text:
    Raymond Concrete Pile Company, Respondent, v. Federation Bank and Trust Company, Appellant.

      Argued April 30, 1942;
    decided July 29, 1942.

      John W. Davis, Morris Buchter, Sidney Abrams, Harold M. Hoffman and Laurence Eliot Bunker for appellant.
    Even if all the proceeds of the check are held to be trust funds for the benefit of all “ subcontractors, architects, engineers, surveyors, laborers and materialmen,” whether lienors or not, the bank is not liable since it was neither an actual nor a constructive trustee. (American Laundry Machinery Co. v. Union Trust Co., 153 Misc. Rep. 55; Bischoff v. Yorkville Bank, 218 N. Y. 106; Clarke v. Public Nat. Bank & Trust Co., 259 N. Y. 285; Barclay v. Corn Exchange Bank Trust Co., 155 Misc. Rep. 684; 243 App. Div. 692; 267 N. Y. 630; Vulcan Rail & Constr. Co. v. County of Westchester, 250 App. Div. 212; Bonham v. Coe, 249 App. Div. 428; 276 N. Y. 540; American Lumberman’s Mut. Cas. Co. v. Bradley Constr. Co., 127 N. J. Eq. 500.) Plaintiff is not a beneficiary of the trust created by section 25a of the Lien Law (Cons. Laws, ch. 33) and cannot maintain the action. (Holy Trinity Church v. United States, 143 U. S. 457; Edison Electric Illuminating Co. v. Frick Co., 221 N. Y. 1; Hitchings v. City of New York, 182 App. Div. 28; Grutzner v. Howard,
      167 Misc. Rep. 540; Mack v. Colleran, 136 N. Y. 617; Amiesite Constr. Corp. v. Luciano Contr. & Bldg. Co., 284 N. Y. 223; O’ Neill v. Seglin Constr. Co., 158 Misc. Rep. 742; 248 App. Div. 684; 273 N. Y. 549; New York Trap Rock Corp. v. National Bank of Far Rockaway, 260 App. Div. 1035.) The funds the plaintiff seeks to reach were not trust funds even in the hands of the contractor corporation. (Williamson & Adams, Inc., v. McMahon-McEntegart, Inc., 256 App. Div. 313; Giersch v. Grady, 85 Conn. 685; Trustees of M. E. Church v. Trustees of Jackson Sq. Church, 84 Md. 173, Meyers v. New York County Nat. Bank, 36 App. Div. 482; Delano v. Equitable Trust Co., 110 Misc. Rep. 704; Commercial Savings Bank v. Mann, 206 App. Div. 297; 238 N. Y. 559; Hinds Co. v. Common School District No. 3, 242 App. Div. 158.) Such funds are “ trust ” funds only in the hands of the contractor. (American Laundry Machinery Co. v. Union Trust Co., 153 Misc. Rep. 55; Sexauer & Lemke v. Burke & Sons Co., 228 N, Y. 341; Bischoff v. Yorkville Bank, 218 N. Y. 106; Clarke v. Public Nat. Bank & Trust Co., 259 N. Y. 285.)

      Horace R. Lamb for respondent.
    Plaintiff having proved that the defendant had knowledge that the proceeds of the city’s check was a trust fund and that a portion of the trust fund was diverted to defendant, plaintiff is entitled to a decree impressing the diverted fund with a constructive trust. (Fogarty v. City of Albany, 157 Misc. Rep. 30; Bischoff v. Yorkville Bank, 218 N. Y. 106; Grace v. Corn Exchange Bank Trust Co., 287 N. Y. 94; Van Alen v. American National Bank, 52 N. Y. 1; Roca v. Byrne, 145 N. Y. 182; National Bank v. Insurance Co., 104 U. S. 54; Union Stock Yards Bank v. Gillespie, 137 U. S. 411; Fidelity & Deposit Co. v. Queens County Trust Co., 226 N. Y. 225; Allen v. Puritan Trust Co., 211 Mass. 409.) Plaintiff as an unpaid beneficiary of the trust may maintain a representative suit on behalf of all beneficiaries of the trust without alleging or proving that it filed notice of lien for its claim or that it had recovered a judgment against the contractor for the amount of its claim. (Martin v. Home Bank, 160 N. Y. 190; Persky v. Bank of America Nat. Assn., 261 N. Y. 212; Wickes Boiler Co. v. Godfrey-Keeler Co., 121 Fed. Rep. [2d] 415; Edison Electric Illuminating Co. v. Frick Co., 221 N. Y. 1; Clapper v. Strong, 90 App. Div. 536; Bischoff v. Yorkville Bank, 218 N. Y. 106; Grace v. Corn Exchange Bank Trust Co., 287 N. Y. 94.) The duties imposed upon the defendant bank in respect of the trust under section 25-a do not constitute an undue or improper burden; on the contrary, the defendant’s conduct unfairly burdens beneficiaries of the trust and subjects the contractor and its officers to possible criminal liability. (Bischoff v. Yorkville Bank, 218 N. Y. 106.)
   Rippey, J.

On July 7, 1939, plaintiff commenced this action in equity, on its own behalf and on behalf of those similarly situated who might elect to come in and share the burdens of the action, against the defendant bank to impress a trust under section 25-a of the Lien Law (Cons. Laws, ch. 33) upon moneys received on February 17, 1939, by a contractor for a public improvement, deposited in its general checking account in the defendant bank and applied by the bank on February 20, 1939, in payment of an indebtedness of the contractor to the bank, and to recover the alleged diversion of the fund. At the close of the trial the complaint was dismissed. The Appellate Division reversed the judgment entered upon the decision of the Special Term and granted judgment for the plaintiff. At the close of the plaintiff’s case the defendant rested and introduced no evidence. Upon the testimony introduced by the plaintiff it may be deemed that the following facts were established.

Prior to October 15, 1938, L. P. O’Connor, Inc., entered into a contract with the city of New York for the foundation work, including excavation, for the new Criminal Courts Building for approximately one and three-quarters million dollars. The bank then knew that the contractor would be required to purchase materials but did not know that it would employ sub-contractors. The contractor had an ordinary general deposit account in the defendant bank which originated in December, 1937. The contract called for payment by the city from time to time upon warrants and certificates as the work progressed, such payments usually being made between the fifteenth and twentieth of each month. From time to time between the intervals of such payments by the city during the progress of the work under the contract, the contractor borrowed money from the defendant for the purpose of aiding it in its performance of the contract, which borrowings were evidenced by promissory notes the proceeds of which were deposited in the contractor’s account and used by the contractor for the purposes of the contract. It was the agreement between the contractor and the bank that such interim advances should be paid out of moneys as and when received from the city. Among such deposits were the proceeds of six certain promissory notes, made subsequent to the January payment by the city, aggregating $72,500, and severally maturing between February 20, 1939, and March 20, 1939. On February 16, 1939, the contractor had overdrawn its account and was told by an officer of the bank that it must make the overdraft good, whereupon the contractor suggested and the defendant bank agreed to the suggestion that the former execute and deliver to the defendant a new promissory note, dated February 17, 1939, payable upon demand to the order of the defendant in the principal sum of $78,000, the proceeds of which were to be deposited in the contractor’s account in liquidation of the note obligation and overdraft indebtedness and that the demand note should be paid out of the proceeds of a payment from the city on account of the contract which was shortly to be made. Accordingly, the demand note was executed and delivered to the bank and credited to the contractor’s account at the opening of business on the morning of February 17, 1939, in payment of the six promissory notes and the overdraft and the bank returned these notes to the contractor.

On February 17, 1939, the city of New York executed and delivered its warrant and order to the contractor on the Chase National Bank on account of the aforesaid contract in the sum of $178,088.38, the amount of the estimate for the work done and. materials furnished under the contract in January, 1939. The warrant and order or check were endorsed by the contractor for deposit and deposited in its account with the defendant and collected by the defendant through the clearing house on the same day. The defendant knew that the check so deposited represented a payment by the city upon the construction contract. On Monday morning, February 20, in accordance with its agreement with the contractor, defendant offset the contractor’s obligation of $78,000 represented by the demand note against the contractor’s credit balance in its account. Between February 17 and February 23 the contractor drew various checks upon its account which were paid by the bank in regular course but to whom and for what purposes does not appear and none of the recipients are parties defendant in this action. During that period the contractor made no deposits other than the check from the city with the defendant bank and all of those checks, plus the demand note, were paid out of the proceeds from the city’s check. When the defendant made its offset there was a credit balance in the contractor’s account of $139,106.68. The contract with the city was not completed until after February, 1939, and the foregoing payment by the city was not a final payment under the contract.

L. P. O’Connor, Inc., subcontracted a part of the work to the • plaintiff in this action. On January 31, 1939, there was due the plaintiff from the contractor for work done and materials furnished under the subcontract for the month of January, 1939, at least $80,344.54. On February 22, 1939, the contractor delivered to the plaintiff its check, dated February 21, 1939, on the defendant bank, payable to the order of the plaintiff in that amount. At the opening of business on February 23, 1939, plaintiff presented that check to the defendant bank for certification but certification by defendant was refused on the ground that there were then insufficient funds of the maker on deposit in the bank with which to pay the check.

Section 25-a of the Lien Law upon which the plaintiff relies for recovery reads as follows: “ The funds received by a contractor for a public improvement are hereby declared to constitute trust funds in the hands of such contractor to be applied first to the payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen arising out of the improvement, and to the payment of premiums on surety bond or bonds filed and premiums on insurance accruing during the making of the improvement and any contractor and any officer, director or agent of any contractor who applies or consents to the application of such funds for any other purpose and fails to pay the claims herein-before mentioned is guilty of larceny and punishable as provided in section thirteen hundred and two of the penal law.”

