text:
    In the Matter of Clarence Jernigan, Respondent, against New York State Labor Relations Board, Appellant.
    Argued October 5, 1949;
    decided October 20, 1949.

      William E. Grady, Jr., Philip Feldhlum and William Dewar for appellant.

      Danton L. McDougald for respondent.
   Order of Appellate Division and that of Special Term reversed and decison of New York State Labor Relations Board confirmed upon the ground that the decision of the board is supported by substantial evidence, with costs to the appellant in all courts. No opinion.

Concur: Lotjghran, Oh. J., Conway, Desmond, Dye, Fuld and Bromley, JJ. Lewis, J., dissents and votes to affirm the order of the Appellate Division.


source: Caselaw Access Project

license: Public Domain

text:
    Verna Sekinger, as Administratrix of the Estate of Raymond V. Sekinger, Deceased, Respondent, v. State of New York, Appellant. Walter Kazmierczak et al., as Executors of Edward Kazmierczak, Deceased, Respondents, v. State of New York, Appellant. Richard J. Kenyon et al., as Administrators of the Estate of Bernard M. Kenyon, Deceased, Respondents, v. State of New York, Appellant.
    (Claim No. 28757.)
    (Claim No. 28758.)
    (Claim No. 28771.)
    Argued October 6, 1949;
    decided October 20, 1949.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison, Wendell P. Brown and Ronald E. Coleman of counsel), for appellant.

      Roger 0. Baldwin, Joseph Haioley Murphy and Arnold A. TJllman for respondents.
   In each case, judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Carmita Bernal, an Infant, by John Bernal, Her Guardian ad Litem, et al., Plaintiffs, and John Bernal, Plaintiff-Appellant, v. Baptist Fresh Air Home Society, Respondent.
    Argued October 10, 1949;
    decided October 20, 1949.

      Julius Lerner, Sidney Horowitz and Benjamin J). Gold for appellant.

      Archie B. Morrison, John D. Lynn and Sperry Butler for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Rose E. Orlowski, as Executrix of Frank E. Orlowski, Deceased, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    Submitted October 17, 1949;
    decided October 20, 1949.

      William, B. H. Sawyer for motion.

      Dinah R. Rosenblatt for appellant.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days from the date of this order appellant justifies the surety for her undertaking (Civ. Prac. Act, § 151) and pays $10 costs and unless within twenty days from the date of this order appellant files the required record on anpeal, in which events the motion is denied.


text:
    In the Matter of Miles F. McDonald et al., Respondents, against William J. Heffernan et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Edmund H. H. Caddy et al., Appellants. (Two Proceedings.)
    Argued October 20, 1949;
    decided October 21, 1949.

      ■Benjamin Heller for Edmund IT. II. Caddy, appellant.

      Victor Rabinowits for Max Torchin and others, appellants.

      George Rosling, Sidney Squire, Harold L. Fisher and George H. Kerner for respondents.
   In each proceeding: Order affirmed, without costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ. Taking no part: Bromley, J.


text:
    John W. Zobel, Appellant, v. City of New York, Respondent.
    Argued October 11, 1949;
    decided October 21, 1949.

      Nathaniel Greenbaum and Benjamin H. Siff for appellant.

      John P. McGrath, Corporation Counsel (Joseph P. Mulqueen, Jr., and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion. [See 300 N. Y. 628.]

Concur: Lewis, Desmond, Dye and Bromley, JJ. Dissenting: Loughran, Ch. J., Conway and Fuld, JJ.


text:
    In the Matter of 500 Fifth Avenue, Inc., Appellant. Wise Shoe Company, Inc. (Maryland), et al, Respondents.
    Argued October 13, 1949;
    decided October 21, 1949.

      Orrin G. Judd, Sidney B. Moslcovits and Saul A. Shames for appellant.

      Bernard Weiss for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Charles Schwartz et al., Copartners Doing Business as Schwartz & Frohlich, Appellants, v. Sterling Drug Inc. et al., Respondents, et al., Defendants.
    Argued October 12, 1949;
    decided October 21, 1949.

      Louis D. Frohlich, Arthur H. Schwartz, Herbert P. Jacoby and Arthur Karger for appellants.

      Paul W. Williams, John T. Cahill, George S. Hills and Lawrence J. McKay for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Katherine Burger, Respondent, v. Philip Neumann, Appellant.
    Argued October 13, 1949;
    decided October 21, 1949.

      Bernard Meyerson and George W. Herz for appellant.

      Vincent Tese, Richard J. Hendrick and Raymond Tese for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Girard Trust Company, as Trustee under the Will of John J. Emery, Deceased, and as Trustee under a Deed of Trust Made by Lela A. Emery, et al., Appellants, v. Melville Shoe Corporation, Defendant, and Blockfront Realty Corp., et al., Respondents.
    Argued October 6, 1949;
    decided October 21, 1949.

      Samuel Ross Ballin and Eugene H. Nickerson for appellants.

      Monroe J. Cahn for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughbax, Ch. J., Lewis, Coxway, Desmoxd, Dm, Fuld and Bromley, JJ.


text:
    In the Matter of the Accounting of Anna M. Barry, as Substituted Trustee under the Will of Albert Burk, Deceased. Anna M. Barry, Individually, et al., Appellants. Anna M. Barry, as Substituted Trustee under the Will of Albert Burk, Deceased, et al., Respondents.
    Submitted October 4, 1949;
    decided October 21, 1949.
   Motion for reargument denied, with $10 costs and necessary printing disbursements to Mary E. Wright, payable out of the estate. Motion to amend order entered June 3, 1949, granted, and order will be amended so as to award $10 costs and necessary printing disbursements to respondent Mary E. Wright, payable out of the estate. [See 299 N. Y. 308.]


text:
    In the Matter of the Application of Celestine A. Thomson, Respondent, to Compel Accounting by Lawyers Trust Company, as Successor Trustee under a Trust Created by Celestine A. Burchell. Frank P. Nohowel, as Executor of Celestine A. Gardner (Formerly Celestine A. Burchell), Deceased, et al., Appellants; Josephine M. Burchell et al., Respondents.
    Submitted October 4, 1949;
    decided October 21, 1949.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 299 N. Y. 351.]


text:
    Guaranty Trust Company of New York, Respondent, v. State of New York, Appellant.
    (Claim No. 27969.)
    Submitted October 17,1949;
    decided October 21,1949.
   Motion by respondent for reargument denied, with $10 costs and necessary printing disbursements. [See 299 N. Y. 295.]


text:
    The People of the State of New York, Respondent, v. America Tieri, Appellant.
    Submitted October 19, 1949;
    decided October 21, 1949.
   Motion for reargument of motion to vacate order of dismissal granted and upon reargument order of dismissal vacated and case set down for argument during the November, 1949, session.


text:
    Florence S. Hyman, Appellant, v. Walter E. Sachs et al., Individually and as Copartners Doing Business under the Name of Goldman, Sachs & Co., et al., Respondents.
    Argued October 14, 1949;
    decided November 17, 1949.

      Charles H. Lieb, Lenard H. Mandel and Louis B. Resnich for appellant.

      Leo J. Rosett and Morris L. Wolf for Josephthal & Co., respondent.

      Robert L. Awgenblick and Edward H. Green for Walter E. Sachs and others, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Edward T. Mullen, Respondent, v. B. J. Fayette, Doing Business under the Name of Vermont Fruit and Grocery Company, et al., Appellants.
    Argued October 18, 1949;
    decided November 17, 1949.

      J. Stanley Garter for appellants.

      James A. Leary, Walter A. Fullerton and Michael E. Sweeney for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conwat, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Arbitration between Perry Heidelberger, Landlord, Appellant, and Herbert Cooper, Tenant, Respondent.
    Argued October 19, 1949;
    decided November 17, 1949.

      Aaron Frank, William B. Altman, John A. Pateracki, Jr., Max Seltzer and Paul Shaw for appellant.

      Arthur J. Kramer and Abraham Levy for respondent.
   Order of Appellate Division reversed and order of Special Term affirmed, with costs in this court and in the Appellate Division, upon the ground that the motion to vacate the award was not made in time. (See Civ. Prac. Act, § 1463.) We pass upon no other question. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Bromley, JJ.


text:
    The People of the State of New York, Respondent, v. Ralph Porro, Appellant. The People of the State of New York, Respondent, v. John Bevacqua, Appellant.
    Submitted October 14, 1949;
    decided November 17, 1949.

      Isaac Rubin, Milton D. Jacobs and Albert M. Annunziata for appellants.

      George M. Fanelli, District Attorney (George D. Burchell of counsel), for respondent.
   Judgments affirmed; no opinion. [See 300 N. T. 628.]

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York, Respondent, v. James H. Davies, Appellant.
    Submitted October 17, 1949;
    decided November 17, 1949.

      James H. Davies, appellant in person.

      Arthur B. Hart, District Attorney, for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fund and Bromley, JJ.


text:
    Stanley Zysk, Appellant, v. City of New York, Appellant and Respondent, and George Roll, Respondent.
    Argued October 11, 1949;
    decided November 17, 1949.

      Daniel A. Novok, Martin Gottlieb and Milton G. Jacobs for plaintiff, appellant.

      John P. McGrath, Corporation Counsel (Joseph F. Mulqueen, Jr., and Seymour B. Quel of counsel), for City of New York, appellant and respondent.

      William E. Lyons for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York ex rel. Henry C. Keywell et al., Appellants and Respondents, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents and Appellants.
    Argued October 13, 1949;
    decided November 17, 1949.

      Philip Sheridan McNally for relators, appellants and respondents.

      John P. McGrath, Corporation Counsel (Morris Handel and William F. Murphy of counsel), for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

Concur: Loughrax, Ch. J., Lewis, Coxway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York, Respondent, v. Frank Bruno, Appellant.
    Argued October 18, 1949;
    decided November 17,1949.

      Victor L. Anfuso, Herbert E. Walters and Milton Grossman for appellant.

