author: Lewis, J. Conway, J.

text:
    In the Matter of the Claims of Ada E. Lazarus, Verna Newell, Leona M. Morley, Althea C. Jacobs, Margaret L. Coleates, Elizabeth Kindelberger, Catherine C. Shipman, Bessie H. Harvey, Blanche C. Stape, Olive T. Coon, Mabel M. Paddock, Elsie L. Bagshaw and Edith B. Key. Edward Corsi, as Industrial Commissioner of the State of New York, Appellant; Geo. W. Haxton & Son., Inc., Respondent.
    Argued May 24, 1945;
    decided October 25, 1945.

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran and Orrin G. Judd of counsel), for appellant.
    I. Claimants worked in covered employment. They were not engaged in agricultural labor. Their services were not rendered as-“ an incident to the preparation of such fruits or vegetables for market,” since the beans had already reached “ a market.” (Latimer v. United States, 52 F. Supp. 228; Lake Region Packing Ass’n v. United States, 146 F. 2d 157; North Whittier Heights C. Ass’n v. National L. R. Board, 109 F. 2d 76.) II. The beans had reached a “ market ” when they were sold to respondent. (Marsh v. Titus, 6 Th. & C. 29; Foster v. Pettibone, 7 N. Y. 433; Milliman v. Neher, 20 Barb. 37; Ketchum v. City of Buffalo & Austin, 21 Barb. 294, 14 N. Y. 356; Langdon v. Mayor, 59 Hun 434; Matter of Thompson [Sagtikos Farm, Inc.], 262 App. Div. 792, 288 N. Y. 595.) III. Respondent’s services are not rendered by the farmers. (Chamberlin, Inc. v. Andrews, 271 N. Y. 1; Minor Walton Bean Co. v. Michigan Unemployment Ins. Compensation Comm., 308 Mich. 636; State v. Christensen, 18 Wash. 2d 7; Park Floral Co. v. Industrial Commission, 104 Col. 350.) IV. The fact that the Industrial Commissioner, in the administration of the law, has interpreted the section under consideration as contended by appellant should be given great weight on the issue herein. (People ex rel. Public Service Comm. v. New York Tel. Co., 262 App. Div. 440, 287 N. Y. 803; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; People ex rel. Ray v. Martin, 294 N. Y. 61, 73.)

      George J. Skivington and William P. Smith for respondent.
    I. Where a State act follows, and, in effect, re-enacts a Federal act, it is desirable that the State follow the Federal statute and its interpretation. (People ex rel. Mosbacher v. Graves, 254 App. Div. 438; Matter of Weiden, 263 N. Y. 107; Florida Industrial Comm. v. Peninsula Life Ins. Co., 10 So. 2d 793.) II. Even if the State act did not follow the Federal act and it was being construed de novo, it must be interpreted to exempt the appellant’s bean pickers. (Labor Law, § 511, subd. 6, par. [4]; Carstens Packing Co. v. Industrial Accident Board, 123 Pac. 2d 1001; Bott v. Unemployment Compensation Division of Industrial Acc. Bd., 123 Pac. 2d 1004; Mulanix v. Falen, 130 Pac. 2d 866.)
   Lewis, J.

The thirteen employees who by this proceeding would enforce their claims for unemployment benefits under article 18 of the Labor Law (commonly known as the Unemployment Insurance Law) were employed in 1941 by the respondent as “ bean pickers.” The operation of bean picking, as that phrase is used in this proceeding, is not descriptive of the removal of beans from the vines. It is a culling process by which dirt and waste are removed manually by employees who Are stationed at a moving belt upon which the mass of beans passes for inspection. The claimants ’ right to unemployment benefits which they now assert for a period of unemployment commencing in June, 1942, depends upon whether their prior employment by the respondent in 1941 was ‘ ‘ agricultural labor ’ ’ which is expressly excluded from the coverage of Labor Law, section 502, subdivisions 1 and 11. (L. 1941, ch. 669.)

The material provisions of the statute are as follows:

Section 502, subdivision 1 * * * for the purposes of this article, ‘ employment ’ shall not include: (1) agricultural labor; * * *
Section 502, subdivision 11 “ The term ‘ agricultural labor ’ includes all service performed * * *
“ (4) In handling, planting drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if such service is performed as an incident to farming operations or in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural * * * commodity after its delivery to a terminal market for distribution for consumption.” (Italics supplied.)

The Unemployment Insurance Appeal Board, upon its affirmance of the referee’s decision, determined that the claimants were not engaged in agricultural labor ” and accordingly awarded them unemployment insurance benefits based upon their earnings in such employment. The Appellate Division (one member dissenting) reversed the decision of the appeal board and ruled that the claimants were engaged in “ agricultural labor ” within the definition of the statute which denied them the unemployment insurance benefits previously awarded.

We are to determine whether within the language of the statute the service ” rendered by the claimants as bean pickers was performed as an incident to the preparation of such ” beans for market.”

The facts are undisputed and may be taken from the decision of the appeal board. The respondent corporation, to which reference will be made as the employer, deals in farm produce. In its employ were more than sixty bean pickers among whom were the thirteen claimants. On April 22, 1941, the employer discontinued its former practice of including bean pickers in its quarterly payroll reports upon which were based its contributions to the State unemployment insurance fund. Those employees were omitted upon the theory that the service performed by them as “ bean pickers ” comprised “ agricultural labor ” as defined by section 502, subdivision 11, paragraph (4) of the Unemployment Insurance Law (effective April 22, 1941) which service was excluded from unemployment insurance coverage, The employer neither owns nor operates a farm. It buys beans in bulle from various growers. When the beans have been cleaned and graded they are packed in one hundred pound bags on which appear the employer’s name. They are then sold by the employer at wholesale to canners and jobbers.

In the operation of its business the employer owns or leases a number of “ bean elevators ” equipped with machinery to remove culls and waste material from the dried beans as received by the employer from the growers. To perform that service, as described in the decision of the appeal board, “ Claimants and the other bean pickers similarly employed are furnished by the employer with separate bean-picking belts. Each bean picker sits alongside of her belt and, as the beans pass in front of her, picks out by hand the culls or offal.” The evidence is not disputed that on every sale of beans by a grower to the respondent employer there is deducted from the price paid the grower the cost of cleaning the beans, viz., the cost of the service performed by claimants and the other “ bean pickers.” Unless the beans are cleaned and graded — as found by the appeal board — ‘ ‘ the employer would be unable to sell the choice hand-picked beans to its customers.”

It is important to note that there is no evidence of record that there was any market for the beans in the condition in which they were when received by the employer from the grower. To say — as does the appellant — that the grower sold unpicked or uncleaned beans to the employer and that such sale created a “ market ” within the language of the statute is to disregard the actual transaction between the grower and employer. The sale by grower to employer was of beans after they were cleaned. That conclusion follows from the undisputed evidence that the cost of cleaning the beans was deducted from the price paid by the employer to the grower. The beans were not marketable until after the service rendered by the claimants had been performed, the cost of which was borne by the grower.

The State enactment with which we are concerned was adopted in strict conformity with earlier Federal legislation (Federal Insurance Contributions Act, U. S. Code, tit. 26, § 1400 et seq., and the Federal Unemployment Tax Act, U. S. Code, tit. 26, § 1600 et seq.). The history of the legislation shows an intent to exclude from the operation of the statute all “ agricultural labor,” whether the service is performed directly by the farmer who has machinery adapted to that operation, or by a third party in behalf of the farmer who lacks machinery essential to prepare the product for market. If, as the appellant contends, the term “ market ” as employed in the statute is to be restricted to the initial sale by the grower to the employer, the market thus created would relate to the sale of picked or cleaned beans, — not the product delivered by the grower to the employer before the bean-picking service has been performed.

Borrowing from the language of the statute to phrase our conclusion — the claimants were engaged in “ agricultural labor ” inasmuch as the service ” they performed was rendered “ as an incident to the preparation of such ” beans “ for market.”

The order should be affirmed, with costs.

Conway, J.

(dissenting). The Industrial Commissioner has appealed from an order of the Appellate Division, which reversed a decision of the Unemployment Insurance Appeal Board and determined that claimants were engaged in agricultural labor ” as defined in Labor Law, section 502, subdivision 11, paragraph (4). We must determine whether the Appellate Division or the Unemployment Insurance Appeal Board was correct in its construction of the section and subdivision.

The facts are undisputed. The respondent (hereinafter referred to as Employer) is a domestic stock corporation engaged in the business of buying and selling farm products, including beans, hay, grain, fresh fruit and vegetables. It purchases the fruits and vegetables from farmers who plant, grow and harvest them. Employer owns or leases eighteen to twenty buildings or elevators to house the processing, elevating, and storing of the farm products in which it deals. Each elevator is located upon a railroad siding within the corporate limits of a village and has no connection with any .farm land. In each of its buildings, Employer has installed mechanical devices essential to the processing of the agricultural products in which it trades including elevating, grading, polishing and grinding machinery. Through its twenty to twenty-five branches and its eighteen to twenty elevators, during the year 1942, Employer conducted fifty-eight separate operations in connection with its trading in farm products. One of the processes is bean picking ”. The machinery used is installed in the bean elevator. The machinery is owned by Employer, and each bean picker is furnished with a separate bean-picking belt. She sits beside the belt and as the beans pass before her, she picks out by hand the culls or other waste materials, which become the property of Employer and are resold by it. The number of “ bean pickers ” ranges from sixty to sixty-five.

All of the bean pickers are hired by Employer. Their work is seasonal in character, and they are intermittently laid off and rehired throughout the calendar year. Employer pays the bean pickers and supervises, directs and controls all of their activities, which are concededly physically unconnected with the actual cultivation of the soil or the raising and maturing of the beans.

The beans raised by the farmers are either brought to Employer’s elevators by the farmers’trucks or by trucks furnished by Employer. In the latter case, a charge is made for the hauling.