Plaintiff took the position at the trial and has successfully maintained the position in the court below that the moneys received by the contractor from the city and placed in its personal depository account at the bank constituted in fact and in law a true trust fund under section 25-a of the Lien Law and necessarily known by the bank to be such; that the bank was estopped to deny knowledge that its application of $78,000 thereof to the payment of the contractor’s demand note was a diversion of the fund; that, having received a benefit from the diversion, the bank is chargeable with knowledge of any facts that might have been discovered by reasonable inquiry; and that, irrespective of any denial of actual knowledge, since the bank benefited by the diversion, it is subject to the requirements of the law to restore to the trust the funds which it received for its personal benefit. There is no evidence in the case whether or not the bank made any inquiry to determine if there were in existence any beneficiaries of the fund when the offset was made.

It may be stated as a general rale that a banker who knows that a fund on deposit with him is a trust fund cannot appropriate that fund for Ms private benefit (Allen v. Puritan Trust Co., 211 Mass. 409, 422), nor can a bank be privy to a diversion of such a fund, though dismterested in it, and be absolved from liability for the loss (Bischoff v. Yorkville Bank, 218 N. Y. 106, 112; Grace v. Corn Exchange Bank Trust Co., 287 N. Y. 94, 100). Many cases on varying facts might be cited as authority for those propositions. But one who relies upon the application of those prmciples must always affirmatively establish that the bank had notice or knowledge not only that the moneys on deposit were for a trust purpose but also that they were diverted from that purpose (Clarke v. Public Nat. Bank & Trust Co., 259 N. Y. 285; American Lumberman’s Mutual Casualty Co. v. Bradley Construction Co., 129 N. J. Eq. 278).

From the facts in this case no trust or fiduciary relationsMp between the contractor and Ms sub-contractor arose or existed under the common law. If plaintiff may succeed on the pleadings and the proof as presented, it must be found that the Legislature intended by the enactment of section 25-a to create a trust relationship wMch would give rise to a cause of action in behalf of the sub-contractor wMch he would not otherwise have under the common law or under any other provision of the lien Law or under any other statutory provision. The most that the statute does or was designed to do in that respect is to create the possibility of a fiduciary relationship arising between the contractor as to funds coming into his hands from a public improvement contract and a possible sub-contractor or possibly others designated. The statute does not give rise to a fiduciary relationship between a contractor and his sub-contractor or, if once created, continue it under any and all contingencies. Whether the moneys in the hands of the contractor are or may be the subject-matter of a trust depends exclusively upon the fact, arising, existing and shifting according to time and circumstance, that the contractor fails to pay the claims mentioned in the section. Nothing in the section bars the contractor from using the moneys received for any purpose he may see fit provided he does not fail to pay all such claims out of other moneys which he may then have or which he may afterwards receive; and nothing in the section bars a banker from applying moneys, if on deposit in the contractor’s account at the bank, without inquiry, upon the contractor’s indebtedness to the bank. It necessarily follows that no trust arises under that section from the mere fact that the contractor received and has in his hands moneys in payment on account of a public improvement.

There is no evidence in the case to indicate that the defendant knew or had any reasonable grounds to suspect prior to February 23, 1939, either that the plaintiff was a sub-contractor in connection with such improvement work or that it had any claim at any time for work, labor and services performed or materials furnished in connection therewith or that any other person referred to in section 25-a of the Lien Law had any such claim. Without such evidence, there was no basis in the record for the judgment requiring defendant to return the moneys which it received in payment of the obligation of the contractor (Clarke v. Public Nat. Bank & Trust Co., supra). When the deposit was made in the contractor’s personal account, a presumption arose, upon which the defendant was entitled to rely, that the fund was not a trust fund and that there was no beneficiary entitled to any portion thereof and that presumption continued until annulled by knowledge or adequate notice to the contrary. There is neither evidence nor finding by the court or claim by plaintiff of bad faith on the part of the bank in making the offset. In the circumstances disclosed by the record as above indicated, upon the agreement, based on adequate consideration, that it might satisfy the indebtedness of the contractor out of the specific moneys coming from the city, the bank had the right to make the offset without inquiry and an undisclosed beneficiary mentioned in section 25-a of the Lien Law could not recover from the bank whether or not the bank had changed its position by the operation (Hatch v. Fourth Nat. Bank, 147 N. Y. 184; Barclay v. Com Exchange Bank Trust Co., 267 N. Y. 630).

A reason, other than lack of evidence, bars successful maintenance of this action. The origin, legislative history, wording and character of section 25-a of the Lien Law, when construed with other provisions of law relating to the same subject-matter, indicate that the Legislature had no intent or purpose to create a new civil remedy. By section 2 of chapter 515 of the Laws of 1929, section 36 was added to the Lien Law and provided that an owner may not divert funds ” received by him under advances made pursuant to a building loan contract and secured by a building loan mortgage ■ from payment for the cost of the improvement, and any owner and-any officer, director or agent of any owner who before all liens are paid or discharged applies or consents to the application of such funds for any purpose except to paying the cost of improvement is guilty of a misdemeanor.” That section was amended in 1930 (L. 1930, ch. 859, § 17). The title was changed to read “ Owner who diverts funds guilty of larceny.” The section was made further applicable to funds advanced to an owner under a mortgage and application of such funds for any purpose other than paying for the cost of the improvement prior to the paying of such cost made the owner “ guilty of larceny and punishable as provided in section thirteen hundred and two of the penal law.” The section was also amended in 1932 (L. 1932, ch. 627, § 9). The amendment added these words, and by an . owner under every instrument of conveyance containing the covenant required by subdivision five of section thirteen of this chapter.” In 1930 the Legislature added two new sections to the Lien Law, sections 36-a and 36-b (L. 1930, ch. 859, § 18). Section 36-a provided that the funds received by a contractor from an owner for the improvement of real property are hereby declared to constitute trust funds in the hands of such contractor to be applied first to the payment of claims of subcontractors, architects, engineers, surveyors, laborers and material-men arising out of the improvement, and to the payment of premiums on surety bond or bonds filed and premiums on insurance accruing during the making of the improvement and any contractor and any officer, director or agent of any contractor who applies or consents to the application of such funds for any other purpose and fails to pay the claims hereinbefore mentioned is guilty of larceny and punishable as provided in section thirteen hundred and two of the penal law.” Section 36-b, as amended by chapter 696 of the Laws of 1933, limits the funds received by a subcontractor from an owner or contractor or subcontractor for the improvement of real property to payment of the claims of subcontractors, laborers or materialmen only but otherwise is in the identical wording of section 36-a. The Legislature added new subdivision “ (6) ” to section 25 of the Lien Law in 1930 (L. 1930, ch. 859, § 15), in its present form. That amendment, except as it is limited to funds received by the contractor for advances pursuant to an assignment of moneys and does not relate to advances or payments covered by the foregoing sections, is in the identical words of those sections. Sections 25-a and 25-b were added as new sections to the Lien Law in 1932 (L. 1932, ch. 627, § 8). The first provides that a contractor on public improvements who diverts funds is guilty of larceny and the second that a subcontractor is similarly guilty, the first section being in the identical wording of section 36-a and the second of 36-b except that both are specifically made applicable to moneys received from contracts on public improvements. The last two sections were probably added to the Lien Law since some question had arisen as to whether or not sections 36-a and 36-b related to moneys received from both public and private improvements or only to moneys received from private improvements.

All of the foregoing sections have exactly the same purpose which is declared in the title of the several acts in substantially the same words and in identical words in the bodies of all sections. It is plainly pointed out in all of them that the purpose and intent of the Legislature was to add a contractor or a sub-contractor, who had used moneys received by him from public or private improvements or an owner who had received moneys for the purpose of a private improvement without paying existing claims of persons mentioned in those sections to the class of persons against whom penalties are provided in section 1302 of the Penal Law. All sections were directed against and made applicable only to owners, contractors or sub-contractors with designated funds in their hands. Those sections of the Lien Law and section 1302 of the Penal Law must be read and construed together. Section 1302 gives a measure of protection against a fiduciary who converts property held in trust and, by virtue of those sections of the Lien Law, some protection to persons mentioned in those sections who have not seen fit to take advantage of other provisions of the Lien Law or of other remedies which they might have invoked. Beyond the penalty imposed for the commission of the crime of larceny, it provides for the imposition of a fine “ not exceeding the value of the property so misappropriated or stolen, with interest thereon from the time of the misappropriation, withholding, or concealment, and twenty per centum thereupon, in addition, and to be imprisoned for not more than five years in addition to the term of his sentence for larceny, according to this article, -unless the fine is sooner paid,” and directs that so much of such fine, as and when collected, as amounts to the amount or value of the property taken, appropriated, or stolen with interest from the time of the commission of the offense plus a reasonable sum to defray the expense of collecting the same shall be paid over to the person injured or defrauded. The purpose of the sections as may readily be seen is solely penal and not to provide civil remedies. Civil remedies are adequately provided by other sections of the Lien Law or by the common law. A contractor or a subcontractor or an owner included within the provisions of those sections was not included within the class of persons punishable under section 1302 of the Penal Law until he was made so by those sections of the Lien Law. In clear terms those sections were not intended to create a real trust fund to remain such under any and all contingencies from the time the contractor or sub-contractor first received payment on account of public or private improvements respectively. Those sections create no new causes of action. Every one of the persons mentioned for whose protection the sections are claimed to have been enacted may sue the contractor or the sub-contractor or the owner, as the case may be, as though the sections had never been enacted. No intent is found to create two concurrent remedies, one civil and the other penal under section 1302, for the same wrong. The intent to create one remedy under section 1302 is clear.

In the only case in which the question was reached in this court we held that an individual claimant could not maintain an action under section 25-a (New York Trap Rock Corp. v. National Bank of Far Rockaway, 285 N. Y. 825). We must now conclude that no civil representative action is created by that section and that it does nothing more than to bring an offender under that section within the coverage of section 1302 of the Penal Law. The intent and purpose of the Legislature as to its scope seems reasonably clear. The section being highly penal must be strictly construed (People v. Benc, 288 N. Y. 318). Though section 23 requires a liberal construction of the provisions of the Lien Law, it does not authorize judicial amendment so as to enlarge its clearly defined scope and purpose (Spruck v. McRoberts, 139 N. Y. 193, 197; Sexauer & Lemke v. Burke & Sons Co., 228 N. Y. 341, 345).