      Miles F. McDonald, District Attorney {Solomon A. Klein of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Cyril Paikin, Respondent, v. Rose Salvin et al., Copartners Doing Business under the Name of Hotel Shoreham Company, et al., Appellants.
    Argued October 18, 1949;
    decided November 17, 1949.

      Harry H. Brown and Royce A. Wilson for appellants.

      Joseph H. Sand, Samuel L. Sargent, Bernard Meyerson and Theodore R. Kupferman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Walter Case et al., on Behalf of Themselves and All Other Former Employees of R. B. Rogers Companies, Inc., Similarly Situated, Respondents, v. Indian Motocycle Company, Appellant, et al., Defendants. Walter Case et al., on Behalf of Themselves and All Other Former Employees of R. B. Rogers Companies, Inc., Similarly Situated, Respondents, v. John B. Chertok, Appellant, et al., Defendants. Walter Case et al., on Behalf of Themselves and All Other Former Employees of R. B. Rogers Companies, Inc., Similarly Situated, Respondents, v. Indian Motocycle Company et al., Appellants, et al., Defendants.
    • Argued October 19, 1949;
    decided November 17, 1949.

      Louis Connick, Bichard B. Persinger, Newell G. Alford, Jr., and Louis Schlesinger for appellants.

      Victor Brudney and Morris J. Siegel for respondents.
   Orders affirmed, with costs. Certified questions 5, 6, 7 and 8 answered in the negative. Certified questions 1, 2, 3 and 4 not answered. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ.


text:
    In the Matter of John J. Smith, Respondent, against Lazarus Joseph, as Comptroller of the City of New York, Appellant.
    Argued October 17, 1949;
    decided November 17, 1949.

      John P. McGrath, Corporation Counsel (Seymour. B. Quel, Howard C. Fischbach and Leon Mendelson of counsel), for appellant.

      Sidney A. Fine and Roy P. Monahan for respondent.
   Order affirmed and order absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye. Fuld and Bbomley, JJ.


text:
    In the Matter of Arthur Kram et al., Respondents, against Paul L. Ross et al., Constituting the Temporary City Housing Rent Commission of the City of New York, Respondent, and Hotel Wellington, Inc., Appellant.
    Argued October 12, 1949;
    decided November 17, 1949.

      Bobert E. Mulreany, Bobert D. Elder and William E. Welsh for appellant.

      Irving Lemov for petitioners, respondents,

      Tobias Weiss, Nathan W. Math, Alfred Weinstein and Joseph Jay for Temporary City Housing Rent Commission of the City of New York, respondent.
   Order affirmed and order absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Claim of Josephine Concilla, Respondent, against Scrufari Construction Company, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted October 14, 1949;
    decided November 17, 1949.

      Clarence B. Tippett for appellants.

      Nathaniel L. Goldstein, Attorney-General (Theodore M. Schwarts, Wendell P. Broivn and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of Kormann’s Hofbrau, Inc., Appellant, against John F. O’Connell et al., Constituting the State Liquor Authority, et al., Respondents.
    Argued October 17, 1949;
    decided November 17, 1949.

      William I. Gohen for appellant.

      Alvin McKinley Sylvester and John Di Leonardo for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fttld and Bromley, JJ.


text:
    Zuyder Zee Land Corporation, Appellant, v. United Cigar-Whelan Stores Corporation, Respondent.
    Argued October 18, 1949;
    decided November 17, 1949.

      Milton Brause for appellant.

      Harry Rubenoff and Harold W. Jacobsen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Lawrence A. Pendergast et al., Respondents, v. Board of Education of the City of New York, Appellant.
    Argued October 19, 1949;
    decided November 17, 1949.

      John P. McGrath, Corporation Counsel (W. Bernard Rich-land of counsel), for appellant.

      A. Mark Levien for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Percival E. Jackson, as Trustee of a Trust Established by Frank G. Lyons, Deceased, on His Own Behalf and on Behalf of All Other Owners and Holders of Certificates of Indebtedness, Series ‘‘ BB ’’ of Elmont Cemetery, Inc., Appellant, and Irma W. Jackson on Her Own Behalf and on Behalf of All Other Owners and Holders of Certificates of Indebtedness, Series “ BB ” of Elmont Cemetery, Inc., Intervener, Appellant, v. Elmont Cemetery, Inc., et al., Respondents.
    Argued October 18, 1949;
    decided November 17, 1949.

      Percivál E. Jackson, Theodore N. Tarlau and I. Bussell Stein for appellants.

      Edward Lazansky and Horace F. Callaghan for Elmont Cemetery, Inc., respondent.

      Isidor J. Kresel, Bernard Hershkopf, Harold I. Meyerson and Irving L. Weinberger for Irving H. Olassir and another, respondents.
   Judgment affirmed, with costs; no opinion.

■ Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Morris Weingarten, Respondent, v. Oscar Cohen et al., Individually and as Copartners Doing Business as Merit Display Card Co., Appellants.
    Argued October 19, 1949;
    decided November 17, 1949.

      Alexander Jacobson for appellants.

      Abraham E. Glich for respondent.
   Order affirmed, with costs. First question certified answered in the affirmative. Second question certified answered in the negative. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ.


text:
    Jerome L. Baron, Appellant, v. M. Lowenstein & Sons, Inc., Respondent.
    Argued October 17, 1949; -
    decided November 17, 1949.

      Donald L. Newborg and Charles H. Meyer for appellant.

      Irving D. Liphowitz and William Hughes Lewis for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghban, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ.


text:
    In the Matter of the Estate of Gustave Herter, Deceased. Tom C. Clark, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellant; Paul Van Anda, as Administrator with the Will Annexed of Gustave Herter, Deceased, et al., Respondents.
    Argued October 10, 1949;
    decided November 17, 1949.

      James L. Morrisson, attorney, Department of Justice, David L. Baselon, Assistant Attorney General, John F. X. McGohey, United States Attorney for the Southern District of New York, and Joseph W. Bishop, Jr., and J. Roger Wollenberg, attorneys, Department of Justice, for appellant.

      Kenneth M. Spence and Julius J. Teller for respondents.
   Order affirmed, with costs; no opinion. [See 300 N. Y. 737.]

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Lucille L. Neddo, as Executrix of Francis J. Neddo, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 28836.)
    Argued October 12, 1949;
    decided November 17, 1949.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley and Wendell P. Brown of counsel), for appellant.

      James A. Leary and Walter A. Fullerton for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Estate of Mary M. Taylor, Deceased. Florence G. Tibbetts, as Executrix of Harland B. Tibbetts, Deceased, Appellant; Tom C. Clark, Attorney General of the United States, as Successor to the Alien Property Custodian, Respondent.
    Argued October 14, 1949;
    decided November 17, 1949.

      George A. Dickinson for appellant.

      Joseph Laufer and James L. Morrisson, attorneys, Department of Justice, David L. Bazelon, Assistant Attorney General, and John F. X. McGohey, United States Attorney for the Southern District of New York, for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    James M. Haggerty, as Administrator of the Estate of Robert Haney, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 28495.)
    Argued October 17, 1949;
    decided November 17, 1949.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison, Wendell P. Brown and Ronald E. Coleman of counsel), for appellant. '

      Kenneth 8. MacAjfer and George F. Wenger for respondent.
   Judgment aErmed, with costs; no opinion.

C'oncur: Lotxghran, Ch. J., Lewis, Conway, Desmond. Dye. Ftjld and Bromley, JJ.


text:
    In the Matter of Albert B. Millman, Appellant, against John F. O’Connell et al., Constituting the State Liquor Authority, Respondents.
    Argued October 17, 1949;
    decided November 23, 1949.

      Harold M. Getter for appellant.

      Alvin McKinley Sylvester and Jack Reinstein for respondents.
   Order affirmed, with costs, on the ground that the challenged action of the liquor authority is not a matter open to review within the meaning of section 121 of the Alcoholic Beverage Control Law. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Edna Conroy, Respondent, v. Montgomery Ward & Co., Inc., Appellant.
    Argued October 21, 1949;
    decided November 23, 1949.

      Carl 8. Salmon, Jr., for appellant.

      Thomas M. Dugan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Thomas F. Mulligan, Appellant, v. City of New York, Respondent.
    Argued October 5, 1949;
    decided November 23, 1949.

      . Paul Wind,els and Herbert J. Jacobi for appellailt.

      John P. McGrath, Corporation Counsel (Helen B. Cassidy, Seymour B. Quel, Pauline K. Berger and Victor F. Condello of counsel), for respondent.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and John G. Grary, Jr., of counsel), amicus cunee, in support of respondent’s position.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York, Respondent, v. George Peter Reeh, Appellant.
    Argued October 20, 1949;
    decided November 23, 1949.

      Benjamin Levin, Alfred Norich and Irving Dolen for appellant.

      Frank 8. Hogan, District Attorney (Whitman Knapp and Edwin G. Hoyt, Jr., of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York, Respondent, v. William Kendricks, Appellant.
    Argued October 5, 1949;
    decided November 23, 1949.

      Andrew J. Cook, Jr., for appellant.

      Frank 8. Hogan, District Attorney (Edgar J. Nathan, 3d, Whitman Knapp and Edward T. Perry of counsel), for respondent.
   Order affirmed on the ground that an application in the nature of coram nobis is not available. (See People v. Sadness, 300 N. Y. 69, decided herewith.) No opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ.


text:
    Lillian J. Masterson, as Administratrix of the Estate of John J. Masterson, Deceased, Respondent, v. Melvin Solomon, Appellant.
    Argued October 20, 1949;
    decided November 23, 1949.

      John E. Morris, Jr., and Thomas A. Clarhe for appellant.
    . Robert McGowan Smith and Irving Michael Atkin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fttld and Bbomlby, J J.


text:
    Jay H. Towns et al., Respondents, v. Donald C. Stukey et al., Defendants, and R. C. McCarty, Appellant.
    Argued October 20, 1949;
    decided November 23, 1949.

      William G. Walsh and Casper B. Ughetta for appellant.