Generally, a sale by the farmer to Employer is handled as follows: When a load of beans reaches one of the elevators, the beans are unloaded, run through the grading machine (to remove small off-grade beans and all the dirt), then through a hopper and weighed. Then a sample pick ” is taken and weighed. The percentage of culls is figured upon that sample, and that percentage is deducted from the total purchase. Thus: If it were a two percent pick, our sample would show that two pounds out of every hundred are going to be culls. The farmer’s lot would be deducted on a two percent basis.” The “ sample pick ” and the result shown by it does not affect the price put upon the “ scale ticket.” It affects the weight. The price is the fixed price on 100 pounds of beans. On the “ scale ticket ” there is also the word “ condition.” If the beans are a certain percentage off-condition — say 5% — that 5% is deducted from the gross weight and the farmer is paid for the net. Again, that has nothing to do with the market price as fixed on the ticket. The scale ticket ” is in form as follows;

• “ Geo. W. Haxton & Son, Inc. No. 35495
............................. Bate.......... 194..
Bought from.......................... Gross......
Commodity .......................... Tare.......
Price ................................ Net........
Condition.........................................
Weigher...........................”

There are some variations of method, but it is conceded that nothing turns upon such variations. In about 95% of the cases, the beans which come in are commingled and picked irrespective of the producer or grower.

After the farmer has received his receipt, showing the gross and net weight of the beans, with deduction for condition, he brings the ticket to the branch manager in charge of the station. That manager transfers the information shown on the “ scale ticket ” to a slip, computes the value of the good beans and sends the ticket and slip to the home office. From there, a check is mailed direct to the farmer.

After the sample pick ” the threshed beans are elevated to storage bins, from which they pass down and over the picking tables to be hand picked into grades. After hand picking, the beans are packed by Employer in 100 pound bags, upon which Employer’s name appears. Employer resells to jobbers and canners. It also sells the culls or unwanted beans to farmers as feed for hogs, cattle and chickens. Its profit is the difference between the price paid by it to the farmers and the resale price, less the costs incident to the operations conducted by Employer. The price at which Employer sells the product and his profit are matters in which the farmers have no interest and take no part. Employer carries fire and wind-storm insurance upon the contents of its elevators. The farmers have no interest therein and are not named as beneficiaries. Employer covers its employees, including claimants, under the Workmen’s Compensation Law and carries insurance for that purpose.

The following is the statute to be construed, insofar as pertinent here. It is section 502, subdivision 11, paragraph (4) as enacted by Laws of 1941, chapter 669, effective April 22, 1941: “ 11. The term ‘ agricultural labor ’ includes all service performed * * * (4) In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if. such service is performed as an incident to farming operations or in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.”

We must determine whether the service performed by Employer was an incident to the preparation of the beans subsequent to their arrival at the farmer’s market'because if the beans had already reached the market which the Legislature had in mind in its use of the words “as an incident to the preparation of such fruits or vegetables for market,” then the labor of the bean pickers, the claimants here, was not included in the term “ agricultural labor.” The Industrial Board decided that the quoted paragraph of the subdivision did not exempt from coverage bean pickers such as claimants, employed by a commercial stock corporation which grew no beans or other agricultural product, and who performed their services at a railroad siding in a bean elevator, unconnected with any farm. The board also held that the term “preparation for market ’’ meant preparation for the farmer’s market and that that market is the place where the farmer finally disposes of his farm product by transfer of title which, in this instance, is the office of Employer. The majority of the justices of the Appellate Division, on the contrary, were of the opinion that the phrase in the statute “as an incident to the preparation of such fruits or vegetables for market ” meant “ a terminal market ”, thus disregarding the careful differentiation by the Legislature between the term “ market ” as usecl in the quoted subdivision on three occasions and the term “ terminal market ” which is used but once.

We think that the simple and clear-cut rule which the Industrial Commissioner has formulated and used in applying the words of the statute to the facts presented here is the proper one. It is certain and easy of operation and is readily applicable to the only two situations which may arise. That rule is as follows:

(1) Where the title to the fruits or vegetables passes from the farmer who produced them to an entrepreneur, the exemption ceases at the time of the transfer of title.
(2) Where the farmer operates a commercial canning or commercial freezing establishment, services rendered therein are not exempt, even if performed by employees of the farmer. If he operates a terminal market used for the distribution of the farm produce for consumption, the service with respect to that produce ceases to be exempt upon its delivery to such terminal market, even though such service is performed by employees of the farmer-producer.

The rules framed by the Industrial Commissioner accurately reflect the historical development, both in New York and the nation, of unemployment insurance statutes which led to the present exemption of agricultural labor ”. The original enactment of article 18 of the Labor Law, entitled Unemploy- , ment Insurance Fund, was in Laws of 1935, chapter 468, effective April 25, 1935. Section 502 of the statute (Labor Law) provided that “ * * * ‘ employment ’ shall not include: (1) employment as a farm laborer; * # The term “ farm laborer ” was not defined. About four months after the enactment of that article, the Federal Social Security Act, chapter 531 (Public No. 271, 74th Congress, approved Aug. 14, 1935) was enacted. Those provisions are now contained in the Federal Insurance Contributions Act, United States Code, title 26, section 1400 et seq. and the Federal Unemployment Tax Act, United States Code, title 26, section 1600 et seq. “ Agricultural Labor ” was excluded from coverage but was not defined. The Treasury Department, charged with the collection of the taxes under the Social Security Act, promulgated Regulations 90 and 91 under Titles VIH and IX of the Act, defining “ Agricultural Labor

Under those regulations, Federal agencies administering the act ruled in effect that if farmers sent their fruits and vegetables to a “ cooperative ” for cleaning, grading, packing or packaging, the employees of the co-operative came within the provisions of the Federal statutes and the employer co-operative was required to pay a tax with respect to their wages although if the same services had been performed on the farm by employees of the farmer, such services would be exempt. (See Congressional Record 76th Congress, 1st Sess. H. R., vol. 84, part 6, pp. 6864-6865.)

Apparently to bring our State act into conformity with the Federal regulations mentioned, section 502 of the Labor Law was amended by Laws of 1939, chapter 762, so as to define farm laborer ”. Under that amendment, which need not here be quoted, the services to be exempt had to be performed on a farm by an Employee of the owner or by a tenant of a farm, or, if not performed on the farm, had to be carried on as an incident to ordinary farming operations as distinguished from manufacturing or commercial ones. That interpretation was sustained by the courts. (Latimer v. U. S., 52 F. Supp. 228; Lake Region Packing Ass'n v. United States, 146 F. 2d 157.)

That was the situation which caused further amendments by Congress and by our State Legislature so as to redefine the term agricultural labor ”. The reason was that discrimination had resulted as against small producers' of fruits and vegetables who did not have sufficient capital to install upon their farms the machinery necessary for cleaning, grading, processing and packaging their fruits and vegetables and in favor of the large producers who were financially able to install on their farms the necessary machinery and to have the appropriate services performed on their farms by their own employees. The latter paid no tax with reference to such services. The small producers sent their fruits and vegetables to local co-operatives for the rendition of similar services and since those employer co-operatives were required to pay taxes for the benefit of their employees, the net price received by the small producers was decreased by the amount of the taxes paid. The small farmer thus received less for his farm products than the large producer.

To remedy that Congress amended the Federal statutes to define “ agricultural labor ” and the definition will be found in Federal Insurance Contributions Act, section 1426, subdivision (h) (U. S. Code, tit. 26, § 1426, subd. (h); 53 Stat. 1383, 1400) and in Federal Unemployment Tax Act, section 1607, subdivision (1) (F. S. Code, tit. 26, § 1607, subd. 1; 53 Stat. 1392).

That relieved farmers who graded and processed their fruits and vegetables at local co-operatives since the latter were relieved of the tax burden. The farmers, of course, retained title during the grading and processing. The purpose was not to make the term “ agricultural labor ” cover services by an entrepreneur entirely disassociated from a farm and who took title to the produce from the farmer prior to the processing.

Following the congressional amendments, our Labor Law was amended by Laws of 1940, chapter 837, so as to define the term “ farm laborer ”, as contained in Labor Law, section 502, in language almost identical with the definition of “ agricultural labor ” in the amendatory Federal statutes to which reference has just been made. The first time the expression agricultural labor ” was used by our Legislature was in Laws of 1941, chapter 669, and again the definition was substantially the same as in the aforesaid amendatory Federal statutes.

In the Federal statutes and in the paragraph- numbered (4) in subdivision 11 of section 502, quoted (supra), it is clear that Congress and the Legislature had in mind, and differentiated between, a “ market ” and a “ terminal market.” That was not accidental but studied and deliberate. The word “ market ” is used thrice and the term terminal market ” but once. "We must determine the meaning of “ market.” The Industrial Commissioner and the Attorney-General contend that it means the farmer’s market and that when the beans, as here, were sold by the farmer to Employer and title passed, they had at that moment reached their market.” That disposes, as far as we are concerned, of Regulation 106 of the Commissioner of Internal Revenue issued by authority of section 1429 of the Social Security Act (U. S. Code, tit. 26, § 1429) since that referred to the “ cleaning of beans as an incident to their preparation for market ”, regardless of by whom the service was performed. Here as we have pointed out, the services were, performed after the beans had reached the farmers’ market.

There has been no Federal court decision affecting the language under consideration here since the Federal amendments of 1939 and no decision by the highest court of any State affecting similar language.

It is not necessary to consider at length definitions of the word “ market.” Suffice it to say that the “ phrase to market, has a definite and well understood signification, and means to sell.” (Milliman v. Neher, 20 Barb. 37, 40; see, also, Ketchum v. The City of Buffalo, 21 Barb. 294, 298, affd. 14 N. Y. 356; Langdon v. Mayor, etc., of New York, 59 Hun 434, 437; Webster’s New International Dictionary [2d ed.].) We now turn to the term terminal market.” It is the ruling of the Industrial Commissioner that the term relates to a market operated by the farmer, wherein he distributes his products for consumption by the public. Thus if a farmer who raises fruits and vegetables upon his farm brings them, after the harvest, to a retail market operated by him in a nearby village or town, even though he retained title, the services of his employees are exempt only until his produce reaches that terminal market.” Thereafter, such services are not exempt, even though performed by the employees of the farmer. (See Matter of Thompson (Sagtikos Farm, Inc.), 262 App. Div. 792, affd. 288 N. Y. 595.)

