text:
    In the Matter of a Petition Purporting to Nominate John F. Hylan for Governor and Others for Certain Public Offices of the State of New York as Candidates of the Recovery Party. John F. Hylan et al., Appellants; Edward P. McCormack et al., Respondents.
    (Argued October 31, 1934;
    decided October 31, 1934.)

      Harry, A. Gordon, Eric C. Gordon and Charles Norman Shaffer for appellants.

      Robert E. Whalen, Charles J. Duncan, Anthony De Stefano, Edward S. Rooney, George W. Foy and George Myers for respondents.
   Per Curiam.

Considering the fact that this is a summary proceeding, where prompt action is necessary, we find no question of law is presented which requires reversal. (Election Law [Cons. Laws, ch. 17], §§ 330, 335.)

The Supreme Court made such order as justice may require,” within the contemplation of the Election Law. (§ 330.) To order a new trial at this time for technical errors not affecting substantial rights would be a futility.

The order should be affirmed.

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

Order affirmed.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    The People of the State of New York ex rel. New York Water Service Corporation, Appellant, v. John P. Hennessey et al., Constituting the State Tax Commission, Respondents.
    (Argued October 19, 1934;
    decided November 20, 1934.)

      Charles J. Tobin and Robert C. Killough, Jr., for appellant.

      John J. Bennett, Jr., Attorney-General (Edward J. Grogan, Jr., and Leo W. Begley of counsel), for respondent.

      Paul Windels, Corporation Counsel (William H. King and Isaac Phillips of counsel), for City of New York, amicus curiœ.

   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., O’Brien, Hubbs, Crouch and Loughran, JJ. Not sitting: Lehman, J. Crane, J., dissents in the following memorandum:

Crane, J.

(dissenting). If the words “ after the final completion and filing of the assessment roll, and the first posting or publication of the notice thereof as required by law ” (Tax Law, § 46; Cons. Laws, ch. 60) do not apply to New York city in cases of real estate assessment, I do not see how the same words do apply to start the time running in special franchise assessments in New York city. (People ex rel. Jamaica Water Supply Co. v. State Board of Tax Commissioners, 196 N. Y. 39; People ex rel. Thomson v. Feitner, 168 N. Y. 441, at pp. 446-449.)

Order affirmed.


text:
    The People of the State of New York, Respondent, v. Vincent Walsh, Appellant.
    (Argued October 8, 1934;
    decided November 20, 1934.)

      John A. Bolles and James D. Froelich for appellant.

      William Copeland Didge, District Attorney (Philip A. Donahue and Felix C. Benvenga of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Krider Building Material Co., Inc., Respondent, v. Consolidated Indemnity and Insurance Company, Appellant, Impleaded with Another.
    (Argued October 9, 1934;
    decided November 20, 1934.)

      Arnold T. Koch, Basil O’Connor and Earle R. Koons for appellant.

      Frederick W. Hamberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Harold Seaman, George Benedatti and Frank Graham, Appellants.
    (Argued October 15, 1934;
    decided November 20, 1934.)

      Sidney M. Gottesman and E. Ivan Rubenstein for Harold Seaman, appellant.

      Edward J. Reilly and John E. Brandfon for George Benedatti, appellant.

      Edward J. Reilly for Frank Graham, appellant.

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

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


text:
    Thomas Giannettino, Respondent, v. The City of New York, Appellant.
    (Argued October 10, 1934;
    decided November 20, 1934.)

      Paul Windels, Corporation Counsel (Henry J. Shields and George H. Cowie of counsel), for appellant.

      Alfred J. Talley and Oliver B. Goldsmith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Elimination of the Grade Crossing of the New York Central Railroad Company over the State Highway in the Town of Whitestown. New York Central Railroad Company, Appellant; Public Service Commission et al., Respondents.
    (Argued October 15, 1934;
    decided November 20, 1934.)

      William R. Stevens, Frederick L. Wheeler and Clive C. Handy for appellant.

      Charles G. Blakeslee and Sherman C. Ward for Public Service Commission, respondent.
   Order affirmed,.with costs; no opinion.

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


text:
    Blanche C. Alexander, Respondent, v. The Torridaire Company et al., Appellants.
    (Argued October 15, 1934;
    decided November 20, 1934.)

      Walter B, Glenney and Bertrand L, Pettigrew for The Torridaire Company, appellant.

      Clinton DeWitt Van Siclen, William M. Chadbourne and Robert W. MacMillan for Abercrombie & Fitch Company, appellant.

      Sidney A. Wolff and Harry J. Leffert for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, O’Brien and Lough-ran, JJ. Hubbs, J., concurs as to defendant The Torridaire Company, but dissents as to defendant Abercrombie & Fitch Company. Crouch, J., dissents as to both defendants. Not sitting: Lehman, J,


text:
    Mary Morck, as Administratrix of the Estate of Christian Morck, Deceased, et al., Respondents, v. Staten Island Rapid Transit Railway Company, Appellant.
    (Argued October 15, 1934;
    decided November 20, 1934.)

      Harold R. Oakes and Robert Schwebel for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Irving Bitz, Appellant.
    (Argued October 16, 1934;
    decided November 20, 1934.)

      Harry G. Anderson, Max Fruchtman, Joseph H. Stein and James D. C. Murray for appellant.

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

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


text:
    In the Matter of Jack Cedar, Appellant, v. Judges of the Court of General Sessions, New York County, Respondents.
    (Argued October 16, 1934;
    decided November 20, 1934.)

      Leo H. Klugherz for appellant.

      William Copeland Dodge, District Attorney (John C. McDermott, Felix C. Benvenga and Angelo Alfred DeVito of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    H. T. Darling & Company, Inc., Respondent, v. Bowman-Biltmore Hotels Corporation, Appellant.
    (Argued October 16, 1934;
    decided November 20, 1934.)

      Bertram L. Kraus and M. Claiborne Mebel for appellant.

      Alexander U. Zinke, Charles W. Silver and L. Zinke for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Peter O. Duncan, Respondent, v. John E. McMurtry et al., Copartners under the Name of John E. McMurtry & Co., Appellants.
    (Argued October 16, 1934;
    decided November 20, 1934.)

      John J. Cunneen for appellants.

      Hamilton M. Dawes and A. Amasa Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry V. Walker, Appellant, v. Columbia Broadcasting System, Inc., Respondent.
    (Argued October 16, 1934;
    decided November 20, 1934.)

      George H. Mitchell and Mac Neil Mitchell for appellant.

      Joseph M. Proskauer, Louis Fabricant and Ralph F. Colin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Graham Hills, Inc., Respondent, v. The New York Central Railroad Company, Appellant.
    (Argued October 17, 1934;
    decided November 20, 1934.)

      Leo Manville, Frederick L. Wheeler and Clive C. Handy for appellant.

      Stephen Holden for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Martin O’Leary, Respondent, v. Standard Oil Company of New York, Appellant.
    (Argued October 17, 1934;
    decided November 20, 1934.)

      Henry B. Potter and Stafford Smith for appellant.

      Matthew W. Wood for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of James R. Duncan et al., as Executors of George Fowler, Deceased, Respondents; William W. Couperthwait et al., Appellants.
    (Argued October 17, 1934;
    decided November 20, 1934.)

      Thomas B. Kattell and Burton Orrell for appellants.

      Neil G. Harrison for respondents.
   Order affirmed, with costs to all parties filing briefs payable out of the estate. No opinion.

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


text:
    Robert S. Levy, on Behalf of Himself and Others, Appellant, v. Paramount Publix Corporation et al., Defendants, and Gilbert W. Kahn et al., Respondents.
    (Argued October 17, 1934;
    decided November 20, 1934.)

      Samuel Zirn and Adolph Feldblum for appellant.

      William D. Whitney and Hugh A. Fulton for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Town of Tonawanda, Respondent, v. Stapell, Mumm & Beals Corporation et al., Appellants, Impleaded with Another.
    (Argued October 17, 1934;
    decided November 20, 1934.)

      Stanley G. Falk and Rhoda V. Lewis for Stapell, Mumm & Beals Corporation et al., appellants.

      Wallace H. Miller for Frank Pandolfi, appellant.

      O. Clyde Joslin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Arnold Ross, Respondent, v. The State of New York, Appellant. James Daggett, as Administrator of the Estate of William Daggett, Deceased, Respondent, v. The State of New York, Appellant.
    (Claim No. 23299.)
    (Claim No. 23300.)
    (Argued October 18, 1934;
    decided November 20, 1934.)

      John J. Bennett, Jr., Attorney-General (Edward E. Brogan and Isaac I. Marks of counsel), for appellant.

      Ernest P. Lyons and Glenn A. Frank for respondents.
   In each case, judgment affirmed, with costs in favor of claimant against the State of New York. No opinion.

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


text:
    Dorothy Kanofsky, an Infant, by Rose Kanofsky, Her Guardian ad Litem, et al., Appellants, v. Brooklyn Jewish Center, Inc., Respondent.
    (Argued October 18, 1934;
    decided November 20, 1934.)

      George H. Engelhard for appellants.

      Thomas A. Clarke, John G. Reilly and Walter J. Slattery for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Silas Ezra, on Behalf of Himself and Others, Appellant, v. Thomas W. Lamont et al., Individually and as the International Committee of Bankers on Mexico, et al., Defendants, and United States of Mexico, Respondent.
    (Argued October 18, 1934;
    decided November 20, 1934.)

      Silas Ezra, in person, for appellant.

      Jerome S. Hess, Irving I. Goldsmith, Phanor J. Eder, Frank Rashap and Monroe Collenburg, appearing specially for United States of Mexico, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Van Rensselaer Halsey et al., Individually and as Partners of the Firm of C. D. Halsey & Co., Respondents, v. Corn Exchange Bank Trust Company, Appellant. (Actions Nos. 1 and 2.)
    (Argued October 18, 1934;
    decided November 20, 1934.)

      Frank C. Laughlin, Francis S. Quinn and Stewart W. Bowers for appellant.

      Carroll G. Walter for respondents.
   In each case, judgment affirmed, with costs; no opinion.

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


text:
    Cora Goodkin, an Infant, by Samuel Goodkin, Her Guardian ad Litem, et al., Respondents, v. Brooklyn and Queens Transit Corporation et al., Appellants.
    (Argued October 18, 1934;
    decided November 20, 1934.)

      Harold L. Warner and George D. Yeomans for Brooklyn and Queens Transit Corporation, appellant.

      Dix W. Noel, James B. Henney and Owen F. Hughes for Michael J. O’Hara, appellant.

      J. A. Lyon and Benjamin C. Loder for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Harry Budd, Respondent, v. Morning Telegraph, Inc., Appellant.
    (Argued October 18, 1934;
    decided November 20, 1934.)

      Thomas E. McEntegart and Charles C. Cullen for appellant.