      Sidney B. Siben, Sol Gordon and Morris A. Feuerstein for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Philbern Thermometer Co., Inc., Appellant, v. Blanche Cohen, Respondent.
    Submitted November 14, 1949;
    decided November 23, 1949.

      Jacob Liclistein for motion.

      Henry G. Littau opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Philip Casolo, Respondent, v. Lena Nardella et al., Appellants.
    Submitted November 14,1949;
    decided November 23, 1949.

      W. Joseph Shanley and David Rosenfeld for motion.

      M. James Gonboy opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Arbitration between Industrial Union of Marine and Shipbuilding Workers of America, Local 39, C.I.O., Appellant, and Todd Shipyards Corporation, Respondent.
    Submitted November 14, 1949;
    decided November 23,1949.

      Robert Í?, Lisle for motion.

      Oliver J. Harper opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within twenty days the appellant union files a stipulation for order absolute and an undertaking, in which event motion denied.


text:
    In the Matter of the Arbitration between Hugh H. Eby, Respondent, and Eby Specialty Corporation, Appellant.
    Submitted November 14, 1949;
    decided November 23,1949.

      Andrew Eckel opposed.
   Motion denied, with $10 costs and necessary printing disbursements, on the ground the appeal lies as of right.


text:
    Paul Herman, Respondent, v. Century Indemnity Company, Appellant.
    Submitted November 14,1949;
    decided November 23, 1949.

      Clinton M. Flint for motion.

      Louis I. Grossfield opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Charles W. Russell, Appellant, v. Board of Education of Union Free School, District No. 2, Town of Geddes, Onondaga County, Respondent.
    Submitted November 14,1949;
    decided November 23, 1949.

      William B. Mangin for motion to dismiss and in opposition to cross motion for leave to prosecute as a poor person.

      Helen McCarthy Bivette in support of cross motion and in opposition to motion to dismiss.
   Motion granted, and appeal dismissed, unless within ten days appellant files and serves all required papers and pays $10 costs of motion, in which event motion denied. Appellant’s cross motion for leave to proceed upon typewritten papers granted.


text:
    In the Matter of the Probate of the Will of Irwin M. Herzig, Deceased. Gertrude C. H. Notes, Appellant; Benjamin H. Herzig, Respondent.
    Submitted November 14, 1949;
    decided November 23, 1949.

      Stanley Faulkner for motion.

      Edward Fillmore opposed.
   Motion for leave to appeal, etc., dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Wilfred Molenaor, Appellant, against William C. Hecht, Jr., as a Justice of the Supreme Court, Respondent.
    Submitted November 14, 1949;
    decided November 23, 1949.

      Nathaniel L. Goldstein, Attorney-General (Daniel M. Cohen of counsel), for motion.
    No one opposed. ■
   Motion granted and appeal dismissed.


text:
    The People of the State of New York ex rel. Joseph Richetsky, Appellant, against V. A. Morhous; as Warden of Great Meadow Prison, et al., Respondents.
    Submitted November 16, 1949;
    decided December 1, 1949.

      Joseph Richetsky, appellant, in person.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Herman N. Harcourt and George A. Rads of counsel), for respondents.
   Appeal dismissed upon the ground that the case is not one ‘ where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States ” (N. Y. Const., art. VI, § 7, subd. 2). No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fund and Bbomley, JJ.


text:
    Master Contracting Corporation, Appellant, v. M. F. Hickey Company, Incorporated, Respondent.
    Argued November 14, 1949;
    decided December 1, 1949.

      Philip 8. Taft and Harry Silver for appellant.

      I. Maurice Wormser and Louis D. Schwartz for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York, Appellant, v. Loren H. Rockwell, Malcolm A. Angus, Edwin A. Carlson and Title Guarantee and Trust Company, Respondents.
    Argued November 15, 1949;
    decided December 1, 1949.

      Frank 8. Hogan, District Attorney (Whitman Knapp, William Hoppen and Paul A. Stone of counsel), for appellant.

      Spencer Pinkham, Eugene A. Sherpick, William Gilbert and Henry F. Holthusen for Loren H. Rockwell and others, respondents.

      Joseph V. McKee, Porter B. Chandler, Louis A. Busso, John C. O’Malley and Philip G. Reilly foi Title Guarantee and Trust Company, respondent.
   Order affirmed; no opinion.

Concur: Loughban, Ch. «L, Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York, Appellant, v. Broadway-Sheridan Arms, Inc., and David B. Ancowitz, Respondents, et al., Defendants.
    Argued October 18, 1949;
    decided December 1, 1949.

      John P. McGrath, Corporation Counsel (Fred Iscol and Seymourt B. Quel of counsel), for appellant.

      Alfred J. Conforti, Aaron Frank and H. Edwin Goldberg for respondents.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye. Fuld and Bromley, JJ.


text:
    Charles H. Watson, Respondent, v. Saul C. La Vine et al., Appellants.
    Argued November 14, 1949;
    decided December 1, 1949.

      Jackson A. Dykman and Ralph W. Grolly for appellants.

      Emanuel Harris and Max E. Greenberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Viro Realty Corporation, Respondent, v. Daniel Belmont, Doing Business as Daniel the Caterer, Appellant.
    Argued November 16, 1949;
    decided December 1, 1949.

      Harry M. Krokow for appellant.

      Harold J. Trecmor and Floyd W. Tomkins, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Ftxld and Bromley, JJ.


text:
    Allegheny Ludlum Steel Corporation, Appellant, v. William J. Kelley et al., Constituting the New York State Labor Relations Board, Respondents.
    Submitted October 10, 1949;
    decided December 1, 1949.

      William G. Conable for motions.

      William E. Grady, Jr., for respondents.
   Motion for reargument denied. Motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended to provide that the judgment of the Appellate Division and that of the Special Term be reversed, with costs in all courts, and the case remitted to the Supreme Court, Chautauqua County, with directions to enter a judgment declaring:

1. That the defendants and their successors in office comprising the New York State Labor Relations Board have no jurisdiction over the plaintiff in its relations with the foremen employed by it at its plant in the city of Dunkirk, State of New York.

2. That the defendants and their successors in office comprising the New York State Labor Relations Board have no jurisdiction to hold an election for, or to certify, a collective bargaining representative for said foremen employed by plaintiff in its said plant at Dunkirk, New York.

3. That the Decision and Direction of Election, No. 2751, dated May 24, 1944; the Report upon Secret Ballot, dated June 21, 1944; and the Certification of Representative, No. 2751-A, dated June 30, 1944, all issued by the said State Labor Relations Board in Case No. WE-373, are without force or effect.

4. That the Decision and Order, No. 3519, dated May 29, 1946, issued by the said State Labor Relations Board in Case No. WU-404, is without force or effect.


text:
    The People of the State of New York ex rel. Sam Becker, Appellant, against John A. Lyons, as State Commissioner of Correction, Respondent.
    Submitted October 17, 1949;
    decided December 1, 1949.

      Nathaniel L. Goldstein, Attorney-General (William 8. Elder, Jr., of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Respondent, v. Max Becker, Appellant.
    Submitted November 14, 1049;
    decided December 1, 1949.

      Nathaniel L. Goldstein, Attorney-General (William 8. Elder, Jr., of counsel), for motion.

      Louis Kaye opposed.
   Motion granted and appeal dismissed.


text:
    Max Singer, Respondent, v. Ruby Elkind Food Shop, Inc., Appellant.
    Submitted November 28, 1949;
    decided December 1, 1949.

      Louis Busman for motion,

      Bernhardt M. Meisels opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Millie Tauraso, as Administratrix of the Estate of Pasquale Tauraso, Deceased, Appellant, v. The Texas Company, Respondent, et al., Defendants.
    Argued November 21, 1949;
    decided December 2, 1949.

      Paxton Blair, Harry A. Oair, Benjamin H. Sijf and Samuel Schachter for appellant.

      Theodore Kiendl, Alan H. Colcord and William B. Meagher for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York, Respondent, v. America Tieri, Appellant.
    Argued November 21, 1949;
    decided December 2, 1949.

      Edward E. Levine and Arnold D. Rosemcm for appellant.

      Miles F. McDonald, District Attorney (Frank Di Lalla of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Construction of the Will of Jennie Orr, Deceased. Jonathan Holdeen et al., Appellants; Jesse Perlmutter et al., Respondents.
    Argued November 17, 1949;
    decided December 2, 1949.

      Jonathan Holdeen, in person, for appellants.'

      Jesse Perlmutter, in person, for respondents.
   Order affirmed, with costs to respondents against appellants; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Nettie K. Opper, Respondent, v. Tripp Lake Estates, Inc., Respondent; Green Mansions, Inc., Appellant, and Vincent Mazone, Impleaded Defendant, Respondent.
    Argued November 17, 1949;
    decided December 2, 1949.

      Arthur J. Murphy and Gerald A. Gleason for Oreen Mansions, Inc., appellant.

      Benjamin H. Siff and Harry A. Gair for plaintiff, respondent. Thomas A. Clarice and Milton C. Jacobs for Vincent Mazone and another, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Eugene Masterson, Respondent, v. City of Mechanicville et al., Appellants. Robert J. Couser, Jr., Appellant and Respondent, v. City of Mechanicville et al., Appellants, and Eugene Masterson, Respondent.
    Argued November 18, 1949;
    decided December 2, 1949,

      John F. Doyle, Thomas Ryan and James G. Heffernan for City of Mechanicville, appellant.

      Charles E. Nichols for Boston and Maine Railroad Company; appellant.

      Frank A. Tate for appellant-respondent.

      James T. Harrington for respondent.
   Judgments affirmed, with costs. Motion of the defendant-respondent Masterson for dismissal of the appeal denied. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Jane E. Betzag, as Administratrix of the Estate of John A. Betzag, et al., Appellants, v. Gulf Oil Corporation, Respondent.
    Argued October 6, 1949;
    decided December 2, 1949.

      Matthew S. Gibson and Frederick L. Scofield for motion.

