author: Lehman, J. Crane, Ch. J.

text:
    In the Matter of Nathaniel H. Lyons et al., Copartners under the Firm Name of N. H. Lyons & Company, Respondents, against Harry M. Prince, as Deputy Commissioner of the Department of Housing and Buildings of the City of New York, Appellant
    Argued October 18, 1939;
    decided November 28, 1939.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Paxton Blair and Francis J. Bloustein of counsel), for appellant.

      I. Maurice Wormser and George G. Lake for respondents.
   Lehman, J.

The petitioners are the lessees of premises in the city of New York upon which a building was erected in 1889. The cellar and first floor of the building are used for business purposes. The floors above are used as a lodging house with accommodations for over one hundred lodgers. In October, 1921, the then Commissioner of Buildings issued a certificate of occupancy certifying that the building on the premises “ conforms substantially * * * to all the requirements of the building code and building zone resolution of the City of New York for an existing, non-fireproof, cellar and five story restaurant and lodging house.” The lessees have not, since then, failed to comply with any order given to them by the municipal authorities and there is no contention that the building has been allowed to become seriously deteriorated.

In December, 1938, the defendant Prince, as Deputy Commissioner of the Department of Housing and Buildings of the City of New York, served a notice upon the lessees of the building requiring them to “ correct conditions existing in violation of the law,” and specifying the conditions to be corrected. The reason for giving this notice is that, in the opinion of the Commissioner of Buildings and his Deputy, the building cannot safely be used for a lodging house. The changes required, we may assume, are calculated to retard fire and, in case of fire, to provide better means of egress from the building; but for the most part the conditions which the lessees have been ordered to correct do not violate any requirement, formulated by statute or ordinance, which is applicable to this building. If the Commissioner of Housing and Buildings has power to determine, without legislative formulation, what standard of safety should be required for lodging houses and to order the occupant of each lodging house to make such structural alterations as would, in the opinion of the Commissioner, provide reasonably safe conditions for occupants of lodging houses, then orders of the Commissioner to make such structural alterations must be obeyed; at least, unless, in the particular case, the courts decide that the action of the Commissioner has been arbitrary. The lessees, however, contend that the Legislature has not attempted to confer so broad a power upon the Commissioner of Buildings and that the Legislature could not, if it would, delegate to the Commissioner discretionary power to determine what form of construction would, in a particular case, render a lodging house reasonably safe and what changes should be made in existing buildings for such purpose, without defining the limits of the Commissioner’s discretion and fixing the rules and standards which must govern its exercise. Upon that ground the lessees challenge the power of the Commissioner to order structural changes where no statute or ordinance requires that all buildings of similar class used as lodging houses in the city of New York shall conform to the standards of construction which, by notice, the Commissioner of Buildings seeks to impose.

The required alterations specified in the notice fall into three separately numbered groups. In regard to the alterations in the group numbered one, the notice states that, “ In accordance with Section 6.1.5 of the Building Code of the City of New York, Section 643A-2.0 and C26-276.0 of the Administrative Code for the City and Section 309 of the Multiple Dwelling Law, you are hereby ordered to correct conditions existing in violation of the law as follows.” In regard to the alteration numbered two, the notice states that, In accordance with Section 61 of the Multiple Dwelling Law, you are hereby ordered to correct conditions existing in violation of the law as follows.” In regard to the group numbered three, the order states, In accordance with Section 10.11 of the Building Code of the City of New York, Section C26-669.0 of the Administrative Code for the City of New York, and Section 309 of the Multiplé Dwelling Law, you are hereby ordered to correct conditions existing in violation of the law as follows.”

The petitioners did not challenge the right of the Commissioner to order the structural change, numbered two, in accordance with section 61 of the Multiple Dwelling Law (Cons. Laws, ch. 61-a). That section provides in part: Where business is conducted in any non-fireproof multiple dwelling hereafter erected, the walls]and ceilings of the space where such business is conducted shall be fire-retarded.” Here, the discretion confided to the Commissioner is limited to determination of the kind of fire-retarding construction that shall be required, and for the reasons pointed out in the dissenting opinion of Crane, Ch. J., in this case, the delegation of such discretion to an administrative officer is justified by practical considerations and by principle and authority. The attack of the petitioner is confined to the items in groups numbered one and three.

The ordinances and statutes referred to in the notice relating to items in groups numbered one and three formulate no structural requirements to which all buildings used for lodging houses must conform. Concededly, the building leased to these petitioners, when originally constructed, complied with every definite requirement of the law; and approval of the plans and specifications was given in accordance with the law as it then existed. Concededly, too, no statute or ordinance has been enacted which requires that buildings, heretofore used as lodging houses and conforming to the standards of structural safety required when such use began, shall conform to higher standards imposed for buildings erected or altered for such use thereafter. (Cf. Multiple Dwelling Law, § 13.) If the Commissioner has power to require the petitioners to make the specified alterations, that power must be traced to the provisions of section 309 of the Multiple Dwelling Law and is a plenary power, as Chief Judge Crane points out, which may be set aside by the court only upon the ground that the Commissioner has acted arbitrarily.

The title of section 309 of the Multiple Dwelling Law is, “ Demolition of and repairs to buildings by the department charged with the enforcement of this chapter.” The section is very long, but in so far as material here provides: “ 1. Whenever any multiple dwelling or the plumbing, sewerage, drainage, light or ventilation thereof, is in the opinion of the department charged with the enforcement of this chapter in a condition or in effect dangerous to life or health, the said department may declare that the same, to the extent it may specify, is a public nuisance, and may order the same to be removed, abated, suspended, altered or otherwise improved or purified as the order shall specify. The said department may order or cause any multiple dwelling or part thereof, or any excavation, building, structure, sewer, plumbing, pipe, passage, premises, ground, matter or thing in or about a multiple dwelling or the lot on which it is situated, to be purified, cleansed, disinfected, removed, altered, repaired or improved.”

That section should not, I think, be construed as intended to give the Commissioner power to order structural alterations except where the statute has imposed upon owners or occupants of multiple dwellings a standard or requirement which necessitates such alterations. It seems to me entirely unreasonable to construe that section as intended to give to the Commissioner power to decide what structural alterations, not required by the Legislature, would render safe, for use as multiple dwellings, buildings which, in the opinion of the Commissioner, are not safe.

It would be unreasonable, because it is the function of the Legislature to determine what standards of safety should be required for multiple dwellings, and it may not delegate that authority to an administrative officer. In general, the Multiple Dwelling Law has set standards for buildings erected thereafter. In regard to tenement houses it has gone further and has provided that, “ Buildings used as multiple dwellings, though erected prior to 1901 in accordance with the requirements of the laws of the State which were then in force, must now comply with new requirements and higher standards enacted by the legislature, for the protection of the safety and health of those who may live in these houses and, indirectly, of the people of the State.” (Adamec v. Post, 273 N. Y. 250, 253.) It is to be noted, however, that in the opinion in that case the statutes which imposed that requirement upon new buildings are set forth. Discretion was not conferred upon the Commissioner of Buildings to determine what standards should be applied in a particular case. To hold that the Legislature may entrust to an administrative officer plenary discretion to determine how, when and where the safety and welfare and health of the public should receive protection from the dangers created by improperly planned multiple dwellings or lodging houses, seems to me a denial of everything we have said in past cases as to the limited discretion which the Legislature may delegate to an administrative officer. (Cf. Darweger v. Staats, 267 N. Y. 290, and, especially, the distinction drawn between administrative and legislative powers in the case of Matter of Small v. Moss, 279 N. Y. 288.)

Here, under the construction urged by the city, the Legislature must have intended to delegate to the Commissioner legislative, power to determine what standards should be applied and, in addition, an administrative power to determine who should be subject to such standards, without any limitation except the usual implied limitation, to which even legislative bodies are subject, that the determination must be reasonable. We do not hold that where the Legislature has said that a fire-retarding construction must be used it may not leave to an administrative officer determination of what form of fire-retarding construction would be best suited to a particular case. Nor do we hold that where the Legislature directs that fire escapes must be erected, it may not leave to an administrative officer choice of where such fire escapes should be located and how they should be erected. We do hold, however, that where a man is using for a lawful purpose, with the approval of the State, ajbuilding which has been constructed and is maintained in accordance with rules and standards formulated directly or through delegated authority by the Legislature, the Legislature may not delegate to an administrative officer power to decide whether higher standards and additional requirements should be exacted for the protection of the public health and safety. That is true even where higher standards and additional requirements might reasonably be exacted and even where the Legislature has been remiss in failing to exact them.

The order should be affirmed, with costs.

Crane, Ch. J.

(dissenting). This case involves the application of the Multiple Dwelling Law and the right of the Deputy Housing Commissioner to require certain changes in the construction or arrangement of lodging houses. This is said to be a test case, as in the boroughs of Manhattan and The Bronx there are about one hundred and twenty-five lodging houses which upon inspection have been found in bad condition, constituting dangerous fire hazards to life and property. This is a statement of an inspector of the Fire Department of the City of New York.

The petitioners are lessees of a building, No. 25 Bowery, which was erected in the year 1889. The premises consist of a cellar and a five-story brick building, fifty-nine feet in height, with a frontage of twenty-seven feet and a depth of eighty-three feet. Since approximately 1900 there has been a shop in the cellar and a restaurant and tailor shop accommodating about sixty persons on the first floor. The second, third, fourth and fifth floors are used for lodging house purposes, the second floor accommodating seventeen lodgers, the third floor thirty-six, the fourth floor thirty-five, and the fifth floor thirty-six. Apparently lodging in this place costs not more than thirty cents a night. The occupants of these lodging houses are so poor that they cannot really take care of themselves and have to sleep in these cheap lodging houses as there is no other place for them but the street or a home of some kind!

