text:
    In the Matter of the Probate of the Will of Flora J. Allen, Deceased. Lena Dunham et al., Appellants; Monroe M. Sweetland, as Executor of Flora J. Allen, Deceased, et al., Respondents.

      Argued. March 4, 1940;
    decided April 16, 1940.

      Clayton R. Lusk and Hampton Halsey for appellants.
    The burden of proving that the requirements of section 21 of Decedent Estate Law (Cons. Laws, ch. 13) were complied with rests upon the proponent. (Rollwagon v. Rollwagon, 63 N. Y. 504; Matter of Van den Heuvel, 76 Misc. Rep. 137.) The law as to holographic wills written on separate sheets of paper not numbered and not permanently bound together is that conclusive proof must be given that they were all present in the same condition when the signed sheet was executed as when the different sheets are offered for probate. As a matter of law the proponent has not brought himself within this rule. (Matter of Stege, 161 Misc. Rep. 667; Matter of Hakes, 75 App. Div. 403; Matter of Whitney, 153 N. Y. 259; Matter of Field, 204 N. Y. 448; Titcomb v. Powers, 108 Me. 347; Sisters of Charity v. Kelly, 67 N. Y. 409; Matter of O’Neil, 91 N. Y. 516.)

      Monroe M. Sweetland, as executor, in person, respondent.
    The will was duly executed. (Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422; Matter of Cottrell, 95 N. Y. 329; Matter of Fitzgerald, 33 Misc. Rep. 325; Roche v. Nason, 105 App. Div. 256; 185 N. Y. 128; Matter of Field, 204 N. Y. 448; Matter of Maginn, 281 Penn. St. 514; Matter of Sleeper, 129 Me. 194; Matter of Wood, 144 App. Div. 255.) There is nothing wrong in the writing nor fastening of the separate sheets constituting the will. (Matter of Snell, 32 Misc. Rep. 611; Matter of Field, 204 N. Y. 448.)

      A. W. Feinberg for Masonic Lodge of Groton, N. Y., No. 496, et al., respondents.
    A fact may be proved directly or by inference or legal presumption based on other proven facts. The presence at execution of the unsigned sheets and their attachment to the signed sheet of the will may be proven as a fact by rebuttable inference. (Matter of Board of Education, 173 N. Y. 321; Crossman v. Crossman, 95 N. Y. 145; Roche v. Nason, 105 App. Div. 256; 185 N. Y. 128; Matter of Abel, 136 App. Div. 788; Matter of Snell, 32 Misc. Rep. 611; Matter of Fitzgerald, 33 Misc. Rep. 325; Matter of Dake, 75 App. Div. 403.) As a matter of law there is substantial evidence to support the facts that the will was duly executed on the ninth page and that the eight pages attached to the ninth page by metal clips were present at the time of execution. (Matter of Turell, 166 N. Y. 330.) The facts found by the Surrogate and affirmed by the Appellate Division support the decree of probate as a matter of law. (Matter of Field, 204 N. Y. 448; Roche v. Nason, 105 App. Div. 256; 185 N. Y. 128; Matter of Snell, 32 Misc. Rep. 811; Matter of Kellum, 52 N. Y. 517; Matter of Turell, 166 N. Y. 330; Matter of Cottrell, 95 N. Y. 329; Matter of Sizer, 129 App. Div. 7; Matter of Mullin, 143 Misc. Rep. 256; Matter of Schillinger, 258 N. Y. 86.)
   Sears, J.

Upon this appeal the contestants, next of kin of Flora J. Allen, deceased, challenged the validity of the decree admitting to probate as a last will and testament certain writings of hers on the general ground that the record is lacking in proof that the writings probated as a will constitute a single instrument which the testatrix executed as her will. These writings are in the testatrix’s own hand and are on sheets of legal cap paper which, when the will was found, were fastened together only by five metal clips slipped over, but not piercing, the ends of the sheets on which the testatrix had written.

It is not necessary to describe the particular sheets in complete detail, but some description of them must be given. There are nine pages on which writing occurs. The first four pages of writing are on two folded sheets of legal cap paper written in such a way that the folds are at the bottom, the four pages being fastened together with mucilage or paste at the top. The inside pages of each folded sheet are blank. Two other folded sheets of legal cap are written on in the same way, but are not fastened, except for the metal clips, to other sheets. The fifth sheet of legal cap paper has been trimmed at the bottom and opened up and laid flat so as to consist of a single page. It is not fastened to any of the other sheets except for the metal clips. On this single page the testatrix’s signature occurs as well as the attestation clause and the signatures of the witnesses. Three different kinds of legal cap paper have been used for the nine pages. The first four pages, which are securely fastened together, are on one kind. The other two full folded sheets are on a second kind. The final page is on a still different kind of paper, trimmed to a different length. At the head of the first page the word “ Will ” is written and under this the date Nov 15th, 1928.” The page on which the testatrix wrote her signature bears the date of the 18th day of May, 1931. The testatrix’s writing on the final page was done with a steel pen; on the other eight pages her writing is with a quill pen. The pages are not numbered. The paragraphs of the will are not numbered. The two unattached full-folded sheets are largely duplications, one of the other. On one certain blanks have been left unfilled, while in the corresponding provision in the other there is no blank left. The second page of each of these two unattached folded sheets is largely blank. In one case there are but four lines of writing; on the other, three. There is no continuity in sentences between the writings on different pages, except when the pages are on the same folded sheet. There is no continuity or logical arrangement of testamentary provisions. There are pin marks at the top of the sheets which were pasted together. No pin marks are in the unattached sheets, but pin marks occur again at the top of the final page. The pages thus described were found after the testatrix’s death at her home in a typewriter case. In the typewriter case were also found two deeds, a memorandum for the distribution of gifts and some miscellaneous papers seemingly of little importance.

The attesting witnesses were sworn as to the execution and publication of the will which were established in full compliance with the statute. When the will was offered for probate the two attesting witnesses signed the usual depositions containing, among other things, the statement that the instrument now appears, in all respects, as when executed, without any alteration whatsoever. ’ ’ When examined before the Surrogate, however, it appeared that neither witness saw any of the writing except that on the page on which they signed their names. They did not know how many sheets there were. One witness testified that there were several, and the other expressed the thought that there were some other sheets but was not clear about it. The witness who said that there were several sheets of paper gave testimony that he did not know whether at the time the will was executed the sheets were fastened together or not, but stated that if they were fastened together they were fastened together at the top, folded together at the top, and that they didn’t come apart when they were handled at that time. This witness wrote the two lines above the deceased’s signature before the testatrix subscribed and he also wrote the complete attestation clause.

The burden was upon the proponent to establish that the paper offered for probate was the last will and testament of the deceased. It is not enough to conclude that the sentences on the pages admitted to probate as the will embodied the deceased’s testamentary wishes; it must be established that all the writing formed a single instrument which the testatrix subscribed and which she published as her will in the presence of the attesting witnesses. (Matter of Whitney, 153 N. Y. 259; Matter of Dake, 75 App. Div. 403.) The statute, to prevent fraud, prescribes definite formalities, the establishment of which is necessary for probate. It is the intention of the Legislature rather than of the decedent to which in such cases as this courts must give effect. (Matter of O’Neil, 91 N. Y. 516, 520; Matter of Andrews, 162 N. Y. 1; Roche v. Nason, 105 App. Div. 256; affd., 185 N. Y. 128.) Slight evidence of the joining of the papers in some permanent form or other integration will suffice. (Matter of Field, 204 N. Y. 448; Roche v. Nason, 105 App. Div. 256; affd., 185 N. Y. 128.) Here, neither the proof by the witnesses nor the internal evidence establishes the unity of the instrument. To be sure the will is holographic, and in such case there is small danger of defeating the intention of the deceased. Still, a holographic will must be executed with the same formalities as any other. Such is the command of the Legislature. To admit to probate such an instrument as is here before us on such proof but opens the door to the nullification of statutory provision and probably in some cases to fraud.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, with costs in all courts to each party filing a separate brief payable out of the estate, and the application for probate denied.

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

Ordered accordingly.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    In the Matter of Ephraim Pruzan, Appellant, against Lewis J. Valentine, as Commissioner of Police of the City of New York, et al., Respondents.
    Argued March 12, 1940;
    decided April 16, 1940.

      Harold Riegelman, H. H. Nordlinger and David L. Benetar for appellant.
    The law regulating the issuance of licenses to operate taxicabs in the city of New York clearly specifies the sole conditions upon which the granting of such licenses depend. Petitioner has met all of the conditions. (People ex rel. E. C. T. Club v. State R. Comm., 190 N. Y. 31; Breen v. Valentine, 170 Misc. Rep. 590; 256 App. Div. 1066; Transit Comm. v. L. I. R. R. Co., 253 N. Y. 345; Dean v. Metropolitan Elevated Ry. Co., 119 N. Y. 540; Burnside v. Whitney, 21 N. Y. 148; Miller v. Town of Irondequoit, 243 App. Div. 240; 268 N. Y. 578; Decker v. Goddard, 233 App. Div. 139; People v. Sommer, 55 Misc. Rep. 55.) The refusal by a licensing officer to grant a license upon grounds not specified in the controlling statute is arbitrary as a matter of law and should be set aside. (Matter of Small v. Moss, 279 N. Y. 288; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157; Matter of Executive Service Corp. v. Moss, 256 App. Div. 345; People ex rel. Cosby v. Robinson, 141 App. Div. 656; Matter of Lyons v. Prince, 281 N. Y. 557; Matter of Good Humor, Inc., v. Morgan, 171 Misc. Rep. 899.) The grounds relied on by respondents to sustain their denial of appellant’s application are not sanctioned by the law, constitute arbitrary and unlawful limitations on his right to licenses and are without foundation in fact. (Bullen v. Wisconsin, 240 U. S. 625; Superior Oil Co. v. Mississippi, 280 U. S. 390; Gregory v. Helvering, 293 U. S. 465; People ex rel. Fogarty v. Kaplan, 160 Misc. Rep. 179; People ex rel. Cosby v. Robinson, 141 App. Div. 656.)