      David Goldstein, Albert de Roode and Joseph W. Ferris for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Elmer E. Wilson, Respondent, v. Le Vell Moon, Doing Business under the Name of John Moon & Son, et al., Defendants, Clarence Sand and Gravel Co., Inc., et al., Respondents, and Columbia Casualty Company, Appellant. Bloomington Limestone Company, Respondent, v. Board of Education of the City of Lockport et al., Respondents, and Columbia Casualty Company, Appellant, Impleaded with Others.
    (Argued October 18, 1934;
    decided November 20, 1934.)

      Stanley H. Montfort for appellant.

      Harry L. Gilrie for Elmer E. Wilson, respondent.

      Montford C. Holley for Donoh W. Hanks et al., respondents.

      Harry J. Kelly for Bloomington Limestone Company, respondent.

      Edward Gram for August Feine & Sons Co., Inc., respondent.

      Frank Gibbons for Clarence Sand & Gravel Company, Inc., respondent.

      Charles R. Whiting for Kalman Steel Company, respondent.

      David E. Jeffery for Chester W. Fenno et al., respondents.

      William E. Lockner for L. N. Whissel Lumber Co., Inc., respondent.

      Abner T. Hopkins for Board of Education of the City of Lockport, respondent.

      W. W. Storrs and E. Storrs for Lockport Lumber Yards, Inc., respondent.
   In each case, judgment affirmed, with one bill of costs to each respondent appearing and filing a brief. No opinion.

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


text:
    In the Matter of Philip S. McNally, Respondent, against Amy B. Youngs et al., Appellants.
    (Argued October 3, 1934;
    decided November 20, 1934.)

      Gustave Lange, Jr., for appellants.

      William M. Kilcullen and Emil Morosini, Jr., for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Alva Seybolt et al., as Executors of Addie B. Stilson, Deceased, Respondent, v. Eugene B. Southworth, Respondent, Impleaded with Another.
    (Submitted October 19, 1934;
    decided November 20, 1934.)

      Alva Seybolt for appellants.

      Jerome S. Seacord for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Edwin W. Sanford, as Executor of Ellen Minch, Deceased, Respondent, v. Harriet L. Minch, Appellant.
    (Argued October 19, 1934;
    decided November 20, 1934.)

      Joseph L. Delaney for appellant.

      Eugene B. Sanford for respondent.
   Order affirmed, with costs payable out of the estate. No opinion.

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


text:
    In the Matter of the Estate of Peter Kinnear, Deceased. Katherine L. Kinnear, Appellant; Timothy E. Roland, as Administrator with the Will Annexed of Peter Kinnear, Deceased, Respondent.
    (Argued October 19, 1934;
    decided November 20, 1934.)

      John J. McManus for appellant.

      Rollin B. Sanford for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    George S. Van Schaick, Superintendent of Insurance of the State of New York, as Liquidator of the Equitable Casualty and Surety Company, Respondent, v. A. Paul Loshen, Appellant.
    (Argued October 22, 1934;
    decided November 20, 1934.)

      Charles H. Tuttle, William Weisman and David Gellar for appellant.

      Abraham J. Halprin and Alfred C. Bennett for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Erhard F. Schuessler, Respondent, v. Metropolitan Casualty Insurance Company of New York, Appellant, Impleaded with Others.
    (Submitted October 22, 1934;
    decided November 20, 1934.)

      Ralph W. Nolan for appellant.

      Edwin J. Culligan and Francis E. Cornish for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Arland L. Darling, Appellant, v. Lydia M. Darling et al., Respondents.
    (Argued October 22, 1934;
    decided November 20, 1934.)

      James O. Sebring and Wilbur F. Knapp for appellant.

      George A. King, James S. Drake, Jr., and Chester H. Ashton for respondents.
   In actions Nos. 1 and 2, judgment affirmed, with one bill of costs. In proceeding No. 3, appeal dismissed without costs, on the ground that the order of the Appellate Division is not a final order. No opinion.

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


text:
    James W. Brown, as Administrator of the Estate of Mary Ahearn, Deceased, Respondent, v. Francis J. McCullough, Doing Business under the Name of F. J. McCullough Co., Defendant, and Frederick W. Gurney, Appellant.
    (Argued October 23, 1934;
    decided November 20, 1934.)

      John J. McGinty, Joseph C. Thomson and Frederick Mellor for appellant.

      John C. Spallone and William Levin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George Guerin, Respondent, v. Transit Mix Concrete Corporation, Appellant, Impleaded with Another.
    (Argued October 23, 1934;
    decided November 20, 1934.)

      I. Maurice Wormser, John E. Leddy and Jacob M. Grossman for appellant.

      Edgar T. Beamish for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Van Bel Company, Inc., Plaintiff, v. Louise Sievers et al., Appellants, and The Board of Education of Union Free School District No. 5, Town of Islip, et al., Respondents.
    (Argued October 23, 1934;
    decided November 20, 1934.)

      Alfred Ekelman for Louise Sievers et al., appellants.

      Charles H. Kelby and Joseph T. Losee for the Board of Education, respondent.

      William B. Butler and William P. Moyles for American Surety Company of New York, respondent.

      J. Melvin Dodson for Seneca Lumber and Millwork Company, respondent.

      Guy O. Walser for Truscon Steel Company, respondent.

      Louis H. Levin for Samuel Epstein, Inc., respondent.

      Leo T. Kissam for Fidelity and Deposit Company of Maryland, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Celia Lande, Respondent, v. The Travelers Insurance Company, Appellant.
    (Argued October 23, 1934;
    decided November 20, 1934.)

      William B. Crowell, Bernard J. McGlinn and William J. Moran for appellant.
    I. Gainsburg and Reginald F. Isaacs for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary Donohue et al., Respondents, v. Haven Transportation, Inc., Defendant, and Brooklyn and Queens Transit Corporation, Appellant.
    (Argued October 24, 1934;
    decided November 20, 1934.)

      Harold L. Warner and George D. Yeomans for appellant.

      A. L. Pomerantz, Emanuel Forst and Isidore Halpern for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Samuel A. Wurzberg, Appellant.
    (Argued October 24, 1934;
    decided November 20, 1934.)

      Theodore I. Welenkew, Harry G. Anderson, Joseph H. Stein and Samuel S. Leibowitz for appellant.

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

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


text:
    Marie Johnsen, Appellant, v. Staten Island Hospital, Inc., Respondent.
    (Argued October 24, 1934;
    decided November 20, 1934.)

      Elias Bernstein, Thomas Schleier and Seymour Kempner for appellant.

      Bertram G. Eadie, Thomas Nunley and John H. Scully for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and new trial granted, with costs to abide the event. Held, that the evidence presented a question of fact which should have been submitted to the jury. No opinion.

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


text:
    In the Matter of Emily G. Remey, as Executrix of Frank L. Remey, Deceased, Appellant; Newburger, Loeb & Company, Respondent.
    (Argued October 24, 1934;
    decided November 20, 1934.)

      Max Levy for appellant.

      Osmond K. Fraenkel for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Edna M. Barber, Respondent, against Harvey & Eddy Co., et al., Appellants. State Industrial Board, Respondent.
    (Argued October 24, 1934;
    decided November 20, 1934.)

      John J. Connors, Jr., for appellants.

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   Order of the Appellate Division reversed and determination of the State Industrial Board affirmed. Held, there is sufficient evidence to support the finding of the State Industrial Board. No opinion.

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


text:
    In the Matter of Eisenberg Farms, Inc., Appellant, against Charles H. Baldwin, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
    (Argued October 25, 1934;
    decided November 20, 1934.)

      Max Rothenberg and John J. Scully for appellant.

      Henry S. Manley for respondent.

      Seward A. Miller and Frank B. Lent for Dairymen’s League Co-operative Association, Inc., intervener.
   Order affirmed, with costs; no opinion.

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


text:
    Adam Frank, Appellant, v. Frank C. Zuch et al., Respondents.
    (Argued October 25, 1934;
    decided November 20, 1934.)

      Lyman Stansky for appellant.

      Samuel W. Eskowitz for Frank C. Zuch, respondent.

      Samuel Marion for Atlas Fence Company, respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    James F. Egan, as Administrator of the Estate of Simeon Nikulnikoff, Deceased, Appellant, v. Russian Orthodox Diocesan Trustees, Inc. Respondent.
    (Submitted October 25, 1934;
    decided November 20, 1934.)

      Borris M. Komar for appellant.

      Russian Orthodox Diocesan Trustees, Inc., respondent in person.
   Judgment affirmed, without costs; no opinion.

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


text:
    Clara B. Wilcox, Appellant, v. The Mutual Life Insurance Company of New York, Respondent. Asa H. Wilcox, an Infant, by Clara B. Wilcox, His Guardian ad Litem, Appellant, v. The Mutual Life Insurance Company of New York, Respondent.
    (Argued October 25, 1934;
    decided November 20, 1934.)

      Nelson J. Palmer and David H. Stanton for appellant.

      Roy P. Ohlin, Frederick L. Allen, Franklin D. L. Stowe and Mason O. Damon for respondent.
   Judgments affirmed, with one bill of costs; no opinion.

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


text:
    Paul Kielich, an Infant, by John Kielich, His Guardian ad Litem, Respondent, v. William Hengerer Company, Appellant. John Kielich, Respondent, v. William Hengerer Company, Appellant.
    (Argued October 25,1934;
    decided November 20, 1934.)

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

      William J. Flynn for respondents.
   In each action, judgment affirmed, with costs; no opinion.

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


text:
    Edward F. Thieler, Respondent, v. Trinity Advertising Corporation, Appellant.
    (Argued October 25, 1934;
    decided November 20, 1934.)

      Inzer B. Wyatt, David W. Peck and Frederick L. Strong for appellant.

      R. D. Murray for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alfred J. Kuntze et al., Appellants, v. Guaranty Trust Company of New York et al., Respondents.
    (Submitted October 25, 1934;
    decided November 20, 1934.)

      John H. Mariano for appellants.

      Milton Gould and Leopold Spitz for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick S. Osburn, Jr., Appellant, v. The Commercial Travelers Mutual Accident Association of America, Respondent.
    (Submitted October 25, 1934;
    decided November 20, 1934.)

      Howard M. Woods for appellant.

      Charles S. Wilcox for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Salvatore Trombino, Appellant.
    (Submitted October 22, 1934;
    decided November 20, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 689.)


author: Crouch, J.

text:
    The People of the State of New York, Appellant, v. Jacob Kuland, Louis Katsenbogen and Philip Chegan, Respondents.
    (Argued October 25, 1934;
    decided November 27, 1934.)