We must not lose sight of the distinction between finished food products ” and finished “ farm products ” as defined in Agriculture and Markets Law, section 2, subdivision 3, and section 245, subdivision 1. A “ market ” is a place where finished farm products are purchased and sold. A “ terminal market for distribution for consumption ” is a place where finished food products are offered for sale for distribution to consumers. It is well to note at this point also that service rendered with respect to farm products in connection with commercial canning or commercial freezing carries no exemption, although performed by the employees of the farmer. The reason, as made clear by the statute, is that the farmer is not then having service performed “as an incident to farming operations ”. Since those services are not exempt, any more than service with respect to products after their delivery to a terminal market operated by the farmer, there can be no basis in reason or statutory language for the contention of Employer that the services of bean pickers, as employees of an entrepreneur entirely and completely disassociated from farming activities, are exempt. The invalidity of Employer’s argument is made more marked when we note that Employer is also engaged in quick freezing of fruits at three of its plants. The statutes were clearly aimed at relieving farmers while engaged in ordinary farming activities and while still the owners of their products. The illogical results flowing from the interpretation of the statute sought by Employer are pointed out in the opinion of the learned Justice who dissented below. It seems to us that the statutory declaration of the public policy of this State (Labor Law, § 501, formerly § 500) forbids such an interpretation as to these seasonally employed claimants. We have had occasion recently to point out that an official ruling by a State or Qity administrative office is entitled to great weight, unless manifestly incorrect, in connection with the application of a statute to a particular set of facts. (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104, 108.) That is particularly true in a case of novel court impression after a full and complete trial.

The order of the Appellate Division should be reversed, with costs, and the decision of the Unemployment Insurance Appeal Board confirmed.

Loughran, Ch. J., Desmond and Thacher, JJ., concur with Lewis, J.; Conway, J., dissents in opinion in which Dye, J., concurs; Lehman, Ch. J., deceased.

Order affirmed.

       The statute is now Labor Law, section 511, subdivision 6, paragraph (a), clause (4) (L. 1944, ch. 705).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Samuel Weinrib, Appellant, against David W. Beier, as Secretary of the State Board of Dental Examiners, et al., Respondents.
    Submitted October 8, 1945;
    decided October 25, 1945.

      Edward C. Weinrib and Samuel Lawrence Brennglass for motions.
    I. Unless a sentence is imposed and pronounced and a judgment of conviction entered thereon, there is no conviction in the eye of the law, where disabilities, disqualifications or forfeitures are to follow upon a conviction. (People v. Fabian, 192 N. Y. 443; Matter of Koehler & Co., v. Clement, 193 N. Y. 605; People ex rel. Marcley v. Lawes, 254 N. Y. 249; People ex rel. La Placa v. Murphy, 252 App. Div. 827, 277 N. Y. 581; People v. Harcq, 292 N. Y. 321; People v. Bork, 78 N. Y. 346; State Medical Board v. Rodgers, 190 Ark. 266; Page v. State Board of Medical Examiners, 141 Fla. 294; Donnell v. Board of Registration of Medicine, 128 Me. 523; Meyer v. Missouri Real Estate Commission, 183 S. W. 2d 342; Smith v. Virginia, 134 Va. 589; Matter of Ringnalda, 48 F. Supp. 975; Matter of Donegan, 282 N. Y. 285.) II. Cases involving revocation of licenses to practice law in disciplinary disbarment proceedings have no application to the question here presented. (Matter of Sugarman, 237 App. Div. 346; Matter of Gladstone, 267 App. Div. 670; Ex parte Wall, 107 U. S. 265; In re Elliott, 73 Kan. 151; In re Gottesfeld, 245 Pa. 314; Matter of Tarsey, 184 App. Div. 946; Matter of Lindheim, 195 App. Div. 827; Matter of Frankel, 264 App. Div. 299; Matter of Rabenold, 259 App. Div. 516.) III. The duty to construe the statute involved in this proceeding rests upon the court and cannot be delegated to any lay body. (Winchell v. Town of Camillus, 109 App. Div. 341; People v. Gamly, 170 App. Div. 702; Matter of O’Connor v. Emerson, 196 App. Div. 807, 232 N. Y. 561; City of New York v. New York City Ry. Co., 193 N. Y. 543.)

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Henry S. Manley and Sidney Tartikoff of counsel), opposed.
    I. The terms “ conviction ” and “ convicted ” as used in section 1311 of the Education Law mean merely a judicial finding of guilt, regardless of whether sentence is imposed or suspended. (McNeill’s Case, 1 Caines Rep. 72; Shepherd v. People, 25 N. Y. 406; People ex rel. Devoe v. Kelly, 97 N. Y. 212; People v. Cignarale, 110 N. Y. 23; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288.) II. “ Conviction ” and “ convicted ” are intended by the Legislature to mean the same for dentists as they do for attorneys. (Matter of Randel, 158 N. Y. 216; Matter of Rouss, 221 N. Y. 81; Matter of Cherry v. Board of Regents, 289 N. Y. 148; People v. Hawker, 152 N. Y. 234; Hawker v. New York, 170 U. S. 189; Matter of Lindheim, 195 App. Div. 827; Matter of Kaufmann, 195 App. Div. 830, 254 N. Y. 423; Matter of Rabenold, 259 App. Div. 516; Matter of Frankel, 264 App. Div. 299; Matter of Griffin, 249 App. Div. 381; Matter of Stein, 249 App. Div. 382; Matter of Newell, 157 App. Div. 907; Matter of Tarsey, 184 App. Div. 946; Matter of Sugarman, 237 App. Div. 346; Matter of Greenberger, 265 App. Div. 343; Matter of Gladstone, 267 App. Div. 670; Matter of Winett, 267 App. Div. 671.) III. Medical license cases from other States are not helpful to interpret “ conviction ” as used in a New York statute. (State Medical Board v. Rodgers, 190 Ark. 266; Page v. State Board of Medical Examiners, 141 Fla. 294; Donnell v. Board of Registration of Medicine, 128 Me. 523; Schireson v. State Board of Medical Examiners, 130 N. J. L. 570.)
   Per Curiam.

These are motions for leave to appeal from an order of the Appellate Division, Third Department, affirming unanimously an order of the Supreme Court, Albany County, denying an application under article 78 of the Civil Practice Act to review, vacate and annul the action and determination of the State Board of Dental Examiners and the Commissioner of Education of the State of New York, revoking the license of the petitioner to practice dentistry in the State of New York and confirming such action, and for an order staying all proceedings pending determination of the motion for leave to appeal.

Petitioner was licensed to practice dentistry in 1913. In 1943, while in a cafe in New York City, he shot his female companion and was thereafter indicted for an attempt to commit the crime of murder in the first degree and for assault in the first degree. In 1944, he pleaded guilty to the latter of the two crimes, a felony. The one assaulted recovered and settled with petitioner a civil action which she had brought to recover damages for her injuries. Thereafter, sentence was suspended and ■ petitioner was discharged from custody after having been placed upon probation for five years, with the added requirement that he submit to psychiatric treatment until certification was made to the probation department that further treatment was unnecessary.

Upon the transcript of the record of the Court of General Sessions of the County of New York, disclosing the plea of guilt and the suspension of sentence, as outlined above, the license of petitioner was forfeited and marked “ canceled ” pursuant to the provisions of Education Law, article 49, section 1311, subdivision 12. That section reads, in part, as follows: “ A conviction of felony shall forfeit a license to practice dentistry, and upon presentation to the department or a county clerk by any public officer or officer of a dental society of a certified copy of a court record showing that a practitioner of dentistry has been convicted of felony, that fact shall be noted on the record of license and clerk’s register, and the license and registration shall be marked * canceled. ’

We have presented to us the problem of deciding the meaning of the words convicted of felony ” in that particular section of the Education Law. It has been said that the question whether the word 1 conviction ’ in any particular statute shall be taken to include a suspended sentence, is one of legislative intention ”. (People ex rel. Marcley v. Lawes, 254 N. Y. 249, 254.) Again, we have said, in People v. Fabian (192 N. Y. 443, 449): This use of the term [‘ convicted ’], with varying meanings, even in the same statute, and extending right down to the immediate present, certainly demonstrates that there is no fixed signification which the courts are bound to adopt, and leaves us the utmost freedom of inquiry as to what was intended when the legislature was empowered to disfranchise convicted citizens.”

We have, upon occasion, interpreted the word conviction ” to mean a verdict or plea of guilt. Matter of Lewis v. Carter (220 N. Y. 8), where in construing Prison Law, section 211, we said (p. 16): “ The word ‘ convicted ’ or * conviction ’ is of equivocal meaning. It • may mean the adjudication of guilt whether by plea, finding or verdict. It may mean the adjudication and the judgment or sentence.” See, also, People ex rel. Spurio v. Foster, 293 N. Y. 820, construing section 219 of the Correction Law. In a disciplinary proceeding against a member of a profession, where the latter confesses in open court by formal plea of guilt the commission of a felony, it seems to us that the Legislature clearly intended that such plea constituted conviction of a felony, even though probation followed rather than commitment to prison.

The motions should be denied.


text:
    Kenneth Canfield, Individually and as President of Rock Drilling, etc., Local Union No. 17, et al., Respondents, v. Joseph V. Moreschi, Individually and as President of International Hod Carriers’, Building and Common Laborers’ Union of America, et al., Defendants, and James Bove, Individually and as Vice-President of International Hod Carriers’, Building and Common Laborers’ Union of America, et al., Appellants.
    Argued April 12, 1945;
    decided October 25, 1945.

