author: Finch, J.

text:
    Anthony Novitz, Respondent, v. Mary T. Maine, Appellant.
    Argued January 27, 1937;
    decided March 9, 1937.

      Philip W. Lowry for appellant.

      John R. Bushong and Sydney A. Syme for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman^ O’Brien, Loughran and Rippey, JJ. Taking no part: Hubbs, J. Finch, J., dissents in the following memorandum, in which Crane, Ch. J., concurs:

Finch, J.

(dissenting). The plaintiff was employed by the defendant as janitor and general handyman at her private school for girls. While cleaning the outside of a window on the second floor of the school gymnasium, he fell to the ground, sustaining severe injuries for which he has recovered a judgment in the sum of $20,000.

In this action for personal injuries, the trial court directed a verdict in favor of the plaintiff, merely submitting the question of damages to the jury. No issue of fact, or even conflicting inferences from the facts, must exist upon this record, otherwise such issues or inferences must in this common law action have been submitted to the jury. It is submitted that there were issues for the jury.

This accident happened in January. I can find no contradiction of the testimony of the defendant that she ordered the plaintiff not to clean the windows from the outside during the winter time, and that when he did wash outside the windows otherwise than in winter time, he should do so by standing on the inside. In addition, the defendant testified, also without contradiction, that when the plaintiff informed her that he was going to work in the gymnasium she ordered him not to work indoors that day, as the day was too fine to be used for indoor work, and that the plaintiff should come to her for instructions in twenty minutes. Plaintiff disobeyed all three of these commands of his employer. If this testimony of the defendant is true,' and the plaintiff acted in disobedience of his employer’s commands, it cannot be said that the employer required or permitted the cleaning of the window as directed by the statute. It is claimed that when the defendant asked specifically to go to the jury on two other issues of fact, she thereby waived the right of submission to the jury of all other questions of fact. In a common law action tried before a jury, I can see no waiver here. The emphasis on the two issues of fact was in answer to the motion of plaintiff for a directed verdict on all issues except the amount of damages. The parties had come before the court to have submitted to the jury all issues of fact, and it requires more than is shown by this record to hold that the defendant has waived her right to have all the issues arising taken away from the jury. It is next urged that these commands of the defendant were vague and given long before the time of the accident. Neither of these objections seems to me sufficiently valid to deprive the jury of their right to pass on the credibility of this testimony of the defendant.

It also seems to me that an issue arose upon this record for the jury, as to whether the plaintiff would have made use of the hooks even if they had been furnished. In other words, was the absence of the hooks a proximate cause of the accident? It is true that the absence of a safety device never causes a man to fall from a window. It may well be, however, that there are facts present which show that the man would not have used the device even if it had been present. If the facts shown raise any issue as to this, it is for the jury. In the case at bar, the Rules and Regulations of the Industrial Board show that the statute applies only when the window is washed wholly from the outside, and that hooks must be placed four and one-quarter feet above the sill. This latter requirement would seem to add strength, if any is needed, to show that the Industrial Board construed this provision of the Legislature as applying only to situations where the window is required to be cleaned on the outside. Indeed, the Board has said so in just so many words. On this issue in the case, the facts show that the plaintiff chose to sit upon the windowsill with the lower part of his body, including his legs and feet, on the inside. A safety belt, if it had been furnished to him, would have had to be fastened to bolts or fittings fifty-one inches above the sill, under the rules of the Industrial Board, promulgated pursuant to the Labor Law (Cons. Laws, ch. 31, § 202). If the plaintiff, sitting on the sill, had fastened a safety belt to the bolts or fittings, the belt would have been fastened more than a foot above his head. The belt would have extended from his waist, close to the sill, to the bolts, fifty-one inches above the sill, a distance of approximately four feet. Even assuming that the straps of safety belts are of sufficient length to be used while in such a position, the use of the belt, with its straps hooked on more than a foot above the head of the wearer, would have made his position so awkward that it is extremely doubtful whether any one would attempt to wear it. It is urged that we must assume that the plaintiff would have attached the belt and stood upon the sill. Perhaps he would have done so. Actually, he had assumed a sitting position in cleaning the windows. Whether he would have chosen to stand or to sit, if he had been furnished with a safety belt, cannot be determined as a question of law. The question is one of fact, and should have been submitted to the jury.

The remaining question is one of law, namely, whether the statute applies because the window was not being cleaned from the outside as required by the statute (§ 202). The language of the statute is ambiguous. In arriving at the proper construction of a statute couched in uncertain terms, the authorities hold that the courts may be guided by the unchallenged practical construction placed upon the statute by those charged with the responsibility of administering the statute. It seems to me that those authorities apply here, and that when the defendant showed that the Industrial Board promulgated, as one of the rules under this statute, that the term ' outside ’ shall mean wholly without the building,” we should adopt that construction and not place upon the citizenry generally, by construction of an ambiguous statute, an obligation not imposed by the Board charged with the administration of the statute. The defendant apparently acted within the rules promulgated by the Industrial Board because, as already noted, she commanded the plaintiff that when he washed the panes of the window on the outside, he must do so by standing on the sill within the building. If the Legislature wishes to make the statute apply more broadly than as interpreted by the Industrial Board charged with its enforcement, it may easily do so by amendment.

The complaint should be dismissed.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Abraham Goldstein, Respondent, v. Connecticut General Life Insurance Company, Appellant. Abraham Goldstein, Respondent, v. Massachusetts Mutual Life Insurance Company, Appellant. Abraham Goldstein, Respondent, v. Fidelity Mutual Life Insurance Company, Appellant.
    Argued January 19, 1937;
    decided March 9, 1937.

      John Bright and Abram F. Servin for appellants.

      William B. Crowell, Harry Cole Bates, Allan E. Brosmith and Louis H. Cooke for Metropolitan Life Insurance Company et al., amici curiæ.

      Isadore Rothenberg for respondent.
   Per Curiam.

The evidence shows that the insured was permanently and totally disabled as defined in the policies. It is, therefore, unnecessary to determine whether the definition formulated by the courts below accurately explained the language of the policies.

The judgments should be affirmed, with one bill of costs.

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

Judgments affirmed.


text:
    Edwin F. Sheehan, Respondent, v. North Country Community Hospital, Appellant, Impleaded with Another.
    Argued January 12, 1937;
    decided March 9, 1937.

      Richards W. Hannah and William A. Earl for appellant.

      Louis G. Hart, Jr., for respondent.
   Judgment affirmed, with costs, on the authority of Sheehan v. North Country Community Hospital (273 N. Y. 163). No opinion.

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


text:
    Rochester Trust and Safe Deposit Company, Appellant, v. Rodney S. Hatch et al., Respondents.
    Submitted March 1, 1937;
    decided March 9, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 507.)


text:
    In the Matter of the Accounting of James L. Stoner et al., as Executors of John T. Welsh, Respondents. James L. Stoner et al., Appellants and Respondents; Mary Welsh, Respondent and Appellant. Julia R. Welsh et al., Respondents.
    Submitted March 1, 1937;
    decided March 9, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 184.)


text:
    In the Matter of Mendoza Fur Dyeing Works, Inc., Respondent, against Frank J. Taylor, as Comptroller of the City of New York, Appellant.
    Submitted March 1, 1937;
    decided March 9, 1937.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 275.)


text:
    In the Matter of Frank Rose et al., Appellants, against Victor J. Shankey et al., Constituting the Town Council of the Town of Haverstraw et al., Respondents.
    Submitted March 1, 1937;
    decided March 9, 1937.

      Walter A. McDermott and Ernest W. Hofstatter for motion.

      H. Eliot Kaplan opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of the Application of The City of New York to Acquire Title to East 29th Street from Avenue “ Z ” to Emmons Avenue. Ernestine Siebert, Appellant; City of New York et al., Respondents.
    Submitted March 1, 1937;
    decided March 9, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 62.)


text:
    In the Matter of the Accounting of Emil Sundheimer, as Executor of Paul Sundheimer, Deceased, Respondent. Sigrid M. Sundheimer, Appellant; Alice Dillingham, as Special Guardian, Respondent.
    Submitted March 1, 1937;
    decided March 9, 1937.
   Motion for reargmnent denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 532.)


text:
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title to Land for the Establishment of a Public Beach in the Borough of Queens. Metro Investing and Credit Corporation et al., Appellants; Harry Lambros, Respondent.
    Argued March 1, 1937;
    decided March 9, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair and Reuben Levy of counsel), for motion.

      Leo B. Mittelman, A. Joseph Geist, Isaac Katz and Charles Lamb, opposed.
   Motion to dismiss appeal as to the city of New York denied, with leave to renew on argument of appeal.


text:
    Harrison E. Fryberger, Appellant, v. N. W. Harris Company, Inc., et al., Respondents, Impleaded with Others.
    Submitted March 1, 1937;
    decided March 9, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 115.)


text:
    Grace E. Lowendahl, Appellant, v. Baltimore and Ohio Railroad Company et al., Respondents.
    Submitted March 1, 1937;
    decided March 9, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 360.)


text:
    Lina Sommer, Appellant and Respondent, v. Paul Sommer, Respondent and Appellant.
    Submitted March 1, 1937;
    decided March 9, 1937.

      Alexander U. Zinke for motion.

      Ernest G. Metcalfe opposed.
   Motion denied, with ten dollars costs.


text:
    Nassau County Trust Company, as Administrator of the Estate of Shaheenie Saleeby, Deceased, et al., Appellants, v. Nazura D. Saleeby et al., Individually and as Heirs at Law and Next of Kin of Shaheenie Saleeby, Deceased, et al., Respondents.
    Argued March 1, 1937;
    decided March 9, 1937.