      John W. MacDonald, Thomas J. P. Cawley, Horace E. White-side and Rudolf B. Schlesinger opposed.
   Motion denied, without costs. Upon the hearing of the appeal the parties may reargue the question whether the decision of the Appellate Division (275 App. Div. 770) is in accord with the remittitur of this court.


text:
    City of Buffalo, Respondent, v. Plainfield Hotel Corporation, Appellant.
    Submitted October 4, 1949;
    decided December 2, 1949.

      James P. Kohler and James P. Kohler, Jr., for motion.
    . Fred C. Maloney, Corporation Counsel (Adan W. Crosby of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the papers were not filed within the time fixed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    Margaret L. Henry, Individually and as Executrix of Lena G. Henry, Deceased, Appellant, v. Town of Perinton, Respondent, et al., Defendants.
    Argued November 28, 1949;
    decided December 29, 1949.

      Meyer Fix and James 0. Shetterly for appellant.

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

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ.


text:
    William T. Beisman, Individually and as Administrator of the Estate of John A. Beisman, Deceased, Appellant, v. New York City Employees’ Retirement System, Respondent.
    Argued November 29, 1949;
    decided December 29, 1949.

      Solomon Pearlman for appellant.

      John P. McGrath, Corporation Counsel (Daniel T. Scannell and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Leon Leighton et al., as Trustees, Landlords, Appellants, v. Morris Jawrower, Tenant, Respondent.
    Argued November 14, 1949;
    decided December 29, 1949.

      Barnet Kaprow for appellants.

      Ed Dupree, General Counsel (.Nathan Siegel, Hugo V. Prucha and Louise F. McCarthy of counsel), for Office of Housing Expediter, amicus curies, in support of appellants’ position.

      Leo Isacson for respondent.

      Barney Rosenstein and Mwray A. Gordon for New York Tenant Councils on Rent and Housing, amicus curiae, in support of respondent’s position.
   Order reversed, without costs, and the matter remitted to the Municipal Court of the City of New York for further proceedings upon the authority of F. T. B. Realty Corp. v. Goodman (300 N. Y. 140). No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Samuel B. Sollish, Respondent, v. Utica Gear & Auto Parts Corporation, Appellant.
    Argued November 22, 1949;
    decided December 29, 1949.

      Bartle Gorman and J. Walter Augar for appellant.

      Gustav P. Blaustein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, JUyb, Field and Bbomley, JJ.


text:
    In the Matter of the Arbitration between Springs Cotton Mills, Respondent, and Buster Boy Suit Company, Inc., Appellant.
    Submitted November 29, 1949;
    decided December 29, 1949.

      Harold S. KoJin and Solomon Safter for appellant.

      Kenneth N. La Vine and Norman C. Wynroth for respondent.
   Order affirmed, with costs; no opinion. [See 300 N. Y. 680.]

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ.


author: Fuld, J.

text:
    500 Fifth Avenue, Inc., Respondent, v. Morris D. Dalsheim, Appellant.
    Argued December 1, 1949;
    decided December 29, 1949.

      Alexander BicJts and Bernard A. Helfat for appellant.

      Orrin G. Judd, Sidney B. Moskovitz and Saul A. Shames for respondent.
   Judgment affirmed, with costs. [See 300 N. Y. 680.]

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, and Bromley, JJ. Fuld, J., dissents in opinion.

Fuld, J.

(dissenting). The court is here holding that, in dealing with percentage rent leases, the rental that may be charged is not that payable on the statutory freeze date — the situation in all other cases — but rather the rental provided for in a lease in force when the statute became effective, which was about a year after the freeze date. The consequence of such a decision is to lay down a different rule for percentage rent leases and to sanction whatever rent a landlord chose to exact, without regard to the amount called for by the lease in force on the freeze date. In my judgment, such a construction, not required by the language of the statute, does violence to the design and spirit of the emergency rent laws.

In.August of 1943, defendant, a tenant of plaintiff’s store premises in New York City for four years, entered into a written agreement renewing for one year a lease executed in 1939. The rental reserved under the renewal agreement was a fixed minimum annual rent of $6,500 plus 10% of the tenant’s gross receipts in excess of $65,000. On August 11, 1944, as the term was drawing to a close, the parties entered into a further agreement again extending the lease for a one-year period; this agreement raised the fixed minimum rent to $8,000 a year and increased the percentage rent to 15% of the tenant’s gross receipts in excess of $40,000.

On March 28,1945, the legislature enacted the Business Rent Law (L. 1945, ch. 314). It provided that the “ emergency rent ” was the rent “ payable under any lease * * * in force on June first, nineteen hundred forty-four, plus fifteen per centum of such rent ” (§2, subd. [c]). Section 13, which deals with a lease providing for a variable ” rent, reads in part as follows: ‘ ‘ Any lease existing or future wherein the specified rent or any part thereof is variable according to volume or other criteria of volume of the tenant’s business shall continue without change, but where such lease provides for the payment of a fixed, basic .or minimum rent, such fixed amount shall be subject to the provisions of this act.” The words existing or future ” were added by the legislature in 1948 (L. 1948, ch. 677).

The question presented is, which of the two rental agreements, the agreement of August, 1943, in force on the freeze date, June 1, 1944, or the agreement entered into a year later and in force on the statute’s effective date, March 28, 1945, is the one which section 13 provides shall continue without change ”. Reading section 13, as it must be read, against the background of the act as a whole, its objectives and the economic situation which moved the legislature to enact it, I can discern no intent or design to exempt variable rent leases from the roll-back concept that underlies the statute. -

The landlord’s construction — resulting as it does in placing tenants who pay a variable rent in a class apart from other tenants — comports neither with the reason for the statute nor with the dictates of logic or fairness. A tenant under a variable rent lease, which expired during the period between the freeze date and the effective date, was in no better bargaining position, was under no less restraint or coercion, by reason of existing shortages than a tenant under a lease, expiring at the same time, which prescribed a fixed rental.

The entire purpose of the legislature, in establishing a freeze date prior to the effective date of the statute, was to relieve tenants of the disadvantages to which they had been subjected in the period intervening. (See Report of Joint Legislative Committee to Inquire into and Study Commercial Rents in New York City, p. 20; N. Y. Legis. Doc., 1945, No. 2.) And, indeed, this court expressly so recognized when it wrote (Twentieth Century Associates v. Waldman, 294 N. Y. 571, 581): “ the evils denounced in the statute flowed, not merely from leases which might thereafter be executed, but even more directly from leases already made ”. Consequently, if a tenant paying a variable rent was subject to the same conditions and exigencies as all other tenants — and of that there can be little doubt — there could be neither reason nor basis for the legislature’s discriminating against the former — that is, one paying .a variable rent.

When section 13 recites that the variable portion of a percentage lease shall" “ continue without change ”, it can only mean, reasonably, that the percentage lease in effect on the freeze date shall continue without change. The intendment or design of that provision undoubtedly was to avoid the unfairness which would result if, instead of continuing the percentage lease, the precise amount of rent paid on the freeze date was taken as the determinant of the emergency rent. In other words, frozen was the yardstick or rate of percentage which the parties fixed at a time when normal processes of bargaining existed, not the quantum which the application of such percentage rate to the tenant’s volume of business on any particular date would produce.

Entirely lacking is any evidence or indication that percentage leases were to be exempt from the freeze or from the date of freeze. This emerges clearly and convincingly from the scheme of the emergency legislation that all rental space ” be subject to rent control. (Business Rent Law, § 2; see, also, Twentieth Century Associates v. Waldman, supra, 294 N. Y. 571.) If any possible ambiguity exists — as to whether the percentage provision “ shall continue without change ” from the effective date of the legislative enactment or from the freeze date — the statute should be interpreted to effectuate its “ basic purpose ”, namely, to protect tenants by placing a ceiling on rents and by preventing widespread evictions while the emergency created by the wartime shortage of space continued. ’ ’ (Morse & Grossman, Inc., v. Acker & Co., 297 N. Y. 304, 310.) It need hardly be said that it is the roll-back of percentage rates to the freeze date that “ effectuates ” the purposes of the statute to protect tenants from “ unjust, unreasonable and oppressive leases and agreements for the payment of rent ” (Business Rent Law, § 1).

A tenant’s rental obligation under a lease is single, and it remains such though expressed in terms of a fixed minimum to be credited or added to an agreed percentage of the tenant’s volume of business. That being so, the statute’s mandate, announced in unequivocal language, that the basic or minimum rent under a percentage lease is to be rolled back to the freeze date, June 1, 1944 (Business Rent Law, § 13), likewise renders that date controlling in ascertaining the percentage rate. To hold that the percentage component of a rental need not be rolled back but that the fixed minimum must, would in effect be to determine that, in fixing the basic rent, a “ ‘ breakdown has taken place in the normal processes of bargaining ’ ” and “ freedom of contract has become an illusory concept ’ ” (see Twentieth Century Associates v. Waldman, supra, 294 N. Y. 571, 578, 579), but that, in fixing the percentage rent between the same parties at the same time, in the same lease, vis-a-vis the same premises, exactly the opposite conditions prevailed. Neither the language nor the scheme of the statute dictates any such unreasonable and unrealistic result.

The recent 1948 addition of the words “ existing or future ” in section 13 does not accomplish the construction contended for by plaintiff landlord. The direction that a future lease shall continue without change ”, standing alone, is meaningless, since the future lease of necessity must commence before it can continue. All it can denote is that a variable lease validly made within the framework of the statute — that is, one where-under the rent is fixed by arbitration or by the Supreme Court or by a so-called sixty-day agreement” — shall be enforcible. In point of fact, the amendment served, only to clarify the relationship between sections 4 and 13 of the statute. When section 13 was amended to provide for graduated leases, it prescribed a method — ■ superseding the application of the more generally worded section 4 — for fixing a reasonable rent for landlords and tenants under such leases. The phrase “ existing or future ’ ’ was added to section 13 at the same time that section 4 was amended, in order to assure that a reasonable rental, validly fixed under section 4, became the emergency ” rental under section 13; those words were designed simply to make certain that percentage leases, new and old, should be subject to the “ emergency ” and “ reasonable ” rent provisions of section 4 and not to the comparability provisions of section 13 which are applicable to graduated leases only. (Cf., e.g., Matter of 500 Fifth Ave. [Wise Shoe Co.], 274 App. Div. 241, affd. 300 N. Y. 491; Matter of Dworman [Milgrim-Christie], 270 App. Div. 568; Cortlandt & Dey Streets Corp. v. New York Lerner Co., 84 N. Y. S. 2d 9.) Certainly, the words added by the amendment cannot be construed to exempt percentage leases from effective rent control.