      William C. Chanler, Corporation Counsel (Francis J. Bloustein, Paxton Blair and Stanley Buchsbaum of counsel), for respondents.
    The sale and transfer of the taxicabs to petitioner not being bona fide and the petitioner having failed to demonstrate that he is qualified to assume the duties and obligations of a taxicab owner, the refusal to approve his application and grant him licenses was proper in all respects. (Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60; Martin v. Peyton, 246 N. Y. 213; Matter of Gold v. Wooters, 233 App. Div. 833; Matter of Straus v. Goldstein & Bros., 264 N. Y. 498; Summo v. Snare & Triest Co., 166 App. Div. 425; People v. Levine, 160 Misc. Rep. 181; 250 App. Div. 741; People v. Simons, 249 App. Div. 809; 274 N. Y. 554.) Responsibility for the licensing of taxicabs is imposed on the Police Commissioner and he should be permitted to perform his duty without interference. (People ex rel. Clapp v. Listman, 40 Misc. Rep. 372; 84 App. Div. 633; Matter of Walsh v. LaGuardia, 269 N. Y. 437; People ex rel. Schwab v. Grant, 126 N. Y. 473; People ex rel. Wooster v. Maher, 141 N. Y. 330; People ex rel. Judge v. Hylan, 200 App. Div. 430; Bullock v. Cooley, 225 N. Y. 566; Matter of Lawrence-Cedarhurst Bank, 247 App. Div. 528; 272 N. Y. 646; Matter of Rudack v. Valentine, 163 Misc. Rep. 326; 274 N. Y. 615; Breen v. Valentine, 170 Misc. Rep. 590; 256 App. Div. 1066; Capitol Taxicab Co. v. Cermak, 60 Fed. Rep. [2d] 608; City of Wichita v. Home Cab Co., 141 Kan. 697; Birmingham Interurban Taxicab Service Corp. v. McLendon, 210 Ala. 525; Fletcher v. Bordelon, 56 S. W. Rep. [2d] 313; Dallas Taxicab Co. v. City of Dallas, 68 S. W. Rep. [2d] 359; Matter of Agoglia v. Mulrooney, 259 N. Y. 462.) Appellant failed to show that the refusal of the Police Commissioner to approve his application was arbitrary or unreasonable. (People ex rel. Peixotto v. Bd. of Education, 212 N. Y. 463; Matter of Burr v. Voorhis, 229 N. Y. 382; People ex rel. Wood v. Board of Assessors, 137 N. Y. 201; Matter of Small v. Moss, 279 N. Y. 288; Message Photo-Play Co. v. Bell, 179 App. Div. 13; People v. Beakes Dairy Co., 222 N. Y. 416; Bullen v. Wisconsin, 240 U. S. 625; Gregory v. Helvering, 293 U. S. 465.)
   Lewis, J.

In this proceeding under article 78 of the Civil Practice Act we have granted leave to appeal and now review an order of the Appellate Division unanimously affirming an order of Special Term denying the appellant’s application for an order directing the respondents to approve his application for licenses to operate two taxicabs in the city of New York. The appellant asserts that the respondents’ action in denying his application was capricious, arbitrary and unreasonable.

Having chosen to apply at Special Term for an order to compel the performance of an alleged official duty, the appellant is required to establish a clear legal right thereto. Under such proof Special Term may determine whether in the exercise of a sound discretion it will grant or withhold the order. However, it is only where the record of proof leaves no scope for the exercise of a reasonable discretion that this court may rule, as matter of law, that there has been an abuse of that discretion. (Matter of Coombs v. Edwards, 280 N. Y. 361, 363; Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464, 469.) We apply that test to the record now before us.

The Administrative Code of the City of New York (Laws of 1937, ch. 929) contains a legislative finding that the taxicab industry in the city of New York is vested with a public interest because it is a vital and integral part of the transportation facilities of the city of New York and that its regulation is therefore necessary.” (§ 436-2.0, subd. 1.) It enumerates certain evils and public hazards to be corrected by regulatory measures and to that end provides that the administrative control of the licensing and regulation of taxicabs shall be lodged with the Department of Police. (Administrative Code, §§ 434a-5.0; 436-2.0, subds. 2 [b], 7.)

Claiming to have purchased two taxicabs from Guardian Cab Company, Inc., the appellant applied to the Hack Bureau of the Police Department for a license for each cab. A hearing was promptly had before the respondent Fourth Deputy Police Commissioner, and thereafter the application was denied for reasons stated in the following letter:

September 22, 1939.

“ Mr. H. D. Pruzan,

315 West 94th Street.

New York, N. Y.

Dear Sir: I have carefully considered your application made pursuant to the provisions of Section 436-2.0 (c-7) of the Administrative Code of the City of New York.

You have made an application for licenses for two taxicabs allegedly purchased by you from the Guardian Cab Company, Inc.

Under the provisions of the section referred to, transfers may be made only by a person owning two or more taxicabs to a person who owns two or more taxicabs, or who will thereafter own two or more taxicabs. The section further provides that such transfers may be made only to a person who has demonstrated to the satisfaction of the Hack Bureau that he is qualified to assume the duties and obligations of a taxicab owner. The transferee must further assume the outstanding tort liabilities of the transferor in the excess of the amount covered by any bond or policy of insurance.

“ This department is of the opinion that you have not demonstrated that you are qualified to assume the duties and obligations of a taxicab owner.

The department is further of the opinion that the alleged transfer from your vendor to you is not a bona fide transfer, and is not such a transfer as is contemplated by Section 436-2.0 of the Administrative Code.

“ Your application is, therefore, disapproved.

“ Very truly yours,

“ (Signed) CORNELIUS O’LEARY,

Fourth Deputy Police Commissioner.”

We shall consider first whether there is proof of any circumstances which may properly form a basis for the respondents’ conclusion that the alleged transfer of two taxicabs from the Guardian Cab Company, Inc., to the appellant was not a bona fide transaction. There can be no doubt that section 436-2.0 of the Administrative Code, which makes provision for the licensing of taxicabs, contemplates that where a license is surrendered by the vendor and the vendee applies for a new license, a bona fide transfer is contemplated. If, in fact, the application is made by the vendee, A new license shall then be issued by the hack bureau in place of the license so surrendered, provided the applicant has demonstrated to the satisfaction of the hack bureau that he is qualified to assume the duties and obligations of a taxicab owner, as imposed by the provisions hereof * * (Administrative Code, § 436-2.0, subd. 7.)

It appears from the appellant’s petition that he has been a licensed taxicab driver for eight years, during which time he has been employed by one or more taxicab companies affiliated with Terminal System, Inc., to which it will be convenient to refer as " Terminal.” These companies enjoyed concessionary rights to furnish cab service at various railway terminals in connection with which the appellant had the privilege of soliciting cab fares at the Grand Central and Pennsylvania stations. While thus employed and in August, 1939, the appellant, with other employees of Guardian Cab Company, Inc., and Nether-land Cab Company, Inc.— two affiliates of Terminal — were told by an executive officer of Terminal that it could no longer operate profitably and was about to sell five hundred and twenty-four taxicabs. The explanation then given for such a sale was that “ the operation of these taxicabs by owners of small fleets .would make possible substantial economies which could not be effected in a fleet operation of the size of that conducted by the Terminal System affiliates.” The appellant claims to have arranged to purchase two taxicabs. His statement is: “I felt that an opportunity to go into business for myself without any cash investment whatever was one that I should not miss.” All taxicabs were priced uniformly at $400, payable in daily installments of one dollar and fifty cents and secured by a conditional sales agreement reserving title in the vendor ■until full payment had been made. The price of the taximeter in each cab was fifty dollars, payable in daily installments of fifteen cents.

It is important to note, however, that, under the arrangement formulated by Terminal, each alleged purchaser — including the appellant, who claims to have purchased from the Guardian Cab Company, Inc.— was required, simultaneously with the execution of each bill of sale, to enter into a non-assignable ■ collateral aggreement with Terminal — not the alleged vendor. Under the agreement executed by the appellant, a copy of which is annexed to his petition, Terminal has agreed to furnish and the appellant has agreed to use, for the sum of one dollar and twenty-five cents per day for each taxicab which he is purchasing simultaneously herewith ” and for any replacement thereof, all facilities for washing and greasing service, meter and battery maintenance, cleaning service for interior of taxicabs, air service for tires, and towing service within the city of New York and twenty-five miles therefrom. Permission is given to the appellant to solicit passengers at taxicab stands located in certain railway and steamship terminals, subject to conditions prescribed by Terminal; to take advantage of supervisory personnel to regulate taxicab traffic at various Terminal concessions and to use the Terminal System insignia and the color scheme employed by Guardian Cab Company, Inc. The collateral agreement also provides that the appellant will purchase all his requirements of gasoline and oil for his two taxicabs and any replacements thereof from a garage maintained by Terminal. In addition the appellant has agreed to use the following facilities which Terminal has agreed to furnish: Tire service at twenty-five cents a day per taxicab and garage facilities at twenty cents a day per taxicab, subject to certain adjustments as the cost of such service varies. To assure compliance with the contracts by .which Terminal holds its various concessions and to give uniformity of appearance for all taxicabs permitted to solicit passengers at the various locations, the appellant has. agreed not only to abide by all rules adopted by Terminal concerning the use of such concessions, including the maintenance of uniform color scheme and insignia, but also to engage only those employees who are approved by Terminal as acceptable to those controlling the depots and piers at which concessions are located. The agreement also requires of the appellant that not later than the expiration of ten (10) months from the date hereof he will purchase a new taxicab of the type, model and style designated by Terminal as standard and uniform equipment for those permitted to use the Terminal concessions. Terminal agrees, provided the Owner is not in default under' any conditional bill of sale covering the taxicabs purchased on or about this date, that it will have available on call throughout the seven-month period commencing approximately ninety (90) days from the date hereof * * * new replacement taxicabs for the Owners, of the type designated by Terminal as standard and uniform equipment, at the list price fixed by the manufacturer.” Finally, it is significant that the collateral agreement signed by the appellant is to become effective “ when the aforementioned taxicabs are duly licensed for operation as such in the City of New York by the owner, and shall continue during the period that the now existing Terminal concessions remain in effect or until such later date of termination as either party may select by thirty days’ written notice * * *.”