      John R. Jones for motion.

      Vito F. Lanza opposed.
   Motion denied, with leave to renew on argument of appeals.


text:
    United States Hat Company of New York, Appellant, v. Title Guarantee and Trust Company, Respondent.
    Submitted March 1, 1937;
    decided March 9, 1937.

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


text:
    Harold T. Confer et al., Appellants, v. Ernest J. Pirman et al., Respondents.
    Argued January 21, 1937;
    decided March 16, 1937.

      John A. Slade for appellants.

      Joseph Rosch and John H. Barker for respondents.
   Judgment affirmed, with costs, on the authority of White v. Knickerbocker Ice Co. (254 N. Y. 152). No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ. Ta’dng no part: Hubbs, J.


text:
    In the Matter of Morris Blankfein, Appellant, against Henry E. Bruckman et al., Constituting the State Liquor Authority, et al., Respondents.
    Argued March 1, 1937;
    decided March 16, 1937.

      Milton Brause and Irving Abramson for appellant.

      Monroe I. Katcher, II. and William H. Ticho for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Jane D. Ward, Deceased. Malcolm D’Ambrogio, Appellant; Fifth Avenue Bank of New York et al., as Executors of Jane D. Ward, Deceased, Respondents.
    Argued March 1, 1937;
    decided March 16, 1937.

      Edward H. Beck and Abraham G. Males for appellant.

      Edward T. Corcoran for respondents.
   Order affirmed, with costs, unless within twenty days the appellant purges himself of the contempt or submits himself to the jurisdiction of the court, in which event the order is reversed, without costs. No opinion.

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


text:
    Robert J. Stewart, Appellant, v. Henry N. Ahrens, Respondent.
    Argued March 1, 1937;
    decided March 16, 1937.

      Horace M. Gray for appellant.

      Walter H. Merritt for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Palmer, Barber, Matters & Merritt, Respondent, against Robert J. Stewart, Appellant, and Henry N. Ahrens et al., Respondents.
    Argued March 1, 1937;
    decided March 16, 1937.

      Horace M. Gray for appellant.

      Walter H. Merritt for petitioners, respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    Florence U. Breslav, on Behalf of Herself and Others, Respondent, v. New York and Queens Electric Light and Power Company et al., Appellants.
    Argued March 2, 1937;
    decided March 16, 1937.

      Joseph M. Proskauer, Robert E. Coulson, Thomas H. Beardsley, J. Alvin Van Bergh and Albert L. Solodar for appellants.

      Arthur V. McDermott, Thomas Gregory, Mary H. Donlon and James Bundy Burke for respondents.
   Order affirmed, with costs; and question certified answered in the affirmative. No opinion.

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


text:
    E. Carlton Foster et al., Respondents, v. George H. R. White, Appellant.
    Argued March 2, 1937;
    decided March 16, 1937.

      John E. Sheridan and W. Smith O'Brien for appellant.

      Halsey Sayles and Homer C. Pelton for respondents.
   Order affirmed, with costs; and question certified answered in the affirmative. No opinion.

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


text:
    Rose D. April et al., Appellants and Respondents, v. Philip April, Defendant, and Joseph G. Abramson, as Trustee, Respondent and Appellant.
    Submitted March 1, 1937;
    decided March 16, 1937.
   Motion for a reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. Without plaintiff’s knowledge payments were made both from principal and income while the trust fund was not sufficient security. Under the rules stated in the opinion the result of such payments was to deprive the plaintiff of the security to which she was entitled. This is true even though the payment was made in part from income. (See 272 N. Y, 331.)


text:
    County of Nassau, Appellant and Respondent, v. City of Long Beach et al., Respondents and Appellants.
    Submitted March 1, 1937;
    decided March 16, 1937.
   Motion for reargument granted and case set down for first week of next session. (See 272 N. Y. 260.)


text:
    Douglas O. Robertson, Suing for Himself and Others, Appellant, v. John D. Schoonmaker, Jr., et al., as Executors of John D. Schoonmaker, Deceased, et al., Respondents, Impleaded with Others.
    Submitted March 8, 1937;
    decided March 16, 1937.

      Perry A. Hull and John W. DeWitt for motion.

      Isadore Bookstein opposed.
   Motion denied, with ten dollars costs and necessary-printing disbursements, on the ground the order is not a final order.


text:
    In the Matter of the Claim of Lucille Z. Alexander, Respondent, against Movietonews, Inc., et al., Appellants. State Industrial Board, Respondent.
    Submitted March 8, 1937;
    decided March 16, 1937.
   Motion to amend the remittitur granted, and when returned it will be amended by adding thereto the following:

A Federal question was presented and necessarily passed upon by this Court. The insurance-carrier and the employer contended that because the injuries, which resulted in the death of claimant’s intestate, occurred in Sequoia National Park, California, the Act of the Congress of June 2, 1920 (16 U. S. C. A., Sects. 66 and 67) and the Act of Congress of February 1, 1928 (ch. 15, vol. 45, Pt. 1, U. S. Statutes, p. 54) furnish the sole remedy for the recovery of damages, and that the Workmen’s Compensation Law of the State of New York has no application. The question was raised at folios 105 and 213 of the record on appeal. This Court held that the Acts of Congress aforesaid do not furnish the sole remedy in such a case, and that the award under the Workmen’s Compensation Law of the State of New York was proper.” (See 273 N. Y. 511.)


text:
    In the Matter of Robert J. Rooney, Respondent, against William G. Rice et al., Constituting the New York State Civil Service Commission, Respondents; James C. Quinn et al., Constituting the New York City Alcoholic Beverage Control Board, Appellants, and Louis Fisher et al., Interveners, Appellants, Impleaded with Another.
    Submitted March 15, 1937;
    decided March 16, 1937.

      Emanuel Thebner for motion.

      James C. Quinn, Albert de Roode and William I. Cohen opposed.
   Motion to dismiss appeal of James C. Quinn, chairman and others, constituting the New York City Alcoholic Beverage Control Board, denied, with ten dollars costs.

Motion to dismiss appeal of Louis Fisher and another, interveners, granted and appeal dismissed, with costs and ten dollars costs of motion, unless said appellants file and serve undertaking on appeal and pay ten dollars costs within ten days, in which event the motion is denied.


text:
    In the Matter of Acquiring Title to Public Park, and Opening and Extending Kissena Boulevard, etc., in the Borough of Queens. Flushing National Bank in New York, Appellant; City of New York et al., Respondents.
    Argued March 2, 1937;
    decided March 23, 1937.

      Harold R. Zeamans, Benjamin Miller and Milton Haas for appellant.

      Paul Windels, Corporation Counsel (Lewis Orgel, Paxton Blair and Daniel M. Cohen of counsel) for the City of New York, respondent.

      Franklin M. Tomlin for Rocklyn Realty Corporation, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hhbbs, Loughran, Einch and Rippet, JJ.


text:
    In the Matter of Town of Huntington, Appellant, against William J. Bradford et al., Constituting the Board of Assessors of the Village of Northport, Respondents.
    Argued March 3, 1937;
    decided March 23, 1937.

      Isaac R. Swezey and Fred J. Munder for appellant.

      Edgar R. Mead for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of William L. Callister et al., as Executors of Thomas Callister, Deceased. Estelle M. Callister, an Incompetent Person, by Walter J. Sharkey, as Special Guardian, et al., Appellants; William L. Callister et al., as Executors of Thomas Callister, Deceased, et al., Respondents.
    Submitted March 3, 1937;
    decided March 23, 1937.

      Theodore Reiss and Albert Reiss for Margrethe Callister, as executrix of Herbert J. Callister, deceased, appellant.

      Walter J. Sharkey as special guardian for Estelle M. Callister, appellant.

      Franklin A. Rogers and Stanley F. Maslak for respondents.
   Order affirmed, with costs to all parties appearing and filing separate briefs payable out of the estate. No opinion.

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


text:
    Ella Gaylor, Respondent, v. William Burroughs, Defendant, and William B. McGuire, Appellant.
    Argued March 3, 1937;
    decided March 23, 1937.

      Christian S. Lorentzen and John E. Connelly, Jr., for appellant.

      John A. Rullo and Sydney J. Schwartz for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    In the Matter of the City of Long Beach, Appellant, against J. Russel Sprague et al., as Members of the Board of Supervisors of Nassau County, Respondents.
    Argued March 3, 1937;
    decided March 23, 1937.

      David B. Tolins, Corporation Counsel, for appellant.

      James L. Dowsey, County Attorney (Kenneth M. Spence, Paul Van Anda and John J. Knob of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The Trustees of the Sailors’ Snug Harbor in the City of New York, Appellants, v. M. & H. Lassaw Realty Company, Inc., et al., Respondents, Impleaded with Others.
    Argued March 3, 1937;
    decided March 23, 1937.

      E. J. Dimock, Barent L, Visscher, Glen W. Watkins and Joseph G. Kelly for appellant.

      E. Robert Willcox and J. Donald Whelehan for Louis H. Pink, Superintendent of Insurance of the State of New York, as rehabilitator of Bond and Mortgage Guarantee Company, et al., respondents.
   Orders reversed, with costs in all courts, and matter remitted to Special Term to proceed in accordance with the opinion in Heiman v. Bishop (272 N. Y. 83). No opinion.

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


text:
    In the Matter of Katie Cutrie, Respondent; 664 Bay Ridge Avenue Corporation, Appellant.
    Submitted March 3, 1937;
    decided March 23, 1937.