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

Lehman, Ch. J., Loughran, Finch, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    United States Trust Company of New York, Appellant, v. Frederick T. Frelinghuysen et al., Respondents.

      Argued June 15, 1942;
    decided July 29, 1942.

      M’Cready Sykes and George L. Shearer for appellant.
    The liability being founded on a sealed instrument, defendants are estopped to attack the instrument on a claim of absence of consideration. (Cochran v. Taylor, 273 N. Y. 172; Baird v. Baird, 145 N. Y. 659; Fuller v. Artman, 69 Hun, 546; Matter of Levy, 169 Misc. Rep. 785; Helmick v. Probst, 170 Misc. Rep. 284.) Irrespective of the binding character imparted to the instrument by the seal, actual consideration was conclusively shown. (Atlantic Nat. Bank of New York v. Franklin, 55 N. Y. 235; Walton Water Co. v. Walton, 207 App. Div. 708; Strong v. Sheffield, 144 N. Y. 392; Houswald v. Katz, 222 App. Div. 651; Brumm v. Gilbert, 50 App. Div. 430; Wood v. Duff-Gordon, 222 N. Y. 88; Surace v. Danna, 248 N. Y. 18; Price v. Spielman Motor Sales Co., 261 App. Div. 626; Merritt v. Todd, 23 N. Y. 28.)

      Lloyd F. Thanhouser, R. Randolph Hicks and Nicholas J. Campbell, Jr., for respondents.
    Plaintiff’s own evidence proved thal there was in fact no consideration for defendants’ undertaking. (McGovern v. City of New York, 234 N. Y. 377; Strong v. Sheffield, 144 N. Y. 392; Atlantic Nat. Bank v. Franklin, 55 N. Y. 235; Glahn v. Clark, 251 App. Div. 747; Brumm v. Gilbert, 50 App. Div. 430.) Plaintiff was not entitled to any presumption of consideration for the instrument in suit. (Weeks v. Elser, 143 N. Y. 374; Matter of Pirie, 198 N. Y. 209; Empire Trust Co. v. Heinze, 242 N. Y. 475; Transbel Investing Co. v. Venetos, 279 N. Y. 207; Cochran
      v. Taylor, 273 N. Y. 172; Brooklyn Public Library v. City of New York, 222 App. Div. 422 ; 250 N. Y. 495; Howie v. Kasnowitz, 83 App. Div. 295; Recknagel v. Steinway, 58 App. Div. 352; Mockowick v. Kansas City Ry. Co., 196 Mo. 550; Matter of Matthews, 143 App. Div. 561; Johnson v. Miln, 14 Wend. 195; Mann v. Eckford’s Executors, 15 Wend. 502; Fay v. Richards, 21 Wend. 626; Olin v. Arendt, 27 Misc. Rep. 270; Hull v. Hull, 172 App. Div. 287; 225 N. Y. 342; Harris v. Shorall, 230 N. Y. 343.)
   Loughran, J.

Prior to September 1, 1935, the former section 342 of the Civil Practice Act made this provision: “A seal upon an executory instrument is only presumptive evidence of a sufficient consideration, which may be rebutted as if the instrument was not sealed.” This case presents questions as to the scope and effect of that former text.

The action is one for a judgment declaring the respective rights and legal relations of the parties under a so-called collateral bond which the defendants delivered to the plaintiff on February 16, 1932. This bond is an instrument under seal. Plaintiff won at Special Term where the court found that “ such instrument was executed and delivered for a valuable consideration.” On appeal by the defendants, the Appellate Division said: “ As defendants’ bond was under seal there was a presumption of consideration in view of the provisions of section 342 of the Civil Practice Act in effect at the time the instrument was executed. Plaintiff, however, upon the trial, did not rest upon this presumption, but introduced evidence setting forth all of the facts in connection with the execution of the bond. * * * Under the circumstances whatever presumption was raised by statute merged into the issue of fact raised by plaintiff’s own proof. Presumptions are indulged in to supply the place of facts. They are never allowed against ascertained and established facts. When these appear, presumptions disappear. * * * Upon the proof submitted we find that consideration was lacking.” (262 App. Div. 259, 261.) For the reasons so stated, the complaint was dismissed. An appeal by the plaintiff to this court followed.

We cannot accept the foregoing reasoning of the Appellate Division. At common law the failure of an expected consideration was no defense to an action on a sealed executory instrument (Dorlan v. Sammis, 2 Johns. 179; Dorr v. Munsell, 13 Johns. 430). The former section 342 carried over the substance of earlier statutes which abolished that rule. (Case v. Boughton, 11 Wend. 106; Tallmadge v. Wallis, 25 Wend. 107; Morgan v. Smith, 7 Hun, 244; 70 N. Y. 537.) At common law a sealed instrument was good without consideration when a voluntary obligation was thereby intended.. The former section 342 and its predecessors re-declared that principle (Cochran v. Taylor, 273 N. Y. 172). The collateral bond which the defendants gave to the plaintiff was said by them to be a gratuitous sealed obligation. Hence they were estopped from asserting any want of consideration therefor. (Cochran v. Taylor, supra.)

We have not overlooked the cases wherein a mortgagor has been allowed to defend a foreclosure action on the ground of original lack of consideration, notwithstanding the presence of a seal upon the mortgage. The reason for this discrimination is fairly evident: a statutory prosecution for the collection of a debt answers no purpose when the alleged debt never had an actual existence. (See Briggs v. Langford, 107 N. Y. 680; Baird v. Baird, 145 N. Y. 659, 664.)

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

Lehman, Ch. J., Finch, Rippey, Lewis and Desmond, JJ., concur; Conway, J., dissents and votes to affirm on opinion below.

Judgment accordingly.


author: Rippey, J. Lehman, Ch. J.

text:
    In the Matter of Kramer & Uchitelle, Inc., Respondent. Eddington Fabrics Corporation, Appellant. In the Matter of Kramer & Uchitelle, Inc., Respondent. M. Lowenstein & Sons, Inc., Appellant. In the Matter of Kramer & Uchitelle, Inc., Respondent. Classic Mills, Inc., Appellant.
    Submitted February 24, 1942;
    decided July 29, 1942.

      Irving D. Lipkowitz and William Hughes Lewis for appellants.
    Where an admittedly valid agreement is made providing for arbitration of any controversy thereafter arising under or in relation to the agreement and a genuine dispute arises over the non-per-' formance of the agreement the court must compel and may not stay arbitration. (Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261; D. & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250; Fudickar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392; Berizzi Co. v. Krausz, 239 N. Y. 315; Matter of Wenger & Co. v. Propper, Silk Hosiery Mills, Inc., 239 N. Y. 199; Matter of Hines [Ziegfeld], 222 App. Div. 543.) Under the agreements in the instant cases, ■ admittedly valid when made, the question of the alleged discharge of the agreements by supervening events is a matter for the arbitrators and not the court. (Matter of Kahn [National City Bank], 284 N. Y. 515; Matter of Bullard v. Grace Co., 240 N. Y. 388; Matter of Pierce & Brown Buick Co., 258 App. Div. 679; 283 N. Y. 669; Matter of Cheney Bros. v. Joroco Dresses, Inc., 245 N. Y. 375; Matter of Exeter Mfg. Co. v. Marrus, 254 App. Div. 496; Matter of Wenger v. Propper Silk Hosiery Mills, Inc., 239 N. Y. 199.) The courts below having concluded that the petitioner met the burden imposed by section 1458 of the Civil Practice Act, they were bound to order an immediate trial of the issues and were without power to dispense with such a trial. (Matter of Manufacturers Chemical Co. v. Caswell, Strauss & Co., 259 App. Div. 321; Matter of Universal Film Exchanges, Inc., v. King, 144 Misc. Rep. 708;
      103 Park Ave. Co. v. Exchange Buffet Corp., 203 App. Div. 739; Oppenheim v. Thanasoulis, 123 App. Div. 494.)

      Abraham Mann and Joseph Yaspan for respondent.
    The contracts were nullified by the ruling of the Price Administrator and all of their provisions, including the arbitration clauses, are at an end. (Varagnolo v. Partola Mfg. Co., 209 App. Div. 347 ; 239 N. Y. 621; Mawhinney v. Millbrook Woolen Mills, 231 N. Y. 290; Nitro Powder Co. v. Agency of C. C. & F. Co., 233 N. Y. 294; Adler v. Miles, 69 Misc. Rep. 601; Mulji v. Cheong Yue Steamship Co. [1926] App. Cas. 497; Matter of Metro Plan, Inc., v. Miscione, 257 App. Div. 652.) Whether a valid contract to arbitrate is in existence or not is a question for the court, and not arbitrators, to decide. (Matter of Berkovitz . v. Arbib & Houlberg, 230 N. Y. 261; Matter of Hesslein & Co. v. Greenfield, 281 N. Y. 26; Finsilver, Still & Moss v. Goldberg, M. & Co., 253 N. Y. 382; Matter of Metro Plan, Inc., v. Miscione, 257 App. Div. 652; Matter of Universal Film Exchanges, Inc., v. King, 144 Misc. Rep. 708; Matter of A. E. Fire Ins. Co. v. N. J. Ins. Co., 240 N. Y. 398; Matter of Zimmerman v. Cohen, 236 N. Y. 15.) It was a proper exercise of discretion on the part of the judges at Special Term to dispense with unnecessary trials of nonexistent issues. (Finsilver, Still & Moss v. Goldberg, M. & Co., 253 N. Y. 382; Matter of Peterson, 253 U. S. 300; Davis v. Zimmerman, 91 Hun, 489; Riglander v. Star Co., 98 App. Div. 101; 181 N. Y. 531; Mahnk v. Blanchard, 233 App. Div. 555; Matter of Bernstein [Abrams], 176 Misc. Rep. 563.)
   Rippey, J.

Although the foregoing were separately instituted and separately prosecuted proceedings under article 84 of the Civil Practice Act, argument thereof was consolidated in the court below and in this court, the same questions are involved in all of them and they will be treated as one consolidated proceeding in our opinion here.