The Deputy Commissioner of the Department of Housing and Buildings on the 16th day of December, 1938, addressed a letter to Nathaniel H. Lyons, one of the petitioners, wherein he said that the building 25 Bowery had theretofore been classified as a Class B non-fireproof lodging house; that, in accordance with certain sections of the Building Code and the Administrative Code (L. 1939, ch. 929) and the Multiple Dwelling Law, the petitioners were ordered to correct conditions existing in violation of law, which briefly may be stated as follows: To provide a bulkhead in the roof directly over the stairs in the public hall, and a skylight for ventilation; fire retard the public halls and stairways, the ceilings and dormitories, and also fire retard the ceiling of the store throughout the first story and the ceiling of the cellar. The material for this fire retarding was specified. To -comply fully with the order would cost about $2,900.

This proceeding was thereupon started by the petitioners to seek relief, to restrain the enforcing of this order on the ground that the Housing Commissioner had no power to make any such order. It is not claimed that he acted arbitrarily or through caprice; it is simply alleged that he lacked any authority at law. It is true, however, that the prayer for relief in the petition asked for either a peremptory or an alternative order. Affidavits having been submitted on both sides, the Special Term denied the application in an order which has been reversed by the Appellate Division, that court holding as a matter of law that the orders of the defendant had no support under the statutes. Let us turn to these statutes.

The Multiple Dwelling Law (Laws of 1929, chap. 713) declared the policy and intent of the Legislature, in section 2, in these words: It is hereby declared that * * * overcrowding of multiple (dwelling rooms, inadequate provision for light and air, and insufficient protection against and defective provision for escape from fire, and improper sanitation of multiple dwellings in certain areas of the state are a menace to the health, safety, morals, welfare, and reasonable comfort of the citizens of the state; and that the establishment and maintenance of proper housing standards requiring sufficient light, air, sanitation, and protection from fire hazards are essential to the public welfare. Therefore the provisions hereinafter prescribed are enacted and their necessity in the public interest is hereby declared as a matter of legislative determination.”

The provisions of the law which follow classify the lodging house of the petitioners in Class B of multiple dwellings. This law, therefore, covers this class of building. There are many provisions in the law relating to the height and bulk of multiple dwellings to be erected, the yards, the depth of interior lots and the nature of passages which must be fireproof. There are provisions for the lighting and ventilation of rooms and of the windows in rooms, cooking spaces, and so forth. There are skylights for stairs, artificial hall lighting; and title 2 of article 3 provides for fire protection. We also have a title dealing with sanitation, including plumbing and drainage. Section 78 provides that every multiple dwelling and every part thereof shall be kept in good repair. Noté should be made of this section because of the claim hereafter made. Article 5 deals with non-fireproof multiple dwellings, including sections regarding fire-escapes, exits, stairs and public halls.

Article 7 relates to existing tenement houses. Section 210 contains this regulation: “ No provision of this article shall be construed or deemed to require any structural change or structural alteration in any tenement house erected after April eleventh, nineteen hundred and one and lawfully maintained and occupied as a tenement house at the time when this chapter becomes effective.”

We find throughout this law an attempt to standardize, so far as possible, multiple dwellings and tenement houses that are to be erected after the passage of the act. These main requirements, by the very nature of things, may be supplemented by the rules and regulations of the department in minor details. It is not conceivable, however, that the Legislature intended old lodging houses should be left without the control of the Housing Commission to bring them within the main purpose of the Multiple Dwelling Law which sought the safety and the welfare of the poorer classes in the city; that is, we cannot conceive the Legislature as providing for future construction and leaving the old buildings or multiple dwellings to exist without some remodelling when unsafe. The purpose of the law was to give to the city authorities the right to clean up unsafe and unhealthy buildings which were to be used as tenements or multiple dwellings. This purpose, we think, finds further expression in section 309. The heading is: Demolition of and repairs to buildings by the department charged with the enforcement of this chapter,” and the section reads: “ Whenever any multiple dwelling or the plumbing, sewerage, drainage, light or ventilation thereof, is in the opinion of the department charged with the enforcement of this chapter in a condition or in effect dangerous to life or health, the said department may declare that the same, to the extent it may specify, is a public nuisance, and may order the same to be removed, abated, suspended, altered or otherwise improved or purified as the order shall specify. The said department may order or cause any multiple dwelling or part thereof, or any excavation, building, structure, sewer, plumbing, pipe, passage, premises, ground, matter or thing in or about a multiple dwelling or the lot on which it is situated, to be purified, cleansed, disinfected, removed, "altered, repaired or improved. * * * If any order of the department is not complied with or not so far complied with as .the said department may regard as reasonable, within twenty-one days after the service thereof, then such order may be executed by said department through its officers, agents or employees or contractors.”

Which is the department in the city of New York charged with the enforcement of this chapter? The last charter of the city of New York (effective January 1, 1938), section 644, makes it the Department of Housing. The section reads.

§ 644. a. There shall be in the department a division of housing the head of which shall be a deputy commissioner.

b. The division of housing shall enforce the multiple dwelling law and any other provision of law, rule or regulation in relation to the maintenance, use, occupancy, safety, sanitary condition and inspection of any building or portion thereof which is occupied or is arranged or intended to be ■ occupied as the home, residence or sleeping place of one or more human beings, not, however, including one or two-family houses. If a building is occupied in part for such purposes, the commissioner may assign jurisdiction over it to the division, and he may assign other duties to the division not inconsistent with the duties conferred on it in this charter.”

The crux of this case lies in the wording of section 309. That this defendant is the right one to enforce the rules and regulations of the Multiple Dwelling Law is conceded. The claim of the petitioners, however, is that this broad wording of section 309 empowers the Housing Commission or the Deputy to order repairs only, and not to cover any other changes whatever. We have noted that in section 78 when repair was referred to, the word “ repair ” alone was used. We have something more in section 309. We have the word demolition ” in the title, and the words “ removed,” altered,” improved,” in the text. The petitioners eliminate all of these words, and say that alter,” improve,” “ remove,” merely means “ repair.” In view of the purpose of the Legislature to make lodging houses safe, protect them from fire, and afford proper ventilation, we must give meaning to all these words in the section. We thus find that the Commissioner or his Deputy had the right to issue the orders here in question; that is, he had the right to do so. Whether such orders were reasonable or arbitrary is not presented on this appeal. The right alone has been questioned, although there are some sentences like the request for an alternative order in the prayer of the petitioners, as well as the statement in an affidavit that the order is unreasonable which might leave open the application for further relief.

Now as to the procedure: Although the Department of Housing can carry out its own orders, yet it may apply, pursuant to section 306, in appropriate action or proceeding, to the Supreme Court to prevent unlawful maintenance, and to restrain or correct or abate- a nuisance, or to prevent any illegal act in and about such dwelling. It may apply to the Supreme Court or a justice thereof for an injunction or order granting the relief, or it may apply to the Supreme Court or a justice thereof for an order authorizing the Department to execute and carry out the provisions of its order. “ The court, or any justice thereof, is hereby authorized to make any order specified in this section.” The court will act judicially and not as an administrative officer and, we take it, that if upon such application of the Department it finds that the requirements are so unreasonable as to be arbitrary it may refuse to enforce the Department’s order. We take it that upon this proceeding, under article 78 of the Civil Practice Act, in which the petitioners made the first move and sought to enjoin the Department, the same proceeding may be followed or should be followed, that is, the court may grant the application of the petitioners if it finds that the work required by the Department is so unnecessary and unreasonable as to be arbitrary and oppressive. The action of the Department is not beyond judicial review. Any other interpretation would justify the taking of property without due process of law. There must be some remedy afforded for a review by the courts of the order of the Department of Housing like the review of any other administrative body. Opportunity must be afforded to challenge the legality of the demand. This does not mean that the courts substitute their judgment for that of the Commissioner or the Department; rather, it reviews the determination to see that there was reasonable necessity for the action, and that it is not so unreasonable as to be a mere arbitrary or capricious act. (See Matter of Ballston Town Highway, 281 N. Y. 322.)

We do not think that the Administrative Code nor the Building Code, both of which are general in application, supersede or limit the Multiple Dwelling Law which applies to certain classes of buildings only and takes precedence in this field. Thus, section 646, subdivision g, of the charter, dealing with the Department of Housing and Buildings, refers to certificates of occupancy. This section was carried over from the old Building Code and was section 411-a of the old city charter. (L. 1901, ch. 466, as amd.) By the McCall Act (Laws of 1933, ch. 764) section 411-a became section 412, and subdivision 5 became subdivision 3. It is now in the present charter as section 646, subdivision g. It reads:

“ g. Every certificate of occupancy shall, unless and until set aside'or vacated by the board of standards and appeals or a court of competent jurisdiction, be and remain binding and conclusive upon all agencies and officers of the city, and shall be binding and conclusive upon the department of labor of the state of New York, as to all matters therein set forth, and no order, direction or requirement at variance therewith shall be made or issued by any agency or officer of the city, nor by the department of labor of the state of New York, or any commission, board, officer or member thereof.”