      Michael M. Helfgott, Jacob Schechner and Mitchell J. Levin for appellant.

      Milton Hertz and Charles Wilson for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lottghran, Finch and Rippey, JJ.


text:
    In the Matter of the Application of the Corporation Counsel of the City of New York Relative to the Closing of a Portion of Old White Plains Road in the Borough of the Bronx. Frank J. Taylor, as Comptroller of the City of New York, Appellant; Elizabeth Downs et al., as Executrices of Mary A. Ullman, Deceased, et al., Respondents.
    Argued March 3, 1937;
    decided March 23, 1937.

      Paul Windels, Corporation Counsel (Phillip W. Haberman, Jr., Paxton Blair and Samuel K. Handel of counsel), for appellant.

      Thomas C. Blake and Denis Quinn for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Gh. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Frances B. Hynes, Respondent, v. Title Guarantee and Trust Company, as Executor of Edward W. Browning, Deceased, et al., Appellants, Impleaded with Others.
    Argued March 3, 1937;
    decided March 23, 1937.

      Daniel A. Shirk, as guardian ad litem, Edwin R. Wolff and Milton A. Goldiner for Dorothy B. Hood, an infant, appellant.

      Joseph V. McKee, Casimir J. F. Patrick and William T. Griffin for Title Guarantee and Trust Co., Inc., as executor, et al., appellants.

      George J. Langley, Irving E. Burdick and John P. Courts for respondent.
   Order affirmed, with costs, and questions certified answered in the negative; no opinion.

Concur: Lehman, O’Brien, Htjbbs, Loughran and Rippey, JJ. Dissenting as to Edbro Realty Co., Inc : Crane, Ch. J., and Finch, J.


text:
    In the Matter of the Claim of Ernest Falk, Respondent, against Midland Dairy Co., Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued March 4, 1937;
    decided March 23, 1937.

      Harold V. Angevine and James A. Hughes for appellants.

      Joseph P. Walsh for claimant, respondent.

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

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


text:
    In the Matter of Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Consolidated Indemnity and Insurance Company, Appellant, against Charles E. Ransom, as County Clerk of Nassau County, Respondent.
    Argued March 4, 1937;
    decided March 23, 1937.

      Jess H. Rosenberg, James R. Kelly and Lester Weil for appellant.

      James L. Dowsey, County Attorney (John Mowat Mitchell of counsel), for respondent.
   Order affirmed, with costs, upon the authority of Van Schaick v. Jacoby (266 N. Y. 517), and Matter of Egbert v. Harman (272 N. Y. 242). The instruments referred to in section 416 of the Insurance Law, for the filing of which no fee is to be charged, are the orders and papers in the direct proceedings mentioned and authorized in article 11. No opinion.

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


text:
    In the Matter of Louis H. Pink, Superintendent of Insurance of the State of New York, as Rehabilitator of Bond and Mortgage Guarantee Company,Appellant, against John N. Harman, as County Clerk of Kings County, Respondent.
    Argued March 4, 1937;
    decided March 23, 1937.

      Jess H. Rosenberg, James R. Kelly and J. Donald Whelehan for appellant.

      Hector McG. Curren for respondent.
   Order affirmed, with costs, upon the authority of Matter of Pink v. Ransom (273 N. Y. 617). No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lottghran, Finch and Rippey, JJ.


text:
    Charles Pfeil, Appellant, v. August C. Hasselbush et al., Respondents.
    Submitted March 5, 1937;
    decided March 23, 1937.

      Albert C. Jordan for appellant.

      John L. Crandell for respondents.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Application of George H. Ashman, Jr., as Executor of George H. Ashman, Deceased, Appellant, for an Order Canceling and Discharging a Mortgage of Record. Schenectady Building Loan and Savings Association, Respondent.
    Argued March 5, 1937;
    decided March 23, 1937.

      Joseph S. Robinson, Everett Froohs and Dorothy Frooks for appellant.

      Alvin F. Nitchman for respondent.
   Order affirmed, with costs. No opinion.

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


text:
    Donald Trent, an Infant, by Eugene Trent, His Guardian ad Litem, Respondent, v. International Railway Company, Appellant. Eugenia E. Trent, an Infant, by Eugene Trent, Her Guardian ad Litem, Respondent, v. International Railway Company, Appellant. Eugene Trent, Respondent, v. International Railway Company, Appellant. Mary Trent Respondent, v. International Railway Company, Appellant.
    Argued March 5, 1937;
    decided March 23, 1937.

      Ralph K. Robertson, Albert M. Kraus and John J. Sullivan, Jr., for appellant.

      Clayton M. Smith for respondents.
   In each case, judgment affirmed, with costs; no opinion.

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


text:
    Nathan Seidenberg, Respondent, v. Meyer A. Jeneroff, Appellant.
    Argued March 5, 1937;
    decided March 23, 1937.

      Herbert F. Hastings, Jr., F. G. Mann and Everett F. Warrington for appellant.

      John H. Broderick and Morris Simon for respondent.
   Judgment affirmed, with costs. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Bubbs Lotjghran, Finch and Rippey, JJ.


text:
    In the Matter of New York Credit Men’s Association, Inc., Appellant, against Jacob Schneider et al., Defendants, and Dora Schneider, Respondent.
    Argued March 5, 1937;
    decided March 23, 1937.

      Charles Gottlieb for appellant.

      Ludwig M. Wilson for respondent.
   Appeal dismissed, with costs. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Cecil C. Colbert et al., Appellants, against John H. Delaney et al., Constituting the Board of Transportation of the City of New York, et al, Respondents.
    Argued March 8, 1937;
    decided March 23, 1937.

      Albert De Roode for appellants.

      PaulWindels, Corporation Counsel (Edmund L. Palmieri and Paxton Blair of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Plaintiff, v. Robert Adamson et al., Defendants. Leo Doreman, Respondent, v. Frank S. Demarest, Appellant.
    Argued March 8, 1937;
    decided March 23, 1937.

      Joseph Otis for appellant.

      Walter H. Merritt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John R. Foote et al., Defendants, and Town of Oyster Bay, Appellant.
    Argued March 8, 1937;
    decided March 23, 1937.

      Philip Huntington, David S. Hill, Jr., and Charles I. Wood for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, G. Frank Dougherty, Ruth I. Wilson and Raymond P. McNulty of counsel), for respondent.
   Appeal dismissed, with costs. We can find no constitutional question upon which an appeal to this court can be based. No opinion.

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


text:
    The People of the State of New York, Respondent, v. John H. Foote et al., Appellants, and Town of Hempstead, Respondent.
    Argued March 8, 1937;
    decided March 23, 1937.

      Lillian M. Kooperstein, William H. Bisnoff and Moses Kooperstein for Grace M. Alling et al., appellants.

      Milton Pinkus and Charles E. Russell for Evelyn Bird et al., infants, by George A. Littlejohn, as guardian ad litem, appellants.

      Louis W. McKernan for Willis M. Moore et al., appellants.

      Eugene R. Hurley and Benjamin Kaplan for David Bandler et al., appellants.

      Alfred T. Davison and James M. Gray for town of Hempstead, respondent.

      John J. Bennett, Attorney-General (Henry Epstein, G. Frank Dougherty, Ruth I. Wilson and Raymond P. McNulty of counsel), for the People of the State of New York, respondent.
   Appeal dismissed, with costs, on authority of People v. Foote (273 N. Y. 629). No opinion.

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


text:
    Town of Oyster Bay, Appellant, v. Robert Moses et al., Respondents.
    Argued March 9, 1937;
    decided March 23, 1937.

      Eugene R. Hurley and Charles I. Wood for appellant.

      G. Frank Dougherty, Ruth I. Wilson and Raymond P. McNulty for respondents.

      James B. Alley, Max O’Rell Truitt and William Radner for Reconstruction Finance Corporation, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

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


text:
    Central Hanover Bank and Trust Company, Appellant, v. Frederick Kraft et al., Respondents.
    Argued March 9, 1937;
    decided March 23, 1937.

      Francis S. Bensel and W. Frederick Knecht for appellant.

      Otto A. Samuels and Henry Cohen for respondents.
   Judgment of the Appellate Division reversed and judgment of the Special Term affirmed, with costs in this court and in the Appellate Division, on the authority of Heiman v. Bishop (272 N. Y. 83). No opinion.

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


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance of the State of New York, for an Order to Take Possession of the Property and Liquidate the Business of the Lexington Surety and Indemnity Company. The People of the State of New York, Appellant; George S. Van Schaick, as Superintendent of Insurance, Respondent.
    Submitted March 15, 1937;
    decided March 23, 1937.
   Motion for reargument or to amend the remittitur denied, without costs. The question of preference was not before the court for decision. (See 272 N, Y. 210.)


text:
    In the Matter of Richard A. Wallace, Appellant, against John J. McElligott, as Fire Chief and Commissioner of the Fire Department of the City of New York, Respondent.
    Submitted March 15, 1937;
    decided March 23, 1937.

      Paul Windels, Corporation Counsel (Elizabeth Rogers Horan of counsel), for motion.

      Roy P. Monahan opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Edwin W. Inslee et al., as Trustees of the Estate of Samuel Inslee, Deceased, Respondents, v. Maurice H. Bob, Appellant.
    Argued March 10, 1937:
    decided March 25, 1937.

      Joseph H. Robins and Henry Goldstein for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Aaron Segall, Appellant, v. Herman Mendlowitz et al., Respondents, Impleaded with Others.
    Argued March 10, 1937;
    decided March 25, 1937.