      Charles S. Colden, District Attorney (Mordecai Konowitz of counsel), for appellant.
    The reversal of the convictions and dismissal of the information as against the defendants Kuland and Katsenbogen was contrary to law. (People v. Sweeney, 213 N. Y. 37; People v. Miles, 123 App. Div. 862; 192 N. Y. 541; United States v. Cohn, 128 Fed. Rep. 615; Browne v. United States, 145 Fed. Rep. 1; 200 U. S. 618; Motes v. United States, 178 U. S. 458; Anderson v. Commonwealth, 203 Ky. 681; Hustead v. State, 95 Tex. Cr. Rep. 49; Schindler v. Royal Ins. Co., 258 N. Y. 310.)

      John C. Judge for respondents.
    Inasmuch as there was no competent evidence showing that one of the defendants had anything to do with the conspiracy alleged in the information, the judgments against the other two defendants cannot be sustained. (People v. Hamilton, 165 App. Div. 546.)
   Crouch, J.

The defendants were convicted of conspiring to commit a felonious assault upon one Michael Capura, by throwing sulphuric acid upon him. The Appellate Division reversed the judgments of conviction upon the law, dismissed the information, exonerated bail and discharged the defendants. “ There is,” says the decision, no competent evidence in the record showing that defendant Chegan had anything to do with the conspiracy alleged in the information, and without this the judgment may not be sustained. (People v. Hamilton, 165 App. Div. 546.) ” (241 App. Div. 772.)

The effect of an acquittal or of a reversal as to one or more but not all of the defendants tried upon a charge of conspiracy, is an old and much debated question. Upon an indictment against two only, where no others are named, the rule commonly stated is that an acquittal or reversal as to one is an acquittal or reversal as to the other. (2 Wharton’s Criminal Law [12th ed.], § 1657; 1 Bishop on Criminal Law [9th ed.], § 801; State v. Tom, 13 N. C. 569.) People v. Hamilton (165 App. Div. 546), cited by the Appellate Division as authority for its decision in this case, rests upon that rule. A contrary view is arguable. (Cf. Jones v. Commonwealth, 31 Grat. [Va.] 836; Lord Coleridge, C. J., in The Queen v. Manning, 12 Q. B. Div. 241, 245; State v. Taylor, 160 Iowa, 328; Woody v. State, 10 Okla. Crim. Rep. 322, and note thereon 49 L. R. A. [N. S.] 479; 16 Harv. L. Rev. 142; 25 Harv. L. Rev. 288.) Where three or more are indicted or named, while there is still diversity of opinion, the better view, apart from dry logic, is that acquittal or reversal as to one or more is not such repugnancy on the record as to require the setting aside of the conviction of the other or others. (People v. Olcott, 2 Johns. Cas. 301; People v. Miles, 123 App. Div. 862; affd., 192 N. Y. 541; Browne v. United States, 145 Fed. Rep. 1; Dafour v. United States, 37 App. Cas. D. C. 497; Motes v. United States, 178 U. S. 458; Harv. Law Review, ubi supra.)

The law must be practical.” (Crane, J., People v. Rizzo, 246 N. Y. 334, 337.) The case against Chegan as it now appears falls for lack of competent proof. The dismissal of the information as to him amounts to little if anything more than a verdict of not proven. (Schindler v. Royal Ins. Co., 258 N. Y. 310, 313.) If the evidence against the other two proves them beyond a reasonable doubt to have been guilty, their conviction may stand. They chose, as they had the right to do, not to take the witness stand. If, because of that choice, Chegan goes free, while they suffer, they have no cause to complain.

We are, however, without jurisdiction to decide the case upon the record now before us. The orders of the Appellate Division fail to show that it exercised its power and duty to review the facts. (People v. Redmond, 225 N. Y. 206; People v. Bergman, 252 N. Y. 346.)

The appeal should be dismissed but without prejudice to an application by the District Attorney for appropriate relief at the Appellate Division.

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

Appeal dismissed, etc.


author: Crane, J. Lehman, J.

text:
    Alfred H. Newburger et al., Appellants, v. Samuel L. Lubell, Respondent, Impleaded with Another.

      (Argued October 24, 1934;
    decided November 27, 1934.)

      Osmond K. Fraenkel for appellants.
    The trial court’s direction of a verdict in plaintiffs’ favor was correct. (People v. Metropolitan Surety Co., 175 App. Div. 43; National Surety Co. v. National City Bank, 184 App. Div. 771; Commercial Casualty Ins. Co. v. Capital City Surety Co., 224 App. Div. 500, 553; Howell v. Commissioner of Internal Revenue, 69 Fed. Rep. [2d] 447; Cuyler v. Ens-worth, 6 Paige Ch. 32; Liberty Mutual Ins. Co. v. Colon, 260 N. Y. 305; Phoenix Indemnity Co. v. Staten Island R. T. Co., 251 N. Y. 127; 281 U. S. 98; Eissing Chemical Co. v. Peoples Nat. Bank, 205 App. Div. 89; 237 N. Y. 532; Haverhill v. International Ry. Co., 217 App. Div. 521; Featherston v. N. & C. Turnpike Road, 71 Hun, 109; City of Anderson v. Fleming, 160 Ind. 597; Easterly v. Barber, 66 N. Y. 433; Dodd v. Winn, 27 Miss. 501; Weed v. Calkins, 24 Hun, 582.)

      Morton L. Deitch and Sol M. Stroock for respondent.
    The reversal by the Appellate Division of the judgment directed in plaintiffs' favor was ’proper. (Harbeck v. Vanderbilt, 20 N. Y. 395; Booth v. Farmers Bank, 74 N. Y. 228; Clark v. Norman, 68 Hun, 372; Benjamin v. Ver Nooy, 36 App. Div. 581; 168 N. Y. 578; Bath Gas Light Co. v. Rowland, 84 App. Div. 563; Haverhill v. International Ry. Co., 217 App. Div. 521; 244 N. Y. 582; People ex rel. Bacon v. McHenry, 19 Wend. 482; Gouert v. Mechanics & Metals Nat. Bank, 191 App. Div. 854; 233 N. Y. 576; Gillmore v. Equitable Surety Co., 228 App. Div. 188.) The alleged subsequent verbal reinstatement of the guaranty did not affect respondent’s position. (Wilkes Barre Realty Co. v. Powell, 86 Misc. Rep. 321; Warren v. . Lyons, 152 Mass. 310; Cons. Laws, ch. 12, § 235.)
   Crane, J.

After the fall of 1929, it is a matter of public knowledge that stock speculation became rather risky and that the market materially declined. On or prior to April -25, 1930, Abraham notified the plaintiffs that he withdrew his guaranty and would no longer be hable for his brother’s account, and the firm in reply sent him this letter:

“ Newburger, Henderson & Loeb 100 Broadway New York
“April 25th, 1930.
“ Mr. A. P. Lubell
“ 806 Broadway
“ New York, N. Y.
“ Dear Sir: We wish to acknowledge receipt of your letter of even date, and in accordance with your instructions, we have today cancelled your guaranty on the accounts of
“ A. D. Lubell “ J. J. Lubell
Very truly yours,
“ NEWBURGER, HENDERSON & LOEB.”

What was the effect of this release of guaranty upon the co-surety, Samuel Lubell? It was to reduce bis liability for Jacob’s account in proportion to the release given his co-surety, or, in this instance, one-half. Instead of being hable for the whole of Jacob’s deficit, he would only be liable thereafter for one-half. This will be discussed later as we pass on to other facts.

Between April 25 and May 5 the market was rapidly dechning. Jacob’s securities and Abraham’s securities in his own account as well as those held as pledge for Jacob’s account ■— ah were dropping rapidly in the market — and Jacob as weh as Abraham was called upon for more margin. Then, according to the testimony of one of the plaintiffs, Abraham came to the office, 100 Broadway, New York city, and said that he would renew his guaranty of Jacob’s account, but he gave no renewal in writing, nor was any demanded of him. The' plaintiffs say that the arrangement was that they should tear up Abraham’s letter demanding release and that Abraham would destroy the plaintiffs’ letter which he had received releasing him. In other words, a guaranty beginning with May 5, 1930, was to be created by the destruction of writings, properly called releases, and without any note or memorandum or writing estabhshing the new contract. The Personal Property Law (§ 31, subd. 2; Cons. Laws, ch. 41) requires that an agreement to pay the debt of another must be in writing, signed by the party to be bound thereby; otherwise it is void. No such writing was given to create the guaranty May 5, 1930, and the oral arrangement was, therefore, absolutely void. The guaranty of Abraham, made in 1929 in writing, was ended on April 25, 1930, by release in writing. For ten days thereafter it is conceded that there was no guaranty in existence from Abraham. All parties to this litigation speak of a renewal contract having been made on May 5, and made orally, not in writing. When a guaranty has once been released, wiped out or paid, a new guaranty or a renewal of a guaranty must also be in writing, to comply with the Personal Property Law. It is many times hard enough for a man to pay his own debts without assuming the debts of others, and the law has very wisely required such an assumption or obligation to be reduced by formality to writing, where the nature of the undertaking will not be left to the uncertainty of memory or the misunderstanding of parties.

The very danger which the law anticipated arises in this case, because all this oral testimony given by the plaintiffs’ witness is denied by Abraham Lubell.

Samuel Lubell was not consulted about any of these matters and knew nothing about the release of Abraham’s guaranty. No communication was had with him or notice sent him.

Action was commenced against Samuel Lubell on his guaranty on the 10th day of March, 1931, and the defendant Abraham Lubell was joined as a party defendant by an order dated the third of the following December. The complaint alleged that Jacob’s account was liquidated December 19, 1930, showing a debit balance owing to the plaintiffs of $48,937.23; that the balance of Samuel’s cash remaining in the hands of the plaintiffs, $17,033.03, had been applied in reducing Jacob’s deficit, together with $17,209.03, balance of the moneys which the plaintiffs had belonging to Abraham, leaving, together with some other deductions, $14,532.97 as Jacob’s deficit, for which Samuel and Abraham were hable.

Samuel, in his answer, set out the release of Abraham and claimed that thereby he was hable for only half of Jacob’s deficit, which he was not only ready to pay, but which, by counterclaim, he set up as having been more than paid, to the extent of $4,000. Judgment has gone against Samuel for the full amount, in the sum of $14,412.97, with interest, or a total of $16,209.41, for which he has no contribution against Abraham, who is concededly insolvent. The Appellate Division reversed the judgment and dismissed the complaint as to Samuel, granting a new trial on his counterclaim in order that the amount which he had paid over and above his half of Jacob’s deficit might be more satisfactorily proved. We are of the opinion that, in the holding but not the dismissal, the Appellate Division was right for reasons which we shall discuss before we take up the other facts in the case.