These facts afford convincing proof that the third-party collateral agreement executed by the appellant with Terminal, simultaneously with the execution and delivery by Guardian Cab Company, Inc., of the bills of sale for two taxicabs, was an essential and controlling factor in the transaction which the respondents were asked to consider as a bona fide transfer. It cannot be denied that by signing the agreement with Terminal the appellant has deprived himself of certain proprietary rights which ordinarily attach to ownership. Claiming to be a vendee or transferee, the appellant applied for licenses when by his own verified statement it appears that he was possessed of something less than an untrammeled right to control and operate the two taxicabs as owner.

In giving to the Department of Police the power to regulate and control taxicabs through the process of licensing, the legislative purpose was, by such means, to identify accurately the agency responsible for the control and operation of each cab. Such process loses its effectiveness if the licensing official is required to issue a license to an applicant who holds himself out as the owner of a taxicab when concededly, in acquiring title thereto, he has relinquished a substantial measure of its control to another.

If, by reason of conditions existing in the city of New York, the taxicab industry is vested with a public interest and requires regulation, as declared by the legislative finding, we cannot say, as matter of law, that in the circumstances disclosed by the record — with special reference to facts bearing upon the question whether appellant was a bona fide transferee — the respondents’ action in denying appellant’s application for licenses was not within the scope fixed by law for the exercise of their discretion.

The respondents assert, further, in support of their action now challenged, that there is evidence to sustain their finding that the appellant has “ not demonstrated that [he is] qualified to assume the duties and obligations of a taxicab owner.” In view of the conclusion we have reached, as indicated above, we deem it unnecessary to consider that alleged disqualification. “ Before a court may direct that a license shall be issued, it must appear, as matter of law, that no valid ground exists for its denial.” (Matter of Elite Dairy Products, Inc., v. Ten Eyck, 271 N. Y. 488, 493.)

The order should be affirmed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Order affirmed.


author: Per Curiam.

text:
    Otto Frank, Appellant, v. Floyd L. Carlisle et al., Respondents, Impleaded with Others.
    Argued March 4, 1940;
    decided April 16, 1940.

      Murray Levine, Martin A. Roeder and Philip G. Gross for appellant.
    As directors of Northeastern Power Corporation and as promoters thereof, respondents owed to such corporation the fiduciary duty of a trustee. (Pollitz v. Wabash R. R. Co., 207 N. Y. 113; Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185; Billings v. Shaw, 209 N. Y. 265; Dickerman v. Northern Trust Co., 176 U. S. 181; Old Dominion Copper Co. v. Bigelow, 203 Mass. 159; 225 U. S. 111; Brewster v. Hatch, 122 N. Y. 349; Davis v. Las Ovas Co., 227 U. S. 80; Yeiser v. U. S. Board & Paper Co., 107 Fed. Rep. 340; Erlanger v. New Sombrero Phosphate Co., 3 App. Cas. 1236; Matter of Jubilee Cotton Mills, [1924] App. Cas. 958; Midwood Park Co. v. Baker, 128 N. Y. Supp. 954; 144 App. Div. 939; 207 N. Y. 675; Moore v. Warrior Coal & Land Co., 178 Ala. 234.) The respondents, acting through Carlisle Company, acquired the shares of Oswego Company stock at a cost of $50,000 with intent to resell said shares to Northeastern Corporation; they resold to the corporation within a few days for stock worth $7,000,000; they, therefore, must account for the profits realized. (Western States Life Ins. Co. v. Lockwood, 166 Cal. 185; Geddes v. Anaconda Copper Mining Co., 254 U. S. 590; Seymour v. Spring Forest Cemetery Assn., 144 N. Y. 333; New York Trust Co. v. American Realty Co., 244 N. Y. 209; Bliss Petroleum Co. v. McNally, 254 Mich. 569; American Circular Loom Co. v. Wilson, 198 Mass. 182; Parker v. Nickerson, 137 Mass. 487; Highland Park Investment Co. v. List, 27 Cal. App. 761; 42 Cal. App. 752; Dixmoor Golf Club v. Evans, 325 Ill. 612.) The second cause of action is sufficient. Respondents must account for the difference between the value of the Oswego stock and the amount received therefor from Northeastern. (Walsh v. Van Ameringen-Haebler, Inc., 257 N. Y. 478.)

      Horace R. Lamb and Thomas F. Fennell, II, for Floyd L. Carlisle et al., respondents.
    The allegations of the complaint relating to the exchange of 100,000, or all the outstanding shares of stock of Oswego River Power Corporation in consideration of the issuance of 200,000 shares of common stock of Northeastern Power Corporation, upon which appellant now relies, do not state a cause of action against any of the respondents. (New York Trust Co. v. American Realty Co., 244 N. Y. 209; Gilbert Paper Co. v. Prankard, 204 App. Div. 83; Gerdes v. Reynolds, 281 N. Y. 180; Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159; Groel v. United Electric Co. of New Jersey, 70 N. J. Eq. 616; Brewster v. Hatch, 122 N. Y. 349; Anderson v. Erie R. R. Co., 223 N. Y. 277; Venner v. N. Y. C. & H. R. R. R. Co., 160 App. Div. 127; 217 N. Y. 615; Winter v. Anderson, 242 App. Div. 430; Cleary v. Higley, 154 Misc. Rep. 158; Reiner v. Crosby, 24 Fed. Rep. [2d] 191.) There are no facts alleged which sustain the statement that a cause of action was “ conveyed ” to Niagara Hudson Power Corporation. (Blum v. Whitney, 185 N. Y. 232; Booth v. Greer Inv. Co., 7 Fed. Supp. 576; Baker v. Allen, 197 N. E. Rep. 521; United Zinc Co. v. Harwood, 216 Mass. 474; American Woolen Co. v. Old Colony Trust Co., 263 Mass. 821.)

      Frank J. Berberich, Edward H. Green and John C. Bruton, Jr., for William K. Dick, respondent.
    On no theory of the law do the facts alleged in the amended complaint show a violation by respondent Dick of his duties as a director of Northeastern Corporation. (City Bank Farmers Trust Co. v. Hewitt Realty Co., 257 N. Y. 62; Goldstein v. Tri-Continental Corp., 282 N. Y. 21; New York Trust Co. v. American Realty Co., 244 N. Y. 209; Gamble v. Queens County Water Co., 123 N. Y. 91.) The complaint contains no allegations of fact sufficient to charge respondent Dick with profit-making at the expense of corporations which he served as director, or wrongful participation in profit-making by others at the expense of such corporations. (Gerdes v. Reynolds, 281 N. Y. 180; Knowles v. City of New York, 176 N. Y. 430; Meisel v. Central Trust Co., 179 App. Div. 795; 223 N. Y. 589; Wood v. Amory, 105 N. Y. 278; Cass v. Realty Securities Co., 148 App. Div. 96; 206 N. Y. 649; Rhodes v. Ocean Accident & Guarantee Corp., 235 App. Div. 340; Herman v. Gutman, 244 App. Div. 694; Marshall v. Thompson Feature Service, Inc., 216 App. Div. 428.) The plaintiff, as a stockholder of Niagara Hudson Power Corporation, has shown no derivative status by which he can maintain this action, and has stated no facts to show a cause of action in favor of the corporation. (Isaac v. Marcus, 258 N. Y. 257 O’Connor v. Virginia Passenger & Power Co.,
      184 N. Y. 46; Kavanaugh v. Commonwealth Trust Co., 181 N. Y. 121; Koral v. Savory, Inc., 276 N. Y. 215; Koch v. Estes, 146 Misc. Rep. 249; 240 App. Div. 829; 264 N. Y. 480; Watson v. Consolidated Laundries Corp., 235 App. Div. 234; Lonsdale v. Speyer, 249 App. Div. 133; Beveridge v. N. Y. E. R. R. Co., 112 N. Y. 1; Manson v. Curtis, 223 N. Y. 313; Central Trust Co. v. East Tennessee Land Co., 116 Fed. Rep. 743; United Zinc Co. v. Harwood, 103 N. E. Rep. 1037; American Woolen Co. v. Old Colony Trust, 160 N. E. Rep. 816; Baker v. Allen, 197 N. E. Rep. 521.)
   Per Curiam.

The complaint contains allegations that the individual defendants and the corporate defendants Floyd L. Carlisle & Co., Inc., and Schoellkopf, Hutton & Pomeroy, Inc., by concerted action through a complicated series of transfers of stock and assignments of a contract, procured the issuance to the defendant Floyd L. Carlisle & Co., Inc., for the benefit of the individual defendants of 200,000 shares of stock of the Northeastern Power Corporation alleged to be worth $7,000,000 for property which cost the individual defendants and the defendant Floyd L. Carlisle & Co., Inc., not to exceed $50,000. The individual defendants were, from the time of the organization of the Northeastern Power Corporation, directors of that corporation, and the property, costing not to exceed $50,000, consisting of shares of corporate stock which the Northeastern Power Corporation received, had been acquired by the individual defendants through the agency of other corporations wholly controlled and dominated, directly or indirectly, by the individual defendants with the intention of so transferring the property to the Northeastern Power Corporation and securing large secret profits for themselves. Thus a cause of action in favor of the Northeastern Power Corporation is alleged. (Pollitz v. Wabash R. R. Co., 207 N. Y. 113; New York Trust Co. v. American Realty Co., 244 N. Y. 209.) While the allegations are somewhat vague and general in relation" to intent, domination and control, we find them sufficient within the authorities to state these abstract concepts. A cause of action in favor of the Northeastern Power Corporation being alleged, there is a statement of its assignment to the defendant Niagara Hudson Power Corporation, of which the plaintiff is a stockholder, and of the other necessary facts for the foundation of a stockholder’s derivative action. The second alleged cause of action repeats the first and adds statements of waste and misappropriation. It is not necessary to consider here whether the second cause of action adds anything of substance to the first cause of action, the allegations of which we find sufficient. It is, perhaps, needless to say that our decision is founded solely upon the allegations of the complaint and that no possible defense, affirmative or negative, is before us.

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

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

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Paul E. Allen, Appellant.
    Argued March 5, 1940;
    decided April 16, 1940.

      Thurlow W. Southwick for appellant.
    Defendant was deprived of a fair trial by the admission of evidence of other crimes unconnected with that charged in the indictment. (People v. Molineux, 168 N. Y. 264; People v. Sharp, 107 N. Y. 427; Coleman v. People, 55 N. Y. 81; People v. Shea, 147 N. Y. 78.)