      Eugene L. Bondy and Norman Winer for appellant.

      Irving J. W. Marx, Leslie Handler and Nathan Friedman for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Eastern Contracting Company, Appellant, v. The City of New York, Respondent.
    Argued March 10, 1937;
    decided March 25, 1937.

      John L. Wells for appellant.

      Paul Windels, Corporation Counsel (Oren C. Herwitz and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John H. Clark, Jr., Respondent, v. Fiorello H. LaGuardia, as Mayor of the City of New York, et al., Appellants.
    Argued March 10, 1937;
    decided March 25, 1937.

      Paul Windels, Corporation Counsel (Joseph L. Weiner, Herman Horowitz and Arthur A. Segall of counsel), for appellants.

      John Holley Clark, Jr., in person, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charlotte E. Simms et al., Respondents, v. Folts Mission Institute, Appellant.
    Argued March 10, 1937;
    decided March 25, 1937.

      David E. Snyder for appellant.

      William R. Lee for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    George Arab, Respondent, v. Bush Lumber and Supply Company, Appellant.
    Argued March 11, 1937;
    decided March 25, 1937.

      Jay Leo Rothschild, Arthur S. Jarcho and Henry L. Ughetta for appellant.

      William A. Blank, Bernard Meyerson and Sidney Gondelman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank Mangano, Plaintiff, v. Sunbright Steam Laundry Co., Inc., Appellant, and American Employers' Insurance Company of Boston, Respondent.
    Argued March 11, 1937;
    decided March 25, 1937.

      Jay Leo Rothschild, and Walter S. Beck for appellant.

      Walter L. Glenney and Chauncey L. Grant for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, BLubbs, Loughran, Finch and Rippey, JJ.


text:
    Frank Paccione, Individually and as Administrator of the Estate of Manuel Paccione, Deceased, Appellant, v. Home Indemnity Company, Respondent.
    Argued March 11, 1937;
    decided March 25, 1937.

      John F. X. Finn and John A. Blake for appellant.

      Daniel Mungall, Fred H. Rees and David D. Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Stephen H. Mason, Appellant, v. Village of Munsey Park, Respondent. In the Matter of Stephen H. Mason, Appellant, against Fred W. Wulfing, as Mayor of the Village of Munsey Park, et al., Respondents.
    Submitted March 22, 1937;
    decided March 25, 1937.

      C. Malcolm Dowsey for appellant.

      Herman Block for respondents.
   Motions to withdraw appeals taken as of right granted.


text:
    Catherine Fearon, Appellant, v. Charles Treanor, Respondent.
    Submitted March 22, 1937;
    decided March 25, 1937.


text:
    The People of the State of New York, Respondent, v. David Dab, Appellant.
    Submitted March 22, 1937;
    decided March 25, 1937.

      William Copeland Dodge, District Attorney (Le Roy Mandle of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Respondent, v. Nadine King, Appellant.
    Submitted March 22, 1937;
    decided March 25, 1937.

      William Copeland Dodge, District Attorney (Le Boy Mandle of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Edjomac Amusement Corporation, Respondent, v. Empire State Motion Picture Operators’ Union, Inc., Defendant, and Empire State Theatrical Stage Employees’ Union, Inc., Appellant.
    Argued March 19, 1937;
    decided April 20, 1937.

      Joseph A. Teperson for appellant.

      David Altman and Hyman J. Reit for respondent.
   Judgment of the Appellate Division and that of the Special Term reversed, and complaint dismissed, with costs in all courts, on the authority of Stillwell Theatre, Inc., v. Kaplan (259 N. Y. 405). No opinion.

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


text:
    Brescia Construction Company, Inc., Appellant, v. Walart Construction Company, Inc., Defendant, and New Amsterdam Casualty Company, Respondent.
    Argued March 19, 1937;
    decided April 20, 1937.

      Meyer Levy and Abraham Wilson for appellant.

      J. G. Fink and Harry N. French for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles Fritz, Appellant, v. Julius Krasne et al., Respondents, Impleaded with Another.
    Argued March 18, 1937;
    decided April 20, 1937.

      Chester A. Hahn, Sylvia Miller and Harry Miller for appellant.

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

Concur: Grane, Ch. J., Lehman, O’Brien, Httbbs, Loughran, Finch and Rippet, JJ.


text:
    Edith Rosenbloom, Respondent, v. Amos Baldwin, Appellant, Impleaded with Another. Esther Motyca et al., as Administrators of the Estate of Neenah Chapman, Deceased, Respondents, v. Amos Baldwin, Appellant.
    Argued March 17, 1937;
    decided April 20, 1937.

      Charles J. Yorkey for appellant.

      Clifford H. Searl for Edith Rosenbloom, respondent.

      Dwight L. Murphy for Esther Motyca et al., as administrators, respondents.
   In each case, judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lotjghran, Finch and Rippey, JJ.


text:
    James S. Graham et al., Respondents, v. James B. Fisher et al., Appellants, Impleaded with Another.
    Argued March 17, 1937;
    decided April 20, 1937.

      Joseph Diehl Fackenthal and Bruce E. Grunden for appellants.

      Samuel Okin for respondents.
   Judgment affirmed,«with costs; no opinion.

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


text:
    The People of the State of New York. Respondent, v. Paul Weil, Appellant.
    Submitted March 17, 1937;
    decided April 20, 1937.

      Milton Friedman and Jerome G. Rosenhaus for appellant.

      William Copeland Dodge, District Attorney (Philip A. Donahue of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Grane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Frances Herron, Appellant, v. Columbus Trust Company, Respondent.
    Argued March 16, 1937;
    decided April 20, 1937.

      Henry Hirschberg for appellant.

      Peter Cantline, T. V. W. Anthony and A. H. F. Seeger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    P. V. Baranowsky Company, Ltd., Appellant, v. Guaranty Trust Company of New York, Respondent. Ida V. Gordon et al., Plaintiffs, v. Guaranty Trust Company of New York, Respondent.
    Argued March 16, 1937;
    decided April 20, 1937.

      Nathan A. Smyth and Harding Johnson for appellant.

      Ralph M. Carson, John W. Davis, William C. Cannon, Theodore Kiendl and Harold W. Bissell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Matilda Brand et al., Appellants, v. Interborough Rapid Transit Company, Respondent.
    Argued March 15, 1937;
    decided April 20, 1937.

      Frederick S. Martyn and Raymond D. Thurber for appellants.

      A. H. Cole, Louis S. Carpenter and James L. Quackenbush for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edith A. Glasser, an Infant, by Irene Glasser, Her Guardian ad Litem, et al., Respondents, v. Camp Swatonah Co., Inc., Appellant.
    Argued March 15, 1937;
    decided April 20, 1937.

      Alphonse J. D’Auria for appellant.

      Lazarus Joseph, Isidor Enselman and Gustave G. Rosenberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    South Buffalo Stores, Inc., Respondent, v. W. T. Grant Co., et al., Appellants.
    Argued March 15, 1937;
    decided April 20, 1937.

      George W. Wanamaker for W. T. Grant Co., appellant.

      J. Edmund Kelly for Fred A. Kreitner et al., appellants.

      Sidney B. Pfeifer, Henry Jadd and Sol Tully for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick J. Schneider, Appellant, v. Lillian F. Swartele et al., Defendants, and William Weible et al., Respondents.
    Argued March 15, 1937;
    decided April 20, 1937.

      Harold G. Hutchens for appellant.

      Frederick A. Mann for William Weible, respondent.

      Carroll M. Roberts for George Schnackel, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick J. Young, as Receiver of International Exchange Bank, Appellant, v. Antonio DiStefano, Respondent.
    Argued March, 15, 1937;
    decided April 20, 1937.

      Martin Conboy, David Asch and William J. Butler for appellant.

      Joseph Aranow and Alfred Zwoden for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Rubbs, Loughran, Finch and Rippey, JJ.


text:
    Joseph Maguire, Appellant, v. The State of New York, Respondent.
    (Claim No. 23700.)
    Argued March 12, 1937;
    decided April 20, 1937.

      Max Horowitz and Solon B. Lilienstern for appellant.

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

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


text:
    Joseph G. Vielberth, Appellant, v. The State of New York, Respondent.
    (Claim No. 23726.)
    Argued March 12, 1937;
    decided April 20, 1937.

      Max Horowitz and Solon B. Lilienstern for appellant.

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

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


text:
    Emma V. Corning, Appellant, v. Prudential Insurance Company of America, Respondent.
    Argued March 12, 1937;
    decided April 20, 1937.

      James D. Brown, Frank J. McConnell, Karl S. Mayhew and Lester B. Donahue for appellant.

      Merwin F. Le Vine and Solon Weit for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien. Hhbbs, Loughran, Finch and Rippey, JJ.


text:
    Bertha F. Earl, on Behalf of Herself and Other Stockholders of Standard Furniture Company et al., Appellants and Respondents, v. Sheldon M. Brewer et al., Individually and as Directors of Standard Furniture Company et al., Respondents and Appellants.
    Argued March 11, 1937;
    decided April 20, 1937.

      Gay H. Brown and Ernest P. Felt for plaintiffs, appellants and respondents.

      James F. Hubbell for Sheldon M. Brewer et al., defendants, respondents and appellants.