Each of several co-sureties is in legal effect as against the others a principal for his proportion of the debt, and a surety as to the rest, and a release of one is, therefore, a release of one who is in part a principal. Releasing or giving time to one co-surety or to one of several principal debtors will discharge the others in respect to the portion of the debt as to which the party released or given time to is a principal (2 Williston on Contracts, § 1263). If there are several sureties liable for the same debt, and the creditor releases one of them from liability, he generally releases the remaining sureties to the extent that such released surety would otherwise have been hable to contribute to his co-sureties. (1 Brandt on Suretyship & Guaranty [3d ed.], § 496; 2 Williston on Contracts, § 1263; Morgan v. Smith, 70 N. Y. 537; Benedict v. Rea, 35 Hun, 34.) Debtor and Creditor Law (Cons. Laws, ch. 12), section 235: (a) If an obligee releasing or discharging an obligor without express reservation of rights against a co-obligor, then knows or has reason to know that the obligor released or discharged did not pay so much of the claim as he was bound by his contract or relation with that co-obligor to pay, the obligee’s claim against that co-obligor shall be satisfied to the amount which the obligee knew or had reason to know that the released or discharged obligor was bound to such co-obligor to pay.”

This seems to be the fundamental rule and principle of suretyship for which there are numerous authorities. The plaintiffs, appellants, seek to meet this legal objection by saying that Samuel was in no way injured by Abraham’s release; the guaranty having been renewed on May 5th he, Samuel, still has the right of contribution against Abraham. This sounds plausible because it assumes facts which are not true. It assumes that if Samuel has a right of contribution he can get his money back. The fact is contribution against Abraham is worthless, as he is insolvent. The appellants’ distinction between subrogation ” and contribution ” is entirely immaterial to this controversy, as neither exists unless there is first a liability upon the part of Samuel to pay the entire deficit of Jacob. It is this liability we are discussing, and it does not help to decide this question by saying he would not be injured if he has contribution or subrogation. He is not obliged to resort to either of these remedies until the law first declares his liability for the whole. When the plaintiffs knowingly released Abraham they also released Samuel to the extent that Abraham would have' been liable over to him as co-surety which in this instance is one-half. Even if we were to assume as a fact that Abraham’s guaranty was restored on May 5, it by no means follows that Samuel was not injured even for the ten days’ break. It is conceded that for these ten days there was no guaranty by Abraham. It had been released. What happened during these ten days which Samuel might have prevented?

There was very little, if any, deficit in Jacob’s account on April 25, 1930. Even on May 5, 1930, there was only a deficit of $10,684. The market after April 25th started to go down steadily until May 5th, so that the deficit, if any, on April 25th must have been less than this figure At that time Samuel had in excess of $26,000 in cash with the plaintiffs as collateral and at the same time Abraham’s account had a large equity. If Samuel had known of the release of Abraham and that he would be Hable for those ten days as sole surety for Jacob’s growing deficit, he could have immediately ended his guaranty so far as the future was concerned, paid his fiabifity for Jacob’s deficit and had a large amount of cash besides his stock securities coming back to him. As it is, during those ten days his fiabifity increased with the increasing deficit in Jacob’s account. When asked what he would have done if he had known of the release, the answer was excluded on the plaintiffs’ objection. This was probably a correct ruling as the law will presume, in absence of any notice to him, that he would have acted prudently in his own interest. There was, therefore, substantial damage done to Samuel by the release of Abraham, and it is no excuse to say that he was not harmed because he did not know it. Even if we go so far as to say that the above rule of law regarding the release of a co-surety does not apply where the released co-surety is insolvent or no harm is done to the other co-sureties, such is not the case here. On April 25, 1930, as well as May 5, Abraham had large equities in his own accounts with the plaintiffs and it has by no means been proved that he was insolvent on. December 20, 1930, when his securities were sold out by the plaintiffs. Therefore, unless there is something more to be considered, the plaintiffs cannot recover from Samuel more than half of Jacob’s deficit. That a surety may at any time terminate his guaranty for the future, see Emery v. Baltz (94 N. Y. 408); Reilly v. Dodge (131 N. Y. 153). We conclude, therefore, that the release of Abraham on April 25, released the co-surety Samuel for anything above his half of the deficit.

As stated in the beginning, this action was commenced against Samuel in March of 1931, and the defendant Abraham brought in the following December. As against him the plaintiffs insisted that the controversy should be submitted to arbitration, by reason of their customers’ contract. As before stated, he had his own stock transactions with the plaintiffs under an agreement which provided for arbitration in case of dispute. The plaintiffs claimed that this arbitration agreement included disputes regarding the guaranty account. We sustained the plaintiffs’ claim (Matter of Newburger v. Lubell, 257 N. Y. 213). Orí October 15, 1931, judgment was entered against Abraham on the arbitration award which had been made, wherein it was adjudged that the guaranty executed by the respondent, Abraham P. Lubell, of the account of his brother, Jacob J. Lubell, was in full force and effect in December, 1930.”

After obtaining this judgment on the award, the plaintiffs moved in this action for summary judgment against Abraham, which was granted and judgment was entered against him for the full amount and, as before stated, is uncollected. This judgment against Abraham goes to the extent of showing the amount recovered against him as a co-surety and the extent to which he might have contribution against Samuel, provided Samuel’s liability existed, but Samuel could always prove both as against these plaintiffs, the principals, and against Abraham, Ms co-surety, that no liability did exist for more than one-half of Jacob’s deficit by reason of Abraham’s release. In other words, he could show and prove as against the plaintiffs that they had fully released Abraham even though they had recovered a judgment against Abraham upon a contrary finding. He was not a party to the arbitration proceedings and had no notice thereof. (1 Freeman on Judgments [5th ed.], §§ 455, 456. To the same effect, Clark v. Norman, 68 Hun, 372, opimon by Haight, J., subsequently of the Court of Appeals; Benedict v. Rea, 35 Hun, 34; Bath Gas Light Co. v. Rowland, 84 App. Div. 563; affd., 178 N. Y. 631; Morgan v. Smith, 70 N. Y. 537.)

As between the plaintiffs and Abraham the arbitration and the judgment thereon established that he was a surety for Ms brother Jacob on December 30, 1930. If Samuel had paid the entire amount of the deficit, he could have recovered against Abraham, as a co-surety, Ms contribution of one-half of the amount. Abraham could not deny that he was a co-surety as tMs fact had been established as against Mm. It is another matter to say that what Samuel might have done voluntarily in the way of paying the entire judgment, he can be compelled to do because of this judgment against Abraham. Abraham is a surety and hable for the full amount and judgment has gone against Mm accordingly, but tMs does not wipe out the effect of the release given on April 25 upon Samuel’s liability as a co-surety. The new guaranty of May 5, even if it were made, was of no effect as to Samuel; i. e., it did not restore Ms liability as co-surety, and compel him to seek contribution from Abraham.

We, therefore, have arrived at a point where Samuel is not hable for more than one-half of Jacob’s deficit by reason of the conceded release of Abraham on April 25, 1930, irrespective of whether there was a new contract of guaranty or a restoration of guaranty made by Abraham May 5, 1930.

All that we have said here would lead to an affirmance of the order and judgment of the Appellate Division, if it were not for the confusion arising from the figures and the facets relating to the sale or disposition of the stock of the Chase Bank and the Irving Trust Company. The conclusion being that Samuel is liable for only one-half of the deficit or judgment against Jacob, the question still remains whether he has paid his half. He says he has, more than his half, by some four thousand dollars, and he has counterclaimed for this amount. The Appellate Division has sent this back for a new trial severing the action and there is no appeal from this part of its decision. But the plaintiffs’ complaint cannot be dismissed as there is uncertainty whether Samuel has paid the half which he concedes he owes. The plaintiffs insist that even under the defendant’s view of the case, Samuel still owes $2,578.38. The answer depends upon the value of the securities held by the plaintiffs or by or for Samuel.

We, therefore, modify the judgment of the Appellate Division and send the whole case back to Trial Term for judgment in accordance with this opinion, after the determination of the amount which the plaintiffs should be charged with holding or receiving on Samuel’s securities.

The judgment should be modified in accordance with this opinion and a new trial granted, with costs to abide the event.

Lehman, J.

(concurring). The plaintiffs concededly released Abraham Lubell from his guaranty on April 25, 1930, without the knowledge or consent of his co-surety Samuel Lubell. They had the right to do so, though thereby they destroyed the relationship of co-sureties between Samuel Lubell and his brother Abraham and Samuel’s right to contribution which arises out of their relationship. The consequence was, however, to release Samuel Lubell from his obligation as guarantor to the extent that by the plaintiffs’ voluntary act he lost right of contribution from Abraham who at that time was concededly solvent.

The plaintiffs had the same right thereafter to accept a new guaranty from Abraham Lubell or any other person as they had to release the old guaranty of Abraham. As between themselves and Abraham, liability under a new guaranty is conclusively established by the judgment against Abraham Lubell. Because of that liability the relationship of co-sureties between Abraham Lubell and Samuel Lubell has again arisen with its consequent right of contribution. In accepting a new guaranty the plaintiffs assumed the risk of the insolvency of the guarantor. They could not, without Samuel Lubell’s consent, enlarge his own liability which had previously been partially wiped out and shift to him the risk of insolvency of the guarantor.

Bound, Ch. J., O’Brien, Hubbs, Crouch and Lough-ran, JJ., concur with Crane, J.; Lehman, J., concurs in separate opinion.

Judgment accordingly.


author: O’Brien, J.

text:
    The People of the State of New York, Respondent, v. Frank Mitchell, Appellant.

      (Argued October 15, 1934;
    decided November 27, 1934.)

      Joseph P. Brennan, Jr., Samuel W. Greenwald and Bernard Aronson for appellant.
    The constitutional rights of the defendant were invaded in that he was tried by a jury other than the common law jury provided for in the Constitution of the State of New York (N. Y. Const. art. 1, § 2). (Stokes v. People, 53 N. Y. 164; Brown v. State, 62 N. J. L. 666; Thompson v. Utah, 170 U. S. 343; People v. Cosmo, 205 N. Y. 91; Stephens v. People, 19 N. Y. 549; People ex rel. Battista v. Christian, 249 N. Y. 314; Cancemi v. People, 18 N.Y. 128; Hill v. People, 16 Mich. 351; Vose v. Cockcroft, 44 N. Y. 415; People v. Bork, 96 N. Y. 188; Maurer v. People, 43 N. Y. 1.)

      William Copeland Dodge, District Attorney (John C. McDermott of counsel), for respondent.
    Section 358-a of the Code of Criminal Procedure is constitutional. (People v. Peete, 54 Cal. App. 333; People v. Toledo, 150 App. Div. 403; 206 N. Y. 661.)
   O’Brien, J.