Under the statute as I believe it should be construed, then, the landlord is entitled —■ in addition to the 15% emergency increase over the basic fixed rent which it has been receiving — only to 10% of the tenant’s gross receipts in excess of $65,000 a year, since that was the percentage prescribed in the rental agreement of August, 1943, the agreement in effect on June 1, 1944, the freeze date under the statute (Business Rent Law, § 2, subd. [e]; § 13). Ten percent of the tenant’s gross receipts over $65,000 for each of the years here involved amounts to $2,201.60.

The judgment of the Appellate Division should be modified, therefore, by reducing it to the sum of $2,201.60, and, as so modified, affirmed, with costs to defendant in all courts.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. John Fanning, Appellant.
    Submitted November 28, 1949;
    decided December 29, 1949.

      John Fanning, appellant in person.

      Frank S. Hogan, District Attorney (Edgar J. Nathan, 3d, and. Whitman Knapp of counsel), for respondent.
   Per Curiam.

The defendant’s petition does not sufficiently allege a case of fraudulent use of perjured testimony by the prosecuting attorney to warrant relief by a coram nobis proceeding. The order should be affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Order affirmed. [See 300 N. Y. 677.]


text:
    The People of the State of New York, Respondent, v. Louis Rivera, Appellant.
    Argued November 16, 1949;
    decided December 29, 1949.

      Louis N. Blatt for appellant.

      Gordon Steele, District Attorney (John F. Dwyer, George H. Metz and Leonard Finkelstein of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York ex rel. Thomas S. Clarkson Memorial College of Technology, Respondent, against Leslie E. Haggett et al., as Assessors of the Town of Potsdam, Appellants.
    Argued November 22, 1949;
    decided December 29, 1949.

      Charles D. Campbell and Philip E. Nelson for appellants.

      Marcus O. Christ, Ralph A. Lehr and Charles T. Major for County Officers’ Association of the State of New York, amicus curice, in support of appellants’ position.

      George R. Rrennan, John L. Delius and Charles E. Newman for Association of Towns of the State of New York, amicus curice, in support of appellants’ position.

      John E. Galloway, Jr., Corporation Counsel (John Preston Phillips of counsel), for City of Yonkers, amicus curice-, in support of appellants’ position.

      Seth T. Cole and Frank L. Cubley for respondent.

      Allan R. Campbell and Joseph J. O’Connell for Sarah Lawrence College, amicus curies, in support of respondent’s position.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property for the Brooklyn-Battery Tunnel Plaza, etc., in the Borough of Manhattan. John J. Cray, as Trustee for Certificate Holders of Guarantee No. 209983 of Bond and Mortgage Guarantee Company under a Declaration of Trust, Respondent and Appellant.
    Argued November 28, 1949;
    decided December 29, 1949.

      John P. McGrath, Corporation Counsel (Benjamin Offner, Harry E. O’Donnell and Reuben Levy of counsel), for appellant-respondent.

      Benjamin Hurwitz, Daniel W. Blumenthal, Burton Blumenthal and Louis Wertheim for respondent-appellant.
   Order affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ.


text:
    In the Matter of the Claim of Art Cutting, Respondent, against Hewitt Rubber Co. et al, Appellants. Workmen’s Compensation Board, Respondent.
    Argued December 1, 1949;
    decided December 29, 1949. ,

      Frank C. Roberts for appellants.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the City of New York, Appellant. Juno Woodworking Co., Inc., Respondent.
    Argued November 21, 1949;
    decided December 29, 1949.

      John P. McGrath, Corporation Counsel {Morris R. Weitzer, Harry E. O’Donnell and Reuben Levy of counsel), for appellant.

      .Harry P. Keith, Henry J. Grassotti and Vine H. Smith for repondent. ■ •
   Order affirmed, with costs 5 no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    William J. Hammel et al., Appellants, v. Camp Ranger, Inc., Respondent.
    Argued November 29, 1949;
    decided December 29, 1949.

      William G. Birmingham and Paul McDermott for appellants.

      F. Walter Bliss, Benjamin M. Goldstein and Morris M. Oppenheim for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Allen Webb, Appellant, v. John B. Cerasoli et al., Respondents.
    Argued December 1, 1949;
    decided December 29, 1949.

      George Meyl and Bernard Cohen for appellant.

      Kenneth J. Dugan and P. C. Dugan for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Bromley, JJ. Taking no part: Conway, J.


text:
    C. Grant Keck, Doing Business as C. Grant Keck Organization, Appellant, v. William J. Evans, Respondent.
    Argued November 23, 1949;
    decided December 29, 1949.

      Milton I, Newman, Emil N. Baar and Lawrence J. Lieberman for appellant.

      Patrick J. Mahoney and Thomas J. Foley for respondent.
   Judgment of Appellate Division reversed and that of Trial Tern affirmed, with costs in this court and in the Appellate Division, upon the ground that the findings of the trial court are in accordance with the weight of the evidence. No opinion. [See 300 N. Y. 694.]

Concur: Lewis, Desmond, Dye and Bbomley, JJ. Dissenting: Lottghban, Ch. J., Conway and Fuld, JJ.


text:
    In the Matter of the Accounting of Annie L. Altz, as Executrix of Frank Altz, Deceased, Respondent. Arnold Krimont, Appellant.
    Submitted November 30,1949;
    decided December 29, 1949.

      Murray A. Harris and M. Címbalo for appellant.

      Robert E. Dempsey and Bartholomew A. Moynahan for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Benjamin W. Cohen et al., Suing on Their Own Behalf and on Behalf of All Other Stockholders of Fisk Rubber Corporation Similarly Situated, Appellants, v. Charles A. Dana et al., Defendants and Karl H. Behr et al., Respondents.
    Argued November 22, 1949;
    decided December 29, 1949.

      Jacob Lippman, Jacob B. Freund and Howard Hilton Spell-man for appellants.

      Paul W. Williams and J ohm, H. Clark for Karl H. Behr and others, respondents.

      Horace G. Hitchcock, Frederick W. Wood and Melvin D. Goodman for Frederick M. Peyser and others, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkan, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromuey, JJ.


text:
    Louis Utah, Respondent, v. Lester W. Baxter et al., Appellants, et al., Defendants.
    Argued November 28, 1949;
    decided December 29, 1949.

      Stanley S. Green and William Weiss for appellants.

      Copal Mints and Murray II. Yachnin for respondent.
   Judgment affirmed, with costs, on the ground that the easement of the city, acquired by condemnation, to change the level of Lake Mahopac, is a substantial restriction on the use of the premises contracted to be sold. We pass on no other question. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    John A. Cummings et al., Respondents, v. Board of Education of the City of New York, Appellant.
    Argued November 30, 1949;
    decided December 29, 1949.

      John P. McGrath, Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for appellant.

      A. Mark Levien for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran-, Ch. J., Lewis, Conwat, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of Tessim Zorach et al., Respondents, against Andrew G. Clauson, Jr., et al., Constituting the Board of Education of the City of New York, Respondents, and Francis T. Spaulding, as Commissioner of Education of the State of New York, Appellant.
    Argued December 1, 1949;
    decided December 29, 1949.

      Nathaniel L. Goldstein, Attorney-General (Kent E. Brown and Wendell P. Brown of counsel), for appellant.

      Kenneth W. Greenawalt and Leo Pfeffer for petitioners, respondents.

      Charles E. Tuttle, Porter B. Chandler and Louis M. Loeb for intervener, respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Peter F. Lynch, Respondent, v. George D. Bailey et al., Doing Business under the Name of Touche, Niven, Bailey & Smart, Appellants.
    Argued November 17, 1949;
    decided December 29, 1949.

      Eustace Seligman, Boy L. Steinheimer, Jr., and William F. Voelher for appellants.

      Delbert M. Tibbets and A. V. Cherbownier for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ.


text:
    The People of the State of New York, Respondent, v. Jane Reynolds, Appellant.
    Argued November 21, 1949;
    decided December 29, 1949.

      Barney Gorman for appellant.

      Frank 8. Hogan, District Attorney (Peyton H. Moss and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Cli. J., Lewis, Conway, Desmond, Dye, Fund and Bromley, JJ.


text:
    In the Matter of the Claim of Lenore d’Nikinov, Appellant. Edward Corsi, as Industrial Commissioner, Respondent.
    Submitted November 22, 1949;
    decided December 29, 1949.

      James Lipsig for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran and Wendell P. Brown of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fund and Bbomley, JJ.


text:
    Gilchrest Realty Corporation, Appellant v. Village of Great Neck Plaza, Respondent.
    Argued November 28, 1949;
    decided December 29, 1949.

      Gerard L. Carroll and C. Ellis Schiffmacher for appellant.

      Irwin B. Browner for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York ex rel. John Darman, Appellant, against J. V. Jackson, as Warden of Clinton State Prison, Respondent.
    Submitted November 28, 1949;
    decided December 29, 1949.