      Thayer Burgess for Irving G. Will, defendant, respondent and appellant.
   Judgment affirmed, with costs. Appeal from order dismissed, with costs, on ground it is not a final order. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, J.


text:
    Bowery Savings Bank, Respondent, v. Mel & Sons, Inc., Appellant, Impleaded with Others. Barnett J. Nova, as Receiver, Respondent.
    Submitted March 5, 1937;
    decided April 20, 1937.

      George Ziriberg and Selig Kaplan for appellant.

      John A. Sullivan, DeCoursey Fales and Robert E. Lee for plaintiff, respondent.

      E. Ivan Rubenstein for receiver, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lohghran, Finch and Rippey, JJ.


text:
    C. D. Jackson & Co., Inc., Appellant and Respondent, v. Traitel Marble Company, Respondent and Appellant, Impleaded with Others.
    Argued January 18, 1937;
    decided April 20, 1937.

      Hugh A. Fulton and Thomas T. Cooke for plaintiff, appellant and respondent.

      Harry Baum and Isaac Lande for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lotjghran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Gertrude L. Bacon Respondent, against Hudson Valley Fuel Corporation et al., Appellants. State Industrial Board, Respondent.
    Submitted March 4, 1937;
    decided April 20, 1937.

      W. D. Coleman for appellants.

      Thomas P. McLaughlin for claimant, respondent.

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

Concur: Hubbs, Finch and Rippey, JJ. Loughran, J., concurs on the ground that the carrier did not contest that the accident “ arose out of the employment.” Dissenting: Crane, Ch. J., Lehman and O’Brien, JJ.


author: Crane, Ch. J.

text:
    Lockport Exchange Trust Company, Respondent, v. Gerald L. Hyde et al., Defendants, and Grant A. Hyde, Appellant.

      Argued March 12, 1937;
    decided April 27, 1937.

      Harold V. Bradley for appellant.
    The mere signing of a renewal accommodation note, unaccompanied by any surrounding circumstances, does not waive due presentment and demand of payment and notice of presentment, demand of payment and non-payment. (Oswego Bank v. Knower, Hill & Denio, 122; Cayuga County Bank v. Dill, 5 Hill, 404; Curry v. Van Wagner, 32 Hun, 453; Hayward v. Empire State Sugar Co., 105 App. Div. 21; First Nat. Bank v. Gridley, 112 App. Div. 398; Cady v. Bradshaw, 116 N. Y. 188.)

      Glen R. Bedenkapp for respondent.
    The motion for direction of a verdict in favor of plaintiff was properly granted. (National Hudson River Bank v. Reynolds, 57 Hun, 307; Leary v. Miller, 61 N. Y. 488; Clarke v. Stumpf, 190 App. Div. 538; First Nat. Bank v. Weston, 25 App. Div. 414.)
   Crane, Ch. J.

The statement that the indorsement of a renewal note is a waiver of notice of presentation and non-payment has proved to be misleading. The statement is true as applied to the non-payment of the first note; it is not true regarding notice of non-payment of the renewal note. The failure to note this distinction has led to a misapplication of the authorities.

On the 6th day of January, 1926, a promissory note in the sum of $6,500, representing money loaned, was made by Gerald L. Hyde and Nettie L. Hyde to the order of Lockport Exchange Trust Company. E. C. Munzel was an indorser thereon. On March 8, 1926, upon renewal, Sierre N. Munzel became an indorser in addition to her husband. After various renewals the appellant, G. A. Hyde, also became an indorser upon the renewal notes. On February 4, 1932, a new promissory note was made for the sum of $5,086, due one month after date payable to the order of E. C. Munzel at the Lockport Exchange Trust Company, Lockport, N. Y., signed by Gerald L. Hyde and Nettie L. Hyde, and indorsed upon the back by E. C. Munzel, Sierre N. Munzel and G. A. Hyde. This also was a renewal note, one of a series which had been renewed from time to time by the bank, and was indorsed over by Munzel to the bank. The letter “ G ” in Hyde’s name stands for “ Grant,” his name being Grant A. Hyde. He first became an indorser March 17, 1929, or three years after the original note had been made. On March 4, 1932, when this latter renewal note became due, the maker, Gerald L. Hyde, called at the bank and presented another renewal note dated the 4th day of March, 1932, in the same amount with the same makers and indorsers, and was told that the old note of February 4, 1932, could not be renewed until the interest was paid. No notice of non-payment of the February note was given to Grant A. Hyde nor any notice that the renewal note had not been accepted. The bank retained both notes. It did not return the February note, neither did it return or reject the renewal note; it simply kept both of them. The vice-president of the trust company testified: “ Q. Was anything ever done thereafter with respect to this note of March 4, 1932? A. We just held it.” Four years after this transaction, January 8, 1936, this action was commenced against Grant A. Hyde, the indorser, to recover the amount of the note.

From 1926 up to February 4, 1932, the note had been renewed from time to time. From 1929 all the renewal notes bore the indorsement of Grant A. Hyde. Until notice of non-payment or refusal to accept the renewal note this indorser had every reason to expect that the bank would accept the renewal note of March 4, 1932. The bank took the note, kept it, but did not notify this indorser that it would not accept it as a renewal; neither did it give him notice of non-payment. Receiving no word at all from the bank, the indorser was justified in believing that the renewal note had been accepted and that the time of payment had been extended. The object of giving him notice of non-payment, as in the case of all indorsers, was that he might protect his rights against prior indorsers as well as against the maker. The action of the bank has placed him in the position where he may have, and probably has, lost whatever rights he had against these parties.

When the maker presented the note of March fourth and asked for a renewal, the bank, pursuant to the Negotiable Instruments Law (Cons. Laws, ch. 38), had the right to demand payment, or it could extend the time. If payment were demanded and refused the indorser had to be notified. If, according to the custom of banks, it was necessary to consult the officers or directors regarding the renewal note, the bank had a reasonable time within which to act, but within that time it was under duty to notify the indorser if payment were demanded. A renewal would be the suspension of his rights against other parties until the later due date. A demand of payment would compel him to act quickly upon notice from the bank. The bank, however, could not remain silent and leave its attitude to guesswork. An indorser, under the circumstances here existing, receiving no notice during four years, would naturally think that the note had been renewed and paid on the due date.

The courts below, relying upon the statement with which this opinion was commenced, that the indorsement of a renewal note waives notice of non-payment, have held in effect that ever since 1926, the expiring date of the original note, no indorser was entitled to notice of presentment and non-payment because the renewal notes constituted a waiver thereof. Such is not the law, and all reason is against it.

Presentment of a note for payment is necessary in order to charge the indorsers. (Neg. Inst. Law, § 130.) When a negotiable instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer or to each indorser, and any drawer or indorser to whom such notice is not given is discharged (§ 160). Notice of dishonor may be waived either before the time of giving notice has arrived or after the omission to give due notice, and the waiver may be express or implied (§ 180).

The right of Grant A. Hyde as against the indorsers of these notes is expressed in section 116 of the Negotiable Instruments Law, as follows: Every indorser who indorses without qualification, warrants to all subsequent holders in due course * * * that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.”

In Sheldon v. Horton (43 N. Y. 93) the indorser was held to have waived notice because, when the note was presented to him, he was told that the maker wanted it to remain another year, and he said he was willing to let it remain, saying that the note was good. No new note was given. Under these circumstances it was held that any further notice was unnecessary. Judge Andrews wrote the opinion, saying: “ The liability of an indorser of a note to pay it is, in general, upon the implied condition that payment thereof shall be demanded of the maker at maturity, and in case of default, that notice of nonpayment shall thereupon be given to the indorser. These conditions are for the benefit and protection of the indorser. The demand i to be made, so that the principal debtor, may be first called upon to pay the debt, and notice of non-payment, in case of default is to be given, so that the indorser may have prompt notice/ and the opportunity to protect himself from loss ” (p. 96).

Another case of waiver was Cady v. Bradshaw (116 N. Y. 188). Here, again, the indorser became active in behalf of the maker and requested of the holder that the maker be given another year in which to pay the note. The holder said that he was willing, if the defendant would let his name be on the note, let it be as it was,” and the indorser said he would let the note stand just as it was. There was no renewal note. Parker, J., in writing the opinion, said: When he asked that the time of payment be extended a year, he/ in effect, requested that no demand of payment be made at maturity. That request, coupled with his promise to let his name remain on the note if the time of payment should be extended, must, we think, be held to constitute, in legal effect, a waiver of demand and notice of non-payment. * * * the agreement was not only to extend the time of payment for one year, but it was also distinctly agreed that the note should remain as it was, with the name of the indorser thereon ” (pp. 191,192). Waiver, said the court in this case, must be clearly established and will not be inferred from doubtful or equivocal acts or language, citing Ross v. Hurd (71 N. Y. 14).

Chief Judge Nelson, in Oswego Bank v. Knower (Hill & Den. 122, 126), said: Nothing short of the clearest evidence of the assent of the defendants, express or implied, should be regarded as sufficient to waive the condition, or change the nature of the contract, making it an absolute, instead of a conditional one.” This case is cited in 2 Daniels on the Law of Negotiable Instruments (7th ed., p. 1319, par. 1273) as authority for the author’s text, which reads: “But a mere request for a renewal has been held no waiver of notice. And where notes indorsed for accommodation are not protested, and no notice is given, the signing of new notes for accommodation, which are given in renewal, is no waiver of notice.”