      Donald M. Mawhinney, District Attorney (Arthur W. Wilson of counsel), for respondent.
    A defendant in a criminal action who offers himself as a witness may be interrogated as to any vicious or criminal acts of his life. (People v. Casey, 72 N. Y. 393; People v. Hinksman, 192 N. Y. 421; People v. Webster, 139 N. Y. 73; Brandon v. People, 42 N. Y. 265; People v. Giblin, 115 N. Y. 196; People v. McCormick, 135 N. Y. 663.) Evidence of other crimes is properly admissible when it tends to prove the identity of the person charged with the commission of the crime on trial. (People v. Grutz, 212 N. Y. 72; People v. Harvey, 235 N. Y. 282; People v. Marrin, 205 N. Y. 275; People v. Morse, 196 N. Y. 306; People v. Molineux, 168 N. Y. 264; People v. Governale, 193 N. Y. 581; People v. Rogers, 192 N. Y. 331; People v. Van Tassel, 156 N. Y. 565; People v. Peckens, 153 N. Y. 576; People v. Murphy, 135 N. Y. 450; People v. Rogers, 71 Cal. 565.)
   Per Curiam.

We agree with the Appellate Division that the attempted proof of other crimes was erroneously admitted. The only question that remains is whether the error may be overlooked as immaterial. Its nature was such that it seems impossible to say that it was not prejudicial to the defendant.

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Finch, Rippey and Conway, JJ., concur; Sears and Lewis, JJ., taking no part.

Judgments reversed, etc.


author: Rippey, J.

text:
    The People of the State of New York, Appellant, v. Lawyers Title Corporation, Respondent.
    Argued March 11, 1940;
    decided April 16, 1940.

      Charles P. Sullivan, District Attorney (Frederick Evan Crane and William K. Hyman of counsel), for appellant.
    The acts complained of constituted the general practice of law. (Savings Bank v. Ward, 100 U. S. 195; Matter of Pace, 170 App. Div. 818; People v. Peoples Trust Co., 180 App. Div. 494; Matter of Wellington, 154 Misc. Rep. 271; People ex rel. Trojan Realty Corp. v. Purdy, 174 App. Div. 702; People v. Alfani, 227 N. Y. 334; People v. Title Guarantee & Trust Co., 180 App. Div. 648; Matter of Duncan, 83 S. C. 186.) The services rendered by the defendant were not incidental to or necessary for the insurance of title to real property. (Jacobus v. Jamestown Mantel Co., 211 N. Y. 154; People ex rel. Tiffany & Co. v. Campbell, 144 N. Y. 166; Brooklyn Heights R. R. Co. v. City of Brooklyn, 152 N. Y. 244; People ex rel. Frost v. Woodbury, 213 N., Y. 51; People v. Title Guarantee & Trust Co., 227 N. Y. 366.)

      Henry Edward Schultz and Henry W. Proffitt for Association of the Bar of the City of New York, amicus curiæ.

    The services performed by the defendant designed to secure P. H. A. insurance constituted the illegal practice of law and were neither necessary nor incidental to the examination and insuring of titles and were beyond the scope of the exemption accorded title companies by statute. (People v. Alfani, 227 N. Y. 334; People v. Title Guarantee & Trust Co., 227 N. Y. 366.)

      Edwin M. Otterbourg, Frederic P. Houston and George R. Adams for New York County Lawyers’ Association, amicus curiæ.
    The practice of law by the defendant corporation is not exempted under the language of section 280 of the Penal Law and is expressly prohibited by section 271-a of such statute. (People v. Title Guarantee & Trust Co., 227 N. Y. 366.)

      D. William Leider, William Wolfman, Walter H. Liebman and Harold I. Cammer for respondent.
    Defendant title company had the right to draw bonds, mortgages and other papers affecting the title to real property, the title to which it was examining or insuring. (Penal Law, §§ 271-a, 280; People v. Title Guarantee & Trust Co., 227 N. Y. 366; People v. Title Guarantee & Trust Co., 191 App. Div. 165; 230 N. Y. 578; Title Guarantee & Trust Co. v. Maloney, 165 N. Y. Supp. 280; Matter of Kelsey, 186 App. Div. 95; Wollitzer v. Title Guarantee & Trust Co., 148 Misc. Rep. 529; 241 App. Div. 757; Matter of Co-operative Law Co., 198 N. Y. 479.) The other acts charged against the defendant title company do not constitute the practice of law. (People v. Title Guarantee & Trust Co., 227 N. Y. 366; Hebbard v. Haughian, 70 N. Y. 54; Van Alstyne v. Smith, 82 Hun, 382; Sommer v. Oppenheim, 19 Misc. Rep. 605; People v. Title Guarantee & Trust Co., 180 App. Div. 648.)
   Rippey, J.

The defendant was incorporated in 1933 under authority of former section 170 of the Insurance Law (Cons. Laws, ch. 28). In the words of the statute, the purposes and objects for which it was formed, so far as material here, are stated in its charter to be to examine titles to real property and chattels real, procure and furnish information in relation thereto, make and guarantee the correctness of searches for all instruments, liens or charges affecting the same, guarantee or insure the owners of real property and chattels real and others interested therein against loss by reason of defective titles and encumbrances thereon.”

Section 280 of the Penal Law (1936-1937), so far as pertinent, made it unlawful for any corporation to hold itself out to the public as being entitled to practice law, or render or furnish legal services or advice * * * or to furnish legal advice, services or counsel ” except where the corporation was lawfully engaged in the examination and insuring of titles to real property,” but then only when the services might be lawfully rendered by a person not admitted to practice law in this State. Section 271-a of the Penal Law, in effect at the time of the institution of this action and at the time the acts complained of were committed, prohibited the title company from receiving compensation for the preparation of instruments affecting real estate where such instruments were not necessary to the examination and insuring of titles.

Defendant was charged with illegally engaging in the practice of law in violation of section 280 of the Penal Law in that it did, on and between November 1, 1936 and November 10, 1937, hold itself out to the public as being entitled to practice law, and to render and furnish legal services and advice and to furnish attorneys and legal counsel to persons in the County of Queens in the handling of and in connection with legal transactions; and did on, about or between said dates above mentioned in the County of Queens, render and furnish legal services and advice.” The information then specifically and at length charges the specific acts out of which the violation arose. After a trial in the Court of Special Sessions of the City of New York, defendant was convicted and a fine of $500 was imposed. The Appellate Division reversed by a divided court and the case reaches us upon the certificate of a judge of that court.

The Skillman Contracting Corporation, a building and development institution, procured a plot of land which it subdivided into lots and upon which it proposed to construct fourteen houses. Incidental to the development it procured the Interboro Capital Corporation, a lending institution, to loan $42,000 for use in its building operations. As part of its plan it proposed to dispose of those homes when completed by taking back mortgages from the purchasers for part of the purchase price to be guaranteed by the Federal Housing Administration and to procure policies of insurance of the titles from the defendant. The carrying out of all steps in the consummation of that plan was entrusted to the defendant and by the latter to an employee who was not an attorney.

As part of the plan to procure the P. H. A. guaranty as to each home, the development corporation was required to secure a conditional commitment from the F. H. A. in advance of construction. The builder was required to submit plans, specifications and details of construction and the like to the F. H. A. to enable it to make its appraisal. Forms were supplied for that purpose. Two papers, requiring detailed accurate information known as operative builder’s application for conditional commitment ” and “ operative builder’s description of real estate,” involving both land and improvements, containing a statement of proposed restrictions and complete drawings, specifications and plans for the building and a list of mortgage and other hen indebtedness or other outstanding hens upon the property, together with a “ legal description ” of the property to be covered by the proposed mortgage, preceded the “ operative builder’s conditional commitment ” to insure the loan. That instrument required provisions for amortization of the mortgage indebtedness over a period not exceeding 19 11/12 years, the approval of the lending institution as a mortgagee under title II of the National Housing Act, the filing of various subsequent papers upon forms furnished by the F. H. A., due execution thereof by the borrower and satisfactory exhibition of his credit standing and other qualifications for a loan and evidence of his reasonable abihty to pay, and provided that unless the apphcation should comply in all other respects with the requirements of the National Housing Act and the administrative rules issued thereunder by the Federal Housing Administrator, the Administrator should be relieved from any and all obligations under the commitment. Other items of information were required for the issuance of the conditional commitment which are too numerous to detail here. Periodic inspections as construction of the buildings progressed were made by representatives of the F. H. A. When the purchaser was approved the Housing Administration issued its “ commitment for insurance.” That commitment was preceded by the “ mortgagee’s application for insurance ” to be executed in triplicate in accordance with the provisions of title II of the National Housing Act, in which were specified many details in regard to probable carrying charges, amortization and requirements as to payments of the mortgage to be included therein, the mortgagee’s valuation and various contractual obligations on the part of the mortgagee and representations and further details in connection with the proposal which could not be properly and safely certified without the advice of one having legal knowledge and skill. To that statement was attached the mortgagor’s statement ” requiring detail which might be hazardous for any one to certify without legal supervision and advice together with a warning in which was printed section 512, subdivision (a), of the National Housing Act (48 U. S. Stat. 1265), which provided (1936-1937) that whoever * * * makes any statement, knowing it to be false, or willfully overvalues any security, shall be punished by a fine of not more than $5,000, or by imprisonment for not more than two years, or both ” (U. S. Code, tit. 12, § 1731), and a statement that the papers which had been executed were for the purpose of obtaining a mortgage loan to be insured under the provisions of the Housing Act. Attached were five closely-printed pages of complicated and involved instructions as to procedure and the like.

Prior to the closing of deals with the purchasers, the Interboro Company financed the construction of the group of houses under a blanket mortgage, after a contract for the building loan had been suitably prepared and accepted, covering the entire group upon which it made advances as construction proceeded. After a house was completed and sold and all requirements of the Federal Housing Administration were satisfactorily carried through, the purchaser received a deed and executed a purchase-money bond and mortgage, a release of that property from the blanket mortgage was prepared and executed, the purchaser’s twenty per cent affidavit,” as required by the F. H. A. regulations, was prepared and executed, the F. H. A. guaranty furnished and the transaction was closed. Asimilar transaction was carried through by another developer known as the Marca Realty Company, Inc., ultimately involving a number of houses with one Phoebus Kaplan financially backing the deal. The transactions in connection with that deal were similar to those carried through in the Skilhnan deal. In connection with the latter the defendant issued fourteen separate title insurance policies, and in connection with the former it executed separate title insurance policies for the various individual properties involved.