Defendant has been convicted of murder in the first degree and a careful study of the record and briefs satisfies us that the verdict is fully supported by the evidence and that the trial is free from reversible error in the charge and in the rulings on admission and exclusion of evidence. Expression of opinion, however, is required in respect to the constitutionality of section 358-a of the Code of Criminal Procedure, as added by Laws of 1933, chapter 588, and the effect of the operation of this statute upon defendant’s substantial rights. This is the language of the statute: Whenever, in the opinion of a judge of a court of criminal jurisdiction about to try with a jury a defendant against whom has been filed any indictment or information for a felony, the trial is likely to be a protracted one, the court may cause an entry to that effect to be made in the minutes of the court, and thereupon, immediately after the jury is impaneled and sworn, the court may direct the calling of one or two additional jurors, in its discretion, to' be known as alternate jurors.’ Such jurors must be drawn from the same source, and in the same manner, and have the same qualifications as the jurors already sworn, and be subject to the same examination and challenges. Such alternate jurors shall be seated with the jurors, with equal power and facilities for seeing and hearing the proceedings in the case, and shall take the same oath as the jurors already selected, and must attend at all times upon the trial of the cause in company with the other jurors; and for a failure so to do are liable to be punished for contempt. They shall obey the orders of and be bound by the admonition of the court upon each adjournment of the court; and if the regular jurors are ordered to be kept in the custody of the sheriff during the trial of the cause, such alternate jurors shall also be kept in confinement with the other jurors; and except, as hereinafter provided, shall be discharged upon the final submission of the case to the jury. If, before the final submission of the case, a juror die, or become ill, or for any other reason he be unable to perform his duty, the court may order him to be discharged and draw the name of an alternate, who shall then take the seat of the discharged juror in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors.”

Two alternate jurors were selected in the manner provided by section 358-a and, when the original twelve retired for deliberation, the alternates were discharged. In all respects throughout the trial there was compliance with the provisions of the statute. There is not the slightest evidence, not even an assertion, that either of these alternates attempted in any way to influence any of the twelve.

Trial by jury in all cases in which it has been heretofore used shall remain inviolate forever (N. Y. Const, art. I, § 2). If defendant was tried otherwise than by a common law jury of twelve men he has been convicted without due process of law. In Cancemi v. People (18 N. Y. 128) the verdict against the defendant was rendered by only eleven jurors. In People ex rel. Battista v. Christian (249 N. Y. 314) the prisoner was not even indicted by a grand jury and was not convicted by any kind of jury. Those decisions, therefore, can have no application to the facts now before us. This defendant was not tried by a jury of fourteen men. Only twelve participated in the rendition of the verdict and they are the same twelve originally selected for the performance of that service. Each heard all the evidence and at no time during the course of the trial did any one of them cease to function as a juror. The process of selection is a matter to be regulated by statute (People v. Cosmo, 205 N. Y. 91, 99), and each of these twelve was accepted in accordance with the legislative requirements. “ He has had a trial conducted according to the established forms of law, and his guilt has been certified, upon competent and sufficient evidence, by a jury of twelve in number who were capable of deciding his case fairly and impartially. That is all that was guaranteed to him by the Constitution.” (People v. Cosmo, supra, pp. 103, 104.)

The provisions of section 358-a are included as part of the criminal procedure in many of the States (see People v. Peete, 54 Cal. App. 333), are not only convenient but just both to the public and to the defendant and in no way conflict with our constitutional prohibition against the violation of substantial right of trial by jury as it was used prior to the adoption of the Constitution.

The judgment of conviction should be affirmed.

Pound, Ch. J., Crane, Hubbs, Crouch and Loughran, JJ., concur; Lehman, J., not sitting.

Judgment of conviction affirmed.


text:
    William P. Fleckenstein, Appellant, v. Benny Friedman et al., Respondents.

      (Argued October 1, 1934;
    decided November 27, 1934.)

      Mason H. Partridge, Jr., for appellant.
    The alleged defense of justification wholly fails to justify the article complained of. (Bingham v. Gaynor, 203 N. Y. 27; Abell v. Cornwall Industrial Gorp., 241 N. Y. 327; Lanpher
      v. Clark, 149 N. Y. 472; Gressman v. Morning Journal Assn., 197 N. Y. 474.) The plea of justification must be explicit. (Bingham v. Gaynor, 203 N. Y. 27; Wachter v. Quenzer, 29 N. Y. 547; Billings v. Waller, 28 How. Pr. 97; Jones v. Stevens, 11 Pet. 235.) The alleged partial defense in justification is insufficient in law. The facts alleged, by designation and effect, are in mitigation and do not constitute justification. There is no such thing as half justification. (Fera v. Ruscoe, 4 N. Y. 162; Mattice v. Wilcox, 147 N. Y. 624; Wachter v. Quenzer, 29 N. Y. 547; Bush v. Prosser, 11 N. Y. 347; Goodrow v. Press Co., 233 App. Div. 41; McClelland v. Climax Hosiery Mills, 252 N. Y. 347.)

      Charles E. Kelley and Christian S. Lorentzen for respondents.
    The justification is as broad as the charge. (Cafferty v. Southern Tier Pub. Co., 226 N. Y. 87.) Any matter tending to reduce compensatory damages may be set up as a partial defense. The justification of any part of a libelous article might tend to reduce the compensatory damage pro tanto and constitute a partial defense in justification. This presents a question of fact. (Civ. Prac. Act, § 262; Wachter v. Quenzer, 29 N. Y. 547; Lanpher v. Clark, 149 N. Y. 472; Gressman v. Morning Journal Assn., 197 N. Y. 474; Cooper v. Greeley, 1 Den. 347; Bernstein v. Singer, 1 App. Div. 64; Remsen v. Bryant, 47 App. Div. 503; Brisack v. King, 199 App. Div. 213; McClelland v. Climax Hosiery Mills, 252 N. Y. 347; Staten Island Midland R. R. Co. v. Hinchliffe, 170 N. Y. 473.)
   Crouch, J.

The plaintiff Fleckenstein and the defendant Friedman were sometime college and later professional football players. In 1932 Friedman wrote and the defendant Collier Company published an article dealing with the amenities of the game. It stated, among other things, that “ Both games [college and professional] suffer from the occasional player with a mean streak — the bully of boyhood who knows his physical superiority and takes sadistic pleasure in displaying it.” This theme was first illustrated by reference to the conduct of an anonymous college player and then by reference to Fleckenstein by name, and to the Fleckenstein Formula.” The formula ■— his idea of play ”— was briefly stated as being “ loser take all — on the chin.” He was described as " a specialist at infighting during scrimmages,” and as “ a rough gent who’s discreet enough to slug under cover.”

This is an action for libel based upon the publication of the article. The complaint alleges a cause of action for injury to plaintiff’s good name, credit and reputation generally; and another for injury to him in his business or profession of playing professional football. The answer, after denials putting in issue all the material allegations of the complaint except publication, pleads justification as “ a first defense,” then realleges the same matter as a partial defense in justification; ” and finally realleges it as “ a partial defense in mitigation of any damages to which the plaintiff might otherwise be entitled.”

The questions certified relate to the sufficiency in law of the defense of justification and of the partial defense in justification.

1. The matter set out in justification is as follows: During the said period, 1927-1931, inclusive, while engaged in playing professional football, in violation of the rules of football, fair play and good sportmanship and to the detriment of the game of professional football, the plaintiff employed and practiced the unlawful tactics of striking opposing players in scrimmages with the closed fist or the heel of the palm, or of butting opposing players with the knee or elbow in the groin or stomach or face or jumping or falling on the back of opposing players landing on the knees and employing unlawful use of the hands by gouging and choking, and unlawful use of the feet in tripping and unnecessary roughness in charging, blocking and unnecessarily piling and unnecessarily trampling or treading on opposing players with heavy cleated shoes and otherwise playing ‘ dirty ’ football; and at the time of the publication of the alleged article the fame and reputation of the plaintiff as a professional football player was bad, the plaintiff being generally in disrepute for slugging and the other illegal tactics above enumerated and for playing unsportsmanlike and ‘ dirty1 football.”

This is attacked for lack of breadth and for failure to be direct and explicit. Appellant says, moreover, that while it unquestionably refers to definite acts, it is vague in particularity. No innuendo is pleaded, but it is argued here that the sting of the libel is in depicting plaintiff as striking contemptibly, slyly and with crafty artfulness while the backs of the officials were turned. That is a matter for the determination of the jury. It might very well be said that the sting abided in the rather obvious charge that plaintiff was a player with a mean streak —• a sadistic bully1 — and that the balance of the article illustrated the charge. Even if we accept plaintiff’s view, it still seems to us a jury might well say that the justifying facts mean the same thing. A workable test is whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced. “ When the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.” (Cafferty v. Southern Tier Pub. Co., 226 N. Y. 87, 93.) As to particularity, whatever is necessary to enable plaintiff to meet defensive matter may be obtained on motion.

2. The second question may be answered without going into a tortuous discussion of cases running far back into the common law of pleading. (Cf. Bush v. Prosser, 11 N. Y. 347.) The contention of the defendants in support of their pleading is, if we understand it, in substance, that matter in mitigation goes only to the question of malice as bearing on punitive damages; that matter in reduction goes to compensatory damages; that facts tending but failing to prove the truth may be matter in reduction as well as in mitigation; but that such facts may not be utilized in reduction unless so pleaded as a partial defense.

Whatever the older cases may have said, there is no doubt now that facts tending but failing to prove the truth of any distinct charge are relevant as bearing on the amount of compensatory damages to be awarded by the jury. (Gressman v. Morning Journal Assn., 197 N. Y. 474; Lanpher v. Clark, 149 N. Y. 472.)

The question remains whether to be admissible they must be pleaded in some form. Section 338 of the Civil Practice Act permits proof of mitigating circumstances ” in actions for libel and slander, notwithstanding justification has been pleaded. Section 262 permits a partial defense to be pleaded in any action, and defines as a partial defense “ matter tending only to mitigate or reduce damages.” The phrases “ mitigating circumstances ” and “ matter tending only to mitigate or reduce damages,” mean the same thing. They mean circumstances that bear “ upon a defendant’s liability for punitive or exemplary damages by reducing or softening the moral or social culpability attaching to his act, or upon his liability for actual damages by showing that, though suffered, they had been partially extinguished.” (McClelland v. Climax Hosiery Mills, 252 N. Y. 347, 355, per Cardozo, Ch. J.) What they do not mean is stated with equal clarity in the same opinion at page 358 — Mitigating circumstances are not those that reduce the actual damages by showing that they were not suffered.” Then to drive home the distinction the opinion adds: “ Mitigating circumstances are those that affect the basis for an award of exemplary damages, or reduce actual damages by showing, not that they were never suffered, but that they have been partially extinguished. ”

The general rule is, therefore, that matter tending to disprove actual damages or damages claimed to be actual, may be proved by a defendant though not set up in the answer, since such matter is not in mitigation within the meaning of the statute. (McClelland v. Climax Hosiery Mills, supra, p. 356.) It is true that facts tending but failing to prove the truth of a libel is matter tending merely to disprove asserted damages; but the same considerations of administrative convenience which long ago led the courts to exclude proof of the truth unless pleaded ( Underwood v. Parks, 2 Strange, 1200), apply equally to proof of facts tending to prove less than the truth. To be admissible, such facts should be pleaded as a partial defense. What was said on the question of compensatory damages in Gressrnan v. Morning Journal Assn. (supra), was said in the light of an answer which was taken as pleading such a defense. It is to be noted, however, that the Civil Practice Act requires no label characterizing the purpose of a partial defense. A plain statement of the facts relied upon, pleaded expressly as a partial defense to the entire complaint, or to one or more causes of action therein, is sufficient. So pleaded, the matter may be utilized for any proper purpose. The separate defense set out in paragraph ninth is superfluous and may be struck out, since the same facts are pleaded as a partial defense in paragraph tenth. The label may be disregarded.

