text:
    Hannah Mendelson, Respondent, v. Robert Boettger et al., Appellants.
    Argued October 5, 1939;
    decided October 20, 1939.

      William A. Walsh for appellants.

      Irving Schneider and Arthur Hutter 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.


source: Caselaw Access Project

license: Public Domain

text:
    Jeannette M. House, Appellant, v. James S. Bodour, Respondent.
    Argued October 5, 1939;
    decided October 20, 1939.

      Samuel Gorlick and David D. Joselit for appellant. _

      W. F. Martineau and Donald V. Carr 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. Edward H. Gould, Appellant.
    Argued October 5, 1939;
    decided October 20, 1939.

      Emanuel G. Kleid and E. H. Kunen for appellant.

      Thomas E. Dewey, District Attorney (Charles C. Tilling-hast, Jr., and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Harry Miller, Appellant.
    Argued October 5, 1939;
    decided October 20, 1939.

      Harry B. Siegel, Samuel Paige and David L. Malbin for appellant.

      William F. X. Geoghan, District Attorney (Edward H. Levine of counsel), for respondent.
   Judgments reversed and information dismissed. The evidence was insufficient to sustain a conviction. No opinion.

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


text:
    Palm Holding Corporation, Appellant, v. Regina Elband, Respondent.
    Argued October 5, 1939;
    decided October 20, 1939.

      Samuel J. Cohen for appellant.

      Ellsworth Baker 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:
    Morris Marmor, Appellant, v. Leo Bernstein et al., Respondents.
    Submitted October 6, 1939;
    decided October 20, 1939.

      Jacob Kram for appellant.

      Albert M. Lee and J. George Levy for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Theresa Bunt, as Administrator of the Estate of William H. Bunt, Deceased, Appellant, v. New York Central Railroad Company, Respondent.
    Argued October 6, 1939;
    decided October 20, 1939.

      Samuel S. Pines, Leo E. Falkin and Charles I. Sterling for appellant.

      K. O. Mott-Smith and Clive C. Handy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Reuben J. Strauss, Appellant, against William A. Hannig et al., as Members of the Board of Examiners of the Board of Education of the City of New York, Respondents.
    Submitted October 16, 1939;
    decided October 20, 1939.
   Motion for reargument denied with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 612.)


text:
    Jacob Hendon, Appellant, v. Board of Education of the City of New York, Respondent.
    Argued October 9, 1939;
    decided October 30, 1939.

      Mark E. Cymrot for appellant.

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

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


text:
    Marine Midland Trust Company of Binghamton, as Trustee of the Byron Stanford Trust, Respondent, v. Margaret E. Stanford, Individually and as Administratrix of the Estate of Byron Stanford, Deceased, Appellant, and William B. Stanford et al., Respondents, Impleaded with Others.
    Argued October 9, 1939;
    decided October 30, 1939.

      James J. McNaughton and Anthony J. LaBelle for appellant.

      Neil G. Harrison for plaintiff, respondent.

      Herbert H. Ray, guardian ad litem for infants, defendants, respondents.

      John A. Slade for William B. Stanford et al., defendants, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    R. J. Brooks, as Executor of Thomas Brooks, Deceased, Appellant, v. John T. Slawson, Respondent.
    Argued October 9, 1939;
    decided October 30, 1939.

      Edwin J. Carpenter and George A. King for appellant.

      W. Earle Costello for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Vito Fortuna, Respondent, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants. Morris Roth, Intervener, Appellant.
    Argued October 9, 1939;
    decided October 30, 1939.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for Board of Standards and Appeals, appellant.

      Archie H. Samuels for Morris Roth, intervener, appellant.

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

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


text:
    The People of the State of New York, Respondent, v. George Mishkin and Victor Mishkin, Appellants.
    Argued October 9, 1939;
    decided October 30, 1939.

      Bernard Shatzkin and Walter R. Hart for appellants.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Charles E. Ramsgate and Silas S. Lippman of counsel), for respondent.
   As to each defendant, judgment affirmed; no opinion.

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


text:
    In the Matter of Mary Sullivan, as Administratrix of the Estate of Timothy J. Sullivan, Deceased, Appellant, against the Board of Estimate of the City of New York, Respondent.
    Argued October 9, 1939;
    decided October 30, 1939.

