March 7, 1944;
    decided April 13, 1944.

      Jacob Shientag and E. Edam Spencer for appellant.

      Harry.Zeitlan and Milton H. Greenwald for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

Concur: Lehman, Ch. J., Lougheah, Rippey, Lewis, Couway, DesmoNd and Thachee, JJ.


text:
    The People of the State of New York, Respondent, v. Edwin A. Livingston, Appellant.
    Submitted March 1, 1944;
    decided April 13, 1944.

      Edwin A. Livingston, appellant, in person.

      Nathaniel L. Goldstein, Attorney-General (Joel Mencher and Orrin G. Judd of counsel), for respondent.
   Judgment affirmed; no opinion.


text:
    Chas. Lindner & Marchesi, Inc., Respondent, v. Joseph Gluck, Appellant.
    Submitted February 25, 1944;
    decided April 13, 1944.

      Isidor Enselman and Morris A. Schoenfeld for appellant.

      Eugene L. Bondy for respondent.
   Judgment affirmed, 'with costs; no opinion.

Concur: Lehmah, Ch. J., Reppey, Lewis, CoNway, DesmoNd and Thaoheb, JJ.


text:
    Thomas Appellant, v. Stewart Motor Trucks, Inc., Respondent, et al., Defendants.
    Submitted February 28, 1944;
    decided April 13, 1944.

      Joseph M. Schwarts for appellant.

      Arthur K. Wing, George S. Wing, James G. Purdy and John H. Brogan for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that questions of fact were presented for determination by the jury as to negligence, contributory negligence and the liability of the defendant-respondent under the decision of this court in Reese v. Reamore (292 N. Y. 292), decided herewith. No opinion.

Concur: Lehmaet, Ch. J., Lougheast, Rippey, Lewis, CoNway, DesmoNd and Thaohee, JJ.


text:
    The People of the State of New York, Respondent, v. John Appellant.
    Argued March 1, 1944;
    decided April 13, 1944.

      Maurice Brandt and Stephen G. West for appellant.

      Edward' J. Neary, District Attorney (Philip Huntington of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Ch. J., LotjgheaN, Rippey, Lewis, Coetway, DesmoNd and Thaohee, JJ.


text:
    Samuel C. Griffin, Appellant, v. City of Syracuse, Respondent.
    Argued April 3, 1944;
    decided April 13, 1944.

      James C. Tormey,■ Corporation Counsel, and Merwin W. Lay for motion.

      Elmer L. Murray opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on tire ground that no substantial constitutional question is involved.


text:
    Michael Katapodis, as Administrator of the Estate of William Katapodis, Deceased, Respondent, v. Ridge Contracting Co., Inc., Appellant, et al., Defendants.
    Submitted April 3, 1944;
    decided April 13, 1944.

      George J. Stacy opposed.
   Motion denied, with ten dollars costs.


text:
    Benjamin Ribak, Respondent, v. Martha Ribak, Appellant.
    Submitted April 3, 1944;
    decided April 13, 1944.

      Joseph Kleiner for motion.

      Clifford I. Odwak and Nathaniel M. Sokolski opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Maria Bensaude et al., Respondents, v. Flomarcy Company Incorporated et al., Respondents, and The City of New York, Appellant.
    Argued April 3, 1944;
    decided April 13, 1944.

      Sidney J. Feltenstein, Irving I. Goldsmith and Joseph L. Boesch for motions.

      Ignatius M. Wilkinson, Corporation Counsel (.Murray Sendler of counsel), opposed.
   Motions denied, with leave to renew on argument of appeal.


text:
    The People of the State of New York, Respondent, v. Jacob Bernoff, Thomas McAdam, Murray Gabaeff, Edward Taylor, Abraham Lichtenstein, Charles Green, Jeremiah Buckley, George Blume and John Murphy, Appellants.
    Submitted April 3, 1944;
    decided April 13, 1944.


text:
    In the Matter of the Will of Marcus Bruckheimer, Deceased. Ruth B. Oppenheimer, Appellant; Milton Bruckheimer et al., Respondents.
    Submitted April 3, 1944;
    decided April 13, 1944.