The petitioners claim that they had a certificate of occupancy delivered to them in 1921, and that the Commissioner of Housing can make no order inconsistent with it until it has been set aside by some court. Surely no such cumbersome proceeding was intended by these provisions. Turning to the certificate of occupancy as found in the record, we find that it merely certifies that as of October 19, 1921, the building located at 25 Bowery conforms substantially to approved plans, and the requirements of the Building Code and the Building Zone Resolution of the City of New York for a non-fireproof, cellar and five-story restaurant and lodging house. Of course the requirements were of that date. The order of the present Commissioner of Housing is in no way inconsistent with this, nor denies that the certificate was good for the time; but surely since 1921 buildings materially deteriorate or fire hazards increase, and we cannot read this section as in any way preventing the salutary supervision and directions in the Multiple Dwelling Law for the protection of night lodgers at thirty cents per night. As stated before, the Multiple Dwelling Law applies to a special class of building, whereas the provisions of the charter are general in nature.

For these reasons the judgment of the Appellate Division should be reversed. However, in view of the nature of this proceeding and the doubt which seems to have existed in all minds regarding the right to review, and the nature of that review, I think it right that in accordance with the procedure as I have outlined it, this case should go back to the Special Term for a hearing upon the merits and a determination as to the arbitrary nature of the orders.

Order of the Appellate Division should be reversed and a hearing ordered, without costs to either party.

Hubbs, Loughran, Finch and Rippey, JJ., concur with Lehman, J.; Crane, Ch. J., dissents in opinion; O’Brien, J., taking no part.

Order affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Frank J. Hogan, Appellant, against the Supreme Court of the State of New York et al., Respondents.
    Argued December 15, 1939;
    decided December 15, 1939.

      John H. Broderick for appellant.

      Ellis J. Staley for John J. Ahem, respondent.
   Per Curiam.

Section 330 of the Election Law (Cons. Laws, ch. 17) vests the Supreme Court with jurisdiction summarily to determine, among other things, any question of law or fact arising as to, “ Protested, wholly blank or void ballots shown upon the statement of the canvass in any election district or districts * * * ” (Subd. 4). This power is to be exercised in a proceeding instituted in the manner and within the time prescribed by the statute, “ and the court or justice may direct a recanvass, or the correction of any error in the canvass, of such ballots * *

At the general election of November, 1939, John J. Ahern was the candidate of the Republican party for the office of Mayor of the city of Troy. The voting machine then used in the second election district of the eighth ward of the city failed to record all the votes there cast for Ahern although all votes cast for all other candidates on the ballot were correctly registered by the machine. The question to be determined is whether, in a proceeding brought under the foregoing provisions of section 330, the court may receive the testimony of electors to establish the number of votes cast for Ahern on the defective machine.

It is argued for Ahern that each time the defective machine failed to register a vote cast for him the result was a ballot wholly blank ” in the sense of that phrase as used in the statute. We are unable to assent to that argument. The form of ballots on voting machines is defined and illustrated by section 249. (See, also, §§ 250, 261, 268, subd. 2.) If such a ballot can ever be wholly blank, that situation could hardly be ascertained from the machine itself. But however that may be, a ballot is not wholly blank when a vote cast for any candidate named on it is registered by the machine. This was the case in respect of all ballots here involved. The question of the construction of section 330 was not raised or considered in Matter of Creedon (264 N. Y. 40). Any extension of the summary remedy authorized by that section must be made by the Legislature.

The order of the Appellate Division should be reversed and the application for a restraining order granted, without costs.

Crane, Ch. J., Lehman, Loughran and Etppey, JJ., concur; Hubbs and Finch, JJ., dissent and vote to affirm the Appellate Division; O’Brien, J., takes no part.

Ordered accordingly.


text:
    In the Matter of the Will of Edward W. Browning, Deceased. Dorothy B. Hood, Appellant; Title Guarantee and Trust Company, as Executor of Edward W. Browning, Deceased, et al., Respondents.
    Argued May 17, 1939;
    decided June 19, 1939.

      Samuel Seabury and Daniel A. Shirk for appellant.

      Joseph V. McKee and William T. Griffin for Title Guarantee and Trust Company, as executor, respondent.

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer and Henry Epstein of counsel), appearing on behalf of unknown beneficiaries, respondent.
   Order affirmed, with costs to all parties filing briefs, payable out of the estate; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Oscar Tudda and Theodore Manara, Appellants.
    Argued May 22, 1939;
    decided June 19, 1939.

      Elvin N. Edwards and Laurence Rosenthal for appellants.

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

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


text:
    The People of the State of New York, Respondent, v. Leonard Gerschinsky, Appellant. The People of the State of New York, Respondent, v. Sylvie Todaro, Appellant. The People of the State of New York, Respondent, v. Stephen Rogalski, Appellant.
    Argued May 22, 1939;
    decided June 19, 1939.

      James F. Ryan for appellants.

      William F. X. Geoghan, District Attorney (Edward H. Levine and Henry J. Walsh of counsel), for respondent,
   As to each defendant: Judgment affirmed; no opinion. (See 281 N. Y. 881,)

Concur: Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ,; Lehman, J., concurs solely upon the authority of People v. Murphy (276 N. Y. 612). Taking no part: O’Brien, J.


text:
    Anne M. Colliton, as Administratrix of the Estate of John M. Colliton, Deceased, Respondent, v. United Shipyards, Inc., Appellant.
    Argued May 22, 1939;
    decided June 19, 1939.

      Clarence S. Zipp, William 8. O’Connor and Daniel Miner for appellant.

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

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


text:
    Lena Soma, Respondent, v. George Handrulis et al., Defendants, and Federal Reserve Bank of New York, Appellant.
    Argued May 23, 1939;
    decided June 19, 1939.

      Ralph M. Carson and Francis W. Phillips for appellant.

      Otho S. Bowling and Robert H. Elder for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel Struhl, Appellant, v. Travelers Insurance Company, Respondent.
    Submitted May 23, 1939:
    decided June 19, 1939.

      Louis E. Schwartz for .appellant.

      Bernard J. McGlinn, Louis P. Galli and William J. Moran for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Clifford J. Stoddard et al., Appellants, v. Charles M. Schwab et al., Respondents, Impleaded with Others.
    Argued May 23, 1939;
    decided June 19, 1939.

      Nathan J. Stein, Paul L. Ross and Morris Vogel for appellants.

      John M. Harlan, Leslie H. Arps and M. Camper O’ Neal for respondents.
   Judgment affirmed, with costs; no opinion. (See 281 N. Y. 692.)

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


text:
    In the Matter of The People of the State of New York ex rel. Joseph T. Brett, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Appellants.
    Argued May 24, 1939;
    decided June 19, 1939.

      William C. Chanter, Corporation Counsel (Robert H. Schaffer and Paxton Blair of counsel), for appellants.

      Harold M. Kennedy for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of The People of the State of New York ex rel. Arthur L. Lewis, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Appellants.
    Argued May 24, 1939;
    decided June 19, 1939.

      William C. Chanler, Corporation Counsel {Robert H. Schaffer and Paxton Blair of counsel), for appellants.

      Harold M. Kennedy for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Morris Schwebel, Appellant, v. 1719 67th Street Corporation et al., Respondents.
    Argued May 24, 1939;
    decided June 19, 1939.

      Edward A. Kole for appellant.

      Andrew S. Fraser and Harry M. Alfert for Carmela Mastropolo, respondent.

      Joseph N. Dobrovir for 1719 67th Street Corporation, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret M. Reutlinger, Appellant, v. City of New York, Respondent.
    Argued May 24, 1939;
    decided June 19, 1939.

      Samuel Seligsohn, J. Kenneth McCabe and George H. Feirberg for appellant.

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

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


text:
    Marion Steele, Respondent, v. Colin G. Steele, Appellant.
    Argued May 24, 1939;
    decided June 19, 1939.

      Rollin B. Sanford, Murty J. O’Connor, John T. DeGraff and Arthur E. McCormick for appellant.

      Abraham Grometstein for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of Prudential Insurance Company of America, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued May 24, 1939;
    decided June 19, 1939.

      William C. Chanler, Corporation Counsel (Edmund B. Hennefeld, Arthur A. Segall and Bernard H. Sherris of counsel), for appellant.

      Edward E. Clark, Albert B. Gins and Leonard J. Reynolds for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Caroline Schubart, Respondent, v. Hotel Astor, Inc., Appellant.
    Argued May 24, 1939;
    decided June 19, 1939.

      Joseph F. Murray and Malcolm G. Bibby for appellant.

      James B. M. McNally and Francis J, MacIntyre for respondent..
   Judgment affirmed, with costs; no opinion.

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


text:
    Verna B. Jensen et al., Respondents, v. United Air Lines Transport Corporation, Appellant.
    Argued May 25, 1939;
    decided June 19, 1939.

      Joseph F. Murray, JohnF. Ward and Malcolm G. Bibbey for appellant.

      Robert G. Page and Carl McGowan for respondents.
   Order affirmed, with costs, and the question certified answered in the negative. No opinion.

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


text:
    Arthur Hardoncourt, Appellant, v. Irene J. Hardoncourt et al., Respondents.
    Argued May 25, 1939;
    decided June 19, 1939.

      Arthur Hardoncourt, appellant in person.

      James W. Bailey for Irene J. Hardoncourt, respondent.
   Judgment affirmed, with costs; no opinion. • (See 281 N. Y. 678.)