      Irving Lemov and Charles K. Finch for appellant.

      William C. Chanler, Corporation Counsel (James Hall Prothero, Paxton Blair and Nicholas Bucci of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Helen DeCesare, Respondent, v. John Hancock Mutual Life Insurance Company of Boston, Mass., Appellant.
    Argued October 9, 1939;
    decided October 30, 1939.

      Meyer Fix for appellant.

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

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


text:
    Jerry Scanzillo, Appellant, v. Beatrice Hirshon et al., as Executors and Trustees of the Estate of Charles Hirshon, Deceased, Respondents.
    Submitted October 9, 1939;
    decided October 30, 1939.

      Charles H. Kelman for appellant.

      B. G. Barton for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    Louis Jersawit, as Trustee in Bankruptcy of Sanitene Corporation, Appellant, v. Henry J. Kaltenbach, Respondent, Impleaded with Another.
    Argued October 10, 1939;
    decided October 30, 1939.

      David Haar for appellant.

      Robert J. Sykes and William C. Morris for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Pellegrino Fontano, Respondent, v. Bell Theatres, Inc., Appellant.
    Argued October 10, 1939;
    decided October 30, 1939.

      Daniel H. Prior, Julian Liberman and Bernard Fliashnick for appellant.

      Harry M. Alfert and Francis M. Verrilli 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. Raymond Esposito, Appellant.
    Argued October 11, 1939;
    decided October 30, 1939.

      John J. Duff and Joseph Aronstein for appellant.

      William F. X. Oeoghan, District Attorney {Henry J. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George McDonald, Appellant.
    Submitted October 11, 1939;
    decided October 30, 1939.

      George McDonald, appellant, in person.

      William F. X. Geoghan, District Attorney {Henry J. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Emanuel Goldberg, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 30, 1939;
    decided October 30, 1939.

      Walter M. Weis for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair and Russell Lord Tarbox of counsel), for Board of Elections, respondent.

      John T. Booling for Edward J. Ferguson, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Alice C. Coghlan, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 30, 1939;
    decided October 30, 1939.

      Louis Schack and Louis 8. Lewis for appellant.

      William C. Chanter, Corporation Counsel (Paxton Blair and Seymour B. Quel of counsel), for Board of Elections, respondent.

      Mitchell J. Sherwin, Walter A. Lynch and Bernard C. McDonnell, for Percy P. Greenberg, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Alfred S. Julien, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents. George E. Macy, Intervener, Respondent.
    Argued October 30, 1939;
    decided October 30, 1939.

      Alfred S. Julien, appellant, in person.

      William C. Chanler, Corporation Counsel (Paxton Blair and Seymour B. Quel of counsel), for Board of Elections, respondent.

      Simon M. Platt, Walter A. Lynch and Bernard C. McDonnell for George E. Macy, intervener, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Manufacturers Trust Company, Respondent; Muller Paper Goods Co., Inc., Appellant.
    Submitted September 27, 1939;
    decided November 14, 1939.

      Joseph Lotterman and Louis A. Tepper for appellant.

      Bernard Diamond and Jacquin D. Bierman for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Theodore Maselkiewicz, Appellant.
    Argued September 28, 1939;
    decided November 14, 1939.

      John J. Kane and Frank E. Freedman for appellant.

      Leo J. Hagerty, District Attorney, 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.


text:
    Alcy Cwerdinski, Suing on Behalf of Herself and Others, Appellant, v. Quincy Bent et al., Defendants, and Eugene G. Grace et al., Respondents.
    Argued May 29, 1939;
    decided November 14, 1939.

      Milton Pollack, Milton I. Milvy and William F. Unger for appellant.

      Frederick H. Wood, William D. Whitney and George M. Billings for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anton Myslivec, Appellant.
    Argued September 28, 1939;
    decided November 14, 1939.

      George W. Hildreth and Sidney R. Siben for appellant.

      Fred J. Munder, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Kesbec, Inc., Appellant.
    Argued October 3, 1939;
    decided November 14, 1939.

      Arthur H. Haaren, Frank W. Demuth and John G. Coleman for appellant.