      John Darmcm, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General, for respondent.
   Motion dismissed on the ground that the order sought to be appealed from is not a final determination and no appeal can be taken therefrom to this court.


text:
    The People of the State of New York ex rel. Hamportzoon Choolokian, Appellant, against Mission of the Immaculate Virgin et al., Respondents. The People of the State of New York ex rel. Hamportzoon Choolokian, Appellant, against New York Foundling Hospital et al., Respondents.
    Submitted December 29, 1949;
    decided December 29, 1949.
   Motion by respondents to amend remittitur denied. [See 300 N. Y. 43.]


text:
    The People of the State of New York, Respondent, v. Thomas Muscolino and Emanuel Civabelli, Appellants.
    Submitted November 28, 1949;
    decided December 29, 1949,

      Samuel J. Foley, District Attorney (George Tilzer of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Village of Ardsley, Appellant, v. Aetna Casualty and Surety Company, Respondent, et al., Defendants.
    Submitted January 3, 1950;
    decided January 4, 1950.

      Leonard E. Bernstein for motion.

      Angelo E. Zíngaro opposed.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion.


text:
    In the Matter of Adirondack League Club, Appellant, against Board of Black River Regulating District et al., Respondents. In the Matter of Adirondack Moose River Committee, Inc., et al., Appellants, against Board of Black River Regulating District et al., Respondents.
    Submitted January 3, 1950;
    decided January 5, 1950.

      Charles H. Tuttle, Edward Schoeneck, John B. Brook and Sanford D. Stockton, Jr., for Adirondack League Club, for motion.

      Wright Tisdale and Milo B. Kniffen for Adirondack Moose River Committee, Inc., in support of motion.
    No one opposed.
   Motions for leave to appeal denied on the ground that the appeals lie as of right upon a constitutional question. (Civ. Prac. Act, § 588, subd. 1, cl. [a].) All relevant questions of law may be argued. (Powers v. Porcelain Insulator Corp., 285 N. Y. 54, 57; Bogart v. County of Westchester, 295 N. Y. 934; Estin v. Estin, 296 N. Y. 828.)


text:
    In the Matter of Charles E. Gill, Judgment-Creditor-Appellant, against Arthur Schwartz, Judgment-Debtor-Respondent, et al., Judgment Debtors. American Lime Corporation, Third-Party Respondent.
    Submitted January 3, 1950;
    decided January 5, 1950.

      Murray Post for motion.
    No one opposed.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days from the date of this order appellant serves and files the undertaking on appeal and pays $10 costs, and within twenty days from the date of this order appellant files the required record on appeal, in which events the motion is denied.


text:
    The People of the State of New York ex rel. Anthony Jablonowsky, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Submitted January 3, 1950;
    decided January 5, 1950.

      Nathaniel L. Goldstein, Attorney-General (Raymond B. Madden of counsel), for motion.
    No one opposed.
   Motion to dismiss appeal granted and appeal dismissed.


text:
    Morris Nash, Doing Business as Nash Jewelry Company, Respondent, v. Henry Lang, Appellant.
    Submitted January 3, 1950;
    decided January 5, 1950.

      Frank L. Silverman for motion.

      Murray Spellman opposed.
   Motion for leave to appeal to the Court of Appeals or, in the alternative, for leave to appeal to the Appellate Division and for a stay, dismissed on the ground that this court is without jurisdiction to entertain the application.


text:
    The People of the State of New York ex rel. Charles Williams, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Submitted January 3, 1950;
    decided January 5, 1950.

      Nathaniel L. Goldstein, Attorney-General (Raymond B. Madden of counsel), for motion.
    No one opposed.
   Motion to dismiss appeal granted and appeal dismissed.


text:
    John W. Zobel, Appellant, v. City of New York, Respondent.
    Submitted January 3, 1950;
    decided January 5, 1950.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 490.]


text:
    The People of the State of New York, Respondent, v. Ralph Porro, Appellant. The People of the State of New York, Respondent, v. John Bevacqua, Appellant.
    Submitted January 3, 1950;
    decided January 5, 1950.
   Motion for reargument or to amend the remittitur and for a stay denied and stay vacated. [See 300 N. Y. 504.]


text:
    Beatrice M. Montanye et al., Appellants, v. The People of the State of New York et al., Respondents.
    Submitted January 3, 1950;
    decided January 5, 1950.
   Motion for an order certifying a constitutional question dismissed, with $10 costs and necessary printing disbursements, for want of jurisdiction.


text:
    The People of the State of New York, Respondent, v. George Kosa, Appellant.
    Submitted January 3, 1950;
    decided January 5, 1950.

      Gordon Steele, District Attorney (Leonard Finkelstein of counsel), for motion.

      Arthur L. Rothschild opposed.
   Motion to dismiss appeal, as not having been taken in time, denied. Under section 521 of the Code of Criminal Procedure, an appeal to this court is always timely if taken within thirty days after entry of the order of affirmance below, even though taken, as this appeal was, more than fifteen days after the grant of a certificate, under subdivision 3 of section 520 of the Code of Criminal Procedure. The 1946 amendment to section 521 [L. 1946, ch. 942], providing that an appeal to this court shall be timely if the notice of appeal is duly served and filed within fifteen days after such a certificate is granted, does not shorten (although under circumstances not here present it may lengthen) the thirty-day period from the entry of the order of affirmance, for taking any criminal appeal, as fixed by section 521 before and since the 1946 amendment.


text:
    In the Matter of Charles C. Moschini, Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Submitted January 3, 1950;
    decided January 5, 1950.

      Monroe I. Katcher, II, and Jerome 8. Heller for motion.

      Harry F. Karst opposed.
   Motion to dismiss appeal denied and case set down for argument during the first week of the February, 1950, session.


text:
    In the Matter of Max Victor, Appellant, against George de Maziroff et al., Respondents.
    Submitted January 3, 1950;
    decided January 10, 1950.

      Lymcm Stansky for motion.

      Milton M. Levin opposed.
   Motion to dismiss appeal denied, with $10 costs.


text:
    In the Matter of the Estate of E. Bruce Johnson, Deceased. Eleanor Muelberger, Appellant; Genevieve Johnson, Respondent.
    Submitted January 3, 1950;
    decided January 10, 1950.

      John H. Munley and George J. Meade for respondent.

      Le Roy G. Edwards for appellant.
   Motion to dismiss denied, with leave to renew upon the argument of the appeal.


text:
    Michael McCarthy, Appellant, v. Bertel Troberg et al., Defendants, and Kalle Kalervo, Respondent.
    Counsel appeared January 4, 1950;
    decided January 12, 1950.

      Samuel Cooperman and Harry Leff for appellant.

      William J. Magee for respondent.
   Appeal withdrawn, without costs.


text:
    In the Matter of Felix Nori, as Guardian ad Litem of Richard Nori, an Infant, Appellant, against City of Yonkers, Respondent.
    Argued January 3, 1950;
    decided January 12, 1950.

      Bernard T. Silverman for appellant.

      John E. Galloway, Jr., Corporation Counsel (John Preston Phillips of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of Katherine C. Millicker, Respondent, against Board of Education of Central School District No. 1 of the Towns of Carmel and Putnam Valley et al., Appellants.
    Argued January 3, 1950;
    decided January 12, 1950.

      Chester B. McLaughlin, Alfred P. O’Hara, Mario Lorenti, Willis H. Ryder and Raymond B. Costello for appellants.

      James Dempsey and Bartholomew A. Moynahan for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye. Furo and Feoessel, JJ,


text:
    The People of the State of New York, Respondent, v. Peter Cervone, Appellant.
    Argued January 3, 1950;
    decided January 12, 1950.

      Harold A. Gordon, Alexander Grasso and Charles J. Drago for appellant.

      William M. Nicoll, District Attorney (D. Vincent Cerrito of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye and Fuld, JJ. Conway and Froessel, JJ., dissent and vote to reverse and order a new trial upon the ground that the admission in evidence, over defendant’s objection, of the hedge clippers, as the alleged assault weapon, constituted error, which upon this record we cannot regard as immaterial.


text:
    In the Matter of the Claim of Katherine Pushkarowitz, Respondent, against A. & M. Kramer et al., Appellants, and Fund for Reopened Cases, Respondent. Workmen’s Compensation Board, Respondent.
    Argued January 5, 1950;
    decided January 12, 1950.

      Charles P. Barre for appellants.

      Abraham Markhoff for Katherine Pushkarowitz, respondent.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fixed and Froessel, JJ.


text:
    Annie B. Peters, Respondent, v. Long Island Rail Road Company, Appellant.
    Argued January 4, 1950;
    decided January 12, 1950.

      William, F. McNulty, John McKim Minton and Richard R. Bongartz for appellant.

      Irving Michael Atlcin, Robert McGowan Smith and Samuel P. Schonfeld for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fund and Froessel, JJ.


text:
    Ethel S. H. Paolantonio, an Infant, by William C. Hamner, Her Guardian ad Litem, et al., Appellants, v. Long Island Rail Road Company, Respondent.
    Argued January 4, 1950;
    decided January 12, 1950.

      Joseph F. O’Brien for appellants.

      William F. McNulty, John McKim Minton and Richard R. Bongartz for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Alex Astrab, Appellant, against John F. O’Connell et al., as Members of the State Liquor Authority, Respondents.
    Argued January 3, 1950;
    decided January 12, 1950.

      Charles W. Chattaway and Alvin McKinley Sylvester for motion.

      Charles 1. Sterling, Monroe I. Katcher II and Jerome S. Heller opposed.
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Rockdale Construction Corp. et al., Respondents, v. Incorporated Village of Cedarhurst, Nassau County, et al., Appellants.
    Submitted January 3, 1950;
    decided January 12, 1950.

      Maurice Brandt for motion.

      Sanford A. Davison opposed.
   Motion for leave to appeal denied, with $10 costs and necessary printing disbursements, upon the ground that an appeal lies as of right.


text:
    Morris Flaks, Appellant, v. Fisher Millinery Corporation, Respondent.
    Submitted J anuary 3, 1950;
    decided January 12, 1950.

      Samuel Gradstein for motion.