Hayward v. Empire State Sugar Co. (105 App. Div. 21, Fourth Dept.) related to a renewal note. When the original note became due a renewal note was given whereby the indorser waived all “ notice of presentment, dishonor and protest ” of the renewal note. The renewal note was not presented on the day it became due, and the court held that, while the indorser had waived notice of presentment and dishonor, he had not waived presentment. Williams, J., said: “ He did not waive presentment and demand of payment of the notes. (Cook v. Warren, 88 N. Y. 37, 41.) There was, therefore, a failure to charge the indorser upon the renewal note. * * *

“It is claimed, however, that the failure to present and demand payment of the renewal note operated to discharge the indorser from liability upon the original note; that the indorser was injured by failure of presentment and demand of payment of the renewal note, and this injury extended to the full amount of the renewal note, because, if the note had been so presented and payment demanded, it would have been paid by the maker, the sugar company, and the indorser relieved entirely from the payment thereof. It does not appear in the case whether such payment would have been made on presentment and demand, but in the absence of proof the presumption is that it would have been so paid. (Commercial Bank of Albany v. Hughes, 17 Wend. 94; Smith v. Miller, 43 N. Y. 172; 52 id. 548.)

* * * * * * *

“ Assuming that the indorser would not be released unless he suffered injury and that the renewal note would have been paid by the maker if it had been presented at maturity and payment demanded, the failure of such presentment and demand certainly injured the indorser to the extent of the full amount of the note and interest, and discharged him from all liability upon both notes. (See First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320, 325; Carroll v. Sweet, 128 id. 19, 22; Martin v. Home Bank, 160 id. 191.)

This was the theory upon which the case was disposed of by the trial court, and we see no reason to disturb the decision so made ” (pp. 23, 24).

I have quoted thus fully to show that courts have treated renewal notes like original notes, all things being equal.

The giving of a renewal note and the acceptance thereof necessarily work a waiver of presentment and notice of non-payment of the previous note. This is what is meant by the statement that the giving of a renewal note is a waiver. As self-evident as this is; yet the contrary was claimed in First Nat. Bank v. Weston (25 App. Div. 414), where accommodation indorsers on a renewal note claimed that they were discharged because they had not received notice of non-payment of the original note. Such, of course, is not the law, but expressions used in the opinion have given rise to the statement that a renewal note amounts to a waiver which, as we have seen, is not the case except as it applies to previous notes. A similar case was Leary v. Miller (61 N. Y. 488), where notice of non-payment was given to an indorser on a renewal note which was void for usury. The claim was that notice of non-payment should have been given on the first note, which was not usurious. The renewal note having been accepted, of course amounted to a waiver of notice of non-payment of the first note. Clarke v. Stumpf (190 App. Div. 538, 540) again refers to nonpayment of the first note after acceptance of a renewal note. Those statements in National Hudson River Bank v. Reynolds (57 Hun, 307) not in harmony with these views cannot be approved. As the court placed its decision also on other grounds pertaining to mortgage security, this point may not have been thoroughly considered.

We conclude, therefore, that the indorsement and acceptance of a renewal note is not a waiver of notice of presentment and non-payment of that note as required by the Negotiable Instruments Law; that when a note becomes due and a renewal note is presented with the same indorsers, if it be not accepted, notice of demand and non-payment must likewise be given to the indorser, but in such case, if the holder, a bank or trust company, finds it is necessary to consult officers or directors regarding the renewal, then the holder has a reasonable time within which to act, that' is, to accept or to give to the indorser of the proposed renewal note notice of nonpayment. As the trust company in this case failed to give any notice or to act at all in the matter regarding the renewal note until it commenced this action, it cannot recover against this appellant, Grant A. Hyde.

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

Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgments reversed, etc.


author: Rippey, J.

text:
    In the Matter of the Estate of Katherine H. Brown, Deceased. Marion B. Elliott et al., as Executors of Katherine H. Brown, Deceased, Appellants. State Tax Commission, Respondent.
    Argued March 2, 1937;
    decided April 27, 1937.

      Frederick C. Bangs for appellants.
    The trust fund acquired an actual and permanent situs in Colorado, analogous to the actual situs of tangible personal property. (Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83; People ex rel. Van Norden Trust Co. v. Wells, 118 App. Div. 881; 192 N. Y. 552; Thorne v. State, 145 Minn. 412; Lowry v. Los Angeles, 38 Cal. App. 158; Hutchins v. Commissioner, 272 Mass. 422; Baker v. State, 186 Minn. 160; Commonwealth v. Appalachian Power Co., 159 Va. 462; Brooke v. Norfolk, 277 U. S. 27; Matter of Dolan, 279 Penn. St. 582;Anderson v. Wilson, 289 U. S. 20;Archer-Shee v. Garland, [1931] A. C. 212; DeGanay v. Lederer, 250 U. S. 376; Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; Guthrie v. Pittsburgh Ry. Co., 158 Penn. St. 433; Rhode Island Hospital Trust Co. v. Doughton, 270 U. S. 69.) The actual and permanent situs in Colorado of the trust fund was in no way affected by the removal of the settlor several years later to New York. (Crane Co. v. Des Moines, 208 Iowa, 164; State Board of Assessors v. Comptoir National D’Escompte, 191 U. S. 388; Bristol v. Washington County, 177 U. S. 133; Metropolitan Life Ins. Co. v.New Orleans, 205 U. S. 395; Liverpool Ins. Co. v. Board of Assessors, 221 U. S. 346; Frick v. Pennsylvania, 268 U. S. 473; Matter of Swift, 137 N. Y. 77; Safe Deposit & Trust Co. v. Virginia, 280 U. S. 83; People ex rel. Whitney v. Tax Commissioners, 299 U. S. 366; First Nat. Bank v.

      Maine, 284 U. S. 312; Blodgett v. Silberman, 277 U. S. 1; Baldwin v. Missouri, 281 U. S. 586; Matter of Frank, 192 Minn. 151; Hutchison v. Ross, 262 N. Y. 381; DeGanay v. Lederer, 250 U. S. 376; Union Refrig. Transit Co. v. Kentucky, 199 U. S. 194.) Neither the trust fund nor its transfer can be constitutionally subjected to a transfer tax in New York. (First Nat. Bank v. Maine, 284 U. S. 312; Safe Deposit & Trust Co. v. Virginia, 280 U. S. 83; Frick v. Pennsylvania, 268 U. S. 473; Matter of Canda, 197 App. Div. 597; Wachovia Bank & Trust Co. v. Doughton, 272 U. S. 567; Hutchison v. Ross, 262 N. Y. 381; Matter of Dolan, 279 Penn. St. 582; Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; Baldwin v. Missouri, 281 U. S. 586; Matter of Scott, 129 Misc. Rep. 625; Matter of Swift, 137 N. Y. 77; United States v. Field, 255 U. S. 257; Walker v. Treasurer, 221 Mass. 600; Matter of Bowditch, 189 Cal. 377.) If section 249-r of the Tax Law (Cons. Laws, ch. 60) is to be construed so as to impose a transfer tax upon the trust fund, then the statute itself is invalid as violative of the due process of law clause of section 6 of article 1 of the New York Constitution and of the Fourteenth Amendment of the Constitution of the United States. (Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; Safe Deposit & Trust Co. v. Virginia, 280 U. S. 83; Frick v. Pennsylvania, 268 U. S. 473; First Nat. Bank v. Maine, 284 U. S. 312; Wachovia Bank & Trust Co. v. Doughton, 272 U. S. 567; Union Refrig. Transit Co. v. Kentucky, 199 U. S. 194; Matter of Weiden, 263 N. Y. 107; Provident Sav. Assn. v. Kentucky, 239 U. S. 103; Matter of Canda, 197 App. Div. 597; Moore v. Mitchell, 281 U. S. 18; Colorado v. Harbeck, 232 N. Y. 71; Matter of Martin, 255 N. Y. 359.)

      Seth T. Cole and Mortimer M. Kassell for respondent.
    The provisions of article 10-C of the Tax Law imposing a tax upon the estate of the decedent, measured by the value of the intangible property included in the trust estate, are not in conflict with the State or Federal Constitutions. (Guaranty Trust Co. v. Blodgett, 287 U. S. 509; May v. Heiner, 281 U. S. 238; Commissioner v. Northern Trust Co., 283 U. S. 782; Morsman v. Commissioner, 283 U. S. 783; McCormick v. Commissioner, 283 U. S. 784; Gibson v. Blodgett, 114 Conn. 207; Matter of Ellis, 169 Wash. 581; Bryant v. Hackett, 118 Conn. 233; Matter of Frank, 192 Minn. 151; Matter of Dillingham, 196 Cal. 525; Hackett v. Bankers Trust Co., 187 Atl. Rep. 653; Chase Nat. Bank v. United States, 278 U. S. 327; Saltonstall v. Saltonstall, 276 U. S. 260; Wheeling Steel Corp. v. Fox, 298 U. S. 193; Reinecke v. Northern Trust Co., 278 U. S. 339; Bullen v. Wisconsin, 240 U. S. 625; Blodgett v. Silverman, 277 U. S. 1.)
   Rippey, J.

On December 11, 1931, Katherine H. Brown died within the State of New York, leaving a last will and testament dated and executed December 1,1931. She left real and personal property within the State of Colorado aggregating $362,447.03, which was administered in the county of Denver. Having property, real and personal, within the State of New York, her will was also probated in New York county. Upon proceedings to establish the inheritance tax due to the State of New York, the Inheritance Tax Appraiser for New York county included an item of $265,767.03, which represented a part of her estate administered within and taxed by the State of Colorado, and recommended a transfer tax thereon under article 10-C of the Tax Law (Cons. Laws, ch. 60) of the State of New York. The tax on this item paid to the State of Colorado was $15,653.82. Upon the report of the Appraiser, the Surrogate of New York county made a pro forma order imposing a transfer tax upon the identical property of $13,967.79.