On June 18 and 19, 1941, the petitioner-respondent, Kramer & Uchitelle, Inc., entered into four separate written contracts severally with appellants, Eddington Fabrics Corporation, M. Lowenstein & Sons, Inc., and Classic Mills, Inc., affiliated corporations, generally similar in form as to all features affecting the decision here, by which appellants agreed to buy and the petitioner agreed to sell 365,000 yards of plaincloths, woven cuts as far as practicable, of specified count, width, weight and quality at 8.9375 cents per yard for 40,000 yards, 9 cents per yard for 150,000 yards and at 9.8 cents per yard for the balance, net ten days, F.O.B. mill, delivery to be made on order by installments during the months of August and September, 1941, subject to the provisions of Standard Cotton Textile Sale Note (with Specification G), which was made a part of the agreement. The “ plaincloths ” referred to in the contracts were Cotton Gray Goods.” Each contract contained a clause that “ any controversy arising under or in relation to this contract shall be settled by arbitration. If the parties are unable to agree respecting time, place, method or rules of the arbitration, then such arbitration shall be held in the city of New York in accordance with the laws of the State of New York and the rules then obtaining of the General Arbitration Council of the Textile Industry.”

On April 11, 1941, the President of the United States, in accordance with authority vested in him by the Congress as affecting the emergency, issued Executive Order No. 8734, establishing the Office of Price Administration and Civilian Supply (OPACS) in the Executive Office of the President and defined its duties and functions and, pursuant thereto, appointed Mr. Leon Henderson as Administrator. On June 27, 1941, Administrator Henderson, by due authority, issued Price Schedule No. 11, which pertained to “ Cotton Gray Goods,” effective June 28, 1941, which read in part as follows: 1316.2 Maximum Prices Established for Cotton Grey Goods, (a) On and after June 30, 1941, regardless of any commitment theretofore entered into, no person shall sell or deliver, or offer to sell or deliver, any Cotton Grey Goods, and no person shall buy or accept delivery of or offer to buy or accept delivery of, any Cotton Grey Goods at a price exceeding the maximum prices set forth in 1316.7.” The price established in 1316.7 was 8.037 cents per yard. No party here challenges the validity of the order and all parties construe it as applicable to existing contracts.

When the delivery dates arrived, the seller refused the demands of the purchasers to make deliveries at the “ maximum price set forth ” in the order of the Price Administrator on the groqnds that performance of the contract had been forbidden by law and nonperformance had been excused. The buyers served demands on the seller that it submit the matter to arbitration. Thereupon the seller moved in each case for a stay of arbitration pursuant to section 1458 of the Civil Practice Act upon the grounds that by the order of the Price Administrator performance of the contracts had been frustrated and that such frustration terminated the whole contract including the incidental provisions for arbitration. The notice of motion in each case contained a statement that the court would be asked to order an immediate trial of the issues. In the first motion returnable an order was granted ordering a trial but upon a reargument requested by purchaser, the court held that" no trial was necessary and stayed arbitration permanently upon the motion papers. Petitioner’s motions in the subsequent cases were granted upon the authority of the first. A separate order was entered in each case at Special Term and in the Appellate Division. Upon appeal, the Appellate Division unanimously affirmed in each case, without opinion, but granted leave to appeal to this court.

Arbitration clauses in contracts such as those under consideration are directed solely to the remedy — not to the validity or existence of the contract itself. Thus proceedings to enforce arbitration under article 84 of the Civil Practice Act presuppose the existence of a valid and enforceable contract at the time the remedy is sought. (Matter of Berkovitz v. Arbib & Houlberg, Inc., 230 N. Y. 261, 271; Mulji v. Cheong Yue Steamship Co., Ltd. [1926] A. C. 497.) Seasonable challenge may be made to the court to the existence of such a contract by one who stays out of the arbitration and, if no issue of fact is presented on such challenge, the issue is properly determinable by the court as matter of law. (Matter of Finsilver, Still & Moss, Inc., v. Goldberg Maas & Co., 253 N. Y. 382.) There is no issue of fact raised by the record. The affidavits are in agreement as to all material facts and no reason for a trial was shown to the court. If a trial had been ordered, there would have been no issue to decide. Both parties to each proceeding admit the making of the contract, that the contract price was higher than that fixed as the maximum by the Price Administrator, that the ceiling was fixed before delivery was required by the contract and that the contract was not performed.

As of the precise time when the remedy was invoked, it was to to be determined whether public policy prohibited enforcement of the contracts according to their terms. The price at which the goods were to be sold as of the time of delivery was as much of the essence of the contract as any of its other provisions and controlling public policy barred delivery at that price. By act of government there was complete frustration of performance excusing the seller from performance as matter of law. (Mulji v. Cheong Yue Steamship Co., supra; Varagnolo v. Partola Mfg. Co., 239 N. Y. 621; Nitro Powder Co. v. Agency of Canadian Car & Foundry Co., 233 N. Y. 294; Mawhinney v. Millbrook Woolen Mills, Inc., 231 N. Y. 290; 6 Williston on The Law of Contracts, §§ 1759, 1938.)

Arbitration was the method agreed to between the parties to determine controversies in connection with the obligations of the seller and buyers to deliver and pay for cotton gray goods at a stipulated price. The question was not whether the' seller could be compelled to deliver the goods at the price fixed as the maximum by the Price Administrator. ' It was whether delivery could be compelled according to the terms of the contracts of sale and the Price Administrator put an end to that question and to the contract itself before time for delivery arrived or any dispute as to delivery arose. Thus there was no controversy arising under or in relation to the contracts. The arbitration clause was only an incidental part of an indivisible contract of purchase and sale and when the contract was at an end the arbitration provision no longer existed or had any force whatsoever (Mulji v. Cheong Yue Steamship Co., supra; Russell on Arbitration and Award, p. 78) except as to rights and wrongs which had already come into existence as to which the contract still remained in effect.

The orders should be affirmed, with costs.

Lehman, Ch. J.

(dissenting). Classic Mills, Inc., has made a contract with M. Lowenstein & Sons, Inc., for the delivery of cotton grey goods ” at a stipulated price. The Price Administrator of the Office of Price Administration and Civilian Supply has issued an order that, regardless of any commitment theretofore entered into, no person shall sell or deliver, or offer to sell or deliver, any Cotton Grey Goods, and no person shall buy or accept delivery of, or offer to buy or accept delivery- of, any Cotton Grey Goods at a price exceeding the maximum prices set forth in 1316.7.” The maximum prices set forth ” are lower than the stipulated price. The buyer has demanded delivery at the “ maximum price set forth.” The seller has refused performance of the contract on the ground that performance of the contract has been forbidden by law and in consequence non-performance has been excused.

The contract of sale provides: Any controversy arising under or in relation to this contract shall be settled by arbitration. If the parties are unable to agree respecting time, place, method or rules of the arbitration, then such arbitration shall be held in the City of New York in accordance with the laws of the State of New York and the rules then obtaining of the General Arbitration Council of the Textile Industry.” A controversy exists. That cannot be disputed. It is a controversy arising under or in relation to ” the contract. That, too, is clear. Accordingly the buyer has demanded arbitration and when the seller denied that it was bound to arbitrate the controversy, the buyer served a demand upon the seller that it submit the controversy to arbitration. The seller thereupon moved, in accordance with the provisions of section 1458 of the Civil Practice Act, for a stay of arbitration. The seller admits the making of the contract of sale and that it contained the provision for arbitration. It claims, however, that performance of the contract has been frustrated and that such frustration has terminated the whole contract including the incidental provision for arbitration. The courts below have sustained that contention, and the arbitration proceedings have been permanently “stayed and enjoined.”

I shall state as briefly as I can the reasons why I cannot concur in that conclusion. I do not pause to consider the legal effect of the order of the Price Administrator. That is the question which the buyer demands should be submitted to arbitration. We do not reach that question if the parties have agreed that it should be determined by arbitration, not by the court. The court, upon the motion to stay arbitration, has power to decide only an issue “ as to the making of the contract * * * or the failure to comply therewith.” (Civ. Pr. Act. § 1450.) As I have said, there is no issue as to the making of the contract for arbitration. The only issue in this case is as to the failure to comply therewith. There is failure to comply with the contract of arbitration, which is, I concede, only an incidental part of the contract to sell and pay for goods, if the controversy as to whether the principal contract has been terminated by impossibility of performance in exact accordance with its terms falls within the scope of the agreement to arbitrate. The primary question to be determined upon this appeal concerns the scope of the agreement to arbitrate.

Doubtless, since the contract for arbitration is only an incidental part of an indivisible contract of purchase and sale, it can apply only to a controversy in regard to the obligation of the seller to deliver the goods or the obligation of the buyer to accept and pay for them. If, then, it appeared without dispute that these obligations had been terminated either by act of the parties or from some other cause, it would be plain that no controversy exists which the parties agreed to submit to arbitration. Here there is no dispute concerning the facts, but there is dispute about the effect of those facts upon the obligations assumed by the buyer and the seller. The seller asserts that as matter of law neither party can or may lawfully perform the obligation it assumed at a time when performance was lawful. The buyer asserts that the obligation of the seller to deliver the goods may be performed without violation of the order of the Price Administrator, and that the effect of the order is only to relieve the buyer of obligation to pay for the goods the part of the stipulated price in excess of the price fixed by the order. I assume, arguendo, but only arguendo and without further consideration or attempt to decide, that a court of law applying legal rules and principles would be constrained to sustain the contention of the seller. I cannot assume that arbitrators might not sustain the contention of the buyer, and to me it seems clear that by agreement of the parties any controversy concerning the existence, scope or effect of the obligations assumed under the contract is a controversy “ arising under ” the contract and also “ in relation ” to the contract, and that such a controversy must be “ settled by arbitration ” in accordance with the contract made by the parties.