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


text:
    William Kinsey, Respondent, v. William Spencer & Son Corporation et al., Appellants.
    Argued May 25, 1939;
    decided June 19, 1939.

      William B. Davis and James E. Turner for William Spencer & Son Corporation, appellant.

      Irving Katz for Frank Scotto, appellant.

      Ralph Stout) Louis Rothbard and Max Schier for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Harold S. Glendening, Respondent, against Alicia M. Glendening, Appellant.
    Submitted May 26, 1939;
    decided June 19, 1939.

      Maurice Finkélstein and Frieda B. Hennock for appellant.

      Paul W. Williams and Robert M. Bozeman for respondent.
   Order of Appellate Division reversed and the orders of Special Term reinstated, without costs, on the authority of People ex rel. Duryee v. Duryee (188 N. Y. 440). No opinion.

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


text:
    Michael Salamina, Appellant, v. City of New York, Respondent.
    Argued May 26, 1939;
    decided June 19, 1939.

      Jacob Greenwald and Anthony Zollino for appellant.

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

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


text:
    Catherine Bateman et al., Respondents, v. Frances Green, Appellant.
    Submitted May 26, 1989;
    decided June 19, 1939.

      John F. Mulvey and William J. Tropp for appellant.

      Irving I. Erdheim for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel Weinstein, Respondent, v. John J. McElligott, as Trustee of the New York Fire Department Relief Fund, Appellant.
    Argued May 26, 1939;
    decided June 19, 1939.

      William C. Chanter, Corporation Counsel (Paxton Blair and Alan M, Stroock, of counsel), for appellant.

      Joseph, W- Gottlieb and I. Louis Kottler for' respondent.
   Judgment of Appellate Division reversed and judgment directed for the defendant in accordance with the submission, without costs. Held, that under the facts in this case there was no property subject to the garnishee execution. (Roddy v. Valentine, 268 N. Y. 228.) No opinion.

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


text:
    John Wanhope et al., Appellants, v. The Press Company, Inc., Respondent.
    Argued May 26, 1939;
    decided June 19, 1939.

      John T. DeGraff for appellants.

      Charles E. Brennan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hxjbbs, Lotjghran, Finch and Rippbt, JJ. Taking no part: O’Brien, J.


text:
    In the Matter of A. H. DuGrenier, Inc., et al., Respondents, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Submitted May 17, 1939;
    decided June 21, 1939.

      William, C. Chanler, Corporation Counsel {Morris L. Heath and Sol Charles Levine of counsel), for appellant.

      John H. Jackson and James J. Marett for respondents.
   Order affirmed, with costs; no opinion. (See 281 N. Y. 669.)

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


text:
    In the Matter of Berwind-White Coal Mining Company, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued May 17, 1939;
    decided June 21, 1939.

      William C. Chanler, Corporation Counsel (Milton Sandberg, Arthur A.- Segall and Sol Charles Levine of counsel), for appellant.

      Marvin Lyons and Robert C. Vincent for respondent.
   Order affirmed, with costs; no opinion. (See 281 N. Y. 670.)

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


text:
    The People of the State of New York, Respondent, v. John Goggin and Joseph Murphy, Appellants.
    Submitted May 19, 1939;
    decided June 21, 1939.

      Robert McGowan Smith for appellants.

      Frank H. Innes, district Attorney (Thomas K. Hall of counsel), for respondent.
   As to each defendant: Judgment affirmed. No opinion.

Concur: Crane, Ch. J., O’Brien, Hubbs and Rippey, JJ.; Lehman, Loughran and Finch, JJ., dissent on the ground section 450 of the Code of Criminal Procedure was not complied with.


text:
    In the Matter of Reuben J. Strauss, Appellant, against William A. Hannig et al., as Members of the Board of Examiners of the Board of Education of the City of New York, Respondents.
    Argued May 31, 1939;
    decided June 21, 1939.

      George Dyson Friou for appellant.

      William C. Ghanler, Corporation Counsel (James Hall Prothero and Paxton Blair of counsel), for respondents.
   Order affirmed, without costs; no opinion. (See 281 N. Y. 757.)

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


text:
    In the Matter of the Claim of Dennis Sheehan, Respondent, against Board of Trustees of Village of Schuylerville et al., Appellants. State Industrial Board, Respondent.
    Argued May 31, 1939;
    decided June 21, 1939.

      Harold J. Hughes and J. Vanderbilt Stráúb for appellants.

      Walter Á. Fullerton for claimant, respondent.
   Appeal dismissed, without costs, on ground the matter is not a proper one for a stipulation for judgment absolute. No opinion.

Concur: Crane, Ch. L, Lehman, Htjbbs, Loüghran, Finch and Rippey, JJ. Taking no part; O’Brien, j.


text:
    Jack Fink et al., Appellants, v. Milton Lowenthal, Respondent.
    Argued May 3l, 1939;
    decided June 21, 1939.

      John F. X. Browne and John A. Albert for appellants.

      Ira I. Gollobin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Rose Krapp et al., Respondents, against Paul Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.
    Argued June 1, 1939;
    decided June 21, 1939.

      WHliam C. Chanter,' Corporation Counsel (Nicholas Bucd and Paxton Blair of counsel), for appellants.

      Austin B. Mandel for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Henry F. Mall et al., Respondents, v. Harry B. Sloan, Appellant, Impleaded with Others.
    Argued June 1, 1939;
    decided June 21, 1939.

      Lurton G. Whiteman and Floyd E. Whiteman for appellant.

      George Hoffenberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    City of New Rochelle, Appellant, v. Morgan H. Seacord, Respondent, Impleaded with Others.
    Argued June 1, 1939;
    decided June 21, 1939.

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

      Lyle Evans Median for respondent.
   Judgment affirmed, with costs; no opinion,

Concur: Crane, Ch. J„ Lehman, Hubbs, Loughran, Fin oh and Ribbey, JJ, Taking no part: O’Brien, J.


text:
    Thomas Jacob, Appellant, v. Prudential Insurance Company of America, Respondent.
    Argued June 2, 1939;
    decided June 21, 1939.

      Salem G. Mansour for appellant.

      Ansley Wilcox, M, for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loxtghran and Pinch, JJ. Dissenting: Rippey, J. Taking no part: O’Brien, J.


text:
    In the Matter of Bond and Mortgage Guarantee Company. In the Matter of Nathan Lifshutz et al., Appellants; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Bond and Mortgage Guarantee Company, et al., Respondents.
    Argued June 2, 1939;
    decided June 21, 1939.

      Nathan D. Shapiro and William F. Beeler for appellants.

      Ifving II. Jurow, Edroard F. Keeñan and J. Donald Whelehan for Superintendent of Insurance, as liquidator, respondent.

      Arthur Rosenberg, Michael F. Dee, Louis Olickhouse and Maurice Finkelstein for Mortgage Commission, respondent.
   Order affirmed, with costs. Question certified not answered as the order is final. No opinion.

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


text:
    In the Matter of Julius Levi, Appellant, against Regents of the University of the State of New York et al., Respondents.
    Submitted June 2, 1939;
    decided June 21, 1939.

      Irving Mariash for appellant.

      Ernest E. Cole and Charles A. Brind, Jr., for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Mohawk Manufacturing Co., Inc., Respondent, against Ernest Cavicchi, Doing Business as Wade Button Co., Appellant.
    Argued June 2, 1939;
    decided June 21, 1939.

      William D. Burrows, Alan N. Mann and John H. Jackson for appellant.

      Charles Saleson and Ralph H. Miller for respondent.
   Judgment affirmed, with costs; no opinion. (See 281 N. Y. 669.)

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


text:
    In the Matter of Clifford H. McCall et al., Copartners, Respondents, against Salvatore A. Cotillo, a Justice of the Supreme Court of the State of New York, Respondent, and Irma J. Brown, Appellant.
    Argued June 20, 1939;
    decided June 21, 1939.

      Max Ornstein for appellant.

      Frederick E. Weinberg for petitioners, respondents.
   Order modified by striking therefrom the provision directing the filing of a decision nunc pro tune and as so modified affirmed, without costs. No opinion.

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


text:
    Lottie M. Crandall, Appellant, v. E. Doris Crandall et al., Respondents.
    Submitted June 19, 1939;
    decided June 21, 1939.

      Ransom Pratt and Melvin H. Zurett for motions.

      John W. Hollis opposed.
   .Motions granted and appeal dismissed, without costs.


text:
    In the Matter of the Application of William P. McGarry, Respondent. City of New York, Appellant.
    Submitted June 19, 1939;
    decided June 21, 1939.

      Frank Weinstein, Samuel J. Levinson and Samuel C. Duberstein for motion.

      William C. Chanler, Corporation Counsel (John G. Clancy of counsel), opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion.


text:
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Widening of Cypress Avenue and Southern Boulevard in the Borough of The Bronx. Frank C. Gareiss et al., Appellants; General Outdoor Advertising Co., Inc., Respondent.
    Submitted June 19, 1939;
    decided June 21, 1939.

      Emerson F. Davis and William C. Chanler, Corporation Counsel (Daniel M. Cohen of counsel), for motions.

      Sidney S. Levine opposed.
   Motions granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Louis Holland et al., Appellants, v. Fred Y. Presley et al., Respondents, Impleaded with Others.
    Submitted June 19, 1939;
    decided June 21, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 280 N. Y. 835.)


text:
    In the Matter of the Application of Russell, Shevlin and Russell, as Attorneys. William C. Limberg, Appellant; Russell, Shevlin and Russell, as Attorneys, et al., Respondents.
    Submitted June 19, 1939;
    decided June 21, 1939.