It is impracticable to detail further those transactions between the beginning and the consummation of which several months elapsed. The record contains 120 printed pages of the documents that were used and the record is incomplete because duplication of the papers used in the separate transactions were avoided in the printing. The evidence establishes that the defendant, through its lay employee, supervised and carried through many, if not all, of those transactions, passed upon the regularity and legality of papers, prepared and caused legal documents to be executed in accordance with the requirements of the parties and with the provisions of the National Housing Act, observed and provided against violations of the provisions of the act imposing a penalty for false representations in connection with the F. H. A. guaranty, handled all moneys involved, and attended the closing of the separate transactions. For such services defendant charged and received $15.50 for each completed house transaction in addition to the fee charged for each title insurance policy. It is idle to assert or to attempt to justify any assertion that the handling of those transactions did not require careful attention, legal skill and a high degree of responsibility, such as is commonly understood to be embraced within the practice of law. That the parties involved, other than the F. H. A., relied upon the defendant for advice, for satisfactory preparation of all papers required and for protection of their rights is amply demonstrated by the evidence.

The defendant is not protected by the provisions of section 280, which exempt a corporation engaged in the examination and insuring of titles to real property. That exemption has no application whatever to services which cannot be lawfully rendered by a person not admitted to practice law in the State of New York. It seems to me that it must be obvious without further elaboration that a layman would not be permitted under the provisions of section 270 to render the services that were rendered by the defendant corporation. Nor may the defendant protect itself behind the claim that the services rendered were necessary to the examination of titles and the issuance of its policies of insurance. The title company admitted on the record, in part, at least, that in order to certify that any one of the permanent mortgages was a first lien free and clear of all prior liens and encumbrances it was unnecessary for it to prepare the various papers or to conduct and carry through any of the transactions with the Federal Housing Administration or with the financing schemes of the developers.

Reliance is placed in part by defendant upon two decisions of this court (People v. Title Guarantee & Trust Co., 227 N. Y. 366, decided in December, 1919, and People v. Title Guarantee & Trust Co., 191 App. Div. 165; affd., 230 N. Y. 578, decided December 31, 1920). Neither has any application to the facts in this case. It is sufficient to say that in the first case cited but a single instance was involved where a bill of sale and a chattel mortgage were prepared, and the decision clearly turned upon that proposition. The second case involved two separate actions decided as one. In that case the information charged the defendant with drawing a contract for the purchase and sale of a piece of real estate and a deed, bond and mortgage in connection with insuring the title to the property to be covered. In the case at bar, legal services of a character usually performed by lawyers as a part of their ordinary office practice were undertaken with continuity and were squarely within the prohibitions of the statute. Neither of the decisions upon which reliance has been placed admit of any justification for such a practice. The Legislature, since those decisions, and presumably having them in mind together with the increasing instances in which corporations were asserted to be undertalcing to render legal services, enacted section 271-a of the Penal Law (L. 1930, ch. 397), which barred beyond and in addition to the prohibitions contained in section 280 the practice of law by title companies where the instruments therein mentioned were not necessary to the examination and insuring of titles. To protect the public from unskillful preparation of legal documents and the unskillful handling of legal transactions, the policy of the State, indicated particularly by the sections of the Penal Law referred to, is to bar corporations from doing those acts and carrying through such transactions as were usually required to be performed by licensed attorneys and counsellors at law.

The argument that the papers were simple and not complex and that the blanks might as well be filled in by one not skilled in legal work as by a lawyer was stressed by defendant here as it usually has been presented where illegal practice is charged in the preparation and the supervision of the execution and delivery of legal papers. It might have been presumed with propriety that such an argument as a test for the determination of the question of illegal practice was laid at rest when Judge Pound said, in People v. Title Guarantee & Trust Co. (supra, p. 379): “ I am unable to rest any satisfactory test on the distinction between simple and complex instruments. The most complex are simple to the skilled and the simplest often trouble the inexperienced.”

The judgment of the Appellate Division should be reversed and that of the Court of Special Sessions affirmed.

Loughran, Finch, Lewis and Conway, JJ., concur; Lehman, Ch. J., and Sears, J., dissent and vote to affirm.

Judgment accordingly,


author: Lehman, Ch. J.

text:
    Harry Blassman, an Incompetent Person, by Benjamin Blassman, His Guardian ad Litem, Respondent, v. State of New York, Appellant.
    (Claim No. 25330.)
    Argued March 7, 1940;
    decided April 16, 1940.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden, Harold Greenstein and Henry Epstein of counsel), for appellant.
    There was no negligence upon the part of the State, its officers, agents and employees. (Brown v. Shyne, 242 N. Y. 176; Cullen v. State, 277 N. Y. 541.)

      Stanton Ablett and Irving Kass for respondent.
    The injury to claimant was the result of the negligence of the State. (Scalia v. State, 147 Misc. Rep. 622; Shattuck v. State, 166 Misc. Rep. 271; 254 App. Div. 926; Wilcove v. State, 146 Misc. Rep. 87; Martindale v. State, 269 N. Y. 554; Curley v. State, 148 Misc. Rep. 336; Daly v. State, 226 App. Div. 154; Sporza v. German Sav. Bank, 192 N. Y. 8; Dimitroff v. State, 171 Misc. Rep. 635; Robertson v. Towns Hospital, 178 App. Div. 285; Hoff v. State, 279 N. Y. 490.)
   Lehman, Ch. J.

The claimant, an incompetent, was committed to the Rockland State Hospital. While working in the kitchen of the hospital he cut a finger in lifting a garbage can or barrel. The cut became infected, and the injury has resulted in the loss of use of the finger and has caused the claimant great pain. Thereafter he filed a claim against the State in which he alleged that he cut his finger on a sharp and rusty rim of the barrel ” and that the injuries were caused “ solely by reason of the carelessness, recklessness and negligence of the State of New York, its officers, agents, servants and employees in negligently providing unsafe, defective and dangerous appliances for the said incompetent to work with and in failing to take the proper precautions to prevent the said injuries to the said incompetent.”

At the trial there was sharp conflict between the testimony of the claimant and the testimony of an assistant cook ” employed by the State, who was in charge of the work performed by the claimant and twelve or fifteen other patients in the hospital. The Court of Claims resolved that conflict in favor of the State and dismissed the claim upon the merits. The decision of the Court of Claims included the following findings: (5) That on or about April 15,1938, between six and seven p. m. of that day, claimant, while lifting a garbage can, suffered a cut on the fifth or little finger of his left hand. (9) That the work which claimant was set to do was work which he was capable of doing. (10) That claimant has failed to establish that said garbage can was not in good condition. (11) That claimant has failed to establish that said garbage can was rusted. (12) That claimant has failed to establish that the State and its employees had knowledge of the accident at the time it happened or had any information thereof until the day following the day when the accident occurred. (13) That claimant then received proper medical attention. (14) That claimant has failed to establish that said accident was caused and said injuries sustained by reason of the negligence of the State or its employees.

Upon appeal the Appellate Division reversed the judgment of the Court of Claims and directed judgment for the claimant for $1,500. In its order of reversal it reversed findings “ 13 ” and “ 14 ” and made new findings as requested by the claimant as follows:

14. That the State, acting through its officers, agents, servants and employees, was negligent in failing to provide treatment for the injury, when it was reported by claimant immediately after it was received.

“ 15. That the State was negligent in failing to provide medical treatment for the injury promptly and in failing to provide any medical attention until four days after the happening of the accident,” and “ that Claimant was damaged in the sum of Fifteen Hundred Dollars.”

We find no evidence in the record which dictated rejection of the findings made by the Court of Claims or which sustains the new findings of the Appellate Division. The cut was apparently of slight account until in some manner it was infected, and the opinion of the Appellate Division indicates that its decision is based upon the conclusion that the infection was due to the failure of the hospital to apply iodine promptly and to furnish treatment by a physician till several days after the accident. Duty to treat the cut could arise only when the State or its employees had knowledge or notice that an accident had occurred, and the finding of the trial court, fully sustained by the evidence and not reversed by the Appellate Division, establishes that^ until the day following the accident the State and its employees had no such knowledge or notice.

The claimant failed to establish that any neglect of the State thereafter caused the infection.. Concededly the cut was bandaged and a wet dressing placed upon it, at latest two days after the accident, and the weight of evidence shows that the cut was dressed earlier by an attendant. There is nothing in the record to show that treatment of the cut by the attendant was not in accordance with proper medical practice or that the subsequent condition of the finger was the result of the treatment so given or could have been avoided by treatment which a physician might have ordered.

The judgment of the Appellate Division should be reversed and that of the Court of Claims affirmed.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgment accordingly.


text:
    Mary H. Bradley, Respondent, v. Norman W. Roe et al., Appellants.

      Submitted February 26, 1940;
    decided April 16, 1940.

      George H. Carleton, Harold Ashare and George C. Terry for appellants.
    The motions of the defendants for summary judgment were properly granted by the Special Term and the appellate court erred in vacating the orders and judgment. (Ditmas v. Mc Kane, 92 App. Div. 344; Surr. Ct. Act, § 127; Matter of Herley, 165 Misc. Rep. 46.) Temporary administrators are merely the agents or representatives of the court of their appointment and the public records, together with the undisputed statements of the affidavits, establishes that the defendants acted as such administrators in depositing the certificate for the shares of stock with the depository before notice or knowledge of plaintiff’s claim. If plaintiff has a cause of action for possession of the stock it is against the depository and the defendants, as temporary administrators. (Hastings v. Tousey, 123 App. Div. 480;
      Matter of Lane, 147 Misc. Rep. 138; Ditmas v. Mc Kane, 92 App. Div. 344; Homola v. Chase Nat. Bank, 257 App. Div. 643; Matter of Herley, 165 Misc. Rep. 46; Beaver v. Beaver, 117 N. Y. 421; Moran v. Morrill, 78 App. Div. 440; Matter cf Van Slooten v. Dodge, 145 N. Y. 327.) The Appellate Division erred in granting the application of the plaintiff for summary judgment. (Woodmere Academy v. Moskowitz, 212 App. Div. 457; Friedman v. Friedman, 251 App. Div. 835; Matter of Leupp, 249 App. Div. 572; 277 N. Y. 521.)