The order appealed from should be modified in accordance with this opinion, and as so modified, affirmed, without costs. Question number one should be answered in the affirmative; question number two in the negative.

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

Ordered accordingly.


text:
    In the Matter of the Application of The City of New York Relative to Acquiring Title to Real Property Required for the Widening of Houghton and Olmstead Avenues in the Borough of The Bronx. Nassau Beekman Investing Company, Inc., Appellant; Charles A. Lent et al., Respondents.
    (Argued October 4,1934;
    decided December 4, 1934.)

      Joseph Gans and Hiram S. Gans for appellant.
    The validity of the transfer of tax lien must be sustained even if there had been no express concession in the record that the lien is a valid lien. (New York Charter, §§ 1027, 1029.) All liens wMch existed against the property, prior to its condemnation or prior to the award being made therefor, must first be paid out of the award, or the liens must be otherwise discharged, before any part of the award is payable to the owner. (Utter v. Richmond, 112 N. Y. 610; Matter of N. Y. C. R. R. Co., 60 N. Y. 116; Matter of Opening Eleventh Avenue, 81 N. Y. 436; Deering v. Schreyer, 171 N. Y. 451; Bank of Auburn v. Roberts, 44 N. Y. 192; Matter of Beach Second St., Far Rockaway, 141 Misc. Rep. 820; Matter of City of New York [East River Park], 184 App. Div. 509; Engelhardt v. City of Brooklyn, 3 Misc. Rep. 30; Matter of Washington Ave., 34 Misc. Rep. 655; Seton v. City of New York, 130 App. Div. 148; Carpenter v. City of New York, 44 App. Div. 230; Deering v. New York, 51 App. Div. 402; Van Loan v. New York, 45 Misc. Rep. 482; 105 App. Div. 572; Matter of Schott, 159 App. Div. 824.) Taxes and assessments imposed on the remainder of a piece of property after title to the condemned portion thereof is vested in the city may not be offset against the award made for such condemned portion. (Deering v. Schreyer, 171 N. Y. 451; Merriman v. City of New York, 227 N. Y. 279; Matter of City of Rochester, 136 N. Y. 83; Carpenter v. New York, 44 App. Div. 230; Matter of Van Etten v. City of New York, 226 N. Y. 483; Reife v. Osmers, 252 N. Y. 320; Matter of Mayor [Morris Ave.], 118 App. Div. 117; Matter of Schott, 159 App. Div. 824.)

      Merle I. St. John for respondents.
    The transfer of tax Hen under which appeUant claims was wholly void. (Matter of N. Y. C. & H. R. R. R. Co., 70 N. Y. 191; Matter of N. Y. C. & H. R. R. R. Co., 90 N. Y. 342; Zink v. McManus, 121 N. Y. 259; Lawton v. City of New Rochelle, 114 App. Div. 883; Underhill v. Keirns, 54 App. Div. 214; People ex rel. Nat. Park Bank v. Metz, 141 App. Div. 600; City of New York v. Appleby, 219 N. Y. 76; Stebbins v. Kay, 123 N. Y. 31; People ex rel. O’Reilly v. Common Council, 189 N. Y. 66; Matter of Seidl v. Zauner, 247 N. Y. 17; City of Rochester v. Farrar, 44 Misc. Rep. 394.) The city’s right to charge against the awards the proportionate part of the taxes which on the date of taking were Hens against the original parcel did not pass by reason of the transfer of tax Hen. (Matter of Opening Hamilton St., 144 App. Div. 702; Matter of East 149th St., 30 Misc. Rep. 295; Harway Improvement Co. v. Partridge, 220 App. Div. 595; People ex rel. Wood v. Assessors, 137 N. Y. 201; Carpenter v. City of New York, 44 App. Div. 230; 51 App. Div. 584; Deering v. City of New York, 51 App. Div. 402; Matter of 7th Ave., 59 App. Div. 175; King v. Mayor, 102 N. Y. 171; Matter of Mayor [Trinity Ave.], 116 App. Div. 252; Matter of Von Etten v. City of New York, 226 N. Y. 483; Matter of Reubel, 52 Misc. Rep. 604; 122 App. Div. 921; 191 N. Y. 624; Matter of City of Rochester, 136 N. Y. 83.)
   Crane, J.

The Nassau Beekman Investing Co., Inc., is the owner and holder of a tax Hen for unpaid taxes and assessments for each of the years from 1869 to and including 1911, on plot 66, Unionport, ward 24, borough of The Bronx, city of New York. Portions of plot 66 were taken in condemnation proceedings for the widening respectively of Houghton (formerly Quimby) and Olmstead avenues. Title to the city vested as of January 2, 1912, at which time the amount due for taxes was $1,150.19.

Ah award was made for the damage parcel taken and there being two reports as there were two damage parcels we have these dates. The award for damage parcels 121 and 121-A was confirmed October 20, 1915, and the award for damage parcels 116 and. 116-B was confirmed June 28, 1916. Of course the taking in condemnation proceedings of a parcel of land does not get rid of the encumbrances upon that land; they are transferred to the award. Thus a mortgage upon land or a tax lien is not shifted over on to the portion of the property which remains and is not taken in condemnation proceedings — liens are not so easily disposed of. The Hen of a mortgage or of a tax is upon the entire property and when a portion of it is taken in condemnation proceedings and an award made the Hen attaches to the award. This is axiomatic. (Utter v. Richmond, 112 N. Y. 610; Matter of N. Y. C. R. R. Co., 60 N. Y. 116; Deering v. Schreyer, 171 N. Y. 451; Matter of Opening of Eleventh Avenue, 81 N. Y. 436.) A Henor is entitled to satisfy the entire amount of his Hen from the award. (Matter of City of New York [East River Park], 184 App. Div. 509; Gates v. De La Mare, 142 N. Y. 307; Matter of Mayor [Morris Avenue], 118 App. Div. 117, 121; Matter of City of Rochester, 136 N. Y. 83.)

We, therefore, have a situation where property was taken in condemnation proceedings, title vesting in the city on January 2, 1912, at which time there were taxes due upon the property, and which constituted a Hen attaching to any award which might thereafter be made. This Hen for taxes upon the property including the damage parcels, or, upon the award, was sold by the city of New York to one TiUie Ritter for the sum of $1,159.64 paid in cash, and a certificate of the tax Hen was given to her which has been transferred by purchase to the Nassau Beekman Investing Co., Inc., the claimant herein. TiUie Ritter’s money was given the city of New York for the tax Hen. She got something of value in return which was the “ transfer of tax lien ” now held in possession of the claimant. She is entitled to the payment of this lien out of the amount of the award which, by the way, is less in amount.

The sale of the tax lien was made in accordance with the provisions of sections 1027 and 1029 of the charter of the city of New York (Laws of 1901, ch. 466), section 1027 of which reads: “The right of the city to receive taxes, assessments and water rents and the lien thereof, may be sold by the city, and after such sale, shall be transferred, in the manner provided by this title. The right and lien so sold shall be called ‘tax lien ’ and the instrument by which it is assigned shall be called ' transfer of tax lien.’ ” (As amd. by L. 1913, ch. 326.) The section then provides the method by which the lien is to be sold and the public auction which is to be conducted after due and proper notice given.

Section 1029 provides: “ If no bid shall be received for a tax lien offered for sale, the collector of assessments and arrears, for and on behalf of the city of New York, may bid in the said tax lien, and upon such bid, no deposit or payment in cash shall be required from the city. When the city has bid in any tax lien a transfer of tax lien to the city shall be executed by the said collector in the form and manner prescribed for other transfers of tax liens, and the city shall have the same rights in, to and under such transfer of tax lien as if the same had been bought by any other person.” (As amd. by L. 1908, ch. 490.)

In this way the transfer of the tax lien was made to Tillie Ritter. At the advertised auction there were no bidders so the collector of assessments and'arrears for and in behalf of the city, pursuant to this section 1029, bid in the tax lien and the “ transfer of tax lien ” was executed to the city of New York on February 16, 1914, the same as if the city had been “ any other person.” Thereafter, on March 24, 1914, was assigned the transfer of tax lien to Tillie Ritter, as afore stated, for $1,159.64, and on August 1, 1916, Tillie Ritter assigned the said instrument to the Nassau Beekman Investing Co., Inc., for value. The claimants have proved a clear title to the transfer of tax lien for the amount of taxes due, which is a lien upon the award, and should be paid.

Some confusion apparently has arisen over subsequent events. After January 2, 1912, taxes accrued upon the remainder of the plot 66, but this remainder consisted of the portion left after the taking of the damage parcels. Of course these taxes had nothing to do with the damage parcels or with the award and were a lien on neither. The tax liens for these subsequent taxes passed to the Glebe Realty Corporation, which makes no claim here.

The Special Term granted the cross-petition of the Nassau Beekman Investing Co., Inc., and gave it the award. This was reversed by the Appellate Division, which passed the award to the owner upon the theory that, when the Glebe Realty Corporation foreclosed its tax lien, making the Nassau Beekman Investing Co., Inc., a party, it shut off all of the latter’s rights. This may be true as to the portion of the land to which the Glebe tax lien applied. It had nothing to do with the damage parcels or the award for them or the lien of the Beekman Company upon the award. In no way could this lien be involved in the proceedings to collect the taxes due after 1912 upon the untaken portion of plot 66.

For these reasons the order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division. (See 266 N. Y. 505.)

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

Ordered accordingly.


text:
    Mills Novelty Company, Respondent, v. Theodore A. Sunderman, Individually, and as Acting Property Clerk of the Police Department of the City of New York, et al., Appellants.
    (Argued November 19, 1934;
    decided December 4, 1934.)