In the notice of appeal to the Surrogate from the pro forma order, the executors of the estate objected to the imposition of any such tax by the State of New York on the grounds, among others, that article 10-C of the Tax Law of the State of New York should be so construed and interpreted that no part of and no interest in the securities and other property in question constituted a part of the gross estate of the decedent situated in the State of New York at the time of her death and subject to transfer tax as a part of her estate; that if it were not so interpreted, the applicable provisions of article 10-C of the Tax Law should be declared unconstitutional as in violation of the due process clause of the Constitution of the State of New York and of the due process clause embraced in the Fourteenth Amendment to the Constitution of the United States; and that the tax assessed or attempted to be assessed was erroneous, arbitrary, unjust and illegal and in violation of the rights of the executors under the Constitutions of the State of New York and of the United States as above mentioned. The Surrogate overruled the objections and made a final order assessing the tax. Upon appeal, the Appellate Division of the first department affirmed.

The deceased had been a resident of and domiciled within the State of Colorado for many years. On December 30, 1924, while the deceased was a resident of Denver and domiciled within the State of Colorado she executed and delivered to the Denver National Bank, of Denver, Colorado, as trustee, a trust indenture wherein it was provided that from the income of the securities and property then deposited with the bank and constituting the res of the trust the trustee should pay to her daughter Marion K. Brown Elliott, $1,000 on the first day of each and every month during the term of her natural life, provided that in the event the income therefrom should not be sufficient to pay such monthly installment, the installment should be proportionately reduced, but if the income exceeded the amount required to make such payments the excess should become a part of the trust estate. In the trust deed it was further provided that after the death of said daughter the trustee should pay the income to the children of the daughter then living, share and share alike, until such children or any of them should reach the age of twenty-five years. Upon the arrival of any child at the age of twenty-five years, an equal proportional share of the principal of the trust was required to be paid to such child. If no child or children should survive the daughter, it was provided' that the corpus of the trust should revert to and become a part of the settlor’s estate to be distributed in accordance with the terms of her will. The trust was created upon certain express conditions. So far as material, the settlor reserved the right at any time upon ten days’ written notice to the trustee (1) to change the beneficiary or any of them without the consent of any such beneficiary; (2) to revoke the trust and revest in herself title to the corpus of the trust; (3) upon thirty days’ written notice, for herself, if living, and if not fiving, for her daughter, to remove the trustee or any substitute trustee.

The trust res listed in the deed of trust, legal title to which was transferred by the settlor to the trustee by the express terms of the trust instrument, consisted of Federal and Colorado State, municipal, school district, industrial and public service bonds aggregating in value $243,000. The trustee was given the power of substitution of property with the consent of the settlor. The trustee duly accepted the trust, entered upon its administration, and has at all times continued to administer it, both before and after the settlor’s death. There was no revocation of the trust or change of beneficiary or trustee or diversion of the income from the use and benefit of the daughter during the lifetime of the settlor and the beneficiaries were all living at the time of her death.

In an action duly commenced and prosecuted in the courts of Colorado after the death of the settlor to establish the status of the trust and trustee and terminated before proceedings were instituted in New York county before the Inheritance Tax Appraiser, it was found and adjudged that the trust agreement was not revoked by Mrs. Brown in her lifetime, that a valid trust existed and that the executors and trustees, devisees and legatees under her last will and testament had no interest in either 'the corpus or income of the trust by virtue of the terms of the will except in the event that distribution of the corpus of the trust should be required by the executors because of lack of beneficiaries to whom it could be distributed by the trustee under the terms of the trust indenture.

It is asserted by respondent and has been found by the Surrogate and affirmed by the Appellate Division that Mrs. Brown changed her residence from the State of Colorado to the State of New York and was domiciled within the latter State at the time of her death. This is not contested.

Assuming that domicile in New York State was established, the trust estate is still not taxable within the State of New York, because the trust estate had a fixed situs within the State of Colorado. It will again be noted that the trust was created by a resident of the State of Colorado while domiciled therein; that the trust indenture with the corpus of the trust was deposited with the Colorado trustee, whose domicile and residence were in Denver, Colorado; that the trust estate has remained and been administered in Denver, Colorado, since its creation in 1924; that the intent of the settlor was that the trust res should be and remain in the State of Colorado and there be administered both before and after her death; that its location has never changed; that there has been no change in the terms or character of the trust or of the obligations of the trustee since its creation; and that no such change could be made except at the domicile of the trustee. Under what circumstances could intangible property have a more certain and fixed status and location?

It has been settled by the Supreme Court that real property, as between the States, may be taxed only by the jurisdiction where it is located. (First Nat. Bank v. Maine, 284 U. S. 312; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194.) It has also been definitely settled that the right of succession to the ownership of tangible personal property arising through death can be taxed only at its permanent situs. (Frick v. Pennsylvania, 268 U. S. 473; Matter of Swift, 137 N. Y. 77.) The location of both classes of property at the time the right to impose the tax arises is held to be the determining factor. These decisions rest upon the proposition that the property, the ownership or devolution of which is the subject of tax, must be within the jurisdiction of the taxing power. Predicated upon similar facts as to location, there seems to be no reason or logic for arbitrarily applying the ancient maxim mobilia sequuntur personam to the devolution of intangibles. That maxim is nothing more than a legal fiction properly applied to prevent injustice and resorted to only when justice and necessity require (Union Refrigerator Transit Co. v. Kentucky, supra), because, as pointed out in that case (p. 205), intangible property “ is held secretly; that there is no method by which its existence or ownership can be ascertained in the state of its situs. * * * So,” says the court, if the owner be discovered, there is no way by which he can be reached by process in a State other than that of his domicile, or the collection of the tax otherwise enforced.” In cases where the actual or business situs of intangibles cannot be readily ascertained, as a rule of convenience and necessity the maxim is still applied, but only because the situs of the property must be deemed, by necessity, to be that of the domicile of the owner. (Baldwin v. Missouri, 281 U. S. 586; Beidler v. South Carolina Tax Comm., 282 U. S. 1; First Nat. Bank v. Maine, 284 U. S. 312.)

The principle that situs of intangible personalty follows domicile, frequently arbitrarily and strictly applied, has given way to the logical and rational exception that where the fact is clear that the intangible property has a situs elsewhere,” the fiction will not be followed. (New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington County, 177 U. S. 133; State Board of Assessors v. Comptoir National d’Escompte, 191 U. S. 388; Metropolitan Life Ins. Co. v. City of New Orleans, 205 U. S. 395; Liverpool & London & Globe Ins. Co. v. Orleans Assessors, 221 U. S. 346; Safe Deposit & Trust Co. v. Virginia, 280 U. S. 83; Matter of Swift, supra; DeGanay v. Lederer, 250 U. S. 376; Wheeling Steel Corp. v. Fox, 298 U. S. 193; People ex rel. Whitney v. Graves, 299 U. S. 366; 57 Sup. Ct. Rep. 237. Cf. Hutchison v. Ross, 262 N. Y. 381.)

Respecting jurisdiction over the thing taxed, there can be no distinction between general property and inheritance taxes. We cannot follow the fiction, as respondent desires, that the inheritance tax is not imposed on the trust property. Theoretically, that may be so. Practically, it is not so. It is, of course, the right to succession that gives the opportunity to tax. But the practical consideration remains that it is the value of the property to which title or interest passes that lays the basis for the tax. Fiction and fancy theories have been advanced and attempt has been made to engraft them into tax laws to avoid the operation of logical and rational rules applicable to any sanely organized tax system.

In the Swift Case (supra) this court said: “ When succession to the ownership of property is by the permission of the state, then the permission can relate only to property over which the state has dominion and as to which it grants the privilege or permission. * * * Neither the doctrine of equitable conversion of lands, nor any fiction of situs of movables can have any bearing upon the question under advisement. The question of the jurisdiction of the state to tax is one of fact and cannot turn upon theories or fictions; which, as it has been observed, have no place in a well adjusted system of taxation. We can arrive at no other conclusion, in my opinion, than that the tax provided for in this law [referring to Collateral Inheritance Tax Act, Laws of 1885, ch. 483] is only enforceable as to property which, at the time of its owner’s death, was within the territorial limits of this state ” (p. 86.)

The Wheeling Steel Corporation Case (supra) had to do with an ad valorem property tax on net income, and the court refers to the general rule of necessity for the application of the maxim móbilia sequuntur personam and calls attention to the principle announced in Farmers Loan & Trust Co. v. Minnesota (280 U. S. 204, 211, 212), that as to intangibles no sufficient reason exists for saying that they are not entitled to enjoy an immunity against taxation at more than one place similar to that accorded to tangibles. Such principle has had progressive application.

In Hutchison v. Ross (262 N. Y. 381) this court said: “ The maxim ‘ móbilia sequuntur personam ’ cannot always be carried to its logical conclusion. Practical considerations often stand in the way. The physical presence in one jurisdiction is a fact, the maxim is only a juristic formula which cannot destroy the fact ” (p. 388).

In the Whitney Case (supra), the latest pronouncement of the Supreme Court on the subject, the foregoing exception to the rule of necessity is recognized and applied. No case has been called to our attention in any jurisdiction which has not followed the law, where the facts warranted, whether the tax involved is a general property tax or an inheritance tax, as laid down in the case of Safe Deposit & Trust Co. v. Virginia (supra), where it is said: The general rule must yield to established fact of legal ownership, actual presence and control elsewhere, and ought not to be applied if so to do would result in inescapable and patent injustice, whether through double taxation or otherwise ” (p. 92).