      Walter M. Weis and Seymour J. Wilner for motion.

      Bradford Butler and Morris Metz opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements on the ground that the appellant may appeal as of right.


text:
    Graybar Electric Company, Inc., Respondent, v. New Amsterdam Casualty Company, Appellant.
    Submitted April 3, 1944;
    decided April 13, 1944.
   Motion by respondent for reargument denied with ten dollars costs and necessary printing disbursements. (See 292 N. Y. 246.)


text:
    Robert W. Christie, Respondent, v. 46th St. Theatre Corp., et al., Appellants.
    Submitted April 3, 1944;
    decided April 13, 1944.
   Motion by appellants 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. The appellants contended that chapter 893 of the Laws of 1941 (section 40-b, Civil Rights Law) of the State of New Tort is repugnant to the Fourteenth Amendment of the Constitution of the United States. This court held that the aforesaid law is not repugnant to the Fourteenth Amendment of the Constitution of the United States.” (See 292 N. Y. 520.)


text:
    Nick De Martini, Respondent, v. Elade Realty Corporation, Appellant.
    Submitted April 3, 1944;
    decided April 13, 1944.

      James F. Conway and Walter G. Michaelis for motion.

      Stephen J. Masse opposed.
   Motion denied with ten dollars costs and necessary printing-disbursements on -the ground that an appeal lies as of right.


text:
    Frank E. Cooper, as Trustee in Bankruptcy of John L. Miller, Appellant, v. John L. Miller et al., Respondents.
    Submitted April 3, 1944;
    decided April 13, 1944.

      Martin A. Schenck, Kenneth W. Greenawalt and Josephine C. Nieoll for motion.

      Frederick Hemley opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the judgment does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Examination in Supplementary Proceedings of George C. Judgment Debtor, Appellant. Gertrude M. Draper, Judgment Creditor, Despondent.
    Submitted April 3, 1944;
    decided April 13, 1944.

      George G. Riley, in person, for motion.

      Ford White opposed.
   Motion granted, without prejudice to such motion as the respondent may hereafter make to dismiss the appeal on the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Christina Le Roy, as Administratrix under Limited Letters of Administration of the Estate of John Le Roy, Deceased, Appellant, v. Ruth G. Tremper et al., as Executors of Harold O. Tremper, Deceased, et al., Respondents, et al., Defendants.
    Submitted April 10, 1944;
    decided April 13, 1944.

      Myron Wisoff and Arthur Dunaif for motion.

      William B. Davis and E. G. Sherwood opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements on the authority of Rathfelder v. Flag (257 App. Div. 71, affd. 282 N. Y. 563; see, also, Reese v. Reamore, 292 N. Y. 292, decided herewith).


text:
    John P. McGrath, Appellant, v. Carl Johnson et al., Copartners under the Name of Johnson & Olsen, Respondents.
    Argued March 7, 1944;
    decided April 20, 1944.

      John and Charles H. Street for appellant.

      Irwin B. Browner and James E. Doherty for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., Lougheaw, Lewis, DesmoNd and Thachee, JJ, Taking no part: Rippey and JJ,


text:
    Benjamin Korobkin, Respondent, v. Public Farms Products, Inc., Appellant.
    Argued March 9, 1944;
    decided April 20, 1944.

      Nathaniel Whitehorn for appellant.

      Allen Moss and William F. Wund for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    In the Matter of Edward S. Cowles, Respondent, against The Board of Regents of the University of the State of New York, Appellant.
    Argued March 6, 1944;
    decided April 20, 1944.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley and Orrin G. Judd of counsel), for appellant.

      Lloyd P. Stryker and Harold Shapero for respondent.
   Order affirmed, with costs; no opinion.


text:
    In the Matter of Morris H. Siegel, Respondent, against Harold J. Crawford, a Justice of the Municipal Court of the City of New York, Respondent. Mae Harding, Intervener, Appellant.
    Argued March 8, 1944;
    decided April 20, 1944.

      Joseph Lonardo, Irving M. Radin and E. F. W. Wildermuth for appellant.