      Paul Windels, Corporation Counsel (Alvin McKinley Sylvester and Paxton Blair of counsel), for appellants.
    The power of a court of equity to issue an interlocutory injunction is purely statutory. The complaint in the instant case clearly did not state a cause of action entitling the plaintiff to the injunction pendente lite granted by the court at Special Term, and the record will be searched in vain for any extrinsic facts entitling the plaintiff to such relief. (Jackson v. Bunnell, 113 N. Y. 216; Bachman v. Harrington, 184 N. Y. 458; Hunt v. Stirone, 232 App. Div. 262; Matter of Dietz, 138 App. Div. 283; Matter of Greene, 153 App. Div. 8; McHenry v. Jewett, 90 N. Y. 58; Brass v. Rathbone, 153 N. Y. 435; Koenig v. Eagle Waist Co., 176 App. Div. 726; Glascoe v. Willard, 44 Misc. Rep. 166; Kienle v. Gretsch Realty Co., 133 App. Div. 391; Wick v. Crane Co., 141 Misc. Rep. 31.) An injunction pendente lite ought not to have been granted since the right thereto was doubtful; the relief granted was not required to preserve the status quo or to prevent irreparable injury pending trial; the plaintiff had an adequate remedy at law, and the issuance of the injunction was the equivalent of the granting of final relief. (Bruce v. President, etc., of D. & H. Canal Co., 19 Barb. 371; Van Veghten v. Howland, 12 Abb. Pr. [N. S.] 461; Ufa Films, Inc., v. Ufa Eastern Division Distribution, Inc., 134 Misc. Rep. 129; 226 App. Div. 869; Bachman v. Harrington, 184 N. Y. 458; Stampp v. Board of Supervisors, 141 Misc. Rep. 487; Bestfoods, Inc., v. Hemphill Packing Co., 295 Fed. Rep. 425; Yome v. Gorman, 242 N. Y. 395; Maxwell Co. v. Cusack Co., 200 App. Div. 610; Moller v. Lincoln Safe Deposit Co., 174 App. Div. 458; Maloney v. Kaizenstein, 135 App. Div. 224; Weiss v. Herlihy, 23 App. Div. 608; Schulman Goldberg Theatrical Corp. v. Katz, 126 Misc. Rep. 777.)

      Stuart N. Updike for respondent.
    A cause of action in equity has been stated. (Levy v. Brigham, 113 App. Div. 424; Hagan v. McAdoo, 113 App. Div. 506; Phelps
      v. McAdoo, 47 Misc. Rep. 524; Constantine v. Enright, 116 Misc. Rep. 349; Hale v, Burns, 101 App. Div. 101.) The decision of the Special Term was correct and the exercise of the discretion of that court should not be disturbed. (Castle v. Noyes, 14 N. Y. 329; Fish v. Vanderlip, 218 N. Y. 29; Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294; Lillibridge, Inc., v. Johnson Bronze Co., 220 App. Div. 573; 247 N. Y. 548; Herschcowitz v. Kleimnan, 227 App. Div. 62; Bussing v. Lowell Film Productions, Inc., 233 App. Div. 493; 259 N. Y. 593; Keystone Driller Co. v. General Excavating Co., 290 U. S. 240; Swartzlander v. Swartzlander, 219 App. Div. 682; Wood v. Hill, 214 App. Div. 417; Castoriano v. Dupe, 145 N. Y. 250; Smith & Sons Carpet Co. v. Ball, 137 App. Div. 100; Mamaroneck v. N. Y. Water Co., 209 App. Div. 897; Ginsburg v. Woolworth Co., 176 App. Div. 882.)
   Crouch, J.

The action was brought to enjoin the defendants from in any wise preventing or interfering with the removal, shipping or transporting from this state by plaintiff ” of certain property described in the complaint as coin-operated automatic merchandise vending machines.” The essential allegations of the complaint are that plaintiff on and prior to May 3, 1934, was and now is the owner, lawfully entitled to the possession of the machines; that they were stored in a warehouse in New York city; that by various acts, the police between May 3 and May 9,1934, prevented delivery thereof to plaintiff; that on May 9 and May 10, 1934, the machines, valued in excess of $19,000, were seized by the police; that the defendants have refused and continue to refuse to deliver them tojplaintiff; that the seizure was legally unwarranted, and that plaintiff has no adequate remedy at law.

An injunction pendente lite was granted at Special Term and sustained by the Appellate Division, restraining the defendants as prayed for in the complaint. The case is here upon certified questions.

We think the complaint is insufficient to state a cause of action for an injunction. No facts are pleaded tending to show an irreparable injury, actual or threatened; or that plaintiff is without an adequate remedy at law. On the contrary, the allegations disclose merely a dispute about a possessory right in specific chattels, which could be readily and adequately settled by an action in replevin or for a conversion. (Cf. Young v. Sunderman, 263 N. Y. 623.)

A court of equity, even where property interests are incidentally affected, will not ordinarily interfere with criminal processes, unless there would be irreparable injury and the sole question involved is one of law. (Delaney v. Flood, 183 N. Y. 323.) Neither condition is present here. If the order appealed from were to stand, there would be nothing left to try. (Yome v. Gorman, 242 N. Y. 395, 401.) Instead of preserving the status quo, the order definitively destroys it.

The order appealed from should be reversed, with costs, and the motion should be denied, with ten dollars costs of motion. Question No. 1 should be answered in the negative; question No. 2 in the affirmative; other questions unanswered as unnecessary to a decision.

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

Ordered accordingly.


author: Pound, Ch. J.

text:
    Elizabeth Issaia, Respondent, v. Russo-Asiatic Bank, Appellant, Impleaded with Others.
    (Appeals Nos. 1 and 2.)

      (Argued November 20, 1934;
    decided December 7, 1934.)

      Maurice Léon and John J. Curtin for appellant.
    Authority sufficient to support the special appearance is proved by undisputed facts. (Osborne v. United States Bank, 9 Wheat. [U. S.] 738; Hookey v. Greenstein, 119 App. Div. 209; Matter of Vanderbilt, 1 Abb. Pr. 193; Petrogradsky M. K. Bank v. National City Bank, 253 N. Y. 23; Gaboury v. Central Vermont Ry. Co., 250 N. Y. 233; Hammond v. National Life Assn., 31 Misc. Rep. 182; 58 App. Div. 453; 168 N. Y. 262; Union Guardian Trust Co. v. Broadway Nat. Bank, 138 Misc. Rep. 16; James & Co. v. Rossia Ins. Co., 247 N. Y. 262; Matter of People [Russian Reinsurance Co.], 255 N. Y. 415; Viadikavazsky Ry. Co. v. New York Trust Co., 263 N. Y. 369.)

      Borris M. Komar for respondent.
    Plaintiff was entitled to an order of publication without previous attachment of the New York property of the bank. (Trotter v. Lisman, 209 N. Y. 174; Joseph v. Raff, 82 App. Div. 47; 176 N. Y. 611; Third Nat. Bank v. Elliott, 42 Hun, 121; 114 N. Y. 622; Holmes v. Camp, 219 N. Y. 359; Tinkham v. Borst,
      31 Barb. 407; Hanna v. Stedman, 230 N. Y. 326; Miller v. Jones, 67 Hun, 281; Wetyen v. Fick, 178 N. Y. 223; Schaefer v. Fisher, 137 Misc. Rep. 420; Boswell v. Otis, 9 How. 336.) Recognition of the Chinese and French liquidators by oui courts would mean abdication of their sovereignty to the prejudice of our citizen creditors. (Howarth v. Angle, 162 N. Y. 179; Mabon v. Ongley Electric Co., 156 N. Y. 196; Matter of Waite, 99 N. Y. 433; Union Guardian Trust Co. v. Broadway Nat. Bank, 138 Misc. Rep. 16; Great Western Mining Co. v. Harris, 198 U. S. 561; Willitts v. Waite, 25 N. Y. 577; Mitchell v. Banco de Londres y Mexico, 192 App. Div. 720.)

      Joseph M. Proskauer, Philip A. Carroll, Otey McClellan and J. Alvin Van Bergh for the National City Bank of New York, amicus curiœ.

    The attorneys for the Chinese and French liquidators have no authority to appear for the bank in the State of New York to object to a proceeding looking to the administration of the assets of the bank located in the State. (Acken v. Coughlin, 103 App. Div. 1; Hallenborg v. Greene, 66 App. Div. 590; Mitchell v. Banco de Londres y Mexico, 192 App. Div. 720; Andre v. Beha, 211 App. Div. 380; Phillips v. Sonora Copper Co., 90 App. Div. 140; Martyne v. American Union Fire Ins. Co., 216 N. Y. 183; Reife v. Rundle, 103 U. S. 222; Canada Southern Ry. v. Gebhard, 109 U. S. 527; Kelly v. Crapo, 45 N. Y. 86; Booth v. Clark, 17 How. [U. S.] 322; Hale v. Allinson, 188 U. S. 56; Great Western Mining & Mfg. Co. v. Harris, 198 U. S. 561; Keatley v. Furey, 226 U. S. 399; Ebsary Gypsum Co. v. Ruby, 256 N. Y. 406.) The present case does not come within the terms of subdivision 6 of section 232 of the Civil Practice Act. (Morgan v. Mutual Benefit Ins. Co., 189 N. Y. 447; Holmes v. Camp, 219 N. Y. 359; Garfein v. McInnis, 248 N. Y. 261; Ebsary Gypsum Co. v. Ruby, 256 N. Y. 406; Bryan v. University Publishing Co., 112 N. Y. 382; Hanna v. Stedman, 230 N. Y. 326.)

      Ralph M. Carson, William C. Cannon and Franklin H. Mills for Guaranty Trust Company of New York, amicus curiœ.

    The motion to vacate was properly denied for lack of authority in the attorneys appearing in the name of Russo-Asiatic Bank. (Vladikavkazsky Ry. Co. v. New York Trust Co., 263 N. Y. 369; Petrogradsky M. K. Bank v. National City Bank, 253 N. Y. 23; James & Co. v. Second Russian Ins. Co., 239 N. Y. 248; Severnoe Securities Corp. v. London & Lancashire Ins. Co., 255 N. Y. 120; Gaston & Co. v. All-Russian Zemsky Union, 221 App. Div. 732; Baranowsky Co. v. Guaranty Trust Co., 238 App. Div. 833.) The French and Chinese liquidators as non-domiciliary foreign receivers should be given no standing in this court to defeat the jurisdiction of the Supreme Court in a proceeding to administer the assets of an insolvent foreign corporation for the benefit of local creditors. (Matter of People [Russian Reinsurance Co.], 255 N. Y. 415; Matter of People [First Russian Ins. Co.], 253 N. Y. 365; Bank of Augusta v. Earle, 13 Pet. 519; McClement v. Order of Foresters, 222 N. Y. 470; Martyne v. American Union Fire Ins. Co., 216 N. Y. 183; Sinnott v. Hanan, 214 N. Y. 454; Hallenborg v. Greene, 66 App. Div. 590; Deschenes v. Tallman, 248 N. Y. 33; Depew v. Fisheries Products Co., 9 Fed. Rep. [2d] 235; McCandless v. Furlaud, 68 Fed. Rep. [2d] 925; Union Guardian Trust Co. v. Broadway Nat. Bank, 138 Misc. Rep. 16; Mahon v. Ongley Electric Co., 156 N. Y. 196; Hammond v. National Life Assn., 58 App. Div. 453.)
   Pound, Ch. J.