In the affidavit of the seller upon the motion for a stay of arbitration the demand of the buyer for arbitration is characterized as “ a very clever move because arbitrators in the textile industry — invariably laymen who are untrained in the distinctions of the law — might be deluded into thinking that Mr. Henderson’s price ruling was intended to benefit the buyer and thus make some kind of an award to it.” In that statement the seller, it seems to me, supplies an incontrovertible reason why the arbitration should proceed. The parties have agreed to abide by the judgment of business men in all disputes concerning the interpretation of their contract or the scope of the obligations they have assumed, and disputes concerning the effect of subsequent words, acts or events upon these obligations are not excluded. It has been said that “ * * * the conditions that rendered performance impossible do not terminate the contract ab initio, and" vitiate what has been done and what remains to be done that is capable of execution. The conditions may be of such an extent as to amount to a substantial abrogation of the entire contract, or they may relate to an insignificant part of the contract, but they excuse performance only to the extent to which performance is impossible, and leave what has been done valid permitting a recovery therefor, and may not excuse performance of the remaining work. No general rule can be laid down which will apply to all cases, but each case must be decided upon its own facts, and that this course can be taken and justice done according to the facts in each case unhampered by written rules is due to the great flexibility of the common law which is its chief merit.” (Kinser Construction Co. v. State, 125 N. Y. Supp. 46, at p. 55; affid., 145 App. Div. 41; affd., 204 N. Y. 381; quoted with approval, 6 Williston on The Law of Contracts [1938], •§ 1956.) Professor Williston there states the applicable rule: Since the qualification of the literal terms of the promise is imposed by the law, on principles of justice, not because of the expressed intention of the parties, the extent of the qualification depends merely on what is just.” The parties have agreed to submit question of what is just to business men “ untrained in the distinctions of the law.” The courts should not assume to decide according to legal principles a controversy which the parties have agreed should be decided otherwise. .The order should be reversed, etc.

Loughran, Finch, Lewis and Conway, JJ., concur with Rippey, J.; Lehman,.Ch. J., dissents in opinion in which Desmond, J., concurs.

Orders affirmed.


text:
    City of Utica, Respondent, v. Carmela Proite, Appellant.
    Argued February 24, 1942;
    decided March 19, 1942.

      J. Walter Augar for appellant.

      Bartle Gorman, Corporation Counsel, for respondent.

      John J. Bennett, Jr., Attorney-General (John C. Crary of counsel), for State of New York.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hazel Ellis, Appellant, v. City of Geneva, Respondent. Frank Ellis, Appellant, v. City of Geneva, Respondent.
    Argued February 24, 1942;
    decided March 19, 1942.

      Joseph J. Spillane for appellants.

      Arthur T. McAvoy, City Attorney (Albert G. Kirby of counsel), for respondent.
   Judgments affirmed, without costs; no opinion.

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


text:
    In the Matter of Dollar Savings Bank of the City of New York, Respondent, against Jesse L. Rosenberg et al., as Trustees under the Will of Nathan Cohen, Deceased, Appellants.
    Argued February 24, 1942;
    decided March 19, 1942.

      Jesse L. Rosenberg, in person, and Wesley S. Sawyer for appellants.

      Martin A. Schenck and Robert Gerbracht, Jr., for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Dorette A. Wise et al., Appellants, v. Hirestra Laboratories, Inc., Respondent, Impleaded with Others.
    Submitted March 3, 1942;
    decided March 19, 1942.

      Robert R. Bauman and Arthur L. Obre for appellants.

      Louis H. Robinson for respondent.
   Appeal withdrawn upon payment of twenty-five dollars costs and disbursements. No opinion.

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


text:
    Sadie Klein et al., as Trustees, Appellants, v. Ernest Simons Manufacturing Company, Respondent.
    Argued January 14, 1942;
    decided March 19, 1942.

      Martin J. Birmingham for appellants.

      Thomas L. J. Curran for respondent.
   Judgment affirmed, with costs, on the authority of Mortgage Commission v. Fay (281 N. Y. 637). No opinion.

Concur: Finch, Rippey, Lewis and Conway, JJ. Lehman, Ch. J., Loughran and Desmond, JJ., dissent on the authority of Title Guarantee & Trust Co. v. 2846 Briggs Ave. (283 N. Y. 512).


text:
    Frysinger Evans, Plaintiff, v. 2168 Broadway Corporation et al., Defendants. In the Matter of The Corporation of the Manhattan Congregational Church et al., Appellants, v. Thomas Darlington et al., Respondents.
    Argued February 24, 1942;
    decided March 19, 1942.

      Peter W. Quinn, Robert P. Schur and Henry W. Showers for appellants.

      Edwin R. Wolff and Daniel G. Shirk for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    Richard J. O’Connell, Jr., Appellant, v. Westinghouse X-Ray Company, Inc., Respondent.
    Argued January 21, 1942;
    decided March 19, 1942.

      Jeremiah J. Riordan and Thomas J. O’ Neill for appellant.

      Fred L. Gross for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that questions of fact were presented for the determination of the jury in regard both to the defendant’s negligence, and plaintiff’s freedom from contributory negligence. No opinion.

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


text:
    Theodore Behnke, Appellant, v. Brooklyn & Queens Transit Corporation, Respondent.
    Submitted March 2, 1942;
    decided March 19, 1942.

      Emanuel Thebner for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for respondent.
   Appeal withdrawn by permission of the court, without costs.

No opinion.

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


text:
    Conrad Kohrn, Appellant, v. Boyer Lighterage Corporation, Respondent.
    Submitted March 5, 1942;
    decided March 19, 1942.

      Jerome Otis Ellis, Seymour Kempner and Ira L. Tilzer for appellant.

      Russell C. Gay and Sherwood E. Silliman for respondent.
   Appeal withdrawn by permission of the court upon payment of twenty-five dollars costs and disbursements. No opinion.

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


text:
    United States Trust Company of New York, Appellant, v. Estate of Bradish Johnson, Respondent.
    Submitted March 9, 1942;
    decided March 19, 1942.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 287 N. Y. 232.)


text:
    The People of the State of New York, Respondent, v. Ralph G. O’Marah, Appellant.
    Submitted March 16, 1942;
    decided March 19, 1942.

      Carl J. Hynes, District Attorney, for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of Louis S. Levy, an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Argued January 12, 1942;
    decided March 19, 1942.

      Nathan L. Miller, Mortimer Hays and Mortimer Feuer for appellant.

      Timothy N. Pfeiffer and Einar Chrystie for respondent.
   Order affirmed; no opinion.

Concur: Finch, Lewis, Conway and Desmond, JJ. Lotjghran and Rippey, JJ., concur on the ground that there was sufficient evidence to raise an issue of fact which cannot be reviewed by this court. Lehman, Ch. J., taking no part on the ground that possible question might arise whether an appraisal by him of the sufficiency of the evidence to sustain the finding of misconduct on the part of the appellant would be entirely uninfluenced by his friendly relations.


text:
    In the Matter of the Claim of Charles Cordes, Respondent, against Hynes Baking Company, Inc., Respondent, and Martha J. Drozd et al., Appellants. State Industrial Board, Respondent.
    Argued February 25, 1942;
    decided April 16, 1942.

      Julius J. Rosenberg and Lawrence E. Hoffman for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Joseph A. McLaughlin of counsel), for State Industrial Board, respondent.

      Samuel Davis and Hyman Eller for Hynes Baking Company, Inc., respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Alfredo S. G. Taylor et al., Respondents, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    Argued March 2, 1942;
    decided April 16, 1942.

      William C. Chanler, Corporation Counsel (Paxton Blair and Arthur A. Segall of counsel), for appellants.

      Leon Sacks and Bela Darwin Eisler for respondents.
   Order affirmed, with costs. By the express provision of section 296 of the Tax Law the city was required to refund the amount due with interest thereon from the date of the payment ” of the tax, not from the date when application or demand is made for the audit and allowance of the moneys paid. We do not construe the amendment to the statute as intended to apply in cases where an appeal was pending at the time when the amendment took effect. No opinion.

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


text:
    Jacob R. Schiff, Plaintiff, v. Turnpike Estates, Inc., Respondent, Impleaded with Others, Albert Bonynge, as Referee, Appellant.
    Submitted February 27, 1942;
    decided April 16, 1942.

      John F. X. Finn and Albert Bonynge, in person, for appellant.

      George Weisbrod and Leon Glaser for respondent.
   Appeal dismissed, with costs, on the ground that the order does not finally determine the action or special proceeding within the meaning of the Constitution. No opinion.

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


text:
    John Kennedy & Co., Inc., Appellant, v. New York World’s Fair 1939 Incorporated et al., Respondents, and Henry Baumgard, Inc., et al., Appellants. (Action No. 1.) Drix Duryea, Inc., Plaintiff, v. New York World’s Fair 1939 Incorporated et al., Respondents, Impleaded with Others. (Action No. 2.)
    Argued March. 2, 1942;
    decided April 16, 1942.

      David Morgulas and M. Carl Levine for John Kennedy & Co., Inc., et al., appellants.

      Herbert M. Rosenberg for Henry Baumgard, Inc., appellant.

      George deForest Lord and Joyce Stanley for New York World’s Pair 1939 Inc., respondent.

      William C. Chanler, Corporation Counsel (Paxton Blair, Milton I. Newman and Albert Cooper of counsel), for City of New York, respondent.
   Judgment affirmed, with costs, and motion to dismiss appeal denied. No opinion.

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


text:
    Burnett Bush, Appellant, v. City of Jamestown, Respondent, Impleaded with Another.
    Argued March 3, 1942;
    decided April 16, 1942.

      Clarence G. Pickard for appellant.

      Samuel C. Alessi, Corporation Counsel, for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of the Will of Morris Halperin, Deceased. May H. Gorman et al., Respondents; Lillian Sweet et al., Appellants.
    Submitted February 25, 1942;
    decided April 16, 1942.

      Leon Finkelstein, Sol M. Ansell, Robert Liederman and David M. Wolff for appellants.

      Bertram Flicker for May H. Gorman, respondent.,
   Order affirmed, with costs payable'out of the estate. No opinion.