      Frederick M. Schlater and Louis Kaminar for respondent.
    Representatives of estates are personally responsible for their torts and suits should be brought against them in their individual capacities. (Hildreth v. Raffin, 141 App. Div. 77; Gratwick v. Smith, 202 App. Div. 600; Kirchner v. Muller, 280 N. Y. 23; Matter of Van Slooten v. Dodge, 145 N. Y. 327; Norling v. Allee, 10 N. Y. Supp. 97; 13 N. Y. Supp. 791; 131 N. Y. 622; Keating v. Stevenson, 21 App. Div. 604; Trani v. Gerard, 181 App. Div. 387; Moniot v. Jackson, 40 Misc. Rep. 197; Fisher v. McNeely, 110 Wash. 283; Newcombe v. Lottimer, 12 N. Y. Supp. 38l; 58 Hun, 609; 128 N. Y. 618; Fallon v. Egberts Woolen-Mills Co., 56 App. Div. 585.) There is no defense to the action. Summary judgment was properly granted to plaintiff. (Matter of Babcock, 85 Misc. Rep. 256; 169 App. Div. 903; 216 N. Y. 717; Francis v. New York & B. Elev. R. R. Co., 17 Abb. N. C. 1; 108 N. Y. 93; Crouse v. Judson, 41 Misc. Rep. 338; 93 App. Div. 604; Whitney v. Whitney Elevator & Warehouse Co., 121 Misc. Rep. 461; Pease v. Smith, 61 N. Y. 477; Employers’ Fire Ins. Co. v. Cotten, 245 N. Y. 102; Pierpont v. Hoyt, 260 N. Y. 26; McCarthy v. Heiselman 140 App. Div. 240; Passaic Falls Throwing Co. v. Villeneuve-Pohl Corp., 169 App. Div. 727; Douglass v. Scott, 130 App. Div. 322.)
   Lehman, Ch. J.

The plaintiff has brought an action against the defendants for the conversion .of one hundred shares of the common stock of Ohio Oil Company, identified by certificate No. 67144 issued by that company. In her complaint she alleges that the stock was given to George R. Dare by Emma B. Johnson; that the certificate of stock was kept for safe keeping by said George R. Dare in the safe deposit box of said Emma B. Johnson at the National City Safe Deposit Company * * * on and before December 29th, 1937;” that Emma B. Johnson died on December 29, 1937, and thereafter the defendants were appointed and qualified as temporary administrators of the goods, chattels and credits of Emma B. Johnson; that the defendants took possession of the said certificate of stock, though the certificate and the stock represented by it did not belong to the decedent and her estate had no interest in it; that George R. Dare assigned the stock to the plaintiff and that the plaintiff demanded the certificate of stock from the defendants, who were then in possession of it, and that the defendants refused her demand.

The defendants moved for judgment pursuant to rules 112 and 113 of the Rules of Civil Practice. Their motions were granted at Special Term but the judgment in their favor was reversed by the Appellate Division and that court ordered that summary judgment, pursuant to rule 113, be granted in favor of the plaintiff. The defendants have appealed from that order by leave of the Appellate Division, which has certified two questions:

“ 1. Should summary judgment have been granted in favor of plaintiff?

2. Should defendants’ motion for summary judgment have been granted?”

Upon the motion for summary judgment, it appeared that letters of temporary administration were issued to the defendants, pursuant to an order of the Surrogate’s Court of Suffolk county, dated June 2, 1938. The order provides that any cash deposit, certificate of deposit, currency or securities for the payment of money, belonging to the estate, be deposited, subject to the order of the Temporary Administrators, countersigned by the Surrogate, with the National City Bank * * * pursuant to the provisions of Section 106 of the Surrogate’s Court Act.” The temporary administrators took possession of the papers and securities contained in the safe deposit box of the decedent at the National City Safe Deposit Company building and, pursuant to the provisions of the order for their appointment, the administrators deposited the securities found there in the National City Bank subject to the countersignature of the Surrogate. The receipt of the National City Bank, dated July 14, 1938, contains a list of securities received, including six certificates, each for one hundred shares of the common stock of the Ohio Oil Company. Five of these certificates are in the name of the decedent and one certificate is in the name of George R. Dare. The demand of the plaintiff for that certificate was made on August 16, 1938. The defendants informed the plaintiff that they would not deliver the certificate to the plaintiff until she established her title by appropriate proceedings in the Surrogate’s Court.

The defendants’ denial of plaintiff’s demand for the certificate of stock was not an assertion that the decedent owned the stock or that the plaintiff did not own it. Certainly it was not an assertion that, as individuals, these defendants had any right to the stock. The certificate was in the possession of the decedent at the time of her death. It was found in the safe deposit box in which the decedent kept her own property. It either was part of the assets of the decedent or, as the plaintiff claims, had been left in her box for safe-keeping. A temporary administrator has “ authority to take into his possession personal property; to secure and preserve it * * * and * * * for the

purpose of determining the title to personal pioperty in his possession, he may maintain any action or special proceeding.” (Surrogate’s Court Act, § 127.) Acting under the authority so conferred and carrying out the duty, which was imposed upon them, to conserve the property of the decedent, these defendants, as temporary administrators, opened the decedent’s safe deposit box and delivered to a depositary named by the court the decedent’s property contained in the box. The plaintiff, of course, does not challenge the defendants’ right and duty to conserve the property belonging to the decedent in the manner directed by the court. Her complaint is that the defendants delivered to the depositary property which did not belong to the decedent, though it had been left with the decedent for safe-keeping, and then refused to surrender it to the plaintiff upon her demand. In this action she challenges the defendants’ right to take such property into their possession, to deliver it to the depositary named by the court, and to refuse to surrender the property to the true owner upon demand.

The certificate shows on its face that George R. Dare is the registered owner of the stock, represented by the certificate. That might, perhaps, constitute notice that the registered owner might claim the stock thereafter but the registered owner is not always the beneficial owner and the form of the stock certificate certainly did not rebut conclusively the inference that the decedent had title or beneficial right to the stock, which might arise from her possession of the stock and the manner in which she took care of it. At the time when the temporary administrators opened the decedent’s box and delivered its contents to the depositary, neither Dare nor the plaintiff, his assignee, had made any claim to any stock. When, thereafter, the stock was demanded, compliance with the demand and immediate surrender of the stock, without a prior adjudication that the stock was not an asset of the decedent’s estate, would have been at the defendants’ peril; for undoubtedly the defendants might have been charged with waste if they delivered assets of the estate to a person not entitled thereto. The summary judgment against the defendants is an adjudication that, nevertheless, only at their peril could the defendants refuse the plaintiff’s demand and require that the plaintiff prove her right to the stock by appropriate proceedings in the Surrogate’s Court. Thus individual liability has been imposed upon them for the conversion of the plaintiff’s property to their own use; though they never, as individuals, asserted any dominion or control of the property and never, as individuals or as administrators, interfered with the plaintiff’s possession of the property and never unequivocally denied the plaintiff’s ownership. They are charged with wrong only because they retained custody of plaintiff’s property when they found it mingled with the decedent’s property in the decedent’s safe deposit box and refused to decide whether the plaintiff’s claim of title was sound, where an erroneous decision would subject them to liability for dereliction in the performance of their duties as custodians of the assets of the decedent’s estate, appointed for that purpose by the court.

The power of the State to regulate descent and distribution of the property of decedents and to regulate the administration of decedent estates does not, it may be conceded, include the power to authorize an administrator to deprive others of their property or to interfere with their possession and enjoyment. A person appointed as administrator who does that is personally liable to the owner of the property for its conversion. (Matter of Van Slooten v. Dodge, 145 N. Y. 327.) The Surrogate’s Court Act does not purport to authorize an administrator to take property from the possession of another. The defendants in this case have not attempted to do so. The certificate, which the plaintiff claims, was, it is undisputed, rightfully in the possession of the decedent at her death; it was kept in the decedent’s safe deposit box, mingled with her other property, and the defendants have not as individuals or as administrators asserted or exercised any dominion over it, except the right of temporary custody until the plaintiff establishes her claim by the summary proceeding authorized by section 206-a in such cases.

Where a person is rightfully in possession, of property, continued custody of the property and refusal to deliver on demand of the owner until the owner proves his right, constitutes no conversion. The owner is wronged by the custodian only where there is “ a defiance of the owner’s right, a determination to exercise dominion and control over the property and to exclude the owner from the exercise of his rights.” (Gillet v. Roberts, 57 N. Y. 28, 33.) The authority and duty of the defendants to open the decedent’s box and to deliver assets of the estate found therein to the depositary, named by the court as custodian, is clear and is not questioned by the plaintiff. The duty to conserve the assets of the decedent’s estate was imposed upon the defendants by the court; and even if the decedent mingled in her safe deposit box, with her own property, securities left with her for safe-keeping, the defendants could not reasonably be expected to decide whether she had done so and to separate property which belonged to her from property merely left in her custody. All the property in the box came rightfully into the possession of the defendants and, at least till some person made claim to some of that property, the defendants acted reasonably and properly in keeping it in their custody and, as conservators, appointed by the court, in delivering it to the depositary to be removed only upon order of the court. The defendants were not under any duty to inquire of the registered owner whether the stock belonged to him or to'offer to return the stock to him, even if they had reason to believe that the stock was his. Retention of custody of the stock, which had originally been placed in the custody of the decedent, did not deprive the owner of his possession for he had parted with possession and it did not exclude the owner from the exercise of his rights.” Indeed, the defendants had no choice except to retain custody of the stock or to place it in the custody of another, or to abandon the stock and leave it without custodian. When the defendants delivered the stock to the depositary named as custodian by the court, subject to the order of the Surrogate, the property was in effect in the custody of the court; and placing property in the custody of the court is, it is plain, not an assertion of dominion over the property to the exclusion of the real owner who had parted with possession.