      Matthew J. Shevlin and Alphonse G. Lieber for motion.

      Charles II. Wald, Frederick W. Ritter and Henry Koch opposed.
   Motion granted Md appeal dismissed, with costs and ten dolíais costs of motion.


text:
    Joseph L. Nettles, as Receiver of the Stockholders’ Liability of The Peoples State Bank of South Carolina, Appellant, v. Starling W. Childs et al., Defendants, and Alice F. Coffin et al., Respondents.
    Argued May 15, 1939;
    decided July 11, 1939.

      Albert C. Rothwell, Ben A. Matthews and James E. Austin for appellant.

      Clifton S. Thomson, John A. Sullivan, Alan C. Doig, L. Reyner Samet and Harvey C. McClintock for respondents. '
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Htjbbs, Lotjghran and Finch, JJ. Dissenting: Rippey, J. Taking no part: O’Brien, J.


text:
    Mortgage Commission of the State of New York, Appellant, v. Charles J. Fay et al., Respondents.
    Argued May 16, 1939;
    decided July 11, 1939.

      Lewis F. X. Cotignola and Maurice Finkelstein for appellant.

      Richard L. Maloney, Jr., and Charles J. Fay for respondents.

      Leon London for Fannie Bell, as amicus curiee.

   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Western New York & Pennsylvania Railway Company, Appellant and Respondent, against State Board of Tax Commissioners, et al., Respondents and Appellants.
    Argued May 18, 1939;
    decided July 11, 1939.

      Percy R. Smith and Harold J. Adams for relator, appellant and respondent.

      David Diamond, Corporation Counsel (Herbert A. Hickman of counsel), for defendant, city of Buffalo, respondent and appellant.

      John J. Bennett, Jr., Attorney-General (Timothy F. Cohan, James R. Creary and Henry Epstein of counsel), for defendant, State Tax Commission, respondent and appellant.
   Order affirmed, without costs; no opinion.

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


text:
    Westmoreland Asbestos Company, Inc., et al., Appellants, v. John A. Roebling’s Sons Company of New York, Respondent.
    Argued May 18, 1939;
    decided July 11, 1939.

      M. M. Leichter and John L. Ketcham for appellants.

      A. S. Edmonds, Theodore Kiendl and Frederick 0. Watson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Abraham Cohen and Harry A. Vogelstein, Appellants.
    Argued May 22, 1939;
    decided July 11, 1939.

      I. Gainsburg for Abraham Cohen, appellant.

      Hyman Vogelstein for Harry A. Yogelstein, appellant.

      Thomas E. Dewey, District Attorney (Sewell T. Tyng, Stanley H. Fuld, and Milton Shilback of counsel), for respondent.
   As to each defendant: judgment affirmed; no opinion.

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


text:
    Commonwealth Water Company, Appellant and Respondent, v. Jewish National Workers’ Alliance of America et al., Respondents and Appellants, Impleaded with Another.
    Argued May 22, 1939;
    decided July 11, 1939.

      Carl Sherman for defendants, respondents and appellants.

      Allan R. Campbell for plaintiff, appellant and respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of Gulf Oil Corporation, Appellant and Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Respondent and Appellant.
    Argued May 24, 1939;
    decided July 11, 1939.

      Matthew S. Gibson for petitioner, appellant and respondent.

      George de Forest Lord and Woodson D. Scott for Cunard White Star Limited, amicus cwrise.

      William C. Chanter, Corporation Counsel {Sol Charles Levine, Jerome R. Hellerstein, Milton Sandberg and Charles H. Birdsall of counsel), for defendant, respondent and appellant.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Arthur Perry, Appellant.
    Argued May 25, 1939;
    decided July 11, 1939.

      Samuel Segal and Henry P. Lipscomb for appellant.

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

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ. Rippey, J., dissents on the ground that some of the material errors committed in the first trial [see 277 N. Y. 460] were repeated in the second trial, and that the evidence does not satisfy him beyond a reasonable doubt of the guilt of the defendant. Taking no part, O’Brien, J.


text:
    Marie L. Engels, Respondent, v. City of New York, Appellant.
    Argued May 26, 1939;
    decided July 11, 1939.

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

      Myron Wisoff, William S. Butler and Otto B. Schmidt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Arthur Chalmers, Appellant.
    Argued May 29, 1939;
    decided July 11, 1939.

      Joseph S. Robinson and William Richter for appellant.

      Thomas F. Dewey, District Attorney (Stanley H. Fuld and Jacob Grumet of counsel), for respondent.
   Judgment affirmed; no opinion. (See 281 N. Y. 676.)

Concur: Crane, Ch. J., O’Brien, Hubbs and Finch, JJ. Dissenting: Lehman, Loughran and Rippey, JJ., on the ground that the testimony of Vera Lorden was erroneously admitted.


text:
    Louis M. Hauben et al., Individually and as Stockholders of Industrial Finance Corporation, Plaintiffs, and William I. Rosenfeld et al., Individually and as Stockholders of Industrial Finance Corporation, Appellants, v. Arthur J. Morris et al., Respondents, Impleaded with Others.
    Argued May 31, 1939;
    decided July 11, 1939.

      Walter H. Poliak, Frank Aranow and Mordecai Rochlin for William I. Rosenfeld, appellant.

      Eugene L. Bondy and Norman Winer for Norman P. S. Schloss, appellant.

      Joseph M. Proskauer, J. Alvin Van Bergh, Eugene Eisenmann and Lloyd F. Thanhouser for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Richard F. Harrison et al., Appellants and Respondents, v. New York Central Railroad Company et al., Respondents and Appellants.
    Argued June 1, 1939;
    decided July 11, 1939.

      Benjamin E. Shove for plaintiffs, appellants and respondents.

      H. Duane Bruce for The New York Central Railroad Company, defendant, respondent and appellant.

      John H. Walrath for Syracuse Grade Crossing Commission, defendant, respondent and appellant.

      Truman H. Preston for county of Onondaga, defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    Commissioner of Public Welfare of the City of New York, Appellant, against Nicholas Ladutko, Respondent.
    Argued June 2, 1939;
    decided July 11, 1939.

      William C. Chanler, Corporation Counsel (Paxton Blair and Stanley Buchsbaum of counsel), for appellant.

      Abner H. Silverman, Emanuel Butter and Alfred Waksman for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of New York Water Service Corporation, Appellant, against Water Power and Control Commission of the State of New York, Respondent. City of New York et al., Interveners, Respondents.
    Argued June 20, 1939;
    decided July 11, 1939.

      George R. Fearon and M. Harold Dwyer for appellant.

      John J. Bennett, Jr., Attorney-General {Timothy F. Cohan and Henry Epstein of counsel), for Water Power and Control Commission, respondent.

      James L. Dowsey, County Attorney {Marcus G. Christ and John Mowat Mitchell of counsel), for County of Nassau, intervener, respondent.
   Order affirmed, with costs. Motion to dismiss appeal denied. No opinion.

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


text:
    The People of the State of New York ex rel. Corinthian Realty Corporation, Appellant, v. James J. Sexton et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    Argued June 20, 1939;
    decided July 11, 1939.

      W. Morton Garden and Carl H. Fowler for appellant.

      William C. Chanler, Corporation Counsel (Arthur H. Goldberg, Arthur A. Segall and Murray Sendler of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Alton Hickox, Respondent.
    Argued June 20, 1939;
    decided July 11, 1939.

      Royal D. Woolsey, District Attorney for appellant.

      Howard Zeller for respondent.
   Order affirmed; no opinion.

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


text:
    DeVeber Kirkpatrick et al., Appellants and Respondents, v. City of Binghamton, Respondent and Appellant.
    Argued May 16, 1939;
    decided July 11, 1939.

      Charles B. Stewart for plaintiffs, appellants and respondents.

      Herman F.Nehlsen, Corporation Counsel, for defendant, respondent and appellant.
   Per Curiam.

Judgment entered upon order of the Appellate Division modified by reversing findings of fact made in the Appellate Division, Nos. 49,52,56, 64,68 (6) and 68 (8). ' The claims covered by these findings, which are herewith disallowed, total $6,575.35. In regard to findings Nos. 53, 54, 55 and 59, which amount to a total of $1,397.05, 15% should be added for profit, a total of $209.56. In all other respects the judgment is affirmed.

The judgment entered upon the order of the Appellate Division in the sum of $18,906.63 with interest from July 1, 1925, should be modified to the sum of $12,520.44 with interest from July 1, 1925, and disbursements of $2,502.25, and as so modified affirmed, without costs.

Crane, Ch. J., Httbbs, Loughran and Finch, JJ., concur; Lehman and Rippey, JJ., dissent and vote to affirm; O’Brien, J., taking no part.

Judgment accordingly.


text:
    In the Matter of Judith Ackerman et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York et al., Appellants.
    Submitted May 29, 1939;
    decided July 11, 1939.

      Albert de Roode for motion.

      William, C. Chanler, Corporation Counsel (Paxton Blair and Samuel J. Silverman of counsel), opposed.
   Motion denied.


text:
    In the Matter of the Accounting of Irving Trust Company et al., as Executors of Benjamin L. M. Bates, Deceased, Respondents. Helen M. Bates, Appellant; Mary H. Alexander, Respondent.
    Submitted June 19, 1939;
    decided July 11, 1939.