      William C, Chanler, Corporation Counsel (Stanley Buchsbaum and Francis J. Bloustein of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Lehigh Valley Railway Company et al., Respondents, against Lyman W. Harris et al., as Assessors of the Town of Ovid, Appellants. (Three Proceedings.)
    Argued October 4, 1939;
    decided November 14, 1939.

      William S. McGreevy and George T. Franklin for appellants.

      William L. Hearne for respondents.
   In each proceeding: Order 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:
    The People of the State of New York, Respondent, v. Anselmo Abreu, Appellant.
    Argued October 5, 1939;
    decided November 14, 1939.

      Martin Benjamin, Francis X. Dunn and Mitchell J. Sherwin for appellant.

      Samuel <7. Foley, District Attorney (Sol Boneparth, Herman J. Fliederblum and Nicholas F. Delagi 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.


text:
    In the Matter of Maurice Abrams et al., Respondents, and Edith Britt et al., Interveners, Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission for the City of New York et al., Respondents, and Harry K. Maples et al., Interveners, Appellants.
    Argued October 10, 1939;
    decided November 14, 1939.

      Gabriel L. Kaplan and Sidney A. Fine for appellants

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Patrick H. Clune of counsel), amicus curios.

      Arthur Richenthal and J. M. Moskowitz for petitioners, respondents.

      Albert JJe Roode for interveners, petitioners-respondents.

      William C. Chanter, Corporation Counsel {Samuel J. Silverman of counsel), for Municipal Civil Service Commission et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    William H. Black, Appellant, v. Mark Graves et al., Constituting the State Tax Commission, et al., Respondents.
    Argued October 16, 1939;
    decided November 14, 1939.

      John W. Davis, J. Paschall Davis and Francis Shackelford for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Everett McDonald, Appellant.
    Argued October 16, 1939;
    decided November 14, 1939.

      Meyer Alterman, Qoerge Norton and Cornelius F. Collins, Jr., for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Thomas Shaw Hale 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.


text:
    Squaw Island Freight Terminal Company, Inc., Appellant and Respondent, v. City of Buffalo, Respondent and Appellant.
    Argued October 17, 1939;
    decided November 14, 1939.

      James A. Deckop and Adrian Block for plaintiff, appellant and respondent.

      David Diamond, Corporation Counsel {Frank C. Westphal of counsel), 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.


text:
    The People of the State of New York, Respondent, v. Richard Scobie, Jr., Sol Horn, Mack L. Falk and Thomas Ferlazo, Appellants.
    Submitted October 17, 1939;
    decided November 14, 1939.

      George W. Herz for appellants.

      Charles P. Sullivan, District Attorney {Edmund C. Rowan of counsel), for respondent.
   As to each defendant: Judgment affirmed. No opinion.

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


text:
    Catherine G. Wood, Respondent, v. New York State Electric and Gas Corporation, Appellant.
    Submitted October 18, 1939;
    decided November 14, 1939.

      Ransom Pratt for appellant.

      Levi Ginsburg and Samuel Ginsburg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Irving Trust Company, as Trustee under the Will of Sarah A. P. Fay, Deceased, et al., Respondents, v. Anahma Realty Corporation, Appellant, and Edward J. Parkinson, as Receiver, Respondent.
    Argued October 18, 1939;
    decided November 14, 1939.

      George Levitus and Arthur P. West for appellant.

      Wilmurt B. Linker and Gardner C. Klein for defendant, respondent.

      C. Murray Kavanagh for plaintiffs, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Colonial Trust Company, as Successor Trustee under a Trust Indenture Made by Madison Avenue Offices, Inc., Respondent, v. 342 Madison Avenue Corporation et al., Appellants, Impleaded with Others.
    Argued October 18, 1939;
    decided November 14, 1939.

      George Levitus and Arthur P. West for appellants.

      Elmer B. Sanford for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    Horn & Hardart Company, Respondent, v. 115 East 14th Street Company, Inc., Appellant and Respondent, and Third Holding Corporation, Respondent and Appellant.
    Argued October 18, 1939;
    decided November 14, 1939.

      Benjamin Reass, Murry C. Becker and Irving Moldauer for 115 East 14th Street Company, Inc., defendant, appelland and respondent.
    I. Maurice Wormser and Charles Fredericks for Third Holding Corporation, defendant, respondent and appellant.