      Lawrence 8. Timen and-IIarris J. Griston for respondent.
   Order affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LotjghraN, Lewis, CoNWAy, Desmond and Thacher, JJ. Taking no part: Rippey, J.


text:
    Esther Jablowsky, Appellant, v. State of New York, Respondent.
    (Claim No. 25297.)
    Argued March 9, 1944;
    decided April 20, 1944.

      Edward J. Ledo gar for appellant.

      Nathaniel L. Goldstein, Attorney-General (Gerald J. Carey and Orrin G. Judd of counsel), for respondent.
   Concur: LehmaN, Ch. J., LoughbaN, Lewis, CoNWay and Des-moND, JJ. Taking no part: Rippby and Thachbb, JJ.


text:
    Margaret McEvoy, Respondent, v. City of New York, Appellant.
    Argued March 6, 1944;
    decided April 20, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Samuel A. Bloom, James Hall Prothero and Frank Horan of counsel), for appellant.

      Louis Baron for respondent
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., Loughrah, Rippey, Cohway and DesmoND, JJ. Dissenting: Lewis, J. Taking no part: Thacher, J.


text:
    The People of the State of New York, Appellant, v. Benjamin Rockower, Respondent.
    Argued March 8, 1944;
    decided April 20, 1944.

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for appellant.

      J. Visel and Joseph A. Lonardo for respondent.
   Order affirmed; no opinion.

Concur: Lehmaet, Ch. J., LoughraN, Lewis, CoNway, Desmond and Thacher, JJ. Taking no part: Rippey, J.


text:
    Edgar Ralff, an Infant, by Rudolph Ralff, His Guardian ad Litem, et al., Appellants, v. Long Island Rail Road Company, Respondent.
    Argued March 8, 1944;
    decided April 20, 1944.

      Irving E. Banner, Harold H. Corbin and Edward Bennett for appellants.

      Harry G. Anderson, Balph E. Hemstreet and Louis J. Car-ruthers for respondent.
   Judgment affirmed, with costs; no opinion.


text:
    Nicholas Pallette et al., Copartners under the Name of Pallette & Santos, Appellants and Respondents, v. State of New York, Respondent and Appellant.
    (Claim No. 25089.)
    Argued March 9, 1944;
    decided April 20, 1944.

      Russell G. Hunt and George H. Rothlauf for claimants-appellants and respondents.

      Nathaniel L. Goldstein, Attorney-General (Burns F. Rarford, Orrin G. Judd and Arthur W. Mattson of counsel), for defendant-respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Rippey, Lewis, CoNway, Desmond and Thaoher, JJ.


text:
    Maria Dorazio, as Administratrix under Limited Letters of Administration of the Estate of Dorazio, Deceased, Respondent, v. New York Telephone Company, Defendant, and United Bottle Supply Corporation, Defendant-Appellant.
    Submitted April 10, 1944;
    decided April 20, 1944.

      Balph W. Brown for motion.

      James H. Brassel opposed.
   Motion denied, without costs. (See rule I of Rules of Court of Appeals.)


text:
    In the Matter of the Claim of Hazel Sheppard, Made on Behalf of Reginald Fludd, Respondent, against Albert J. Demps et al., Appellants.
    Submitted April 10, 1944;
    decided April 20, 1944.
   Motion by respondent to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 773.)


text:
    Submitted April 10, 1944;
    decided April 20, 1944.

      Irwin Isaacs for motion.

      Benjamin Miller and Marc for respondents.
   Motion granted.


text:
    In the Matter of the Probate of the Will of A. Brennan, Deceased.
    Submitted April 10, 1944;
    decided April 20, 1944.

      Thomas W. Constable for motion.

      James E. Lo Piccolo, in person, opposed.
   Motion granted and appeal dismissed, without costs.


text:
    In the Matter of Anne Cooper, Respondent. Leo T. McCauley, as Consul-General of Ireland and as Ancillary Executor of Mary A. Connolly, Deceased, Appellant.
    Submitted April 17, 1944;
    decided April 20, 1944.
   Motion by petitioner-respondent to amend the remittitur and for a stay granted to the following extent: Return of remittitur requested and when returned it will he amended by striking therefrom‘the provision awarding costs against the petitioner. (See 291 N. Y. 255.)


text:
    Maria Bensaude et al., Respondents, v. Flomarcy Company Incorporated et al., Respondents, and The City of New York, Appellant.
    Submitted May 15, 1944;
    decided May 16, 1944.