The question remains whether refusal thereafter to surrender the property upon the demand of the plaintiff constituted a conversion. In determining that question we assume, at least for the moment, that the plaintiff is the owner of the stock and that the defendants could, if they chose, surrender it to her when convinced that the decedent’s estate has no claim to it. The defendants’ right to retain the stock is certainly no less than that of a finder or other person in lawful possession of property. Lord Coke, in the case of Isaack v. Clark (2 Bulstrode, 306, 312; English Reports, Full Reprint, vol. 80, pp. 1143, 1148) has laid down the rule to be applied in such case: “ if a man therefore which findes goods, if he be wise, he will then search out the right owner of them and so deliver them unto him; if the owner comes unto him, and demands them, and he answers him, that it is not known unto him whether he be the true owner of the goods, or not, and for this cause he refuseth to deliver them; this refusal is no conversion, if he do keep them for him.”

Such a refusal is not a rejection of the owner’s title. It is qualified and provisional; the possessor may say, ‘ I am willing to do right, but that I may be sure I am doing right, give me reasonable proof that you are the owner;’ and such a possessor, even if over- cautious in the amount of satisfaction he requires, can hardly be said to repudiate the true owner’s claim.” (Pollock on The Law of Torts [14th ed.], p. 287.) In a case which in some aspects is not unlike the case which we are now considering, it was said: When the refusal is only for a time, for the purpose of ascertaining ownership, no conversion can be inferred unless the refusal is unreasonably prolonged.” (Buffington v. Clarke, 15 R. I. 437, 438.)

We apply these well-established mies here. The defendants, in the performance of their duty as custodians of the assets.of the decedent’s estate, have found the property, which plaintiff now claims, in the safe deposit box in which the decedent left her property. No one except the defendants had possession or claimed right of possession to any of that property and the defendants’ act of holding custody of all the property in the box, subject to the order of the Surrogate, was calculated to conserve the assets of the estate, and constituted no denial of the right of owners who might thereafter claim the property. The Surrogate’s Court Act provides in section 206-a a summary and reasonably convenient method for determining such claims. The State having provided such method, the defendants did not assert any dominion or control of the property by refusing to surrender property, which they held as custodians appointed by the court and representing the court, until the court itself was satisfied that the property claimed was not an asset of the decedent’s estate.

Upon the undisputed facts and even assuming that the certificate claimed is the property of the plaintiff, it conclusively appears that the defendants were entitled to judgment dismissing the complaint. We are not called upon to determine whether the plaintiff’s title to the property was conclusively established by the affidavits presented in opposition to the defendants’ motion.

The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in this court and in the Appellate Division. The first question certified is answered in the negative, the second question in the affirmative.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.


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    David W. Vroman, as Administrator of the Estate of Rosella Vroman, Deceased, Appellant, v. State of New York, Respondent. David W. Vroman, as Administrator of the Estate of Susan Vroman, Deceased, Appellant, v. State of New York, Respondent. Augusta W. Rowley, as Administratrix with the Will Annexed of Frank M. Weyland, Deceased, Appellant, v. State of New York, Respondent. Evelyn R. Snyder, as Executrix of Augusta W. Weyland, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 23772.)
    (Claim No. 23773.)
    (Claim No. 23774.)
    (Claim No. 23778.)
    Argued November 20, 1939;
    decided December 28, 1939.

      H. Duane Bruce and Harry H. Hartman for appellants.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden of counsel), for respondent.
   In each action: Judgment affirmed, with costs; no opinion.

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


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    The People of the State of New York, Respondent, v. Franklin W. Jenner, Appellant.
    Argued November 14, 1939;
    decided December 28, 1939.

      Richard P. Byrne for appellant.

      Donald M. Mawhinney, District Attorney (Clarence Unckless of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


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    Franklin Surety Company et al., Appellants, v. United States Fidelity & Guaranty Company, Respondent.
    Argued November 20, 1939;
    decided December 28, 1939.

      Jay Leo Rothschild, Walter S. Beck and Alfred C. Bennett for appellants.

      William Dike Reed and William J. McArthur 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:
    Patrick Dowd, Appellant, v. Board of Education of City of New York, Respondent.
    Argued November 20, 1939;
    decided December 28, 1939.

      Jay Leo Rothschild, Walter S. Beck and Harold Stern 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, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Mildred J. Jamack, Respondent, v. Robert M. Dick, Appellant.
    Argued November 21, 1939;
    decided December 28, 1939.

      Irving I. Goldsmith, Adolph Bruenner, Monroe Collenburg and Joseph L. Roesch for appellant.

      Philip J. Nathan and Jacquin Frank 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:
    Effell Realty Corporation, Respondent, v. City of New York, Appellant.
    Argued November 21, 1939;
    decided December 28, 1939.

      William C. Chanler, Corporation Counsel (Arthur A. Segall and Hyman W. Kehl of counsel), for appellant.

      Alexander E. Rosenthal and Irving Segal for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    In the Matter of the Accounting of Edward P. Lynch, as Executor of Annie L. Hollenbeck, Deceased, and Helen G. Lynch, as Executrix of Edward P. Lynch, as Executor, Deceased. Shella A. Booth, Appellant; Helen G. Lynch et al., Respondents.
    Argued November 21, 1939;
    decided December 28, 1939.

      James H. Davies for appellant.

      James R. Ingram and William D. Ingram for Helen G. Lynch et al., respondents.

      John J. Livingston, respondent, in person.
   Order affirmed, with one bill of costs payable out of the estate. No opinion.

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


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    In the Matter of the Liquidation of the Consolidated Indemnity and Insurance Company by the Superintendent of Insurance of the State of New York, as Liquidator, Respondent; Gertrude E. Coron et al., as Temporary Administrators of the Estate of Sarah R. Coron, Deceased, Appellants.
    Argued November 21, 1939;
    decided December 28, 1939.

      Abraham Franzbau and Walter J. A. Mack for appellants.

      Irvin Waldman and Alfred C. Bennett for respondent.
   Order affirmed, with costs; no opinion.

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


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    Leewood Hills, Inc., Appellant, v. New Rochelle Water Company, Respondent.
    Submitted November 22, 1939;
    decided December 28, 1939.

      Clarence G. Bachrach for appellant.

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


text:
    Pearl Moore, Respondent, v. Frank V. Sutland, Appellant. Daniel Moore, Respondent, v. Frank V. Sutland, Appellant.
    Argued November 22, 1939;
    decided December 28, 1939.

      William F. Donohue and Ira H. Michael for appellant.

      John H. Cogan for respondents.
   In each action: Judgment affirmed, with costs; no opinion.

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


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    Morse Chain Co., Inc., Respondent, v. County of Tompkins, Appellant.
    Argued November 27, 1939;
    decided December 28, 1939.

      Charles H. Newman for appellant.

      Truman K. Powers and Sherman Peer for respondent.
   Judgment modified by deducting therefrom $375, as agreed by counsel on the argument, and, as so modified, affirmed, with costs in this court to the appellant. No opinion.

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


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    In the Matter of Roy Moon, Appellant, against Floyd F. Jones, as Clerk of Greene County, Respondent.
    Argued November 27, 1939;
    decided December 28, 1939.

      Seth T. Cole, Martin Saxe, Frank Hancock Hennessy, Roger H. Anderson and Lloyd D. Keigwin for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Jack Goodman of counsel), for respondent.
   Order affirmed, without costs, on authority of Franklin Society v. Bennett (282 N. Y. 79). No opinion.

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


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    The People of the State of New York, Appellant, v. City of Hornell, Respondent
    Argued November 27, 1939;
    decided December 28, 1939.

      John J. Bennett, Jr., Attorney-General (Hugh Reilly and John M. Stull of counsel), for appellant.

      Harry L. Allen, City Attorney, 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.


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    Yetta Nathanson et al., Appellants, v. City of New York, Respondent.
    Argued November 27, 1939;
    decided December 28, 1939.

      Jacob W. Friedman and Simon Metrik for appellants.

      William C. Chanler, Corporation Counsel (Paxton Blair and Arthur H. Goldberg of counsel), for respondent.
   Judgments reversed and new trial granted, with costs to abide the event on the authority of Engels v. City of New York (281 N. Y. 650). No opinion.

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


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    Board of Education of Central School District No. Six of Towns of Hancock and Tompkins, Appellant, v. Lester E. Woolsey et al., Respondents.
    Argued November 27, 1939;
    decided December 28, 1939.

      Paul F. Eaton and Arthur E. Conner for appellant.

      Royal D. Woolsey for Lester E. Woolsey, respondent.

      Lewis G. Carpenter for Helen Colson et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


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    Edward K. Ream, Appellant and Respondent, v. Robert C. Ream et al., Individually and as Trustees, et al., Respondents, and Bethel V. Ream, Respondent and Appellant, Impleaded with Another.
    Argued November 27, 1939;
    decided December 28, 1939.

      Carl Sherman and Edward G. Griffin for plaintiff, appellant and respondent.

      Harold Rosenblum and Milton Rosenblum for Bethel V. Ream, defendant, respondent and appellant.

      Clarence Blair Mitchell and H. Henry Ramm for Robert C. Ream et al., individually and as trustees, respondents.

      Mark W. Norman for Louis M. Ream et al., respondents.

      Mark W. Norman and Hugart F. Norman for Carolyn T. Ream et al., infant defendants, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gottlieb C. Rathfelder, Appellant, v. Levi Flag, Respondent, Impleaded with Another.
    Argued November 28, 1939;
    decided December 28, 1939.

      Alfred E. Herz and I. Sidney Worthman for appellant.

      Alexander Orr, Jr., and Walter G. Evans 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:
    Laura Solomon, Appellant and Respondent, v. Charles Solomon, Respondent and Appellant.
    Argued November 28, 1939;
    decided December 28, 1939.

      Edward Vogel and J. Alvin Van Bergh for plaintiff, appellant and respondent..

      Otho S. Bowling and Robert H. Elder for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.'

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


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    In the Matter of Standard Oil Company of New York, Respondent, against Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of The City of New York, Appellants. (Taxes for 1926-1931.) In the Matter of Socony-Vacuum Corporation, Respondent, against James J. Sexton et al., as Commissioners of Taxes and Assessments of The City of New York, Appellants. (Taxes for 1932 and 1933.) In the Matter of Socony-Vacuum Oil Company, Incorporated, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of The City of New York, Appellants. (Taxes for 1934 and 1935.)
    Argued November 28, 1939;
    decided December 28, 1939.