      William Dean Embree, Samuel Ross Ballin and William Shields, Jr., for plaintiff, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    M. & C. Creditors Corporation, Appellant, v. Alexander D. B. Pratt et al., Individually and as Executors of Dallas B. Pratt, Deceased, et al., Respondents.
    Argued October 19, 1939;
    decided November 14, 1939.

      George H. Engelhard and Douglas M. Amann for appellant.

      M’Cready Sykes and W. A. W. Stewart for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anthony V. Zagame, an Infant, by John Zagame, His Guardian ad Litem, et al., Respondents, v. Brooklyn and Queens Transit Corporation, Appellant.
    Submitted October 19, 1939;
    decided November 14, 1939.

      Andrew F. Van Thun, Jr., and W. Harry Sefton for appellant.

      Myron Wisoff and William S. Butler for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jane Hawkes, as Administratrix of the Estate of Russell Hawkes, Deceased, Respondent, v. Harry Goll, Appellant, Impleaded with Another.
    Argued October 19, 1939;
    decided November 14, 1939.

      Clarence E. Mellen and James Dempsey for appellant.

      Samuel S. Pines, Charles I. Sterling and Leo E. Falkin 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:
    Flying Eagle Coach Corporation, Appellant, v. City of New York et al., Respondents.
    Argued October 19, 1939;
    decided November 14, 1939.

      Harold J. Drescher and Henry P. Goldstein for appellant.

      William C. Chanler, Corporation Counsel (Herman Horowitz and William Mason Smith, Jr., of counsel), for respondents.
   Order affirmed, with costs, .and questions certified answered in the affirmative. No opinion.

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


text:
    William W. Kouwenhoven et al., Appellants, v. New York Rapid Transit Corporation et al., Respondents.
    Argued October 19, 1939;
    decided November 14, 1939.

      Alfred J. Talley, Gerard D. Evers and James A. McKaigney for appellants.

      Trabue Carswell and W. Harry Sefton for New York Rapid Transit Corporation, respondent.

      Herman Ovberg for Philip Ovberg et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of John P. Kellas, Deceased. Jean M. Eldredge, Individually and as Administratrix with the Will Annexed of the Estate of John P. Kellas, Deceased, et al., Appellants; Anna G. Kellas, Respondent.
    Argued October 19, 1939;
    decided November 14, 1939.

      George J. Moore for Jean M. Eldredge, individually and as administratrix, appellant.

      Paul M. Cantwell, special guardian for LeRoy M. Kellas, appellant.

      William L. Allen and John W. Genaway for respondent.
   Order affirmed, with 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.


text:
    In the Matter of Leon C. High, Appellant, against Board of Education of Union Free School District No. 7 of the Town of North Hempstead, Respondent.
    .Argued October 20, 1939;
    decided November 14, 1939.

      Osmond K. Fraenkel and Lyman Standsky for appellant.

      Frank A. Fritz 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.


text:
    In the Matter of the Accounting of Fifth Avenue Bank of New York, as Trustee under the Will of William H. McIntyre, Deceased, Respondent; Alexander McIntyre et al., Appellants; Continental Lodge No. 287 F. & A. M., Respondent.
    Submitted October 20, 1939;
    decided November 14, 1939.

      Edwin M. Bourke and E. Lyndsey Bourke for appellants.

      Stephen B. Vreeland and Philip G. Fitz for Continental Lodge No. 287 F. & A. M., respondent.

      John J. Bennett, Jr., Attorney-General {Robert P. Beyer of counsel), respondent.
   Appeal dismissed, with costs, on ground order is not final. No opinion.

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


text:
    Moscow Fire Insurance Company et al., Respondents, v. Bank of New York and Trust Company, as Agent, et al., Respondents. Samuel E. Morro et al., Respondents, v. Moscow Fire Insurance Company et al., Respondents. United States of America, Appellant.
    Submitted September 25, 1939;
    decided November 14, 1939.
   Motion to amend remittitur denied. (See 280 N. Y. 286.)


text:
    The People of the State of New York, Respondent, v. Milton Gumins, Appellant.
    Submitted November 13, 1939;
    decided November 15, 1939.