      Sidney J. Feltenstein for motion.

      Ignatius M. Wilkinson, Corporation Counsel (Murray Sendler of counsel), opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of Charles L. Brown, Respondent, against Towns of Gates and Chili, Monroe County, New York, Appellants.
    Argued April 4, 1944;
    decided May 18, 1944.

      Eric P. Smith for Town of Gates, appellant.

      Joseph Wm. Taylor for Town of Chili, appellant.

      Francis G. Wickes for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis, CoNway, Desmond and Thacher, JJ. Taking no part: Bippey, J.


text:
    In the Matter of the Arbitration Between Arthur L. Friedheim, Appellant, and International Paper Company, Bespondent.
    Argued April 6, 1944;
    decided May 18, 1944.

      Jacob B. Freund for appellant.

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

Concur: LehmaN, Cb. J., Loughrak, Lewis, CoNWay and Thacher, JJ. Taking no part: Bippey and JJ.


text:
    In the Matter of Irving Goldman et al., Copartners under the Name of Circle Theatre Ticket Service Co., Appellants, against Paul Moss, as of Licenses of the City of New York, Respondent.
    Argued April 11, 1944;
    decided May 18, 1944.

      Oscar Levine and Alfred B. Leeds for appellants.

      Ignatius M. Wilkinson, Corporation Counsel (Richard L. Baltimore, Jr., and James Hall Prothero of counsel), for respondent.
   Order affirmed, with costs; no opinion.


text:
    Ralph Josephson, Appellant, v. Dry Dock Savings Defendant, and Hortense Z. Mendez, Defendant-Respondent.
    Argued April 5, 1944;
    decided May 18, 1944.

      Abraham Moseowits, George M, Levy and Irving Goldberg for appellant.

      Joseph E. Stearns for respondent.
   Order affirmed, with costs. Questions certified answered in the negative. No opinion.

Concur: Ch. J., LoughraN, Lewis, CoNway and Thacher, JJ. Taking no part: Rippey and DesmoNd, JJ.


text:
    In the Matter of the Arbitration Between Benjamin Shapiro, Doing Business as Aaborn Company, Appellant, and Federal Construction Corporation, Respondent.
    Argued April 11, 1944;
    decided May 18, 1944.

      Harry Becker for appellant.

      Louis Freedman for respondent.
   Order affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., Loughbak, Lewis, CoNway, DesmoNd and JJ. Taking no part: Rippey, J.


text:
    Fenton E. MacCallum, Respondent, v. Fred Beal et al., Defendants, and Real Silk Mills, Inc., Defendant-Appellant.
    Argued April 5, 1944;
    decided May 18, 1944.

      P. Sidney Hand for appellant.

      Leonard H. Amdursky, Robert G. lies and William K. Bentley for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Lewis, CoNway and Thacher, JJ. Taking no part: Rippey and JJ.


text:
    Matthew Goldstein, Suing on His Own Behalf and on Behalf of All Other Stockholders of Singer Company Similarly Situated, Appellant, v. Milton C. Lightner et al., Respondents.
    Argued April 6, 1944;
    decided May 18, 1944.

      Abraham Marcus for appellant.

      Theodore Kiendl and S. Hazard Gillespie, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., Loughrah, Lewis, CoNWay and Thacheb, JJ. Taking no part: Rippey and DesmoNd, JJ.


text:
    William H. Purvin, on Behalf of Himself and All Other Creditors of the Estate of Louis L. Grey, Deceased, Appellant, v. Harold N. Grey et al., Respondents.
    Argued April 10, 1944;
    decided May 18, 1944.

      Meyer Kraushaar for appellant.

      Edward E. Eoenig for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehmau, Ch. J., LottghraN, Lewis, CoNwat, DesmoNd and Thaoher, JJ. Taking no part; Rippey, J.