      Edmond B. Butler, Raymond D. O’Connell, Edward T. Galloway, John M. Cashin and Arthur B. Ewig for International Hod Carriers’, Building and Common Laborers’ Union of America, appellant.
    I. The judgment finding the Internationa] guilty of a conspiracy has no foundation in fact, was not supported by any evidence and is predicated on reversible errors of the trial court. (Matter of Goebel, 263 App. Div. 516;
      Wright v. Delafield, 25 N. Y. 266; Southwick v. First Nat’l. Bank of Memphis, 84 N. Y. 420; McNeil v. Cobb, 186 App. Div. 177, 230 N. Y. 536.) II. The court erred in its findings of a conspiracy prior to March 6, 1942, because of the uncontradicted evidence of the termination of the conspiracy. III. In the complaint plaintiffs pleaded that the conspiracy had come to an end by March 6,1942. (Cuppy v. Ward, 187 App. Div. 625, 227 N. Y. 603.) IV. The court erred in receiving in evidence testimony as to what defendant Bove said and did, and using same as the basis for judgment in this case without any evidence being offered to establish the authority of Bove to bind the International. (Bussing v. Lowell Film Productions, Inc., 233 App. Div. 493, 259 N. Y. 593; Wells v. Chaffee, 207 App. Div. 467.) V. The court erred in holding that, assuming Moreschi and Bove had done illegal and unlawful acts, that, by virtue of their office, the International was bound by their acts. (Gervin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289; Anderson v. Metropolitan Life Ins. Co., 128 Misc. 144, 220 App. Div. 779.) VI. The court erred in considering the dishonesty of defendant Nuzzo as a responsibility of the International and in using it as a basis for calling it a conspirator. VII. The court erred in receiving into evidence the indictment and conviction of Nuzzo and using it against the International although allegedly receiving it only against Nuzzo. VIII. The judgment even as modified is too broad and indefinite. (Little v. Gallus, 39 App. Div. 646; Earl v. Brewer, 248 App. Div. 314.)

      Moses Polakoff for James Bove, individually and as vice-president of International Hod Carriers’, Building and Common Laborers’ Union of America, appellant.
    There was no evidence to substantiate the charge against Bove of an illegal intention or an illegal act directed against Local 17 or its members and there is no proof that any act of Bove’s damaged Local 17 or its members.

      Hyman N. Glickstein, Charles De La Vergne and Francis Martocci for respondents.
    I. The judgment below was clearly right and in accordance with the established law of this State.
      (Moore v. Moreschi, 179 Misc. 475, 265 App. Div. 989, 291 N. Y. 81; Dangel & Shriber, Law of Labor Unions [1941], p. 192; Local No. 7 v. Bowen, 278 F. 271; Mayer v. Hansen, 260 App. Div. 150, 285 N. Y. 832; Klein v. Morrin, 248 App. Div. 153, 273 N. Y. 553; Bricklayers’, Plasterers’ & Stone Masons’ Union v. Bowen, 183 N. Y. S. 855, 198 App. Div. 967; Polin v. Kaplan, 257 N. Y. 277; Nilan v. Colleran, 283 N. Y. 84; Reilly v. Hogan, 32 N. Y. S. 2d 864, 264 App. Div. 855, 289 N. Y. 855.) II. Moreschi and the International Union cannot be separated in responsibility from Bove or Nuzzo for conditions in Local 17. They are all equally responsible for the consequences of their conduct. Moreschi and Bove were clearly empowered to act for the International. (Moore v. Moreschi, 179 Misc. 475, 265 App. Div. 989, 291 N. Y. 81.) III. The International cannot, escape responsibility for the acts of Moreschi and Bove. (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588; Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 117; Weed v. Panama R. R. Co., 17 N. Y. 362; F. A. Bank v. F.-S. S. & G. S. F. R. R. Co., 137 N. Y. 231; Jarvis v. Manhattan Beach Co., 148 N. Y. 652; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Birkett v. Postal Telegraph-Cable Co., 107 App. Div. 115, 186 N. Y. 591; Wilmerding v. Postal Telegraph-Cable Co., 118 App. Div. 685, 192 N. Y. 580; Morrisson v. Chapman, 155 App. Div. 509; Nowack v. Metropolitan St. Ry. Co., 166 N. Y. 433; Stone v. Eisen Co., 219 N. Y. 205; Boyce v. Greely Square Hotel Co., 228 N. Y. 106; de Wolf v. Ford, 193 N. Y. 397; Aaron v. Ward, 203 N. Y. 351.) IV. The acts of the defendants Moreschi, Bove and the International in taking, over Local 17, superseding it's duly elected officers, prohibiting membership meetings and abolishing elections and financial accountings to the membership were in flagrant violation of the International and local constitutions and were wholly illegal. (Moore v. Moreschi, 179 Misc. 475, 265 App. Div. 989, 291 N. Y. 81.) V. The conspiracy against- Local 17 did not terminate on March 6, 1942, but continued to the institution of this action and the issuance of the injunction herein. VI. No errors were committed in the admission of evidence.
      (McGean v. Manhattan Railway Co., 117 N. Y. 219; Burke v. Baker, 188 N. Y. 561; Forrest v. Forrest, 25 N. Y. 561; Clapp v. Fullerton, 34 N. Y. 190; Sweet v. Henry, 175 N. Y. 268; Misner v. Strong, 181 N. Y. 163; Robins D. D. & R. Co. v. Navigazione L. Triestina, 261 N. Y. 455.) VII. The judgment is not too broad and indefinite.
   Per Curiam.

The limited injunction here granted against defendant International Union was appropriate and valid a procedural device for furnishing adequate protection to plaintiffs. We affirm the judgment, as against defendant International Union, on that sole ground. So doing, we find it unnecessary to pass, and do not in any way pass, on the correctness of any of the findings of fact or conclusions of law which purport to decide, or imply, that defendant International Union, or its members (other than its International officers) are responsible or liable for any of the wrongs committed against plaintiffs by the other defendants.

The judgment should be affirmed, with costs.

Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ., concur; Lehman, Ch. J., deceased.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Leo J. Alexander, Appellant.
    Submitted January 2, 1945;
    decided January 4, 1945.
   Motion by appellant to amend remittitur denied on the ground that in the opinion of the court the asserted Federal questions are not substantial. [See 293 N. Y. 870.]


text:
    The People of the State of New York ex rel. James Martine, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted January 2, 1945;
    decided January 11, 1945.

      James Martine, in person, for motion.
    No one opposed.
   Motion denied on the ground that habeas corpus is not the proper remedy.


text:
    Thompson-Winchester Co., Incorporated, Respondent, v. James Magee, Appellant.
    Submitted January 2, 1945;
    decided January 11, 1945.

      Harold Stern for motion.

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


text:
    In the Matter of Walter C. Voll, Appellant, against Frederick C. Helbing, as Superintendent of the New York State Vocational Institution, et al., Respondents.
    Submitted January 2, 1945;
    decided January 11, 1945.

      Nathaniel L. Goldstein, Attorney-General (Herman N. Harcourt of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, without costs.


text:
    Jay-Washington Realty Corporation, Respondent, v. Benjamin Koondel et al., Individually and as Copartners Trading as Koondel & Rubin Bros., Appellants.
    Submitted January 2, 1945;
    decided January 11, 1945.

      Leonard Belford for motion to dismiss appeal and in opposition to motion for leave to appeal.

      Meyer D. Siegel and Samuel S. Schwartz for motion for leave to appeal and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed, with costs and ten dollars costs of motion.

Motion for leave to appeal denied.


text:
    J. Freeman Dixon et al., Appellants and Respondents, v. New York Trap Rock Corporation, Respondent and Appellant.
    Submitted January 2, 1945;
    decided January 11, 1945.
   Motion for reargument denied with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 509.]


text:
    Victor F. Smith, Appellant, v. Harold Fonda, Defendant, and Shadinger & Redick Company, Inc., Respondent.
    Submitted January 2, 1945;
    decided January 11, 1945.

      Del B. Salmon for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Michael Sheriff, Respondent. Abraham K. Fleschner et al., as Officers and Directors of Albert A. Volk Company, Inc., Appellants.
    Submitted January 2, 1945;
    decided January 11, 1945.
   Motion by respondent to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows: “ Orders reversed and matter remitted to Special Term to try the issues of fact, with costs to the appellants in all courts.” [See 298 N. Y. 866.]


text:
    The People of the State of New York ex rel. John Scheer, Relator, against Blakely R. Webster, as Director of Dannemora State Hospital, et al., Respondents.
    Submitted January 2, 1945;
    decided January 11, 1945.

      John Scheer, in person, for motion.

      Frank S. Hogan, District Attorney, opposed.
   Motion denied on the ground that no appeal can be taken to this court.


text:
    Arc Engineering Corporation, Respondent, v. The State of New York, Appellant.
    ■ Submitted January 2, 1945;
    decided January 11, 1945.
   Motion for reargument denied with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 819.]


text:
    R. Sherrard Elliot, Jr., as Receiver of Yosemite Holding Corporation, Appellant, v. Wallace Groves, Respondent.
    Argued November 13, 1944;
    decided January 16, 1945.

      William C. Scott and Donald W. Smith for appellant.

      F. W. H. Adams, Abraham N. Geller and Bernard A. Saslow for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis and Desmond, JJ. Conway and Thacher, JJ., dissent for the reasons stated in the dissenting opinion in Equity Corp. v. Groves (294 N. Y. 8), decided herewith.


text:
    Arthur Murray, Individually and Doing Business under the Name of Arthur Murray's Studio, Appellant, v. Sylvia Cooper, Respondent.
    Submitted January 9, 1945;
    decided January 16, 1945.

      Louis F. Huttenlocher and Arthur M. Moritz for appellant.

      Copal Mintz for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dora Guinane et al., Appellants, v. Wade H. Becker, Doing Business under the Name of Becker Warehouse Company et al., Respondents.
    Submitted January 15, 1945 ;
    decided January 16, 1945.