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


text:
    Ralph B. Strassburger, Appellant, v. Irving Trust Company, Respondent.
    Argued February 27,1942;
    decided April 16, 1942.

      Arthur Richenthal and Heinz A. L. Hellmold for appellant.

      William A. Onderdonk and Paul E. Mead for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Thomas Choisnet, Appellant, against William Wilson, as Commissioner of the Department of Housing and Buildings of the City of New York, Respondent.
    Argued March 2, 1942;
    decided April 16, 1942.

      Menahem Stim, Thomas J. Curran and Jeremiah A. Sheehan for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair and Henry J. Shields of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Lewis and Desmond, JJ. Rippey and Conway, JJ., dissent on the authority of Matter of Meyer v. Goldwater (286 N. Y. 461).


text:
    The People of the State of New York, Respondent, v. William Abrahams, Charles Anderson and Joseph Kaplan, Appellants.
    Argued March 8, 1942;
    decided April 16, 1942.

      Fred M. Rosen for appellants.

      Edward J. Neary, District Attorney (Philip Huntington and Frank A. Gulotta of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Richard A. Clinchy, Respondent, v. Grandview Dairy, Inc., Appellant.
    Submitted March 4, 1942;
    decided April 16, 1942.

      Benjamin L. Tell for appellant/

      Fred Flatow, Henry H. Abramovntz and Hyman L. Kones for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Eugene H. Vernon, Appellant, v. Carolyn T. Vernon, Respondent.
    Argued March 6, 1942;
    decided April 16,1942.

      Thomas F. Croake for appellant. ■

      William Logan, Jr., and Helen F. Tuohy for respondent.1
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Pulp Sales Corporation, Respondent. Orange Pulp & Paper Mills, Inc., Appellant.
    Argued February 25,1942;
    decided April 16, 1942.

      Jacob Krisel and George Lessall for appellant.

      Lionel S. Popkin, Mortimer H. Hess and Abraham S. Guterman for respondent.
   Appeal dismissed, with costs, on the ground the constitutional question is not substantial. No opinion.

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


text:
    Charles E. Denney et al., as Trustees of Erie Railroad Company, Appellants, v. Mary C. Malone, as Administratrix of the Estate of P. W. Graham, Deceased, et al., Defendants, and Buffalo Sewer Authority, Respondent.
    Argued February 26, 1942;
    decided April 16, 1942.

      Leonard W. M. Zingler and William G. Conable for appellants.

      Thurman W. Stoner, Corporation Counsel (Elmer S. Stengel of counsel), for respondent.

      Thomas F. Myers, John W. Van Allen and Selby G. Smith for Mary C. Malone, as administratrix, et al., amici curiæ.

   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Fred Sardo, Harold Costello and Peter Scalzo, Appellants.
    Argued March 2, 1942;
    decided April 16,1942.

      Abraham Roth for appellants.

      Daniel J. O’Mara, District Attorney (Stephen K. Pollard of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    William F. Steinmiller, as President of Local B-830 of International Brotherhood of Electrical Workers, Respondent, v. John J. McKeon et al., Appellants.
    Argued March 3, 1942;
    decided April 16, 1942.

      Moss K. Schenck, David A. Morse, Herman E. Cooper, Herbert C. Kane and Leo Guzik for appellants.

      William Karlin and Leo Greenfield for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. National Accessories Stores, Inc., Respondent, against Boyd E. Golder et al., as Assessors of the City of Utica, et al., Appellants.
    Argued February 24, 1942;
    decided April 16, 1942.

      Bartle Gorman, Corporation Counsel (M. Francis Malone of counsel), for appellants.

      John M. Liddy for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Henry S. Winterkamp, Respondent, against Joseph L. Matt et al., Constituting the Board of Assessors of the City of Utica, et al., Appellants. (1940 Roll.) The People of the State of New York ex rel. Henry S. Winterkamp, Respondent, against Boyd E. Golder et al., Constituting the Board of Assessors of the City of Utica, et al., Appellants. (1941 Roll.)
    Argued February 24, 1942;
    decided April 16, 1942.

      Bartle Gorman, Corporation Counsel (M. Francis Malone of counsel), for appellants.

      Leonard W. Burdick for respondent.
   Orders affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Edward Zeh, Respondent, against St. Francis DeSales R. C. Church et al., Appellants. State Industrial Board, Respondent.
    Argued February 25, 1942;
    decided April 16, 1942.

      Seward H. Millener for appellants.

      John J. Bennett, Jr., Attorney-General (John F. Loehr and Joseph A. McLaughlin of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Harley Glasow, an Infant, by William Glasow, His Guardian ad Litem, Appellant, v. M. Moran Transportation Lines, Inc., et al., Respondents. William Glasow, Appellant, v. M. Moran Transportation Lines, Inc., et al., Respondents.
    Argued February 27, 1942;
    decided April 16, 1942.

      Wilfred E. Hoffman for appellants.

      Phillip T. Young for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    In the Matter of George J. Gillespie et al., Constituting the Board of Water Supply of the City of New York, Appellant, to Acquire Real Estate in the Counties of Sullivan and Ulster for the Purpose of Providing an Additional Supply of Water for the City of New York. Central Hudson Gas & Electric Corporation, Respondent.
    Argued March 2, 1942;
    decided April 16, 1942.

      William C. Chanler, Corporation Counsel (Richard H. Burke, Paxton Blair and John E. Egan of counsel), for appellants.

      B. L. von Bernuth and D. L. Bugg for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Robert G. Auld, Appellant, v. Sears, Roebuck and Company, Respondent.
    Argued March 6,1942;
    decided April 16,1942.

      Stephen R. J. Roach for appellant.

      Albert P. Thill, George A. Kuittinen, Charles F. Bachmann and John P. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Harold R. Lee et al., as Executors of Emmitt T. Lee, Deceased, Respondents, v. Alfred J. Farone, Appellant.
    Submitted February 24, 1942;
    decided April 16, 1942.

      John A. Slade for appellant.

      Patrick J. Keniry for respondents.

      John W. Nichols and Truman H. Preston for County Officers Association of the State of New York, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Bessie Wiltse, Appellant, against Village of Owego et al., Respondents. State Industrial Board, Appellant.
    Argued February 25, 1942;
    decided April 16, 1942.

      John J. Bennett, Jr., Attorney-General (John F. Loehr and Joseph A. McLaughlin of counsel), for State Industrial Board, appellant.

      James S. Truman and Lewis B. Parmenton for claimant-appellant.

      Nathan Turk and Howard W. Robinson for Village of Owego et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Harry Wagner, Respondent, v. Grand Machinery Exchange, Inc., Defendant, and Herman Langleben et al., Appellants.
    Submitted February 27, 1942;
    decided April 16, 1942.

      Jerome A. Strauss for Herman Langleben, appellant.

      Benjamin Davidson for Jacob Goodman, appellant.

      Seymour Stone for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret H. Thorn, Appellant, v. Elizabeth H. Thorn, as Executrix of William E. Thorn, Deceased, Respondent.
    Submitted February 24, 1942;
    decided April 16, 1942.

      Charles P. Maloney for appellant.

      H. Duane Bruce and Joseph P. Rogers for respondent.
   Order affirmed, without costs. First question certified not answered. Second question certified answered in the negative. No opinion.

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


text:
    In the Matter of the Claim of Nicholas Civitanova, Appellant, against Louis Palma et al., Respondents. State Industrial Board, Appellant.
    Submitted February 25, 1942;
    decided April 16, 1942.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Henry Epstein of counsel), for State Industrial Board, appellant.

      William B. Davis and E. G. Sherwood for Travelers Insurance Company, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Jacob Kolasky, Appellant, v. The City of New York, Respondent.
    Submitted February 27, 1942;
    decided April 16,1942.

      Samuel E. Harwits for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotxghran, Finch, Lewis and Desmond, JJ. Dissenting: Rippey and Conway, JJ.


text:
    In the Matter of the Accounting of Thomas Dickson, as Executor of Joseph D. Eddy, Deceased, and as Surviving Partner of the Firm of Dickson & Eddy. Thomas Dickson, Individually and as Surviving Partner of the Firm of Dickson & Eddy, Appellant; Sally D. Eddy et al., Respondents.
    Argued March 2, 1942;
    decided April 16, 1942.

      William Roberts and Victor T. Surrows for appellant.

      Henry Alan Johnston and Edmund M. McCarthy for respondents.
   Appeal dismissed, without costs, on the ground that the order appealed from is an interim ” decree and does not finally determine the proceeding. No opinion.

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


text:
    Lynott Jordan, as Administrator of the Estate of Sylvia Jordan, Deceased, Respondent, v. Lukas Smyk, Appellant.
    Argued March 4,1942;
    decided April 16,1942.

      Donald W. Kramer for appellant.

      H. K. Angell for respondent..
   Judgment of the Appellate Division reversed and order of Trial Term granting a new trial affirmed, with costs to the appellant to abide the event, on the ground that the conversation between the appellant and the defendant in the office of Doctor Glezen was irrelevant and should have been excluded. No opinion. .

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


text:
    In the Matter of Central Hanover Bank and Trust Company, as Executor of Blanche N. Mack, Deceased, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued March 5, 1942;
    decided April 16, 1942.

      Emil Goldmark and Eugene A. Levinson for appellant.

      John J. Bennett, Jr., Attorney-General (John C. Grary, Jr., and Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Marion H. Hollister, Appellant and Respondent, v. Paul M. Hollister, Respondent and Appellant.
    Argued March. 6, 1942;
    decided April 16, 1942.

      John B. Doyle for plaintiff, appellant and respondent.

      Charles Garside, Henry Cassorte Smith and Frederick P. Haas for defendant, .respondent and appellant.
   Judgment of Appellate Division modified by striking out the provision for a declaratory judgment and as so modified affirmed, without costs, on the ground that there is no reason for granting a declaratory judgment in this action for a separation. No opinion.