      Bertram L. Kraus, M. Claiborne Mebel and Jacob Newman for motions.

      Frederick N. Van Zandt opposed.
   Motions denied. Appellant’s time to perfect the appeal by furnishing the undertaking is extended until September 15, 1939.


text:
    In the Matter of Jagels, “ A Fuel Corporation,” Appellant, against Frank J. Taylor, as Comptroller of the City of New York, Respondent.
    Submitted June 19, 1939;
    decided July 11, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 280 N. Y. 766.)


text:
    Bankers Trust Company, as Trustee, Appellant, v. City of Yonkers et al., Respondents, Impleaded with Another.
    Submitted June 19, 1939;
    decided July 11, 1939.
   Motion for reargument denied with ten dollars costs and necessary printing disbursements. (See 280 N. Y. 738.)


text:
    Louise Henry, Respondent, v. New York Post, Inc., Appellant.
    Submitted July 11, 1939;
    decided July 11, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 280 N. Y. 842.)


text:
    Dominick Melichar, Respondent, v. Robert Michelson, Respondent. Society of the New York Hospital, Appellant. In the Matter of the Application of The Society of the New York Hospital, Appellant. Dominick Melichar et al., Respondents.
    Submitted July 11, 1939;
    decided July 11, 1939.

      David Wohl for motions.

      Emanuel Hoyt opposed.
   Motions granted and appeal dismissed, with costs and ten dollars costs of motion. (See 281 N. Y. 671.)


text:
    William T. Wright, Individually and as Mayor of the City of Rensselaer, Appellant, v. Albany Port District Commission et al., Respondents.
    Submitted July 11, 1939;
    decided July 11, 1939.
   Motion for reargument denied and motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following:

A question under the Federal Constitution was presented and necessarily passed upon. The appellant contended that chapter 192 of the Laws of 1925 of the State of New York, and the acts amendatory thereof, were repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States. This court held that the laws in question were not repugnant to such constitutional provisions.”


text:
    Charles Kemp et al., Appellants, v. New York Central Railroad Company, Respondent.
    Argued May 29, 1939;
    decided September 26, 1939.

      William L. Clay for appellants.

      Paul Folger and Harlan F. Calkins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of New York Trust Company et al., as Executors of Archibald G. McIlwaine, Jr., Deceased, Appellants; Bayard W. Read, as General Guardian of Archibald G. McIlwaine, II, et al., Respondent.
    Submitted June 19, 1939;
    decided September 26, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 280 N. Y. 775.)


text:
    Edward K. Ream, Appellant, v. Robert C. Ream et al., Individually and as Trustees under a Declaration of Trust Made by Caroline P. Ream et al., Respondents, Impleaded with Another.
    Submitted July 11, 1939;
    decided September 26, 1939.

      Carl Sherman for motion.

      Joseph Larocque, William H. Crawford, H. Henry Ramm, Milton Rosenblum, Mark W. Norman, Hugart F. Norman and Joseph D. Allen opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground an appeal lies as of right.


text:
    In the Matter of Mohawk Manufacturing Co., Inc., Respondent, against Ernest Cavicchi, Doing Business as Wade Button Co., Appellant.
    Submitted September 25, 1939;
    decided September 26, 1939.
   Motion for reargument denied and motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following:

“ A question under the Federal Constitution was presented and necessarily passed upon in this proceeding by this court, viz., that article 84 of the Civil Practice Act of New York (as applied here to a cause of action arising under the patent laws) is repugnant to the Constitution and laws of the United States in that it offends article 1, section 8, of the Constitution and section 256 of the Judicial Code. This court held that article 84 of the Civil Practice Act (as applied here to a cause of action arising under the patent laws) is not repugnant to article 1, section 8, of the Constitution and does not offend section 256 of the Judicial Code.” (See 281 N. Y. 629.)


text:
    In the Matter of A. H. Du Grenier, Inc., et al., Respondents, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Submitted September 25, 1939;
    decided September 27, 1939.
   Motion for reargument denied and motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding after the words “ be and the same hereby is affirmed, with costs,” the words “ upon the sole ground that the City Sales Tax Law as here applied violates the Commerce Clause (Art. 1, sec. 8, cl. 3) of the Constitution of the United States.” (See 281 N. Y. 608.)


text:
    In the Matter of Berwind-White Coal Mining Company, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Submitted September 25, 1939;
    decided September 27, 1939.
   Motion for reargument denied and motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding after the words be and the same hereby is affirmed, with costs,” the words “ upon the sole ground that the City Sales Tax Law as here applied violates the Commerce Clause (Art. 1, sec. 8, cl. 3) of the Constitution of the United States.” (See 281 N. Y. 610.)


text:
    In the Matter of the Application of Russell, Shevlin & Russell, as Attorneys, Respondents. William C. Limberg, Appellant.
    Submitted September 25, 1939;
    decided October 3, 1939.

      Matthew J. Shevlin and Alphonse G. Lieber for motion.

      Henry Koch and Frederick W. Ritter opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion. The order modified by the Appellate Division was not interlocutory. (Civ. Prac. Act, § 590.)


text:
    In the Matter of the Application of James P. Mazzone Appellant, for Payment of an Award Made in a Condemnation Proceeding Instituted by the City of New York. David Hjorth et al., Respondents.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motions for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 139.)


text:
    Dominick Melichar, Respondent, v. Robert Michelson, Respondent. Society of the New York Hospital, Appellant. In the Matter of the Application of The Society of the New York Hospital, Appellant. Dominick Melichar et al., Respondents.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motion to resettle order dismissing appeal granted and the order resettled by providing that the appeal is dismissed, without costs. (See 281 N. Y. 665.)


text:
    Louis S. Goldstein, Respondent, v. Tri-Continental Corporation et al., Defendants, and Earle Bailie et al., Appellants.
    Submitted September 25, 1939;
    decided October 3, 1939.

      Edward A. Rothenberg for motion.

      Frederick H. Wood opposed.
   Motion denied.


text:
    Edward K. Ream, Appellant, v. Robert C. Ream et al., Individually and as Trustees under a Declaration of Trust Made by Caroline P. Ream, et al., Respondents, Impleaded with Another.
    Submitted September 25, 1939;
    decided October 3, 1939.

      William H. Crawford and Milton Rosenblum for motion.

      Carl Sherman opposed.
   Motion denied on the ground an appeal lies as of right.


text:
    Abraham Glasner, Doing Business as North American House and Window Cleaning Company, Appellant, v. Regina N. Bressler, Individually and Doing Business as American Window Cleaning Company and as Administratrix of the Estate of Simon A. Bressler, Deceased, Respondent.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 218.)


text:
    In the Matter of Joseph F. Dempsey et al., Appellants, against Russell P. Koehler et al., Constituting the Board of Appeals of the Town of Islip, Respondents, and Benjamin W. Hawkes, Intervener, Respondent.
    Argued September 25, 1939;
    decided October 3, 1939.

      Robert H. Koehler and Alexander W. Kramer for motion.

      Stanley Gray Horan and Francis M. Verrilli opposed.
   Motion denied.


text:
    New York Telephone Company, Appellant, v. Meehan Paving and Construction Co., Inc., et al., Respondents. Empire City Subway Company, Limited, Appellant, v. Meehan Paving And Construction Co., Inc., et al., Respondents. Holmes Electric Protective Company, Appellant, v. Meehan Paving and Construction Co., Inc., et al., Respondents.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements, (See 280 N. Y. 796.)


text:
    In the Matter of the Claim of Joseph Dotola, Respondent, against Edward T. Hill et al., Appellants. State Industrial Board, Respondent.
    Submitted September 25, 1939;
    decided October 3, 1939.

      Bernard F. Farley for motion.

      John J. Bennett, Jr., Attorney-General (Isaac Frank of counsel), opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the application was not made in time.


text:
    Thedina S. Lindemann, Appellant, v. Roland Lindemann, Respondent.
    Submitted September 25, 1939;
    decided October 3, 1939.

      Jacob Greenwald for motion.

      Samuel Mazzola opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    East River Savings Bank, Respondent, v. 671 Prospect Avenue Holding Corporation et al., Defendants, and Gussie Hutt, Appellant.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 280 N. Y. 342.)


text:
    The People of the State of New York, Respondent, v. Arthur Chalmers, Appellant.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motion for reargument denied. (See 281 N. Y. 651.)


text:
    Lehigh Structural Steel Company, Inc., Plaintiff, v. Nyack Kennel Club et al., Defendants; Vernon Lumber Corporation, Respondent, and Biophile Club Company, Inc., Appellant.
    Submitted September 25, 1939;
    decided October 3, 1939.

      Max Ornstein for motion.