      Daniel J. O’Mara, District Attorney {Harry L. Rosenthal of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed unless appeal is brought on for argument during second week of January, 1940, session, in which event the motion is denied.


text:
    Sophie Charanis et al., Appellants, v. R. H. Macy & Co., Inc., Respondent.
    Submitted November 13, 1939;
    decided November 15, 1939.

      Henry D. Sforza for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless within ten days appellants perfect appeal, in which event the motion is denied.


text:
    The People of the State of New York, Appellant, v. George Hewitt, Respondent.
    Submitted September 29, 1939;
    decided November 21, 1939.

      Henry Hirschberg, District Attorney, for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Joseph A. McLaughlin and Maurice H. Matzkin of counsel), for Industrial Commissioner of State of New York, amicus curial.

      J. Allan Ballman for respondent.
   Order of the County Court reversed and judgment of the Court of Special Sessions affirmed on the authority of People v. Creeden (281 N. Y. 413). No opinion.

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


text:
    Lucille Limberg, as Administratrix of the Estate of Charles A. Limberg, Deceased, Respondent, v. William C. Limberg, Appellant.
    Argued October 4, 1939;
    decided November 21, 1939.

      Frederick W. Ritter and Henry Koch for appellant.

      Matthew J. Shevlin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Honour B. Gelson, an Attorney, Appellant. Brooklyn Bar Association, Respondent.
    Argued October 9, 1939;
    decided November 21, 1939.

      Honour B. Gelson, appellant, in person.

      Charles J. Buchner and Charles Goodwin for respondent.
   Order affirmed; no opinion.

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


text:
    Elmer J. Boyce, Respondent, v. New York Central Railroad Company, Appellant.
    Argued October 10, 1939;
    decided November 21, 1939.

      Charles E. Nichols for appellant.

      Edward W. Barrett for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Johannes, Appellant, v. City of New York, Respondent.
    Argued October 11, 1939
    decided November 21, 1939.

      Samuel L. Sargent and Jerome I. Hyman 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: Lehman, Hubbs, Finch and Rippey, JJ. Dissenting: Crane, Ch. J., and Loughran, J. Taking no part: O’Brien, J.


text:
    The People of the State of New York, Respondent, v. Joseph S. Sacoda and Demetrius Gula, Appellants.
    Argued October 16, 1939;
    decided November 21, 1939.

      Charles A. Hickey, Robert V. Santangelo and David Sable for Joseph S. Sacoda, appellant.

      Edward J. Pigott and Isidore Ginsberg for Demetrius Gula, appellant.

      Thomas E. Dewey, District Attorney {Stanley H. Fuld, Burr F. Coleman and Charles C. Tillinghast, Jr., 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:
    In the Matter of the Claim of Fred B. Mosher, Respondent, against Cashmere Grotto No. 11, M. O. V. P. E. R., et al., Appellants.
    Argued November 13, 1939;
    decided November 21, 1939.

      Sheldon F. Roe for motion.

      Robert C. Winchell opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Lillian H. Goetschius, Appellant, v. Harold E. Fisher et al., Individually and as Copartners, et al., Respondents.
    Submitted November 13, 1939;
    decided November 21, 1939.

      Henry A. Steinbock for motion.

      Florence J. Sullivan opposed.
   Motion denied, with leave to renew on argument of the appeal. Time within which to serve briefs extended ten days.


text:
    In the Matter of the Liquidation of New York Title and Mortgage Company. (Series C-2 and F-1.) Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of New York Title and Mortgage Company, et al., Appellants; Committee of Stockholders of New York Title and Mortgage Company et al. Respondents.
    Submitted November 13, 1939;
    decided November 21, 1939.

      William A. Barber for motion.

      Samuel Boksenbom and William A. Shea opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion, on the ground the orders are not final.


text:
    In the Matter of the Liquidation of Consolidated Indemnity and Insurance Company. George S. Van Schaick, Superintendent of Insurance of the State of New York, as Liquidator of Consolidated Indemnity and Insurance Company, Appellant; Gertrude E. Coron, Individually and as General Guardian of Vilma Coron et al., Respondent.
    Submitted November 13, 1939;
    decided November 21, 1939.
   Motion for reargument or to amend the remittitur denied. (See 281 N. Y. 680.)


text:
    The People of the State of New York ex rel. Louis Fishkin, Appellant, against Frederick L. Morehead, as Warden of City Prison, Borough of Queens, Respondent.
    Submitted November 13, 1939;
    decided November 21, 1939.