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


text:
    Cup Craft Paper Corporation, Plaintiff, v. Federal Paper Board Co., Inc., et al., Defendants. New York Credit Men’s Association, as Trustee in Bankruptcy of Cup Craft Paper Corporation, Appellant; Isidor E. Schlesinger et al., Copartners under the Firm Name of Schlesinger & Krinsky, Respondents.
    Submitted March 16, 1942;
    decided April 16, 1942.

      Ludwig Teller for motion.

      Henry Braverman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of George Becker, Appellant, against Ernest E. Cole, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted March 16, 1942;
    decided April 16, 1942.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.

      A. Mark Levien opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that no substantial constitutional question is involved.


text:
    The People of the State of New York, Respondent, v. Anthony Tripodi, Appellant.
    Submitted April 13, 1942;
    decided April 16, 1942.

      Leo J. Hagerty, District Attorney, for motion.

      John S. Knibloe opposed.
   Motion denied.


text:
    In the Matter of Golden City Park Corporation, Appellant, against Board of Standards and Appeals of the City of New York, et al., Respondents.
    Submitted April 20, 1942;
    decided April 21, 1942.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.

      William Bradford Roulstone opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless within sixty days appellant serves and files an undertaking on appeal and perfects the appeal in which event the motion is denied.


text:
    Irene C. Maloney, Appellant, v. William J. Maloney, Respondent.
    Submitted March 4, 1942;
    decided April 23, 1942.

      Harry A. Sessions for appellant.

      George J. Skivington, Charles P. Maloney and William J. Maloney for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    James W. Andrews, as Trustee in Bankruptcy of the Estate of Frank Shannon, Appellant, v. Metropolitan Jockey Club et al., Respondents.
    Argued March 9, 1942;
    decided April 23, 1942.

      Horace M. Gray and Charles E. Wythe for appellant.

      William J. Carr, Joseph S. Auerbach, Harold C. McCollom and George H. Boynton for respondents.
   Judgment affirmed, with costs; no opinion. (See 288 N. Y. 673.)

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


text:
    The People of the State of New York, Respondent, v. Winifred Hoskins, Appellant.
    Argued March 11, 1942;
    decided April 23, 1942.

      John J. Bennett, Jr., Attorney-General (Irving H. Lessen and Henry Epstein of counsel), for appellant.

      Donald M. Mawhinney, District Attorney (Dan J. Kelly of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Manufacturers Trust Company, Appellant, v. Mary E. W. Miller, Respondent.
    Argued March 16, 1942;
    decided April 23, 1942.

      Leonard G. Bisco, George B. Balamut and Nathan Waxman for appellant.

      John F. X. Finn and Albert Bonynge, appearing specially, for respondent.
   Order affirmed, with costs. First and third questions certified answered in the negative. Second question not answered. No opinion.

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


text:
    Earl W. Wolf, Respondent, v. Citizens Trust Company of Schenectady et al., Appellants.
    Argued March 19, 1942;
    decided April 23, 1942.

      H. E. Blodgett and Howard Murrin for appellants.

      Laurence V. Benedict and D. Vincent Cerrito for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Eugene Sullivan, Appellant, against Joseph Flaherty et al., Respondents.
    Argued February 24, 1942;
    decided April 23, 1942.

      Benjamin Gassman for appellant.

      Maurice F. Cantor and A. L. Sainer for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Vincent Scott, Appellant.
    Submitted February 25, 1942;
    decided April 28, 1942.

      Vincent Scott, appellant, in person.

      Frank S. Hogan, District Attorney (Stanley H. Fuld and Isabel B. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Alexander Hoffman, Frank Palermo, Solomon Pelish, Norma Rimland, Rita Dembitz, Mae Malachowsky and Pearl Spivack, Appellants.
    Argued March 4, 1942;
    decided April 23, 1942.

      Frederick Evan Crane, Irvine J. Shubert and Abraham Tannenbaum for appellants.

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    Loft, Inc., Respondent, v. Miles Realty Co., Inc., et al., Appellants.
    Argued March. 5, 1942;
    decided April 23, 1942.

      David W. Kahn and Charles L. Fleece for appellants.

      Adolph G. Kraus and Joseph A. Michel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Vera Jacobson, Individually and as Administratrix of the Estate of Walter Jacobson, Deceased, Appellant, v. Charles Kurek et al., Respondents.
    Argued March 11, 1942;
    decided April 23, 1942.

      Gustav B. Garfield for appellant.

      William M. Kilcullen for Charles Kurek, respondent.

      Arthur K. Wing, Frank W. Harris and James G. Purdy for Figge & Hutwelker Company, respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Joseph Gedeon, Appellant, v. News Syndicate Co., Inc., Respondent.
    Argued March 12, 1942;
    decided April 23, 1942.

      John Schulman, Alan S. Hays and Milton Sargoy for appellant.

      Stuart N. Updike, J. Howard Carter and Weymouth D. Symmes for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, on the ground that the refusal to receive evidence of the general loss of plaintiff’s business resulting from the publication of the libels was error. (See Sanderson v. Caldwell, 45 N. Y. 398, 405, 406; Bergmann v. Jones, 94 N. Y. 51.) No opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Edna S. Taylor, Respondent, v. The State of New York, Appellant.
    (Claim No. 25618.)
    Argued March 17, 1942;
    decided April 23, 1942.

      John J. Bennett, Jr., Attorney-General (James H. Glavin, Jr., and William Heinecke, Jr., of counsel), for appellant.

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

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


text:
    Fifth Avenue Bank of New York et al., as Trustees under the Will of William J. Daniel, Deceased, Appellants and Respondents, v. Edgerton Park Company, Inc., et al., Defendants, and Irene C. McCormack et al., as Executors and Trustees under the Will of Philip J. Curry, Deceased, Respondents and Appellants.
    Argued March 19,1942;
    decided April 23, 1942.

      Henry A. Ingraham, Abram I. Elkus and Sidney J. Norton for plaintiffs, appellants and respondents.

      Joseph M. Hartfield and Adrian D. Stevenson for defendants, respondents and appellants.
   Judgment of Appellate Division reversed and that of the Special Term affirmed, without costs, on the ground that the weight of evidence lies with the finding of the Special Term. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Riordan and Charles McGale, Appellants.
    Argued February 25, 1942;
    decided April 23, 1942.

      Gerald Fitzgerald, Harry Geist and Joseph F. Kosman for Joseph Riordan, appellant.

      Charles Blank and Charles J. Wallace for Charles McGale, appellant.

      Elbert T. Gallagher, District Attorney (John J. Dillon, Joseph F. Gagliardi and Samuel Y. Austin, Jr., of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

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


text:
    Jerome M. Pitofsky, by Louis Pitofsky, His Guardian ad Litem, et al., Appellants, v. Dalu Corporation, Respondent, Impleaded with Others.
    Argued March 9, 1942;
    decided April 23, 1942.

      David N. Aberman for appellants.

      Robert H. Charlton for respondent.
   Judgment of Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground there were issues of fact presented which required a jury trial. No opinion.

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


text:
    Louis Gallopin, Appellant, v. International Committee of Bankers on Mexico et al., Respondents.
    Argued March 11, 1942;
    decided April 23, 1942.

      Thomas A. McDonald for appellant.

      Ralph M. Carson and Lester H. Chase for respondents.
   Judgment affirmed, with costs. No opinion.

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


text:
    Solkat Realty Corporation, Respondent, v. State of New York, Appellant.
    (Claim No. 24578.)
    Argued March 16, 1942;
    decided April 23, 1942.

      John J. Bennett, Jr., Attorney-General (Joseph I. Butler and Henry Epstein of counsel), for appellant.

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

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


text:
    David Stoneman, Appellant, v. Sam Katz et al., Defendants, and Sam Dambrow, Jr., Respondent.
    Argued March 17, 1942;
    decided April 23, 1942.

      Jack Lewis Kraus, II, Harry B. Kurzrok and Sydney Brodie for appellant.

      Louis Mizer and Arthur B. Krim for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sheldon Thompson, Jr., as Receiver, Appellant, v. BrunswickBalke-Collender Company, Respondent.
    Argued March 19, 1942;
    decided April 23, 1942.

      Edward H. Kavinoky and Michael M. Cohn for appellant.

      Leonard W. M. Zingler, William G. Conable and Whitney W. Gilbert for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    J. Ernest Daly et al., Respondents, v. State of New York Appellant. Isabelle Daly et al., Respondents, v. State of New York, Appellant. Jeremiah F. Crowley, Jr., Respondent, v. State of New York, Appellant. Jeremiah Crowley, Respondent, v. State of New York, Appellant. Christopher Henry, Respondent, v. State of New York, Appellant. Fred R. Butterfield, Respondent, v. State of New York, Appellant. George Dodge, Respondent, v. State of New York, Appellant. Edward A. Daly, Respondent, v. State of New York, Appellant. John A. Falvey et al., Respondents, v. State of New York, Appellant. Edwin R. Meneely, Respondent, v. State of New York, Appellant. Charles Butterfield, Respondent, v. State of New York, Appellant.
    (Claim No. 18161.) (Claim No. 18156.) (Claim No. 18158.) (Claim No. 18163.) (Claim No. 18165.) (Claim No. 18173.) (Claim No. 18174.) (Claim No. 18176.) (Claim No. 18179.) (Claim No. 18183.) (Claim No. 18184.)
    Argued March 10, 1942;
    decided April 23, 1942.

      John J. Bennett, Jr., Attorney-General (Burns F. Barford and James H. Glavin, Jr., of counsel), for appellant.

      Gerald W. O’Connor for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent,, v. Louis Hoffner, Appellant.
    Argued March, 4, 1942;
    decided April 23, 1942.

      Harry G. Anderson, Samuel Bader, Mortimer De Groot, Joseph Lonergan and John F. X. Sheridan for appellant.

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Rudolph Zajic, Appellant, v. Joseph Zajic, Respondent.
    Submitted March 6, 1942;
    decided April 23, 1942.

      Samuel J. Siegel and Robert A. Pabian for appellant.

      Albert W. Sibek for responent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lillian L. Davidson, Respondent, v. Radio City Music Hall Corporation, Appellant.
    Submitted March 9, 1942;
    decided April 23, 1942

      James J. McLoughlin, Thomas F. Harrigan and Francis J. McLoughlin for appellant.