      Francis D. Wells opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    In the Matter of Jagels, “A Fuel Corporation,” Appellant, against Frank J. Taylor, as Comptroller of the City of New York, Respondent.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motion for reargument denied and motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following:

The appellant contended that it was engaged in interstate commerce and, therefore) that the City Sales Tax (Local LaW Nb. 20 —1934) and the acts amendatory thereof Were repugnant tb the provisions of the Commerce Clause of the Constitution of the United States. This court held that the appellant was engaged in intrastate Commerce and that said City Sales Tax, as applied to SUch commerce, is constitutional.” (See 280 N. Y. 766.)


text:
    Arthur Hardoncourt, Appellant, v. Irene J. Hardoncourt et al., Respondents.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motion to file remittitur in office bf Clerk of county of Nassau, to amend remittitur and for a reargument denied, With ten dollars costs. (See 281 N. Y. 699.)


text:
    The People of the State of New York, Respondent, v. Morris Friedlander, Louis Yukelson, Irving Glasser, Louis Glasser, James Abisror, Samuel Jenks, William Swirnow, Samuel Ziff, Samuel Swirnow and Isidore Markowitz, Appellants.
    Submitted September 25, 1939;
    decided October 3, 1939.
   Motion to amend the remittitur denied. (See 280 N. Y. 437.)


text:
    In the Matter of Cornelius Furgueson, Jr., as Executor of Cornelius Furgueson, Deceased, Appellant and Respondent, against Fiorella H. LaGuardia et al., Constituting the Board of Estimate and Apportionment of the City of New York, Respondents and Appellants.
    Argued September 25, 1939;
    decided October 10, 1939.

      Isidor Neuwirth and Edmund J. Pickup for petitioner, appellant and respondent.

      William C. Chanler, Corporation Counsel (Seymour B. Quel of counsel), for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Liquidation of Consolidated Indemnity and Insurance Company. George S. Van Schaick, Superintendent of Insurance of the State of New York, as Liquidator of Consolidated Indemnity and Insurance Company, Appellant; Gertrude E. Coron, Individually and as General Guardian of Vilma Coron et al., Respondent.
    Argued September 25, 1939;
    decided October 10, 1939.

      Irvin Waldman and Alfred C. Bennett for appellant.

      Abraham Franzbau for respondent.
   Order affirmed, with costs; no opinion. (See 281 N. Y. 830.)

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


text:
    Paramount Pictures, Inc., Appellant, v. Ben Blumenthal, Respondent.
    Argued September 25, 1939;
    decided October 10, 1939.

      Louis Phillips, William P. Thomas, Irving Cohen and Austin C, Keough for appellant.

      I. Maurice Wormser, WilUam Klein, Milton R. Weinberger and Adolph Lund for respondent.
   Appeal dismissed, with costs, and certified question not answered. The certified question is not decisive of the issue, which is one of fact, It is not a question of power but of discretion. No opinion.

Concur: Crane, Ch. J., Lehman O’Bbien, Hubbs, Loughban, Finch and Rippey, JJ.


text:
    In the Matter of Dr. Alexander Neshamkin, Appellant, against The Board of Regents of the University of the State of New York, Respondent.
    Argued September 25, 1939;
    decided October 10, 1939.

      I. Maurice Wormser and Rudolph Stand for appellant.

      John J. Bennett, Jr., Attorney-General (Bernard Bienstock of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cbane, Ch. J., Lehman, O’Brien, Hubbs, Lohghran, Finch and Ripfey, JJ.


text:
    In the Matter of S. Robert Kahn, Appellant, against The Board of Regents of the University of the State of New York, Respondent.
    Argued September 25, 1939;
    decided October 10, 1939.

      Arthur Morris and Morris Okoshlcen for appellant.

      John J. Bennett, Jr., Attorney-General (.Bernard Bienstock of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Httbbs, Loughran, Fin ch and Rippey, JJ.


text:
    In the Matter of the Accounting of Amelia M. Campbell et al., as Administrators of the Estate of Frank E. Campbell, Deceased, Appellants; Eloess Holding Corporation et al., Respondents.
    Argued September 25, 1939;
    decided October 10, 1939.

      Lee McCanliss for appellants.

      Jacob Pauli and Milton M. Oettinger for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of William E. Towne, Appellant, against Eugene Sherk et al., Constituting the Board of Zoning Appeals of the Village of Floral Park et al., Respondents. Philip Ehrhart et al., Interveners, Respondents.
    Argued September 26, 1939;
    decided October 10, 1939.

      James N. Gehrig for appellant.

      Harold W. Weidner for Board of Zoning Appeals et ah, defendants, respondents.

      Alfred J. Loew and Laurence E. Degner for Philip Ehrhart et al., interveners, respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Richard B. Cady, Deceased. William P. Cady, Appellant; Ella E. Overton et al., Respondents.
    Submitted September 26, 1939;
    decided October 10, 1939.

      Elmer L. Thompson and William C. Maher for appellant.

      Robert W. Sloan and Robert A. Foley for respondents.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of Carl F. W. Michner, Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued September 26, 1939;
    decided October 10, 1939.

      William C. Chanler, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), for appellants.

      Norman Roth for respondent.
   Orders reversed and proceeding dismissed, with costs in all Courts, on the authority of Matter of Deodati v. Kern (280 N. Y. 366). No opinion.

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


text:
    Jacob Finkelstein et al., Respondents, v. Equitable Life Assurance Society of the United States, Appellant.
    Submitted September 26, 1939;
    decided October 10, 1939.

      J ames D. Ewing for appellant.

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

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


text:
    Clifford J. Stoddard et al., Appellants, v. Charles M. Schwab et al., Respondents, Impleaded with Others.
    Submitted October 2, 1939;
    decided October 10, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 586.)


text:
    In the Matter of the Accounting of City Bank Farmers Trust Company, as Trustee under the Will of James H. Bates, Deceased. Brooklyn Home for Aged Men et al., Appellants; Leonard N. Snedeker, Special Guardian for Charles W. Field et al., Infants, et al., Respondents.
    Argued September 26, 1939;
    decided October 17, 1939.

      Almet R. Latson, Jr., Robert F. Greacen, William K. Allison, Vincent W. Quinn, R. M. Cahoone, John J. Morris, Oscar Wm. Sviift and Francis H. Warland for appellants.

      George B. Draper and Myer Miller for Lou A. Bates, respondent.

      William G. Barr and Albert N. Webster for Florence W, Griswold, respondent.

      Leonard N. Snedeker, special guardian for infant respondents.

      J. H. Morgan and W. A. Lockwood, for City Bank Farmers Trust Company, respondent.
   Order affirmed, with costs to all parties filing briefs payable out of the principal of the trust. Certified question not answered. No opinion.

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


text:
    In the Matter of Collins Hamblen et al., Appellants, against George V. Briante, as Building Inspector of the Town of Eastchester, Respondent.
    Submitted September 26, 1939;
    decided October 17, 1939.

      Raphael Link and Wolfango E„ Cribari for appellants.

      William C. Olsen for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Elenore B. Tuck et al., as Trustees under the Will of Henry Tuck, Deceased. Nellie W. Tuck et al., Respondents; Henry W. Tuck et al., Appellants.
    Argued September 27, 1939;
    decided October 17, 1939.

      John B. Doyle for Henry W. Tuck et al., appellants.

      Thomas Witter Chrystie and T. Ludlow Ghrystie for Elizabeth Fitzsimmons, as ancillary administratrix, appellant.

      John B. Doyle for Henry W. Tuck, respondent, on appeal by Elizabeth Fitzsimmons, as ancillary administratrix.

      Windsor B. Putnam and Raymond T. Armbruster for Elenore B. Tuck et al., as trustees, respondents.

      George B. Brooks for Nellie W. Tuck, respondent.

      Louis A. Mafchisio for Carlton W. Tuck, respondent.
   Order affirmed, with costs to all parties payable out of the estate. No opinion.

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


text:
    In the Matter of Irving Bitz, Appellant, against Joseph A. Canavan et al., Constituting the New York State Board of Parole, et al., Respondents.
    Argued September 27, 1939;
    decided October 17, 1939.

      Challes A. Schneider and Nicholas P. lannuzzi for appellant.

      John J. Bennett, Jr., Attorney-General (.Bernard L. Aider-man and Patrick H. Clune of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    In the Matter of Henry A. Wittekind et al., as Members of the Fire Department of the City of New York, Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants. William F. McDonald et al., Interveners, Appellants.
    Argued September 27, 1939;
    decided October 17, 1939.

      William G. Chanler, Corporation Counsel (,Samuel J. Silverman of counsel), for Municipal Civil Service Commission et al., appellants.

      Gabriel Rubino for William F. McDonald et al., interveners, appellants.

      Louis L. Tetelman for Chester Bond et al., amici curios.

      Albert De Roode for respondents.
   Order affirmed, with costs; no Opinion.

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


text:
    In the Matter of the Claim of Anna Brennan et al., Respondents, against Hockensmith Construction Co., et al., Appellants. State Industrial Board, Respondent.
    Argued September 27, 1939;
    decided October 17, 1939.

      Esmond D. Murphy for appellants.

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

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


text:
    In the Matter of the Claim of John McCarty (Deceased Employee), against United States Trucking Corporation, Appellant; Grace Cronin, as General Guardian for Thomas J. McCarty, an Infant, Respondent. State Industrial Board, Respondent.
    Argued September 27, 1939;
    decided October 17, 1939.

      J ohn Ross Lauer and David J. Mountain, Jr., for appellant.

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

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


text:
    In the Matter of the Claim of Abraham Gassman, Respondent, against S. & A. Service Corporation, Employer. State Insurance Fund, Appellant; State Industrial Board, Respondent.
    Argued September 27, 1939;
    decided October 17, 1939.

      George J. Hayes and Bernard Botein for appellant.

      Barney Rosenstein and Nathan Canter for claimant, respondent.