      George A. Ferris opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Isabelle C. de la Bouillerie, Appellant, v. Anne M. C. de Vienne et al., Respondents, et al., Defendants.
    Submitted January 3, 1950;
    decided January 12, 1950.
   Motion for reargument or for amendment of remittitur denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 60.]


text:
    Doris S. Harman et al., Appellants and Respondents, et al., Plaintiffs, v. Board of Education of City of New York et al., Respondents and Appellants.
    Submitted January 9, 1950;
    decided January 12,1950.
   Motion for reargument or to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 21.]


text:
    In the Matter of the Probate of the Will of Frances A. English, Deceased. John L. English et al., Appellants; Fred G. Follett, Respondent.
    Argued January 6, 1950;
    decided January 13, 1950.

      James H. Penrose for appellants.

      Edgar Blumberg for respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Fboessel, JJ.


text:
    In the Matter of Consolidated Edison Company of New York, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.
    Submitted January 9, 1950;
    decided January 13, 1950.
   Motion for reargument denied. Motion to amend the remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Questions under the Federal Constitution were presented and passed upon by this court, viz., whether section 114 of the Public Service Law of the State of New York and the order of the Public Service Commission, dated December 30, 1948, in Case No. 12455, made pursuant thereto violated any of the rights of the respondent guaranteed by section 1 of the Fourteenth Amendment to the Federal Constitution. This court held that the aforesaid statute and order of the commission did not violate any of the rights of the respondent guaranteed by that provision of the Federal Constitution. [See 300 N. Y. 196.]


text:
    The People of the State of New York, Respondent, v. Raymond Martinez Fernandez and Martha Beck, Appellants.
    Submitted January 9, 1950;
    decided January 13, 1950.
   Motion to vacate assignment of John McEim Minton, Esq., as counsel for the defendant Fernandez denied.


text:
    The People of the State of New York, Respondent, v. Julio Ramirez Perez, Appellant.
    Submitted January 11, 1950;
    decided January 13, 1950.
   Return of remittitur requested and, when returned, it will he amended to read as follows: Judgment of conviction affirmed. Upon this appeal there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: the defendant contended that his confession was obtained and admitted in evidence in violation of his rights under the Fourteenth Amendment to the Constitution of the United States. This court held that the rights of the defendant under the Fourteenth Amendment to the Constitution of the United States had not been violated or denied. [See 300 N. Y. 208.]


text:
    In the Matter of David S. Cushman, Respondent, against Arthur W. Wallander, as Police Commissioner of the City of New York, Appellant.
    Argued January 11, 1950;
    decided February 23, 1950.

      John P. McGrath, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for appellant.

      David S. Cushman, in person, and Irving L. Weishar for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ.


text:
    The People of the State of New York, Respondent, v. Salvatore Oddo, Appellant.
    Argued January 5, 1950;
    decided February 23, 1950.

      David M. Markowitz and Salvatore Oddo, in person, for Salvatore Oddo, appellant.

      Joseph Lonardo, amicus curies, in support of appellant’s position.

      Frank S. Hogan, District Attorney (Edgard J. Nathcm, 3d, Whitman Knapp and Edward T. Ferry of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ. Taking no part: Fuld, J.


text:
    Leonard S. Wegman et al., Individually and as Copartners Doing Business under the Name of Leonard S. Wegman & Co., Respondents, v. Republic Camera Corporation, Appellant. In the Matter of the Application of Leonard S. Wegman et al., Individually and as Copartners Doing Business under the Name of Leonard S. Wegman & Co., Respondents. Republic Camera Corporation, Defendant, and Jacob Handelsman, Appellant.
    Submitted January 9, 1950;
    decided February 23, 1950.

      Samuel Masía and Archibald Palmer for appellants.

      Myron L. Shapiro and Richard J. Burke for respondents.1
   On appeal by Jacob Handelsman: Order affirmed, with costs. On appeal by Republic Camera Corporation: Order affirmed, with costs. The first and fourth questions certified are answered in the affirmative. The second.and third questions certified are answered in the negative. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ.


author:
      Per Curiam.
     Desmond, J.

text:
    In the Matter of the Claim of Mabel G. Gordon, Claimant, against New York Life Insurance Company et al., Respondents. Workmen’s Compensation Board, Appellant.
    Argued January 10, 1950;
    decided February 23, 1950.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, appellant.

      Theodore A. Viehe for claimant.

      Horace C. Winch, Franklin D. L. Stowe, Percy R. Smith and Robert J. Hodgson for respondents.
   Per Curiam.

We find in this record evidence from which conflicting inferences might reasonably be drawn as to whether, at the time of the accident, the claimant was an employee of the New York Life Insurance Company. In those circumstances we cannot rule as a matter of law, as has the Appellate Division, that the. claimant was .an independent contractor. When conflicting inferences are possible, the finding of the Board prevails.” (Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60, 64; Workmen’s Compensation Law, § 20.)

The order of the Appellate Division should be reversed and the award of the Workmen’s Compensation Board confirmed, with costs in this court and in the Appellate Division.

Desmond, J.

(dissenting). As I see this record, there is plenty of evidence that the parties intended that claimant should not be an employee of respondent, and no evidence at all of any such control by respondent of the method and details of doing the work as would permit a finding that claimant was respondent’s employee (see Matter of Wilson Sullivan Co., 289 N. Y. 110, 112, citing Matter of Beach v. Velzy, 238 N. Y. 100). In the Wilson Sullivan case (supra), which arose under the Unemployment Insurance Law (Labor Law, art. 18), the question was the same as here, that is as to whether certain real estate salesmen for the Sullivan Company were employees. In that case this court held as matter of law that the real estate salesmen were not employees, although the words employer “ employed ” and “ employing ’’were used a number of times in the statute pursuant to which these real estate salesmen were licensed by the State. There are quite striking similarities of fact between the Sullivan case and this one, and it seems to me that the Sullivan case, if anything, was a stronger one for finding an employer-employee relationship, since, as pointed out in the majority opinion in the Sullivan case, the corporation was quite active in giving assistance to its salesmen, such as furnishing, at the corporation’s expense, office and desk space and telephone service, and providing them leads, that is, names of prospects. In the present case claimant, after a short period of instruction, was very much on her own, found her own prospects, worked when she pleased and anywhere in the territory of the particular district office. In other words, after her preliminary training, she just went out and attempted to sell life insurance anywhere she could, with no compensation except commissions for policies actually written. While respondent conducted a meeting of its agents every week, claimant was not required to attend, and there was no evidence at all that respondent in any way controlled or supervised claimant’s methods of work or paid any attention to them.

Since these people provided, by a plain, clear contract, that their relationship should not be that of employer .and employee, it seems to me, as it seemed to the majority of the court in the Wilson Sullivan case (supra), that this claim cannot be allowed unless we are to say that an insurance company cannot have anything but an employer-employee relationship with its soliciting agents or, in other words, as Judge Finch put it in the Wilson Sullivan case (supra), “ that the recognized common law relationship of independent contractor has been outlawed by the statute ” (289 N. Y. at p. 115).

I favor affirmance.

Lotjghran, Ch. J., Lewis, Conway- and Dye, JJ., concur in Per Curiam opinion; Desmond, J., dissents in opinion in which Fuld and Froessel, JJ., concur.

Order reversed, etc. [See 300 N. Y. 742, 301 N. Y. 570.]


text:
    Sadie Ragione, Appellant, v. Frank J. Ragione, Respondent.
    Submitted January 5, 1950;
    decided February 23, 1950.

      Henry Pearlman for appellant.
    No appearance for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughraw, Ch. J., Lewis, Cowway, Desmowd, Dye, Fuld and Froessel, JJ.


text:
    Lucy M. Minnier, Respondent, v. Blythe J. Minnier, Appellant.
    Argued January 9, 1950;
    decided February 23, 1950.

      A. Raymond Cornwall for appellant.

      Laurence H. Kissel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J,, Lewis, Conway, Desmond, Dye. Fuld, and Froessel, JJ.


text:
    In the Matter of Edward S. Levine, Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority of the State of New York, Appellants.
    Argued January 9, 1950;
    decided February 23, 1950.

      Charles W. Chattaway and Alvin McKinley Sylvester for appellants.

      James I. Guff, Lillian E. Guff and Abraham B. Hertz for Metropolitan Package Stores Association, amicus curiae, in support of appellants’ position.

      Daniel J. Riesner, Julian Jawitz and Richard I. Donner for respondent.
   Order affirmed and order absolute ordered against appellants on the stipulation, with costs; appeal taken as of right dismissed. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Isidore Dolnick, Respondent, v. Edward Donner Lumber Corporation et al., Defendants, and Maran Construction Co., Inc., Appellant. Maran Construction Co., Inc., Defendant and Third-Party Plaintiff-Appellant, v. Louis Cohen et al., Doing Business as L & S Cohen, Third-Party Defendants-Respondents, et al., Third-Party Defendants.
    Argued January 11, 1950;
    decided February 23, 1950.

      Harold M. Harkavy and Frederick M. Garfield for appellant.

      Clarence E. Mellen and Robert X. Kusmier for respondent.

      Patrick E. Gibbons and Oscar A. Thompson for Louis Cohen and another, third-party defendants-respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkan, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Harry Adler, Respondent, v. Tully & Di Napoli, Inc., Appellant, and Nicholas Ascenzo et al., Partners Doing Business under the Name of Ascenzo & Sons, Respondents.
    Argued January 9, 1950;
    decided February 23, 1950.

      Frederick Mellor for appellant.

      Archie B. Morrison, John D. Lynn, Robert A. Dwyer and Daniel Miner for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conwat, Desmond, Dte, Fuld and Fboessel, JJ.


text:
    Alex Pisciotta, Appellant, v. City of New York, Respondent, et al., Defendants.
    Argued January 10, 1950;
    decided February 23, 1950.

      Alex Pisciotta, in person, Duncan A. Fraser, Anthony H. Klein and Pasquale F. Laurino for appellant.

      John P. McGrath, Corporation Counsel (Stanley Buchsbaum and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion. [See 300 N. Y. 755.]

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ. Taking no part: Fuld, J.


text:
    Ernst Stein, Appellant, v. Pershing Square Building Corporation, Respondent-Appellant, and Stouffers Pershing Square Inc., Impleaded Defendant-Respondent.
    Submitted January 11, 1950;
    decided February 23, 1950.