      Harry Kalman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gertrude Schwabl, Appellant, v. St. Augustine’s Church, Respondent.
    Argued March 11, 1942;
    decided April 23, 1942.

      Kenneth B. Keating and Frederick T. Pierson for appellant.

      Robert C. Winchell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Association of Plumbing and Heating Contractors of Greater New York, Inc., Appellant, v. William Merten, Respondent.
    Argued March 12, 1942;
    decided April 23, 1942.

      Arthur Steinberg and Martin Gottlieb for appellant.

      William A. Morges for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Morris Weintraub, Individually and as Administrator of the Estate of Celia Weintraub, Deceased, et al., Respondents, v. Eastern Bag & Burlap Co., Inc., et al., Appellants, Impleaded with Another.
    Submitted March 16, 1942;
    decided April 23, 1942.

      Everett W. Bovard and William E. Lowther for appellants.

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

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


text:
    Charles Cohen, Appellant, v. Elmont Cemetery, Inc., Respondent.
    Argued March 17, 1942;
    decided April 23, 1942.

      Paul O’Dwyer and Bernard Eilen for appellant.

      William B. Davis and James E. Turner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Julia L. Levinson, Respondent, v. Louis Rosovsky et al., Defendants, and Louis Meadvin et al., Appellants.
    Submitted March 18, 1942;
    decided April 23, 1942.

      Irving H. Lessen for appellants.

      Isaac M. Levinson, A. S. Cohen and S, S. Cohen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Wolcott Cook et al., Respondents, v. Laura M. Gill et al., Individually and as Executors of Frank B. Gill, Deceased, Appellants.
    Submitted March 19, 1942;
    decided April 23, 1942.

      Ward N. Truesdell for apellants.

      Oliver D. Burden for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. August Faucetta, Appellant. The People of the State of New York, Respondent, v. Charles Rozea, Appellant.
    Submitted March 5, 1942;
    decided April 23, 1942.

      Charles Berlin and Charles Rothaus for August Faucetta, appellant.

      Mordecai Konowitz for Charles Rozea, appellant.

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Herman Schwartz et al., Respondents, v. London and Lancashire Indemnity Company of America, of New York, Appellant.
    Argued March 10, 1942;
    decided April 23, 1942. .

      Joseph B. Murphy and Phillip T. Young for appellant.

      Robert E. Dineen for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sam Hornreich, Appellant, v. May Hornreich, Respondent.
    Argued March 11, 1942;
    decided April 23, 1942.

      Harry Berger, Samuel Binder and Reuben L. Haskell for appellant.

      M. Allen Cutler for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lawrence Tripaldi, an Infant, by James Tripaldi, His Guardian ad Litem, Appellant, Impleaded with Another, v. Antonio Senno et al., Respondents.
    Argued March 13, 1942;
    decided April 23, 1942.

      Michael C. Bernstein for appellant.

      Alexander E. Rosenthal and Irving Segal for respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch and Lewis, JJ. Dissenting: Conway and Desmond, JJ. Taking no part: Rippey, J..r


text:
    Joseph A. Beaudry et al., Appellants, v. Massachusetts Bonding and Insurance Company, Respondent.
    Argued March 16, 1942;
    decided April 23, 1942.

      Henry Cohen, Franklin Brooks and David Friedman for appellants.

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

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


text:
    In the Matter of Morris Plan Industrial Bank of New York, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued March 17, 1942;
    decided April 23, 1942.

      Lloyd F. Thanhouser, Donald W. Smith and Harold H. Kissam for appellant.

      John J. Bennett, Jr., Attorney-General (John C. Crary, Jr., and Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion..

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


text:
    In the Matter of Rose Schwartzman et al., Copartners under the Firm Name of Metro Roofing & Sheet Metal Works, Appellants. Frieda S. Miller, as Industrial Commissioner, Respondent.
    Argued March 18, 1942;
    decided April 23, 1942.

      Sydney J. Schwartz for appellants.

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan and Henry Epstein of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Diana Beck, Appellant.
    Argued January 22, 1942;
    decided April 23, 1942.

      I. Ben Greenman for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Maurice H. Matzhin, Milton Kaplan, Joseph A. McLaughlin and Sol I. Smithline of counsel), for respondent.
   Judgment affirmed; no opinion. (See 288 N. Y. 672.)

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


text:
    W. N. Clark Company, Respondent, v. Ella R. Anderson, Individually and as Administratrix of the Estate of Jane R. Brown, Deceased, Appellant.
    Argued March 4, 1942;
    decided April 23, 1942.

      J. Allan Willis for appellant.

      Howard C. Spencer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    City of New Rochelle, Appellant, v. Westchester Electric Railroad Company, Respondent, Impleaded with Another.
    Argued March 9, 1942;
    decided April 23, 1942.

      Aaron Simmons, Corporation Counsel (Murray C. Fuerst of counsel), for appellant.

      Irving A. Rubin for Business Men’s Association of New Rochelle, Inc., amicus curiæ.

      Alfred T. Davison and Addison B. Scoville for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Guaranty Trust Company of New York, Appellant, v. Kingscote Realty Corporation et al., Respondents, Impleaded with Others.
    Argued March 10, 1942;
    decided April 23, 1942.

      Edward J. McGratty, Jr., for appellant.

      Alvin T. Sapinsley, Edwin J. Lukas and Louis Okin for respondents. .
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary H. Stearns, Respondent, v. Schenectady Day Nursery, Appellant. Walter M. Stearns, Respondent, v. Schenectady Day Nursery, Appellant.
    Argued March 16, 1942;
    decided April 23, 1942.

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

      Raymond F. Loucks for respondents.
   Judgments affirmed, with one bill of costs; no opinion.

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


text:
    Pauline Hegel et al., Respondents, v. Mohegan Colony, Inc., Appellant.
    Argued March 19, 1942;
    decided April 23, 1942.

      Israel Ben Scheiber and Harry Levy for appellant.

      Isidore Minkin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Guaranty Trust Company of New York, Appellant, v. Abraham L. Garbat, Respondent, Impleaded with Others.
    Argued March 10, 1942;
    decided April 23, 1942.

      Edward J. McGratty, Jr., for appellant.

      Henry H. Harkavy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Grace Schoonmaker, Appellant, v. Poughkeepsie Savings Bank, Respondent.
    Argued March 11, 1942;
    decided April 23, 1942.

      William A. Mulvey for appellant.

      Herbert F. Hastings, Jr., and F. G. Mann for respondent.
   Judgments reversed and a new trial granted, with costs to the appellant to abide the event on the ground that the record presented questions of fact for the jury as to negligence and contributory negligence. No opinion.

Concur: Lotjghran, Rippey, Conway and Desmond, JJ. Dissenting: Lehman, Ch. J., Finch and Lewis, JJ.


text:
    John F. O’Connor, Appellant, v. Edna O’Connor, Respondent, Impleaded with Others.
    Argued March 16, 1942;
    decided April 23, 1942.

      John F. Middlemiss, Oswald M. Murphy and John I. Hennessey for appellant.

      Morris Eisenstein and Fred G. Moritt for respondent.

      Monroe I. Katcher, II, and Francis V. McHugh for State Liquor Authority.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anthony Roberto, Appellant, v. Thomas Nielson, Respondent.
    Argued March 16, 1942;
    decided April 23, 1942.

      Monroe J. Cahn and Maurice Falk for appellant.

      Robert T. Hawthorne for respondent. '
   Order affirmed and judgment absolute ordered against appellant on the stipulation. No opinion.

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


text:
    The People of the State of New York ex rel. Governor Clinton Co., Inc., Respondent, v. William S. Miller et al., Constituting the Tax Commission of the City of New York, et al., Appellants. (Three Proceedings.)
    Argued March 17, 1942;
    decided April 23, 1942.

      William C. Chanler, Corporation Counsel (Alfred T. White and Arthur A. Segall of counsel), for appellants.

      John Kadel and Nicholas R. Jones for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Lands under Water, Wharfage and Other Rights on Ward’s Island in the Borough of Manhattan. Metropolitan-Columbia Stockholders., Inc., et al., Appellants.
    Argued March 19, 1942;
    decided April 23, 1942.

      Glen N. W. McNaughton for appellants.

      William C. Chanler, Corporation Counsel (Daniel M. Cohen, Julius Isaacs and Edward A. Weingarten of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Corporate Employment Service, Inc., Appellant, against Paul Moss, as Commissioner of Licenses of the City of New York, Respondent.
    Submitted April 13, 1942;
    decided April 23, 1942.
   Motion for reargument denied, with ten dollars costs and necessary printing' disbursements. (See 287 N. Y. 794.)


text:
    Frances Roberts, Appellant, v. Dyer Pearl et al., Individually and as Copartners under the Firm Name of Pearl & Co., Defendants, and Dyer Pearl, Jr., Respondent.
    Submitted April 13, 1942;
    decided April 23,1942.

      William F. Unger for motion.

      Michael Nardone opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Lawyers Title and Guaranty Company. Netacos Corporation, Appellant and Respondent. Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Title and Guaranty Company, Appellant; Reconstruction Finance Corporation, Respondent and Appellant.
    Submitted April 13, 1942;
    decided April 23, 1942.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 287 N. Y. 264.)


text:
    William A. Colwell, Appellant, v. Adelphi College, a Corporation, Respondent.
    Argued April 14, 1942;
    decided April 30, 1942.

      Morris Rosoff and Harold E. Lack for appellant.

      Henry A. Ingraham, Abram I. Elkus and Martin J. Coughlin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of William Gratz, Deceased. Stella F. Gratz et al., as Executors of William Gratz, Deceased, Appellants; State Tax Commission, Respondent.
    Argued April 15, 1942;
    decided April 30, 1942.

      Samuel B. Seidel and Walter Frank for appellants.

      Jerome M. Hirsch and Charles A. Jacobs for respondent.
   Order affirmed, with costs; no opinion.

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