      Joseph P. Feury, Richard W. Hannah and Edward M. Fuller for motion to dismiss appeal and in opposition to appellants’ motion.

      Joseph C. Thomson and John J. McGinty for motion for order permitting plaintiffs to prosecute appeal as poor persons, etc., and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal denied, without costs.

Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted.


text:
    The People of the State of New York, Respondent, v. Charles Kobryn, Appellant.
    Submitted January 2, 1945;
    decided January 16, 1945.
   Motion for reargument granted. The Court desires to hear reargument on the following question: “ In view of the fact that the indictment charges the defendant with crimes committed'in the United States post-office at Rochester, N. Y., did the County-Court of Monroe County have jurisdiction to try the indictment? ” [See 290 N. Y. 897.]


text:
    Benjamin H. Roth et al., Copartners under the Name of B. H. Roth & Co., Appellants, v. Milton Zaidenberg, Respondent.
    Submitted January 2, 1945;
    decided January 16, 1945.

      Henry Cohen for motion.

      Lloyd B. Kanter and Thomas F. Kiely opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion on the ground that the judgment does not finally determine the action within the meaning of the Constitution.


text:
    Michael Huzinek, Appellant, v. East Side Omnibus Corporation, Respondent.
    Submitted January 8, 1945;
    decided January 16, 1945.

      Harry Fieldsteel for motion.

      Jacob I. Goodstein opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that until judgment had been entered the action is still pending, and that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Estate of Brewer D. Phillips, Deceased. Bank of Jamestown, as Executor of Brewer D. Phillips, Deceased, et al., Appellants; Lewis C. Merrill, as Administrator of the Estate of Anna H. M. Phillips, Deceased, Respondent.
    Submitted January 9, 1945;
    decided January 16, 1945.
   Motion by respondent for reargument denied, with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 483.]


text:
    Sigurd Revheim et al., Appellants and Respondents, v. Samuel B. Shankman et al., Respondents and Appellants.
    Submitted January 8, 1945;
    decided January 16, 1945.
   Motion by plaintiffs-appellants and respondents for reargument denied, with ten dollars costs' and necessary printing disbursements. [See 293 N. Y. 850.]


text:
    Charles Chaplin, Suing on Behalf of Himself and All Other Stockholders of United Artists Corporation Similarly Situated, Respondent, v. David O. Selznick et al., Defendants, and David O. Selznick Productions, Inc., et al., Defendants-Appellants.
    Submitted January 8, 1945;
    decided January 16, 1945.
   Motion by defendant-appellant Vanguard Films, Inc., for reargument denied, with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 529.]


text:
    In the Matter of the Application of Samuel Lesser, Appellant. The People of the State of New York, Respondent.
    Submitted January 8, 1945;
    decided January 16, 1945.

      Samuel Lesser, in person, for motion.

      Frank S. Hogan, District Attorney (Alan J. Elliot of counsel), opposed.
   Motion denied on the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division.


text:
    Menkes Feuer, Inc., Respondent, v. Peoples Bank of Johnstown, N. Y., Appellant, et al., Defendants.
    Submitted January 15, 1945;
    decided January 16, 1945.

      Herman S. Axelrod for motion.

      Alfred D. Dennison opposed.
   Motion denied, with ten dollars costs.


text:
    Aaron Bogartz, an Infant, by Jacob Bogartz, His Guardian ad Litem, et al., Respondents, v. Vincent Astor, Respondent. Arcy Doll & Toy Manufacturing Company, Appellant: Travelers Insurance Company, Respondent.
    Submitted January 15, 1945;
    decided January 16, 1945.
   Motion by appellant to amend remittitur denied, with ten , dollars costs. [See 293 N. Y. 563, 763.]


text:
    The People of the State of New York, Respondent, v. Joseph Nisonoff and Max J. Weinstein, Appellants.
    Submitted January 15, 1945;
    decided January 16, 1945.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: “A question under the constitution of the United States was presented and necessarily passed upon. The appellant contended that the receipt in evidence of the medical examiner’s report and the testimony as to the cause of death based thereon violated the due process provision of the Fourteenth Amendment of the Constitution of the United States. This court held to the contrary.” [See 293 N. Y. 597.]


text:
    Eugene Hahn, Appellant, v. Luria Steel & Trading Corporation, Respondent.
    Submitted January 15, 1945;
    decided January 16, 1945.
   Motion granted and order of dismissal vacated, on condition that appellant file the return and pay ten dollars costs within ten days; otherwise motion denied, with ten dollars costs.


text:
    The People of the State of New York, Respondent, v. Robert E. Hammersmith, Appellant.
    Submitted January 15, 1945;
    decided January 16, 1945.

      Robert E. Hammersmith, in person, for motion.
    No one opposed.
   Motion denied on the ground that the order sought to be appealed is not appealable to this Court.


text:
    Guaranty Trust Company of New York, as Trustee, Appellant, v. Jane L. Armstrong, Respondent, et al., Defendants.
    Argued January 2, 1945;
    decided February 21, 1945.

      Otis T. Bradley and Patrick J. Kearney for appellant.

      Philip J. Maron, Colman Gray and J. David Delman for respondent.
   Judgment affirmed, with costs payable out of the fund; no opinion.

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


text:
    In the Matter of Board of Education of Central School District No. 1, Town of Somers, Westchester County, New York, Appellant, against George D. Stoddard, as Commissioner of Education of the State of New York, Respondent.
    Argued January 4, 1945;
    decided February 21, 1945.

      Harry H. Chambers for appellant.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Orrin G. Judd of counsel), for respondent.
   Order affirmed, with costs; no opinion. We do not pass on the question, of the procedure adopted by the petitioner-appellant.

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


text:
    Martin Debold, Respondent, v. Frank C. Kinscher, Individually and as Executor of Johannah McL. Debold, et al., Appellants, et al., Defendants.
    Submitted January 4, 1945;
    decided February 21, 1945.

      Edward E. Freiberger for Marie A. Smith, appellant.

      Morris A. Sidikman for Frank C. Kinscher, appellant.

      Benjamin Cohn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sarah V. Kinney, Appellant, v. John Hancock Mutual Life Insurance Company, Respondent.
    Counsel appeared January 4,1945;
    decided February 21, 1945.

      La Verne Orvis for appellant.

      Lester T. Hubbard for respondent.
   Application for leave to withdraw appeal granted on condition that the appellant pay to the respondent taxable disbursements within twenty days ; otherwise, order affirmed and judgment absolute ordered on the stipulation, with costs in all courts. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Alfred Kruger, Appellant.
    Submitted January 9, 1945;
    decided February 21, 1945.

      George W. Herz for appellant.

      Charles P. Sullivan, District Attorney (James F. T. Delaney of counsel), for respondent.
   Judgments reversed and information dismissed on the ground that the evidence is not sufficient to sustain the conviction. No opinion.

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


text:
    Milton Maurer et al., Appellants, v. The Board of Education of the City of New York, Respondent.
    Argued January 3, 1945;
    decided February 21, 1945.

      Ralph Stout, Louis Rothbard and Sanford L. Gore for appellants.

      Ignatius M. Wilkinson, Corporation Counsel (Fred Iscol and Joseph F. Mulqueen, Jr., of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Isidore Orenstein, Appellant, v. Bankers Trust Company, as Trustee, Respondent, et al., Defendants.
    Argued January 8, 1945;
    decided February 21, 1945.

      Jay Leo Rothschild and Abraham Rotwein for appellant.

      John P. Carson and Reginald V. Spell for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis, Thacher and Dye, JJ. Conway and Desmond, JJ., dissent on the ground that under the terms of this lease requiring, as it did, that the landlord “ make all exterior repairs ”, the landlord should be held to have been “ in charge of ” the exterior of the building and to have failed to comply with section 202 of the Labor Law.


text:
    Arnold Abravanel, an Infant, by Jack D. Abravanel, His Guardian ad Litem, et al., Respondents, et al., Plaintiffs, v. Ohrbach’s Inc., Appellant.
    Submitted January 10, 1945;
    decided February 21, 1945.

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

      Arthur N. Seiff and Samuel Justin Jackman for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Morris R. Ward, Appellant, v. Mary Bochino, Respondent.
    Submitted January 15, 1945;
    decided February 21, 1945.

      Oscar J. Brown for motion.

      Frederick W. Fuess, Jr., opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order of the Appellate Division does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Elwood R. Rigby, Defendant, and Continental Casualty Company, Appellant.
    Submitted January 15, 1945;
    decided February 21, 1945.
   Motion by appellant for reargument denied. [See 293 N. Y. 912.]


text:
    Board of Education of Union Free School District No. 3, Town of Eastchester, Appellant and Respondent, v. Board of Education of City of Mount Vernon, Respondent and Appellant.
    Argued January 15, 1945;
    decided March 1, 1945.

      Arthur H. Ellis for defendant-respondent and appellant.

      Saul Wilchins for Board of Education of Union Free School District, No. 2, Town of Eastchester, N. Y., amicus curiæ in support of defendant-appellant.

      Chester B. McLaughlin and James S. Bennett for plaintiff-appellant and respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. City Bank Farmers Trust Company, as Trustee, Appellant, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued January 15, 1945;
    decided March 1, 1945.

      Alfred H. Hetkin and Alexander Rubin for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Oscar L. Tucker, Arthur H. Goldberg and Philip A. Paulson of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    City of New Rochelle, Respondent, v. Echo Bay Waterfront Corporation, Appellant.
    Argued January 9, 1945;
    decided March 1, 1945.

      Albert Ritchie for appellant.

      Aaron Simmons, Corporation Counsel (Francis S. Claps of counsel), for respondent.
   Judgment affirmed, with costs; no opinion. [See 294 N. Y. 771.]

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


text:
    The People of the State of New York, Respondent, v. Salvatore Oddo, Appellant.
    Submitted January 10, 1945;
    decided March 1, 1945.