      William, C. Chanler, Corporation Counsel (Arthur A. Segall, Milton I. Newman and Edward Garfield of counsel), for appellants.

      Charles Lamb for respondent.
   In each proceeding: Order affirmed, with costs; no opinion. Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    First National Bank & Trust Co. of Tuckahoe, Appellant, v. Tietze Realty Corporation et al., Respondents.
    Argued November 28, 1939;
    decided December 28, 1939.

      Raphael Link for appellant.

      Arthur D. Brennan, Chester A. Slocum and James D. Hopkins for Mount Vernon Trust Company, respondent.

      Woodson R. Oglesby, respondent, in person.
   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 Grade Crossings in the City of Batavia. New York Central Railroad Company, Appellant; Public Service Commission of the State of New York et al., Respondents.
    Argued November 28, 1939;
    decided December 28, 1939.

      Howard R. Sturtevant, C. C. Handy and John E. Leach for appellant.

      Raymond J. McVeigh and Gay H. Brown for Public Service Commission, respondent.

      William H. Coon, City Attorney (Albert J. Waterman of counsel), for City of Batavia, respondent.
   In each proceeding: Order affirmed, without costs; no opinion. (See 282 N. Y. 679.)

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


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 November 29, 1939;
    decided December 28, 1939.

      Stanley Gray Horan and Francis M. Verrilli for appellants.

      Robert H. Koehler for Board of Appeals, respondent.

      Alexander W. Kramer for Benjamin W. Hawkes, intervener, respondent.
   Order affirmed, with costs; no opinion. (See 282 N. Y. 683.)

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


text:
    In the Matter of Stanley G. Horan, Appellant, against Russell P. Koehler et al., Constituting the Board of Appeals of the Town of Islip, Respondents, and Benjamin W. Hawkes, Intervener, Respondent.
    Argued November 29, 1939;
    decided December 28, 1939.

      Stanley Gray Horan, appellant, in person.

      Robert H. Koehler for Board of Appeals, respondent.

      Alexander W. Kramer for Benjamin W. Hawkes, intervener, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Anna Greco et al., Appellants, v. Fannie Levy, Defendant, and Albert L. Levy, Respondent.
    Argued November 29, 1939;
    decided December 28, 1939.

      Laurence B. Sargent, Jerome I. Hyman, S. C. Stember and Eli N. Lesser for appellants.

      Alexander E. Rosenthal, Bernard Kelly and Irving Segal 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, Respondent, v. Bertal Thingstead and John Kulka, Appellants.
    Argued November 29, 1939;
    decided December 28, 1939.

      Arthur J. W. Hilly and Frederick J. Sullivan for Bertal Thingstead, appellant.

      Saul Price and Benjamin Wohl for John Kulka, appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Manuel Robbins of counsel), for respondent.
   As to each defendant: Judgment of conviction affirmed; no opinion.

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


text:
    First National Bank of Hempstead et al., Appellants, v. Level Club, Inc., et al., Respondents.
    Argued November 29, 1939;
    decided December 28, 1939.

      Charles H. Tuttle, R. Randolph Hicks, F. Morse Hubbard Lloyd F. Thanhouser and Arthur L. Evans for appellants.

      Nathan L. Miller, Clarence J. Shearn and Philip J. Dunn for Peter Schmuck, respondent.

      Charles L. Woody and Alexander R. Kellegrew for Irving Trust Company, respondent.

      Martin Lippman, Milton Winn, Emanuel Dannett, Leon Lauterstein, Henry M. Flateau, John Bogart, I. Gainsburg, Alexander Natanson, Archibald Palmer, Seymour B. Liebman and Morris Junger for Carl W. Stem et al., respondents.

      Murray Sanders for Alexander Rosenbaum, respondent.

      Joseph P. Segal for Albert R. Sasserath, 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:
    Mary Carp, as Administratrix of the Estate of David Carp, Deceased, Appellant, v. Allen J. Wilson, Doing Business under the Name of A. Towle & Co., Respondent.
    Argued November 30, 1939;
    decided December 28, 1939.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anna Barbasote et al., Respondents, v. Thomas E. Murray, as Receiver of Interborough Rapid Transit Company, Appellant.
    Submitted November 30, 1939;
    decided December 28, 1939.

      A. L. Wilbur and James L. Quackenbush for appellant.

      Jacob W. Friedman for respondents.
   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:
    Banco Nacional De Mexico, S. A., Appellant, v. J. A. Medina Company, Inc., Respondent.
    Argued November 30, 1939;
    decided December 28, 1939.

      Francis S. Bensel and W. Frederick Knecht for appellant.

      Eugene A. Sherpick, Harold R. Medina, William Gilbert and James J. Regan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Ben Forman et al., Appellants, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Argued November 30, 1939;
    decided December 28, 1939.

      Samuel D. Smoleff for appellants.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer and Paxton Blair of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Lucy Sommer, Appellant, v. Guardian Life Insurance Company of America, Respondent.
    Submitted December 15, 1939;
    decided December 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 508.)


text:
    Freda Abbott, as Administratrix of the Estate of Samuel Abbott, Deceased, Appellant, v. Prudential Insurance Company of America Respondent.
    Submitted December 15, 1939;
    decided December 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 375.)


text:
    Lehigh Structural Steel Company, Inc., Plaintiff, v. Nyack Kennel Club et al., Defendants; Biophile Club Company, Inc., Appellant, and Vernon Lumber Corporation, Respondent.
    Submitted January 8, 1940;
    decided January 9, 1940.

      Max Ornstein for motion.

      Francis D. Wells opposed.
   Motion to dismiss appeal denied. Motion to compel appellant to supplement the record on appeal granted to the extent of directing that the appellant include in the record on appeal all papers that were before the Appellate Division when it made the order appealed from.


text:
    In the Matter of the Village of Island Park, Respondent, against William E. Howard et al., Constituting the Zoning Board of Appeals of the Village of Island Park, Respondents, and Charles Beckmann, as Executor of William Beckmann, Deceased, Appellant.
    Argued January 8, 1940;
    decided January 9, 1940.

      Robert L. Callahan for motion.

      Simon M. Platt opposed.
   Motion denied and appeal dismissed, with costs and ten dollars costs of motion, on the ground the appeal is not properly in this court (Matter of Schoenewerg, 277 N. Y. 424).


text:
    Sarah Oliner, Plaintiff, v. American-Oriental Banking Corporation, Appellant. George Sellett, as Liquidator of American-Oriental Banking Corporation, Appellant; American Reserve Insurance Company et al., Respondents.
    Submitted January 8, 1940;
    decided January 12, 1940.

      Lionel P. Marks, Harold H. Feigin and Arnold T. Koch for motion to dismiss appeal and in opposition to motion for a stay.

      Jacob Krisel in opposition to motion to dismiss appeal and for motion for a stay.
   Motion to dismiss appeal denied. The order appealed from is a final order and the appeal lies from the order entered in the office of the clerk of the Appellate Division upon the decision of the Appellate Division. (Matter of Westberg, 279 N. Y. 316.) From that order the appellants may appeal as of right and may again raise the constitutional question. Motion for a stay pending the appeal granted.


text:
    Town of Cortlandt, Appellant, v. Village of Peekskill et al., Respondents.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 490.)


text:
    Philemina De Salvo, Respondent, v. Stanley-Mark-Strand Corporation, Appellant.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 333.)


text:
    John Dored, Respondent, v. Linton Wells, Appellant.
    Submitted January 8, 1940;
    decided January 12, 1940.

      Simon Greenhill for motion.

      James D. McCauley opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the action was not originally commenced in any one of the courts specified in subdivision 1 of section 589 of the Civil Practice Act.


text:
    Harris Eckstein et al., Copartners Trading under the Firm Name of H. Eckstein & Sons, Respondents, v. Massachusetts Bonding and Insurance Company, Appellant, Impleaded with Another.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 'N. Y. 435.)


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.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motions to amend remittitur denied. The parties joining in a single brief are entitled under our order to a single bill of costs. (See 281 N. Y. 692.)


text:
    William M. Denman, as Trustee in Bankruptcy of Louis Finkelstein, Respondent, v. Esther G. Finkelstein et al., Appellants.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 875.)


text:
    Mary A. Sperti, as Administratrix of the Estate of Frank Sperti, Deceased, Respondent, v. City of Niagara Falls, Appellant.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motion to amend the remittitur denied. Time to comply with the order extended ten days. (See 281 N. Y. 708.)


text:
    The People of the State of New York, Respondent, v. Sidney Markman and David Goldberg, Appellants.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motion for a reargument denied. (See 281 N. Y. 855.)


text:
    Mabel Rooney, Respondent, v. William F. Rooney, Appellant.
    Submitted January 8, 1940;
    decided January 12, 1940.

      Edwin G. Jenkins for motion.

      Harry Berger and Reuben L. Haskell opposed.
   Motion denied on the ground the appellant may appeal as of right.


text:
    Los Angeles Investment Securities Corporation, Respondent, v. Alice W. Joslyn et al., Appellants.
    Argued January 8, 1940;
    decided January 12, 1940.

      Frank L. Wiswall and Carl O. Olson for motion.

      Robert E. Whalen opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless within ten days the Appellate Division resettles its order and certifies a question, in which event the motion is denied.


text:
    William W. Kouwenhoven et al., Appellants, v. New York Rapid Transit Corporation et al., Respondents.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 811.)


text:
    Lexington & Fortieth Corporation et al., Appellants, v. Cornelius Callaghan et al., Respondents, Impleaded with Another. Lexington & Fortieth Corporation et al., Appellants, v. Lexington Avenue And 40th Street, Inc., Respondent.
    Submitted January 8, 1940;
    decided January 12, 1940.
   Motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended so as to provide that but one bill of costs is awarded.


text:
    Francis W. Marshall, Appellant, v. United States Review Corporation et al., Respondents.
    Submitted January 8, 1940;
    decided January 16, 1940.

      E. Douglas Hamilton for motion.

      E. Crosby Kindleberger opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion. (See Naccash v. Hildansid Realty Corp., 262 N. Y. 588.)