      Daniel A. Novoh, Louis Helfenstein and A. Edward Masters for appellant.

      Patrick E. Gibbons and Raymond J. Scully for respondent-appellant.
   Judgment affirmed, with costs to impleaded respondent Stouffers Pershing Square Inc. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Field and Froessel, JJ.


text:
    The People of the State of New York ex rel. Mutual Life Insurance Company of New York, Respondent, against William W. Mills et al., Constituting the Tax Commission of the City of New York, et al., Appellants.
    Argued January 12, 1950;
    decided February 23, 1950.

      John P. McGrath, Corporation Counsel (James J. McGowan, William F. Murphy and Morris Handel of counsel), for appellants.

      Philip Sheridan McNally and Louis W. Dawson for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Dye. Ftjld and Fboessel, JJ.


text:
    Irving Weisner, Appellant, v. Robert Benenson et al., Respondents.
    Argued January 9, 1950;

    decided February 23, 1950.

      , Isidor J. Kresel, Harold I. Meyer son and Irving L. Weinberger for appellant.

      Menahem Sfim and Francis J. Mahoney for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Gustave Kase, Appellant, v. Bessie Cohen, Respondent.
    Argued January 12, 1950;
    decided February 23, 1950.

      David Haar for appellant.

      Estelle Coreos Levy and John Hezekiah Lévy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loxjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of George G. Lake, as Assignee of Bella Klein, Judgment-Creditor-Appellant, against Cornelius Vanderbilt, Jr., Judgment Debtor; Central- Hanover Bank and Trust Company, Third-Party Witness, Respondent, and United States Trust Company, Third Party.
    Submitted January 3, 1950;
    decided February 23, 1950.

      George G. Lake, in person, for motion.

      John C. Hover and Peter C. McBean opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Herman Theaman, Appellant, v. George W. Hindels, Respondent.
    Submitted January 3, 1950;
    decided February 23, 1950.

      Sanford H. Cohen for motion.

      Hans Harnik for respondent.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of David A. Fay, Appellant, against William P. O’Brien, as Police Commissioner of the City of New York and Chairman of the Board of Trustees of the Police Pension Fund of the City of New York, et al., Respondents.
    Submitted January 9, 1950;
    decided February 23, 1950.

      John P. McGrath, Corporation Counsel (Stanley Buchsbaum of counsel), for motion.

      David A. Fay, in person, opposed.
   Motion denied, without prejudice to a renewal thereof upon the oral argument. ,


text:
    The People of the State of New York ex rel. Merritt B. Schuyler, Appellant, against Milton Klein, as Warden of New York City Penitentiary, Rikers Island, Respondent.
    Submitted February 20, 1950;
    decided February 23, 1950.

      Merritt B. Schuyler, in person, for motion.

      Frank 8. Hogan, District Attorney (Jack M. Cotton and Charles W. Manning of counsel), for respondent.
   Motion-for leave to appeal dismissed. (See Civ. Prac. Act, § 592, subd. 3.)


text:
    The People of the State of New York, Respondent, v. Paul Edward Davis, Appellant.
    Submitted February 20, 1950;
    decided February 23, 1950.

      Charles P. Sullivan, District Attorney (Howard B. Lonergan of counsel), for motion.
    No one opposed,
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Respondent, v. Martin De Temple, Appellant.
    Submitted February 20, 1950;
    decided February 23, 1950.

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for motion.

      Martin De Temple, in person, opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Appellant, v. Alexander Nikula, Respondent.
    Submitted February 20, 1950;
    decided February 23, 1950.

      Robert E. Fischer for motion to dismiss appeal and in opposition to motion for enlargement of time.

      Theodore Levene, Corporation Counsel, for motion for enlargement of time and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed. Motion for enlargement of time denied.


text:
    The People of the State of New York, Respondent, v. John Fanning, Appellant.
    Submitted February 20, 1950;
    decided February 23, 1950.
   Motion to amend remittitur denied. [See 300 N. Y. 593.]


text:
    President and Directors of the Manhattan Company, Appellant, v. Monogram Associates, Inc., et al., Respondents.
    Submitted February 20, 1950;
    decided February 23, 1950.

      Clarence Fried for motion.

      Edward Alan Shure and Abraham, Epstein opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within- the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Edward M. MacKenna, Appellant.
    Submitted February 20, 1060;
    decided February 23, 1950.
   Motion for reargument denied. [See 298 N. Y. 494.]


text:
    President and Directors of the Manhattan Company, Appellant, v. Irwin Wax, Respondent.
    Submitted February 20, 1950;
    decided February 23, 1950.

      Clarence Fried for motion.

      Edward Aloro Shure and Abraham Epstein opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that, the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Eugene Bellini, Respondent, against Great American Indemnity Company, Appellant, and Architectural Home Corp. et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted February 20, 1950;
    decided February 23, 1950.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended to award costs in this court and in the Appellate Division to the appellant against the Workmen’s Compensation Board. [See 299 N. Y. 399.]


text:
    Cherne Abrams, Appellant, v. Maryland Casualty Company, Respondent.
    Submitted February 20, 1950;
    decided February 23, 1950.
   Motion to amend remittitur denied, with $10 costs and necessary printing’ disbursements. [See 300 N. Y. 80.]


text:
    Renee F. Mazer, Respondent, v. Donald J. Mazer, Appellant.
    Submitted February 20, 1950;
    decided February 23, 1950.

      Francis Finhelhor for motion.

      John F. Keating and John M. Whelan opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Arbitration Between Springs Cotton Mills, Respondent, and Buster Boy Suit Company, Inc., Appellant.
    Submitted February 20, 1950;
    decided February 23, 1950.
   Motion for reargument or to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 586.]


text:
    500 Fifth Avenue, Inc., Respondent, v. Morris D. Dalsheim, Appellant.
    Submitted February 20, 1950;
    decided February 23, 1950.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 587.]


text:
    Mallory Associates, Inc., Appellant, v. Barving Realty Co., Inc., et al., Respondents.
    Submitted February 20, 1950;
    decided February 23, 1950.
   Motion for reargument, etc., denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 297.]


text:
    Marianne Hirschler, Appellant, v. Briarcliff Management Corp., Respondent.
    Argued February 21, 1950;
    decided March 2, 1950.

      Samuel Justin Jackman and Carl Fill Schiffer for appellant.

      John C. Martin and Frederick Mellor for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Coxway, Desmoxd, Dye, Fuld and Froessel, JJ.


text:
    In. the Matter of the Claim of Elmer G, Losch, Respondent, against Curtiss-Wright Corporation et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued January'll, 1950;
    decided March 2, 1950.

      Albert P. •Thill and John P. Smith for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Mark McCreary et al., Appellants, v. Town of Thurston, Respondent.
    Submitted February 20, 1950;
    decided March 2, 1950.

      Wilbur F. Knapp for appellants.

      James 8. Drake for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Conway, J.


text:
    In the Matter of the Application of Sol Kokol, Appellant. Paramount Pictures, Inc., Respondent.
    Argued February 20, 1950;
    decided March 2, 1950.

      Samuel J. Levinson, Frank Weinstein and Harold F. Levin for appellant.

      George G. Gallants and Gyrus R. Vance for respondent-.
   Order affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Max Victor, Appellant, against George de Maziroff et al., Respondents.
    Argued February 20, 1950;
    decided March 2, 1950.

      Milton M. Levin for appellant.

      Lyman Stanshy for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ.


text:
    In the Matter of the Accounting of Agnes P. Faile et al., as Executors of and Trustees under the Will of Laura E. Purdy, Deceased, Appellants. Highlands of White Plains, Inc., et al., Respondents.
    Argued February 21, 1950;
    decided March 2, 1950.

      Stewart W. Rowe and William R. Condit for appellants.

      Arthur B. Brenner and L. Raymond Rose for Highlands of White Plains, Inc., respondent.

      John P. Powers, in person, as special guardian for John W. Havery and others, infants, respondents.
   Order affirmed, with, costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Betty Lansky, as Guardian ad Litem of Milton Lansky, an Infant, et al., Appellants, v. Robert Seeley et al., Respondents,
    Argued January 10, 1950;
    decided March 2, 1950.

      David P. Siegel for appellants.

      William F. Martin and Thomas E. Clearwater for respondents.
   Per Curiam.

Judgment, insofar as it dismisses the complaint against the defendant, J. Eastman Sheehan, affirmed, with costs, upon the ground that plaintiff failed to make out a prima facie ease as against him (Kinsley v. Carravetta, 244 App. Div. 213, 218, affd. 273 N. Y. 559). Judgments, insofar as they direct a verdict in favor of the defendant, Bobert Seeley, and dismiss the complaint as to him, reversed and a new trial granted, with costs to abide the event, upon the "ground that the record presents questions of fact for the jury (Henderson v. Crystal Aquatic Arena, 298 N. Y. 519; Cornbrooks v. Terminal Barber Shops, 282 N. Y. 217; Bernstein v. Greenfield, 281 N. Y. 77).

As to defendant J. Eastman Sheehan: The judgment should be affirmed, with costs.

As to defendant Robert Seeley: The judgments should be reversed and a new trial granted, with costs to abide the event.

Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ., concur.

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Anthony Ciliberti, Appellant.
    Submitted February 20, 1950;
    decided March 2, 1950.

      Miles F. McDonald, District Attorney (Aaron Nussbaum of ’.ounsel), for motion.

      Anthony Ciliberti, in person, opposed.
   Motion granted and appeal dismissed for want of jurisdiction. (See People v. Hatzis, 297 N. Y. 163.)


text:
    Margaret C. Henricks, Appellant, v. Arthur P. Henricks, Respondent.
    Submitted February 20, 1950;
    decided March 2, 1950.

      J. Leo Rothschild for motion.

      Peter L. F. Sabbatino opposed.
   Motion denied, with $10 costs.