      Louis Kaye for appellant.

      Frank S. Hogan, District Attorney (Richard G. Denzer and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Elizabeth Noone, formerly Elizabeth Moss, Respondent, v. Fred Perlberg, Inc., Appellant.
    Argued January 15, 1945;
    decided March 1, 1945.

      Saul Gordon and Eli Davidoff for appellant.

      John Kirkland Clark, Edward T. Welch and Xavier N. Sardaro for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Tina S. Rosine et al., Appellants, v. The Richmond County Federal Savings and Loan Association, Respondent.
    Argued January 15, 1945;
    decided March 1, 1945.

      Francis P. Heffernan for appellants.

      William E. Lyons for respondent.
   Judgment of Appellate Division reversed and that of Trial Term affimed, with costs in this court and in the Appellate Division. Whether or not the defect in question was discoverable upon reasonable inspection was properly submitted to the jury as a question of fact. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Madeline Webb, Appellant.
    Argued January 9, 1945;
    decided March 1, 1945.

      Arnold Cohen and I. Maurice Wormser for appellant.

      Frank S. Hogan, District Attorney (Richard G. Denzer and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Defiance Paper Company, Respondent; Rollin Browne et al., Constituting the Tax Commission of the State of New York, Appellants.
    Argued January 16, 1945;
    decided March 1, 1945.

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

      Charles U. Pochel for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Nathan Magida, Appellant, v. United States Fidelity & Guaranty Company et al., Respondents, et al., Defendants. United States Fidelity & Guaranty Company, Plaintiff, v. Concourse Enterprises, Inc., et al., Defendants.
    Argued January 8, 1945;
    decided March 1, 1945.

      Frederick E. Crane and Alvin C. Cass for plaintiff-appellant.

      John E. F. Wood and Herbet N. Monkemeyer for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of William Rossley, as Administrator of the Estate of Michael Rossley, Deceased, Appellant. Julia Wright et al., Respondents.
    Argued January 16, 1945;
    decided March 1, 1945.

      Joe Schapiro for appellant.

      Ronald J. Dunn for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Estate of Carolyn A. Newton, Deceased. Francis O. Affeld, Jr., as Executor, Appellant; State Tax Commission, Respondent.
    Argued January 16, 1945;
    decided March 1, 1945.

      Murray Sendler, Frank Sowers and John H. Conroy for appellant.

      Ignatius M. Wilkinson, Corporation Counsel, Murray Sendler and John H. Conroy for The New York City Teachers’ Retirement System, amicus curiæ in support of appellant.

      John H. Conroy and Murray Sendler for The Joint Committee of Teachers’ Organizations of The City of New York, amicus curiæ in support of appellant.

      Mortimer M. Kassell and Paul Newman for respondent.
   Order affirmed, without costs: no opinion.

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


text:
    Eugene T. Singer, Appellant, v. The Yokohama Specie Bank, Limited, Defendant, and Elliott V. Bell, as Superintendent of Banks of the State of New York, Respondent.
    Submitted January 8, 1945;
    decided March 1, 1945.
   Motion by respondent for reargument denied, with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 542.]


text:
    In the Matter of the Claim of Hazel Sheppard, Made on Behalf of Reginald Fludd, Respondent, against Albert J. Demps et al., Appellants. State Industrial Board, Respondent.
    Argued February 19, 1945;
    decided March 1, 1945.

      Nathaniel L. Goldstein, Attorney-General (Isaac Frank of counsel), for motion to dismiss appeal and in opposition to cross motion.

      Floyd Coursen for cross motion and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed, with costs, and ten dollars costs of motion.

Motion to amend notice of appeal denied. [See 294 N. Y. 772.]


text:
    Samuel Schiff, Appellant, v. Bella R. Schiff, Respondent.
    Submitted February 19, 1945;
    decided March 1, 1945.

      Harry Geffner and Charles Rothenberg for motion.

      Edmund B. McGarvey opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the orders do not finally determine the action within the meaning of the Constitution.


text:
    New York Trap Rock Corporation et al., on Behalf of Themselves and All Other Creditors of Borough Asphalt Company, et al., Respondents, v. National Bank of Far Rockaway, Appellant.
    Submitted February 19, 1945;
    decided March 1, 1945.
   Motion by respondents for reargument denied, with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 776, 884.]


text:
    The People of the State of New York ex rel. Tony Lovaglia, Relator, against Walter B. Martin, as Warden of Attica State Prison, Defendant.
    Submitted February 19, 1945;
    decided March 1, 1945.

      Tony Lovaglia, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (Emil L. Cohen of counsel), opposed.
   Motion dismissed on the ground that the orders are not appealable to this court.


text:
    In the Matter of New York State Guernsey Breeders’ Co-operative, Inc., Respondent, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    Submitted February 19, 1945;
    decided March 1, 1945.

      Irving G. Hubbs and Merritt A. Switzer for motion.

      Robert G. Blabey and Donald L. Brush opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion on the ground that the order does not finally determine the proceeding within the meaning of the Constitution


text:
    People ex rel. Michael Asaro, Appellant, against Vernon A. Morhous, as Warden of Great Meadow Prison, Respondent.
    Submitted February 19, 1945;
    decided March 1, 1945.

      Nathaniel L. Goldstein, Attorney-General (George A. Badz of counsel), for motion to dismiss appeal and in opposition to appellant’s motion.

      Michael Asaro, in person, for motion to prosecute appeal as a poor person and in opposition to respondent’s motion.
   Motion to dismiss appéal granted and appeal dismissed on the ground that no appeal to this court lies as of right.

Motion for leave to prosecute appeal as a poor person denied.


text:
    George A. Langan, as Trustee in Bankruptcy of Onondaga Litholite Company, Appellant, v. First Trust & Deposit Company et al., Respondents.
    Submitted February 19, 1945;
    decided March 1, 1945.
   Motions by respondents for reargument denied, with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 604.]


text:
    In the Matter of John A. Elkins, Appellant, against Evelyn S. Elkins, Respondent.
    Submitted February 19, 1945;
    decided March 1, 1945.

      Charles V. D. Siegel, for motion.

      Edward G. Dillon and Ernest B. Morris opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Beatrice M. Montayne, Appellant, v. State of New York, Respondent.
    (Claim No. 25996.)
    Submitted February 19, 1945;
    decided March 1, 1945.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd of counsel), for motion.

      Beatrice M. Montayne, in person, opposed.
   Motion to dismiss appeal from judgment of Court of Claims granted and appeal dismissed upon the ground that an appeal from that judgment is still pending in'the Appellate Division. Appeal from the order of the Appellate. Division denying leave to prosecute an appeal to that court as a poor person dismissed on the ground that the order does not finally determine the action within the meaning of the Constitution. ' :


text:
    The People of the State of New York, Respondent, v. Joseph Nisonoff and Max J. Weinstein, Appellants.
    Submitted February 19, 1945;
    decided March 1, 1945.
   Motion by appellants for1 reargument denied. [See 293 N. Y. 597.]


text:
    In the Matter of the Claim of Gertrude Manville, Appellant, against New York State Department of Labor et al., Respondents.
    Submitted February 19, 1945;
    decided March 1, 1945.
   Motion by respondent State Insurance Fund to amend remittiture denied, with ten dollars costs. [See 294 N. Y. 1.]


text:
    Grombach Productions, Inc., Respondent, v. Fred M. Waring, Appellant.
    Submitted February 19, 1945;
    decided March 1, 1945.
   Motion by respondent for reargument denied, with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 609.]


text:
    Ethel G. Becker, Appellant, v. Walter W. Becker, Respondent.
    Submitted February 19, 1945;
    decided March 1, 1945.

      Edmund S. Brown for motion.
    No one opposed.
   Motion granted.


text:
    R. H. Baker Co., Inc., Respondent, v. The State of New York, Appellant.
    (Claim No. 21927.)
    Argued January 10, 1945;
    decided March 8, 1945.

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

      Charles B. Sullivan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of LeRoy Moore, Sr., Appellant, against Earl H. Gallup, as County Judge of the County of Albany, et al., Respondents.
    Submitted February 26, 1945;
    decided March 8, 1945.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: A question under the Federal Constitution was presented and necessarily passed upon. The appellant contended that section 1897, chapter 88 of the Laws of 1909 of the State of New York entitled “ Penal Law and the Acts amendatory thereof were repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States. The appellant also contended that the construction accorded such provision of the Laws of the State of New York by the respondents herein and by the Court of this State in passing upon this case was in violation of said Fourteenth Amendment. This Court held that the laws in question and the construction accorded the same herein were not repugnant to such constitutional provisions. [See 298 N. Y. 846.]


text:
    The People of the State of New York, Respondent, v. William Scanlon, Appellant.
    Submitted March 5, 1945;
    decided March 8, 1945.

      William Scanlon, in person, for motion to prosecute appeal as a poor person and in opposition to cross motion.

      Charles P. Sullivan, District Attorney (James F. T. Delaney of counsel), for cross motion and in opposition to appellant’s motion.
   Motion for leave to prosecute appeal as a poor person upon typewritten records denied.

Motion to dismiss appeal granted and appeal dismissed on the ground that no appeal lies from the order to this court.


text:
    Angelina Rivera, an Infant, by Carmen Rivera, Her Guardian ad Litem, et al., Appellants, v. Third Avenue Transit Corporation, Respondent.
    Submitted March 5, 1945;
    decided March 8, 1945.

      Jerome Golenbock for motion.