'The decision in the case of Guaranty Trust Co. v. Blodgett (287 U. S. 509), upon which respondent so heavily leans, has no bearing upon the question here involved. In that case the settlor retained the income of the trust during life, while here the income was transferred to the beneficiary on the date of the formation of the trust. On the facts in the Blodgett case it was held merely that a statute imposing a tax upon the succession to the enjoyment of property was constitutional. The cases of Bullen v. Wisconsin (240 U. S. 625) and Blodgett v. Silberman (277 U. S. 1) are clearly distinguishable from the facts in the case at bar. In the former case, in the deed of trust the donor retained the income for life with power of appointment, and provided that no portion of the principal or income be paid over to any person before the donor’s death unless by his direction, and in the latter no determination was made as to whether the property had a taxable situs in New York State, Connecticut being the State of residence of the deceased. Both cases were substantially held in Safe Deposit & Trust Co. v. Virginia (supra) to have no bearing where the fact of situs in a State other than that of the settlor is established.

It has also been authoritatively held that where the legal title to the res is vested in the trustee, jurisdiction to tax is at the domicile of the trustee where the trust is to be administered. (2 Cooley on The Law of Taxation [4th ed.], § 469; 26 R. C. L., Taxation, § 259; Guthrie v. Pittsburgh, C. & St L. Ry. Co., 158 Penn. St. 433; Thorne v. State, 145 Minn. 412; Baldwin v. Shine, 84 Ky. 502; Safe Deposit & Trust Co. v. Virginia, supra.)

Section 249-r of article 10-C of the New York State Tax Law, in force at the time of the settlor’s death, provided that “ the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated (except real property situated and tangible personal property having an actual situs outside this State): 1. To the extent of the interest therein of the decedent at the time of his death. * * * 3. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, including a transfer -under which the transferror has retained for his life or any period not ending before his death * * * (b) the right * * * to designate the persons who shall possess or enjoy the property or the income therefrom * * *. 4. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death.” It is clear that it is intended to include within the gross estate of a decedent domiciled within the State of New York at the time of his death intangible property wherever situate, without reference to the fact that it may have acquired and had an actual or business situs outside of the State of New York. The State has no power to tax property located beyond its jurisdiction. (Matter of Swift, supra.) To the extent that it has attempted to do so, it must be held that the statute in question is in violation of the due process provision of the Fourteenth Amendment, and is unconstitutional and void.

The orders should be reversed and the matter remitted to the Surrogate’s Court to proceed in the matter of the inheritance tax proceedings in accordance with this opinion, with costs to the appellant in all courts. (See 274 N. Y. 634.)

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

Ordered accordingly.


author: Hubbs, J.

text:
    Lawrence Hanfgarn, Respondent, v. George Mark, Appellant.
    Argued March 2, 1937;
    decided April 27, 1937.

      Jesse C. Rogers and Samuel Binder for appellant.
    The Legislature, by the exercise of its police power, had the right to abolish causes of action for alienation of affections and criminal conversation as a matter of public policy. (Munn v. Illinois, 94 U. S. 113; Fearon v. Treanor, 272 N. Y. 268; Noble State Bank v. Haskell, 219 U. S. 104; Holden v. Hardy, 169 U. S. 366; Biddles, Inc., v. Enright, 239 N. Y. 354.) The processes of law in the spirit of a modern society have abolished the inequality of rights between the sexes. (Oppenheim v. Kridel, 236 N. Y. 156; Doe v. Roe, 82 Me. 503; Moulin v. Monteleone, 165 La. 169; Larisa v. Tiffany, 42 R. I. 148.)

      Reese D. Alsop for himself and others, amici curise.

    The rights involved are incidents of the marital relation, and the power of the Legislature over this relation and all its incidents cannot be questioned. (Maynard v. Hill, 125 U. S. 190; Milwaukee County v. White Co., 296 U. S. 269; Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398; Baker v. Kilgore, 145 U. S. 487; State v. Tutty, 41 Fed. Rep. 753; Peterson v. Wydule, 157 Wis. 641; Tipping v. Tipping, 82 Fed. Rep. [2d] 828; Meister v. Moore, 96 U. S. 76; Baumann v. Baumann, 250 N. Y. 382.) The Legislature is competent in the exercise of its police power to abolish common law rights and causes of action. (People v. Brengard, 265 N. Y. 100; Munn v. Illinois, 94 U. S. 113; Truax v. Corrigan, 257 U. S. 312; Jensen v. Southern Pacific R. R. Co., 215 N. Y. 514; N. Y. C. R. R. Co. v. White, 243 U. S. 188; Mountain Timber Co.
      v. Washington, 243 U. S. 219; Crockroft v. Mitchell, 101 Misc. Rep. 211; 187 App. Div. 189; Silver v. Silver, 280 U. S. 117; Coler v. Corn Exchange Bank, 250 N. Y. 136.)

      Edwin G. Jenkins for respondent.
    The statute in so far
    as it relates to an action for alienation of affections and criminal conversation is unconstitutional. (Baumann v. Baumann, 250 N. Y. 382; People v. Schweinler Press, 214 N. Y. 395; Matter of Stubbe v. Adamson, 220 N. Y. 459; Maynard v. Hill, 125 U. S. 190; Matter of People [Title & Mortgage Guar. Co.], 264 N. Y. 69.)
   Hubbs, J.

In the case of Fearon v. Treanor (272 N. Y. 268) we decided that chapter 263 of the Laws of 1935 (Civil Practice Act, §§ 61-a, 61-i), which abolished civil actions to recover damages for alienation of affections, criminal conversation, seduction, and breach of promise to marry, is constitutional in so far as it applies to an action to recover damages for breach of promise to marry, but expressly limited our decision in that case to the issue then before us. In that case it was argued that the entire act was unconstitutional and void, as it deprived an injured person of a remedy for the enforcement of a property right existing at common law, and protected by the State Constitution. (N. Y. Const. art. I, § § 1, 6, 16.)

We placed our decision upon the broad ground that the Legislature, in dealing with the subject of marriage, has plenary power, as marriage differs from ordinary common law contracts and is subject to control and regulation by the State.

We are now required to determine one of the questions expressly reserved in the decision of that case, that is, whether the statute is unconstitutional in so far as it abolishes the right of action to recover damages in an action for alienation of affections and criminal conversation. While the decision of the exact question was expressly reserved in that case, the opinion points the way to the decision which we are required to make in this case.

An action to recover damages for breach of promise to marry is based upon an agreement preliminary to marriage and an action to recover damages for alienation of affections and criminal conversation is founded upon the marriage relation itself. Bach has to do with the marriage status and each is subject to regulation and control by the State.

It has been expressly decided by the United States Supreme Court that marriage is not a contract within the meaning of the Federal Constitution which prohibits the States from impairing the obligation of contracts. (U. S. Const. art. I, § 10; Maynard v. Hill, 125 U. S. 190.)

Marriage has been frequently referred to as a contract in judicial opinions, by text-writers and in statutes. Nevertheless, it is not a common law contract as generally understood. It has some of the attributes of such a contract, but contains many elements foreign to a common law contract. It may be lawfully entered into by parties under twenty-one years of age. It cannot be dissolved by consent of the parties. After marriage, the State imposes duties and obligations upon the parties entirely outside of the marriage agreement. The relation entered into by the parties is regulated by the State.

It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.” (Wade v. Kalbfleisch, 58 N. Y. 282, 284.)

Not being a common law contract, the relation may be regulated, controlled and modified and rights growing out of the relationship may be modified or abolished by the Legislature without violating the provisions of the Federal or State Constitution which forbid the taking of life, liberty or property without due process of law. (N. Y. Const. art. I, § 6; U. S. Const. Fourteenth Amendment.)

At common law, the rights which a husband had in the affection and society of his wife were frequently denominated a property right. (Foot v. Card, 58 Conn. 1.)

The same statement has often been reiterated in comparatively late judicial opinions. In view of the broad and almost unlimited extension of the rights of married women brought about by statutory enactments and social advancement, we think that no court in this State would decide that the rights which a husband has by virtue of the marriage relation constitute property rights. A wife is no longer the property of her husband in the eyes of the law and by the general acceptance of society.

It is urged by respondent that the statute is in violation of article I, section 16, of the State Constitution as the right of action existed at common law in the Colony of New York before the adoption of our first Constitution. That section provides: “ Such parts of the common law * * * shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same.”

Article I, section 16, of the State Constitution does not prohibit the Legislature from correcting an evil growing out of the marriage relation by altering the provisions of the common law as it existed before the adoption of the Constitution. (Munn v. Illinois, 94 U. S. 113, 134; 21 Cornell Law Quarterly, p. 677 ; 22 Virginia Law Review [Part 1], pp. 205, 216.)

A decision to the contrary, if carried to its logical conclusion, would result in a stagnation of law and be directly in conflict with many decisions of this court.

It is suggested that if the Legislature has authority to abolish the action for alienation of affections, it may also lawfully abolish actions for libel, slander and certain other actions, and that a decision holding the statute in question valid will be so construed. That question is not now before the court and we express no opinion in regard to it. The decision now made should not be so construed. Neither do we express any opinion as to the validity of the statute in so far as it abolishes an action for seduction.

The order of the Appellate Division and that of the Special Term should be reversed and the motion to dismiss the complaint granted, with costs in all courts. The question certified should be answered in the negative. (See 274 N. Y. 570.)

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

Orders reversed, etc.