Plaintiff brought this action in the Supreme Court, New York county, as an alleged general creditor of the defendant Russo-Asiatic Bank, a preSoviet Russian banking corporation. She alleges the unpaid balance of a ruble checking account which she claims to have had with the Moscow office of Russo-Asiatic Bank prior to the Soviet revolution.

Alleging that she has no adequate remedy at law against Russo-Asiatic Bank, plaintiff demands the appointment of a receiver for the New York property of the bank, to distribute such New York property to the plaintiff and other creditors of the bank similarly situated.

She also alleges that the defendants National City Bank and Guaranty Trust Company hold property of the Russo-Asiatic Bank within the State of New York and it is with respect to this that the receiver is sought.

On September 8, 1933, plaintiff obtained an order for service of the summons in this action by publication on the defendant Russo-Asiatic Bank.

The attorneys who appear in this court in the name of Russo-Asiatic Bank, namely, Messrs. Bvarts, Choate, Sherman & Léon, who purport to be retained by the liquidator appointed by the Chinese authorities for the branches of Russo-Asiatic Bank in China, and John J. Curtin, who purports to be retained by the liquidator appointed by the French courts for the Russo-Asiatic Bank which had removed to Paris, moved at Special Term to vacate the order for service by publication. It is only in their capacity as representatives of the Russo-Asiatic Bank that we may deal with them.

Plaintiff made a cross-motion to strike out the alleged appearance of Mr. Léon and Mr. Curtin on the ground that, even if authorized by the Chinese and French liquidators, they were not authorized to represent Russo-Asiatic Bank, because they had been retained not by Russo-Asiatic Bank, but by the Chinese and French liquidators appointed in China and France, respectively, for the branches of Russo-Asiatic Bank located in each of those countries; and that such non-domiciliary liquidators, respectively, merely control the Chinese and French assets of Russo-Asiatic Bank, but have no authority to appear in the New York courts with respect to New York assets.

The court granted plaintiff’s cross-motion to strike out the special appearance of Mr. Curtin and Mr. Léon on behalf of Russo-Asiatic Bank, and denied said attorneys’ motion to vacate the order for service by publication, presumably on the ground that these parties lacked authority to make such motion.

The Appellate Division, first department, affirmed both the order granting plaintiff’s motion to strike out the alleged appearance by Mr. Léon and Mr. Curtin (Appeal No. 2) on behalf of Russo-Asiatic Bank and the order denying said attorneys’ motion to vacate the order for service by publication (Appeal No. 1).

The present appeals are from these two decisions of the Appellate Division, upon leave granted to appeal to this court upon the following certified questions.

With respect to the decision denying the authority of Messrs. Léon and Curtin (Appeal No. 2):

“ 1. Are Evarts, Choate, Sherman & Léon and John J. Curtin authorized to appear specially for Russo-Asiatic Bank for the purpose of moving to vacate the order for service by publication of the summons upon Russo-Asiatic Bank?”
With respect to the decision denying motion to vacate the order for service of a summons by publication (Appeal No. 1):
1. Are the papers upon which the order for service by publication was granted sufficient to sustain the validity thereof?
“ 2. Upon the papers upon which the order for service by publication was granted, was plaintiff entitled to such an order in this action without having previously obtained an attachment of defendant’s property?
“ 3. Upon the papers upon which the order for service by publication herein was granted, does plaintiff have any cause of action against Russo-Asiatic Bank?”

We are in accord with the holding of the court below that neither the French nor the Chinese liquidator has authority to appear within the State of New York on behalf of the corporation. Such liquidators act within the jurisdiction creating them for the purpose of winding up the affairs of the corporation in the state which designoted them. They had no extraterritorial power to appear for the corporation although they may have a status in their own behalf to claim some ultimate interest in the funds of the Russo-Asiatic Bank.

The persons whom Mr. Léon and Mr. Curtin represent are local receivers of a foreign corporation without extraterritorial jurisdiction.

New York alone has power over the administration of the New York assets and the foreign receiver had no power to appear on behalf of the corporation. (Relfe v. Rundle, 103 U. S. 222.)

An argument of necessity is put forth to the effect that if the foreign liquidators are not allowed to intervene Russo-Asiatic Bank "will have no protection. But the purpose of this action is the appointment of a New York receiver to protect the bank and its creditors in New York. The foreign liquidators may have in their own right some interest in the administration of the New York assets. That question we are not called upon to decide.

The action is one for the appointment of a receiver to administer the property within this State of a foreign corporation. Such an action does not fall within the purview of section 232, subdivision 6, Civil Practice Act. (Ebsary Gypsum Co. v. Ruby, 256 N. Y. 406.) No attachment has been issued or could be issued in this action. Even in actions where the Civil Practice Act authorizes service by publication no jmisdicton can be obtained by service directed against a defendant who is dead.

These objections may be raised by third parties. The Russo-Asiatic Bank is not bound to appear to move to vacate the service of the summons (Nankivel v. Omsk All Russian Government, 237 N. Y. 150). The court itself is justified in refusing to treat the order of publication as a proper foundation for a judgment. (Lazard Brothers & Co. v. Midland Bank, Ltd., [1933] A. C. 289, 298, 307.)

Appeal No. 1 is not properly here. It is brought here on the appeal of unauthorized representatives of the Russo-Asiatic Bank. The appeal should be dismissed, without costs.

In appeal No. 2: The order should be affirmed, without costs, and the question certified should be answered in the negative.

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

Ordered accordingly.


text:
    John E. Sheehy, as Sheriff of the County of New York, et al., Respondents, v. Madison Square Garden Corporation, Appellant.
    (Argued December 5, 1934;
    decided December 31, 1934.)

      James K. Crimmins and Charles Pickett for appellant.
    On the day the warrant of attachment was served there was nothing due or certain to become due from defendant. (Herrmann & Grace v. City of New York, 130 App. Div. 531; 199 N. Y. 600; Coletti v. Knox Hat Co., 252 N. Y. 468; Stewart v. Newbury, 220 N. Y. 379; Delaware Trust Co. v. Calm, 195 N. Y. 231; Kennelly, Inc., v. Shapiro, 222 App. Div. 488; 250 N. Y. 523; Beecher v. Comradt, 13 N. Y. 108; Tipton v. Feitner, 20 N. Y. 423; Updike v. Oakland Motor Car Co., 229 App. Div. 632; Grant v. Johnson, 5 N. Y. 247; Paine v. Brown, 37 N. Y. 228; Eddy v. Davis, 116 N. Y. 247; Glenn v. Rossler, 156 N. Y. 161.) A levy under section 916 of the Civil Practice Act cannot be made upon a contingent right which may or may not ripen into “ a cause of action arising upon contract ” depending upon some future contingency. (Herrmann & Grace v. City of New York, 130 App. Div. 531; 199 N. Y. 600; McFadden v. Innes, 60 Misc. Rep. 543; 130 App. Div. 880; Fredrick v. Chicago Bearing Metal Co., 221 App. Div. 588; Columbia Bank v. Equitable Life Assur. Society, 79 App. Div. 601; Marks v. Equitable Life Assur. Society, 109 App. Div. 675; Excelsior Steam Power Co. v. Cosmopolitan Pub. Co., 80 Hun, 592; Bates v. New Orleans, Jackson & Great Northern Co., 13 How. Pr. 516; Farmers’ Loan & Trust Co. v. Miller, 2 Fed. Rep. [2d] 493; Krogman v. Rice Bros. Co., 241 Mass. 295; Faulkner v. Waters, 28 Mass. 472; Coburn v. City of Hartford, 38 Conn. 290; Medley v. American Radiator Co., 27 Tex. Civ. App. 384; Simon v. Hulse, 12 La. App. 450; Cunningham Lumber Co. v. N. Y., N. H. & H. R. R. Co., 77 Conn. 628.)

      Robert Seelav and Moses Kobrinetz for respondents.
    A levy pursuant to warrant of attachment upon a chose in action is proper under section 916 of the Civil Practice Act. (Stagg v. British Controlled Oilfields, Ltd., 117 Misc. Rep. 474; Simpson v. Jersey City Contracting Co., 165 N. Y. 193; Clements v. Doblin, 239 N. Y. 526; Warner v.
      Fourth Nat. Bank, 115 N. Y. 251.) At the timé of the levy the alleged debtor was possessed of rights and choses in action which were leviable, and the levy was proper.(Kennelly v. Shapiro, 226 N. Y. Supp. 692; Havens v. Bush, 2 Johns. 387.)
   Pound, Ch. J.

In an action brought by the co-plaintiff Strotz against one William T. Johnson, a non-resident, an attachment was issued. The Sheriff levied the attachment on what was claimed to be money in the hands of the defendant belonging to Johnson. The defendant disregarded the attachment, and this action was brought against it to recover the amount of the judgment against Johnson, amounting to some $15,000.

On the trial the parties waived findings of fact and conclusions of law and the trial court directed judgment in favor of the defendant. The Appellate Division reversed and granted a new trial.

The material facts are simple and not in dispute. Johnson had a contract with Madison Square Garden under which he was to take practically the entire charge of the production of a rodeo or wild west show at Madison Square Garden in New York city. After providing in detail the many things it was incumbent upon Johnson to perform, it reads: “ In consideration of the performance of the foregoing terms and conditions, the Garden agrees to pay Johnson the sum of Sixty-five thousand Dollars ($65,000) in payments as follows: ” Then follows a statement of the amounts to be paid and the days oil which they shall be paid.

The rodeo was to open on October 14, 1932, and close on the 29th. The time was extended subsequently by a supplemental agreement. Payments were to be made before the opening and were so paid. On October 15, the day after the opening, the attachment was levied. No payments were then due, nor had they been earned. There was, therefore, at that time no money or property right actually in existence to which the warrant could attach. The defendant ignored the warrant and made the payments which subsequently became due.

Plaintiffs, recognizing the difficulty of attaching a mere right to earn money, now urge that there was some property right arising out of the contract, in the nature of a chose in action which was leviable, Johnson’s right to payment at the time was entirely inchoate, contingent upon performance of the conditions with which it was his duty to comply. He had no enforceable rights either in presentí or in futuro. Until he had satisfactorily performed, he was entitled to nothing. These were dependent conditions. Performance must precede payment. (Coletti v. Knox Hat Co., 252 N. Y. 468.) Choses in action are not ordinarily leviable. There must be a statute granting the right. Our statute (Civ. Pr. Act, § 916) provides that an attachment may be levied upon causes of action arising upon contract. But at the time of the levy Johnson had no cause of action; nothing but a right to earn money in the future.

In Herrmann & Grace v. City of New York (130 App. Div. 531, 535; affd., on the opinion below, 199 N. Y. 600) the court said: It is well settled that an indebtedness is not attachable unless it is absolutely payable at present or in the future, and not dependable upon any contingency.” The present case is indistinguishable from the case cited.

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

Crane, Lehman, O’Brien, Hubbs, Crouch and Lough-ran, JJ., concur.

Judgment accordingly.