      Goodwyn Kuyk for respondent.
   Motion denied on the ground that the appeal does not present any questions that this court may review.


text:
    Courtney M. Mabee et al., Appellants, v. White Plains Publishing Company, Inc., Respondent.
    Submitted March 5, 1945;
    decided March 8, 1945.
   Motion by appellants for reargument denied. Motion by appellants to amend the remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: Upon this appeal there was presented and necessarily passed upon the question whether the respondent was engaged in interstate commerce or in the production of goods for interstate commerce within the meaning of the Fair Labor Standards Act of 1938. This court held that the respondent was not engaged in interstate commerce or in the production of goods for interstate commerce within the meaning of the Fair Labor Standards Act of 1938. [See 293 N. Y. 781.]


text:
    Graybar Electric Company, Inc., Respondent, v. New Amsterdam Casualty Company, Appellant.
    Submitted March 5, 1945;
    decided March 8, 1945.
   Motion by appellant to amend remittitur granted. Return of remittitur requested and when returned it will be amended so as to provide that the motion of defendant be granted on the merits and that final judgment on the merits be entered in favor of defendant and against plaintiff. [See 292 N. Y. 246.]


text:
    In the Matter of David Rubin, Appellant.
    Submitted March 5, 1945;
    decided March 8, 1945.

      David Rubin, in person, for motion.
    No one opposed.
   Motion denied on ground no appeal lies to this court from either of the orders.


text:
    Elizabeth J. Campbell, Respondent, v. Gertrude Brown et al., Defendants, and Duncan M. Lindsay, Appellant.
    Submitted March 5, 1945;
    decided March 8, 1945.

      Orville R. Dunn for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless the appellant Lindsay serves and files the required undertaking for costs and pays ten dollars costs of the motion within ten days, in which event the motion is denied.


text:
    Dan Schwartz, Respondent, v. Michael Todd, Appellant.
    Argued February 27, 1945;
    decided April 5, 1945.

      Harold J. Sherman and I. Jack London for appellant.

      Joseph J. Jacobs and Milton C. Jacobs for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Edmund J. Donegan, an Attorney, Respondent Association of the Bar of the City of New York, Appellant. In the Matter of Max N. Koven, an Attorney, Respondent. Association of the Bar of the City of New York, Appellant.
    Argued February 28, 1945;
    decided April 5, 1945.

      Chester B. McLaughlin and Einar Chrystie for appellant.

      Barent L. Visscher for Edmund J. Donegan, respondent.

      Jacob L. Holtzmann for Max N. Koven, respondent.
   In each proceeding: Order affirmed with costs. No opinion.

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


text:
    In the Matter of Catherine M. P. Collery, Appellant, against Teachers' Retirement Board et al., Respondents.
    Argued February 19, 1945;
    decided April 5, 1945.

      Thomas A. Dwyer for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Joseph G. De Vito and Joseph F. Mulqueen, Jr., of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of Martha E. Dodds, Deceased. Edith Murray et al., Appellants; James N. Dodds, Respondent.
    Argued February 21, 1945;
    decided April 5, 1945.

      Charles W. Jenkins for appellants.

      Frederick W. Youmans for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Lena Schneider, as Administratrix of the Estate of Morris Schneider, Deceased, Appellant, v. Brooklyn Bus Corporation, Respondent.
    Argued February 26, 1945;
    decided April 5, 1945.

      Myron Wisoff and Harry Gittleson for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (W. Bernard Richland of counsel), for respondent.
   Judgments reversed and a new trial granted, with costs in all courts to the appellant to abide the event, upon the ground that the issues of negligence and contributory negligence were properly submitted to the jury. No opinion.

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


text:
    Evelyn De Persia et al., Respondents, v. Merchants Mutual Casualty Company, Appellant, and Automobile Club Discount Corporation, Impleaded Defendant.
    Argued February 27, 1945;
    decided April 5, 1945.

      Arthur K. Wing and James G. Purdy for appellant.

      Solomon R. Agar and Seymour Kempner for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Wallace A. Kroyer, Appellant, against J. Edward Conway et al., Constituting the Civil Service Commission of the State of New York, Respondents.
    Argued March 1, 1945;
    decided April 5, 1945.

      Henry K. Chapman and Wallace A. Kroyer, in person, for appellant.

      Nathaniel L. Goldstein, Attorney-General (John C. Crary, Jr., Orrin G. Judd and Alfred V. Thayer of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of David Kaselman, as Committee of the Estate of Frances Ginsberg, an Incompetent Person, Appellant; Josephine M. Cain, as Special Guardian, et al., Respondents.
    Argued February 19, 1945;
    decided April 5, 1945.

      Abraham I. Nelson for appellant.

      John E. Gruning for Josephine M. Cain, as special guardian, respondent.

      R. Elliott Davis and Thomas E. White for Fidelity and Deposit Company of Maryland, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of David E. Berg, Respondent, against Harold W. Marsh et al., as Commissioners of the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued February 26, 1945;
    decided April 5, 1945.

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

      Samuel W. Sherman, for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Federal Waste Paper Corp. et al., Respondents, v. Garment Center Capitol, Inc. et al., Appellants.
    Argued March 1, 1945;
    decided April 5, 1945.

      Leslie Kirsch and Samuel Bader for Garment Center Capitol, Inc., appellant.

      Francis M. Verrilli for Frank Granieri, appellant.

      Sidney S. Allen and Harold H. Straus for respondents.
   Order affirmed, with costs, and questions certified answered in the affirmative; no opinion.

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


text:
    In the Matter of Clement Javete, Respondent, against Board of Superintendents of the Board of Education of the City of New York et al., Appellants.
    Argued February 19, 1945;
    decided April 5, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Joseph G. De Vito, Joseph F. Mulqueen, Jr. and Edna Glassman of counsel), for Board of Superintendents of the Board of Education of the City of New York and others, appellants.

      George D. Hornstein for Irma E. Mohr, appellant.

      Austin B. Mandel for respondent.
   Order affirmed, without, costs; no' opinion.

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


text:
    Emil Keller, as President of Local Union No. 504 of the Brotherhood of Painters, Decorators and Paperhangers of America, et al., Appellants, v. Laurence P. Lindelof, as President of the Brotherhood of Painters, Decorators and Paperhangers of America, et al., and as Members of the Executive Board of Said Brotherhood, et al., Respondents.
    Argued February 28, 1945;
    decided April 5, 1945.

      David I. Asche for appellants.

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

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


text:
    In the Matter of the Liquidation of Lawyers Title and Guaranty Company. Park Financial Corporation, Appellant; Superintendent of Insurance of the State of New York, as Liquidator et al., Respondents.
    Argued March 1, 1945;
    decided April 5, 1945.

      Jay Leo Rothschild and Louis I. Hochstein for appellant.

      William J. Butler, Robert Gerbracht, Jr., and Cloyd Laporte for Dollar Savings Bank of the City of New York, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Milton Pinkus, Appellant, against Village of Hempstead et al., Respondents.
    Argued February 19, 1945;
    decided April 5, 1945.

      Milton Pinkus, appellant in person.

      Stephen Crane West for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Michael J. Lonergan, Appellant, against John J. McElligott, as Fire Commissioner of the City of New York and as Trustee of the New York Fire Department Relief Fund, Respondent.
    Argued February 20, 1945;
    decided April 5, 1945.

      Joseph H. Robins and Maxwell M. Booxbaum for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Anna Howarth et al., Respondents, v. City of New York, Appellant.
    Argued February 26, 1945;
    decided April 5, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Francis A. Fullam, Jr., and Joseph F. Mulqueen, Jr. of counsel), for appellant.

      Edward Lazansky and Ralph Stout for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bush Terminal Buildings Company, Respondent, v. Bush Terminal Railroad Company, Appellant.
    Argued February 27, 1945;
    decided April 5, 1945.

      Frederick E. Crane, Arthur Garfield Hays, John Schulman, Osmond K. Fraenkel and Morris Shilensky for appellant.

      Charles E. Cotterill and Abner J. Grossman for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Bernard Rosenberg, Appellant.
    Submitted March 1, 1945;
    decided April 5, 1945.

      Maurice Edelbaum for appellant.

      William O’Dwyer, District Attorney (Solomon A. Klein of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the Claim of Jay Velie, Respondent. Ted Collins Corporation, Appellant; Edward Corsi, as Industrial Commissioner, et al., Respondents.
    Argued February 20, 1945;
    decided April 5, 1945.

      Myron Engleman for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran and Orrin G. Judd of counsel), for Edward Corsi, as Industrial Commissioner, respondent.

      Mortimer Becker for claimant, respondent.

      George S. Herr and Oscar McPeak for General Foods Sales Co., respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of William W. Browne, Appellant, against Incorporated Village of Hempstead et al., Respondents.
    Argued February 19, 1945;
    decided April 5, 1945.

      Thomas F. Hyland for appellant.

      Milton Pinkus for respondents.
   Appeal dismissed, without costs, on the ground that the asserted constitutional question discussed by the appellant is not presented by the record.

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


text:
    Isaak Rubinstein et al., on Behalf of Themselves and Others, Appellants, v. Jamaica National Bank of New York et al., Respondents.
    Submitted February 26, 1945;
    decided April 5, 1945.

      I. Robert Shniper for appellant.

      William E. Kennedy and James Adikes for Jamaica National Bank of New York, respondent.
   Judgment affirmed, with costs; nó opinion. [See 294 N. Y. 843.]

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


text:
    In the Matter of Albert H. Henderson, Respondent, against Fiorello H. La Guardia et al., Constituting the Board of Estimate of the City of New York, Appellants.
    Argued February 27, 1945;
    decided April 5, 1945.

      Ignatius M. Wilkinson, Corporaton Counsel (W. Bernard Richland and Pauline K. Berger of counsel), for appellants.

      Sidney A. Fine and Max Rosner for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Arnold Reuben, Inc., Respondent, against State Liquor Authority et al., Appellants.
    Argued February 28, 1945;
    decided April 5, 1945.

      Henry V. Doell, Elvin N. Edwards and John Di Leonardo for appellants.

      A. Walter Socolow, Benjamin Pepper and Arthur Goodman for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Louise Van Roo, Respondent, v. Elizabeth Van Roo, Appellant.
    Argued February 27, 1945;
    decided April 5, 1945.

      William G. Easton for appellant.