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

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


text:
    In the Matter of the Claim of Deva Buchignani et al., Respondents, against Ronald Taylor Co. et al., Appellants. State Industrial Board, Respondent.
    Argued September 27, 1939;
    decided October 17, 1939.

      Sydney Weitzer for appellants.

      John B. Wheeler for claimants, respondents.

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

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


text:
    Mary A. Sperti, as Administratrix of the Estate of Frank Sperti, Deceased, Respondent, v. City of Niagara Falls, Appellant.
    Argued September 27, 1939;
    decided October 17, 1939.

      J. William O’Brien, Corporation Counsel (JohnF. McNulty of.counsel), for appellant.

      Francis T. Findlay for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts, unless appellant withdraws its appeal within ten days and pays all costs to date. No opinion.

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


text:
    Edward Okelson, Respondent, v. Cleveland & Buffalo Transit Company, Appellant.
    Argued September 28, 1939;
    decided October 17, 1939.

      Harry D. Sanders, William M. Connelly and Bussell V. Bleecker for appellant.

      Edward J. Desmond for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. William Cullen, Appellant, against Thomas H. Murphy, as Warden of Clinton Prison, Respondent.
    Submitted September 28, 1939;
    decided October 17, 1939.

      William Cullen, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Victor F. Boire, Patrick H. Clune and Everett D. Mereness of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Thomas R. Cox, Appellant, against Joseph H. Wilson, as Warden of Great Meadow Prison, Respondent.
    Submitted September 28, 1939;
    decided October 17, 1939.

      Thomas R. Cox, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Everett D. Mereness and Patrick H. Clune of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Murray Sheftman, Appellant, against Eugene J. McGuire, as Sheriff of Bronx County, Respondent.
    Submitted September 28, 1939;
    decided October 17, 1939.

      Emanuel Bedfield for appellant.

      Martin J. Lyons, Jr., for respondent.

      Leo Eckman for Bernard J. Sheftman, as administrator of the estate of Rebecca Sheftman, deceased, amicus curise.

   Order affirmed; no opinion.

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


text:
    In the Matter of Philip Savory et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents. Donald Brooks et al., Interveners, Respondents.
    Argued September 28, 1939;
    decided October 17, 1939.

      Henry B. Lamm and Joseph Pinckney for appellants.

      William C. Chanler, Corporation Counsel {Loren C. Berry and Paxton Blair of counsel), for Board of Elections, respondent.

      Reuel M. Jordan and Darwin W. Telesford for Donald Brooks, respondent. .
   Appeal dismissed, without costs, on the ground the question is academic. No opinion.

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


text:
    Moses J. Konnoson, Appellant, v. City of New York, Respondent.
    Argued September 28, 1939;
    decided October 17, 1939.

      Samuel Shapiro for appellant.

      William C. Chanter, Corporation Counsel (Oren Clive Her-wits and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Sullivan, Respondent, v. The State of New York, Appellant.
    (Claim No. 25228.)
    Argued September 29, 1939;
    decided October 17, 1939.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden, Burns F. Barf or d and James H. Glavin, Jr., of counsel), for appellant.

      Theodore A. Knapp for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles H. Stuback, Respondent, v. Sam Sussman et al., Doing Business under the Firm Name of Equity Auto Advance Co., et al., Appellants.
    Argued October 2, 1939;
    decided October 17, 1939.

      I. Maurice Wormser and Samuel Firestone for-appellants.

      Pliny W. Williamson and Joseph Schwartzman for respondent.

      John J. Bennett, Jr., Attorney-General (Benjamin Heffner, Colin McLennan and John F. X. McGohey of counsel),. for the People of the State of New York, amicus curise.

      Pliny W. Williamson and Thomas J. Whalen for Russell Sage Foundation, amicus curise.

   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Jack Schecter, Appellant.
    Argued October 2, 1939;
    decided October 17, 1939.

      Joseph A. Gavagan and George W. Gavagan for appellant.

      Thomas E. Dewey, District Attorney (Manuel Bobbins and Stanley H. Euld of counsel), for respondent.
   Judgments reversed and information dismissed. There is insufficient evidence to sustain the conviction. No opinion.

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


text:
    Lester C. Scott, as Administrator de Bonis Non of the Estate of Stewart G. B. Gourlay, Deceased, Appellant, v. American Surety Company of New York, Respondent.
    Argued October 2, 1939;
    decided October 17, 1939.

      William L. Bowman and Joseph J. Juhass for appellant.

      Mahlon A. Freeman and Norman C. Conklin for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Capone, Appellant.
    Argued October 2, 1939;
    decided October 17, 1939.

      Abraham J. Gellinoff, Charles Pilatsky and Irving Abelov for appellant.

      Thomas E. Dewey, District Attorney (Whitman Knapp and Stanley H. Fuld, of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Callahan, Appellant.
    Argued October 2, 1939;
    decided October 17, 1939.

      Abraham J. Gellinoff, Charles Pilatsky and Irving Abelov for appellant.

      Thomas E. Dewey, District Attorney (Whitman Knapp and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Delore, Appellant.
    Argued October 2, 1939;
    decided October 17, 1939.

      Abraham, J. Gellinoff, Charles Pilatsky and Irving Abelov for appellant.

      Thomas E. Dewey, District Attorney (Whitman Knapp and Stanley H. Euld of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Thomas Nagle, an Infant, by Regina M. Nagle, His Guardian ad Litem, et al., Respondents, v. New York Edison Company, Inc., Appellant.
    Argued October 2, 1939;
    decided October 17, 1939.

      George A. Garvey, William B. Davis, Henry Bogert Clark and E. C. Sherwood for appellant.

      Joseph B. Kenny, Harry B. Chambers, Harry H. Chambers, Robert H. Kilroe and Arthur H. Beyer for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Capitol Fuels of Queens, Inc., Appellant. (2 Cases.)
    Argued October 3, 1939;
    decided October 17, 1939.

      Joseph Semel and Jonah J. Goldstein for appellant.

      William C. Chanler, Corporation Counsel (jStanley Buchsbaum and Paxton Blair of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    Fred Zettler, Respondent, v. Andrew J. M. Reich, Appellant.
    Argued October 3, 1939;
    decided October 17, 1939.

      Michael A. Hayes and William J. McArthur for appellant;

      George J. McDonnell and Charles A. Lebett for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Sarah Turner, Individually and as Executrix of Charles C. Turner, Deceased, Appellant and Respondent, v. Hygiene Waterproofing Company, Inc., et al., Respondents and Appellants, Impleaded with Others.
    Argued October 3, 1939;
    decided October 17, 1939.

      Saul L. Harris, Louis Witlin and Raymond Zeitz for plaintiff, appellant and respondent.

      Otho S. Bowling for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

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


text:
    Rema V. Morrison, as Administratrix of the Estate of Kendrick W. Morrison, Deceased, Respondent, v. New York Telephone Company, Appellant.
    Argued October 3, 1939;
    decided October 17, 1939.

      Irving W. Young, Jr., N. H. Egleston, Hugh N. Wells and Charles T. Bussell for appellant.

      George A. Garvey, August P. Klein and Victor A. Javarone for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    W. Wallace Lyon et al., Copartners under the Firm Name of Lyon, Clokey & Co., Respondents, v. Marck L. Tooker et al., Copartners under the Firm Name of Tooker & Company, Appellants, Impleaded with Others.
    Argued,October 3, 1939;
    decided October 17, 1939.

      Leo J. Bondy and Philip M. Payne for appellants.

      Harry H. Bernstein, Maurice W. Bernstein and William P. Cavanaugh for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    John LeBoeuf, as Administrator of the Estate of Helen LeBoeuf, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 24135.)
    Argued October 3, 1939;
    decided October 17, 1939.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden of counsel), for appellant.

      William J. Herron and Daniel Scanlon for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Henry A. Wittekind et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants. William F. McDonald et al., Interveners, Appellants.
    Argued September 27, 1939;
    decided October 17, 1939.

      Albert de Roode for motion.

      Gabriel Rubino opposed.
   Motion denied.


text:
    Lee Mergentime, Jr., et al., Respondents, Impleaded with Another, v. New England Telephone and Telegraph Company, Appellant.
    Argued October 4, 1939;
    decided October 20, 1939.

      Irving W. Young, Jr., and H. N. Wells for appellant.

      David Groberg and Harry D. Meislich for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    William K. Archbold, as Trustee in Bankruptcy of the Estate of William L. Wallace, Appellant, v. First Trust & Deposit Company, Respondent.
    Argued October 4, 1939;
    decided October 20, 1939

      George H. Bond for appellant.

      H. Duane Bruce for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George B. Greene, Appellant, v. Elisabeth G. Brown, Respondent.
    Argued October 5, 1939;
    decided October 20, 1939.

      Kenneth W. Anderson for appellant.

      Royal E. Mygatt for respondent.
   Judgment affirmed, with costs; no opinion,

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


text:
    Helen Dexter et al., Respondents, v. Gilbert D. Fisher, Appellant.
    Submitted October 5, 1939;
    decided October 20, 1939.

      Herbert F. Hastings, Jr., for appellant.

      Morris L. Mossew and Jacob Y. Becker for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Leslie A. Huntington, as Trustee in Bankruptcy of South Shore Co-operative Association, Inc., Appellant, v. Henry Waldorff, Respondent.
    Argued October 5, 1939;
    decided October 20, 1939.

      Robert N. Palmer for appellant.

      Glenn W. Woodin for respondent.
   Judgment affirmed, without costs; no opinion.

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