      Goodman A. Sarachan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    David Ross et al., Appellants, v. Charles B. Greenberg et al., Respondents, et al., Defendants.
    Argued February 28, 1945;
    decided April 5, 1945.

      Louis Freedman for appellants.

      Lucien Nemser for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Emigrant Industrial Savings Bank, Respondent, v. Willow Builders, Inc., Appellant, et al., Defendants.
    Submitted March 5, 1945;
    decided April 5, 1945.
   Motion by appellant for reargument denied, with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 905.]


text:
    Margaret Walsh, Respondent, v. James P. Keenan, Appellant, et al., Defendants.
    Submitted March 5, 1945;
    decided April 5, 1945.
   Motion by respondent for reargument denied, with ten dollars costs and necessary printing disbursements. [See 293 N. Y. 573.]


text:
    825 Fifth Avenue Corporation, Respondent, v. James F. Egan, Public Administrator of New York County, as Administrator of the Estate of Esther S. Miller, Deceased, Defendant, and Plainfield Hotel Corporation et al., Appellants.
    Submitted March 5, 1945;
    decided April 5, 1945.

      James P. Kohler, Jr., for motion.

      Albert A. Raphael opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements upon the ground that the orders do not finally determine the action within the meaning of the Constitution.


text:
    Russell B. Malcolm, Appellant, v. Maurice C. Vedder, Respondent.
    Submitted April 2, 1945;
    decided April 5, 1945.

      Oscar J. Brown for motion to dismiss the appeal and in opposition to cross motion.

      Raymond M. Bush for cross motion and in opposition to motion to dismiss.
   Motion to dismiss appeal denied.

Motion for leave to prosecute appeal as a poor person granted.


text:
    John Hurd, Respondent, v. Republic Steel Corporation, Appellant.
    Argued March 6, 1945;
    decided April 12, 1945.

      Casper V. Baltensperger, Patrick S. Mason, Bernard Katzen and William F. O’Rourke for appellant.

      Wallace J. Stakel and Wendell J. Brown for United States Gypsum Company, amicus curiæ, in support of appellant’s position.

      William L. Clay for respondent.
   Appeal dismissed, with costs on the ground that the certified question is not a question directly presented in the -court below, and an answer to the certified question might still leave open other questions decided by the court below as a basis of the order appealed from.

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


text:
    Vincenta J. Esposito, Individually and as Executrix of Maria Esposito, Deceased, Respondent, v. Frank Esposito, Appellant.
    Argued March 7, 1945;
    decided April 12, 1945.

      Jacob Zelenko and Lewis A. Rosen for appellant.

      Thomas P. Dooney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Maria Esposito, Deceased. Frank Esposito, Appellant; Vincenta J. Esposito, as Executrix of Maria Esposito, Deceased, Respondent.
    Argued March 7, 1945;
    decided April 12, 1945.

      Jacob Zelenko and Lewis A. Rosen for appellant.

      Thomas P. Dooney for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Jack P. Dietz, Appellant.
    Argued March 8, 1945;
    decided April 12, 1945.

      Jacob Shientag for appellant.

      Frank S. Hogan, District Attorney (Whitman Knapp and Harold Roland Shapiro of counsel), for respondent.
   Order affirmed. (See People v. Gersewitz, 294 N. Y. 163, decided herewith.) No opinion.

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


text:
    Radiocoin Company, Inc., Appellant, v. Luria Steel & Trading Corporation, Respondent.
    Argued March 6, 1945;
    decided April 12, 1945.

      Elliot F. Glassberg for appellant.

      John J. Cunneen and S. F. Peavey, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mabel Garrow, as Administratrix of the Estate of Goldie R. Garrow, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 27602.)
    Argued March 7, 1945;
    decided April 12, 1945.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison, Orrin G. Judd and Arthur W. Mattson of counsel), for appellant.

      Francis B. Cantwell and B. Gregory Brewster for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Zora Realty Company, Appellant, v. Metropole Food Corporation, Respondent.
    Argued March 8, 1945;
    decided April 12, 1945.

      Irving L. Kalish and Edward E. Reichman for appellant.

      Jacob J. Alexander for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Shapiro, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.
    Argued February 20, 1945;
    decided April 12, 1945.

      Eugene T. O’Neill and Leo D. Fitzgerald for appellant.

      Sidney J. Loeb for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Lehman, Ch. J., Loughran, Desmond and Thacher, JJ. Lewis and Conway, JJ., dissent on the ground that the plaintiff who was serving a life sentence was “ civilly dead ” and did not have the legal capacity to sue. (Penal Law, § 511; Matter of Pallas, 291 N. Y. 692; Matter of Lindewall, 287 N. Y. 347; Green v. State of New York, 278 N. Y. 15; Avery v. Everett, 110 N. Y. 317.) Taking no part: Dye, J.


text:
    The People of the State of New York ex rel. Hearn Department Stores, Inc., Appellant, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    Argued February 27, 1945;
    decided April 12, 1945.

      Israel Hoffman and Eugene J. Schwartz for appellant.
    - Ignatius M. Wilkinson, Corporation Counsel (Oscar L. Tucker and Arthur H. Goldberg of counsel), for respondents.
   Order of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division. The weight of evidence supports the findings of value made at Special Term. No opinion.

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


text:
    Henry Vollmer, Jr., as Trustee in Bankruptcy of Casper M. Bower, Appellant, v. Walter Seligman, Respondent.
    Argued March 6, 1945;
    decided April 12, 1945.

      Benjamin A. Chorosh and Martin Winter for appellant.

      Wm. Dwight Whitney, Harold R. Medina, Jr., and Jack W. Robbins for respondent.
   Judgment affirmed, with costs upon the ground that there was no proof of any breach of the agreement alleged in the thir-' teenth paragraph of the complaint. No opinion.

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


text:
    Menkes Feuer, Inc., Respondent, v. Peoples Bank of Johnstown, Appellant, et al., Defendants.
    Argued March 7, 1945;
    decided April 12, 1945.

      Alfred D. Dennison for appellant.

      Kerman S. Axelrod for respondent.
   Judgment affirmed, with costs. The question of statutory construction argued in the briefs is not presented upon this record. No opinion.

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


text:
    In the Matter of the Application of Theodore Drivas, Appellant. Frank E. Johnson, a Justice of the Supreme Court of the State of New York, Respondent.
    Submitted March 8, 1945;
    decided April 12, 1945.

      Benjamin Reass and Julien W. Newman for petitioner-appellant.

      Aristotle Souval, Michael H. Cardozo, Jr., and Samuel Kaufman for Nicholas C. Lekas and another, defendants in action.
   Order affirmed, without costs; no opinion.

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


text:
    J. Amos House et al., Appellants, v. Celia Hornburg, Respondent.
    Argued February 21, 1945;
    decided April 12, 1945.

      Frederick W. Fuess, Jr., and Barton C. Meays for appellants.

      Clarence Z. Spriggs and James Stafford for respondent.
   Judgment affirmed, with costs, upon the ground that the plaintiffs as brokers failed to establish that they had produced a buyer who accepted the terms of the defendant in respect to the time for the closing of title. We pass upon no other question. No opinion.

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


text:
    Constance Noreck, an Infant, by Cecelia Noreck, Her Guardian ad Litem, et al., Appellants, v. Theodore Fronczak et al., Constituting the Board of Trustees of Common School District No. 10 of the Town of Cheektowaga, Respondents.
    Argued March 6, 1945;
    decided April 12, 1945.

      William Brennen, Jr., for appellants.

      Hugh McM. Russ for respondents.
   Judgments reversed and a new trial granted, with costs in all courts to the appellants to abide the event. There was evidence from which the jury could have found that at the time of the injuries, the infant plaintiff was invited upon the defendants’ property, and that the defendants failed in their duty to exercise reasonable care to maintain the place in a safe condition for her use. No opinion.

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


text:
    Edmond Crimi, Respondent, v. R. H. Macy & Co., Inc., Appellant, et al., Defendants.
    Argued March 7, 1945;
    decided April 12, 1945.

      Samuel E. Swiggett for appellant.

      Myron Wisoff, Henry J. Beilman and Jack C. Wilner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. W. Kintzing Post et al., as Trustees under the Will of Mary M. Jones, Deceased, Appellants, against William S. Miller et al., as Tax Commissioners of the City of New York, Respondents. Bank for Savings in the City of New York, Respondent. The People of the State of New York ex rel. W. Kintzing Post et al., as Trustees under the Will of Mary M. Jones, Deceased, Appellants, against William S. Miller et al., as Tax Commissioners of the City of New York, Respondents. Bank for Savings in the City of New York, Respondent. The People of the State of New York ex rel. James H. Sharp, as Committee, Relators, against William S. Miller et al., as Tax Commissioners of the City of New York, Respondents.
    (Assessment for 1934)
    (Assessment for 1935)
    (Assessment for 1937)
    Argued March 5, 1945;
    decided April 12, 1945.

      Julian S. Bush and Leon R. Jillson for appellants.

      Louise E. Abbott and John J. Redfield for Bank for Savings in the City of New York, respondent.
   Appeal dismissed, with costs, on the ground that the order does not finally determine the proceedings within the meaning of the Constitution. No opinion.

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


text:
    Grace Miller et al., Appellants, v. Winchester Noyes, Respondent.
    Argued March 6, 1945;
    decided April 12, 1945.

      William P. Cotter and Joseph J. Brophy for appellants.

      Walter L. Glenney for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Solomon Jaffa, Respondent, v. Concord-Sayville Corp., Defendant, and Frederick A. Sindeband, Appellant.
    Argued March 7, 1945;
    decided April 12, 1945.

      Martin M. Kolbrener for appellant.

      Joseph Richter for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Horace Wright, Appellant.
    Argued March 1, 1945;
    decided April 12, 1945.

      William Leibowitz for appellant.

      Frank S. Hogan, District Attorney (Whitman Knapp and Alan J. Elliot of counsel), for respondent.
   Judgment affirmed; no opinion.

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