      Howard, Henig for motion.

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), opposed.
   Motion denied. The appellant may appeal as of right if a constitutional question is directly involved.


text:
    Calvin W. Klein, Appellant, v. Western Union Telegraph Company, Respondent.
    Submitted November 13, 1939;
    decided November 21, 1939.

      S. S. Goldsmith for motion.

      Francis R. Stark opposed.
   Motion granted upon payment of taxable costs.


author: Lehman, J.

text:
    Mildred C. German, Respondent, v. Charles V. Snedeker et al., Copartners under the Firm Name of Garreau & Snedeker, Appellants.
    Argued November 13, 1939;
    decided November 28, 1939.

      Pliny W. Williamson, John E. Walker and Richard E. Enright for appellants.

      J. Leon Friedman for respondent.
   Order affirmed, with costs, and questions certified answered in the affirmative. No opinion.

Concur: Crane, Ch. -J., Hubbs, Loughran, Finch and Rippet, JJ. Taking no part: O’Brien, J. Lehman, J., concurs in the following memorandum:

Lehman, J.

(concurring). Upon the record it appears that the defendants converted the stock and it does not conclusively appear whether the defendants profited by their own wrong. The rule of damages applied by the Appellate Division is, therefore, correct upon this record. I understand that we do not pass upon the correct rule of damages under circumstances that may be shown at the trial.


text:
    The People of the State of New York, Respondent, v. John Keough and Anthony Lategano, Appellants.
    Argued October 18, 1939;
    decided November 28, 1939.

      Harry G. Anderson and Sol A. Klein for appellants.

      William F. X. Geoghan, District Attorney {Henry J. Walsh of counsel), for respondent.
   As to each defendant: Judgment of conviction affirmed; no opinion.

Concur: Crane, Ch. J., Hubbs, Finch and Rippet, JJ.; Lehman and Loughran, JJ., dissent on the ground the judgment of conviction is against the weight of evidence. Taking no part: O’Brien, J.


text:
    In the Matter of Rose Rosenberg, Appellant, against Board of Estimate of the City of New York et al., Respondents.
    Argued November 13, 1939;
    decided November 28, 1939.

      Louis A. Tepper and Joseph Lotterman for appellant.

      William C. Chanler, Corporation Counsel (Seymour B. Quel and James Hall Prothero of counsel), for respondents.
   Order affirmed, without costs. The determination of the Appellate Division is amply supported by the evidence. We do not pass upon any other question. No opinion.

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


text:
    In the Matter of Margaret Mayo, Appellant, against William C. Chanler, as Corporation Counsel of the City of New York, Respondent.
    Argued November 13, 1939;
    decided November 28, 1939.

      Frederick E. Weinberg, Florence J. Sullivan and Meyer Kurz for appellant.

      William C. Chanler, Corporation Counsel (Henry S. Bright, John Suglia and Theodore B. Lee of counsel), respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Michael E. Kinney. Louis H. Pink, as Superintendent of Insurance of the State of New York, Appellant; Frieda S. Miller, as Industrial Commissioner, Respondent.
    Argued November 13, 1939;
    decided November 28, 1939.

      Alfred C. Bennett and Benjamin Potoker for appellant.

      John J. Bennett, Jr., Attorney-General (W. Gerard By an, Henry Epstein and Francis B. Curran of counsel), for respondent.
   Order affirmed, with costs. First question certified answered in the negative. Second question certified answered in the affirmative. No opinion.

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


text:
    Irving Trust Company, Respondent, v. Bergen County Syndicate, Inc., et al., Defendants, and Benjamin Kaplan, Appellant.
    Argued November 13, 1939;
    decided November 28, 1939.

      Julius Pauli for appellant.

      Martin A. Schenck and William, J. Carr for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Unum Real Estate Corporation, Respondent, against Mark Graves et al., Constituting the State Tax Commission, Appellants.
    Argued November 14, 1939;
    decided November 28, 1939.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for appellants.

      George E. Cleary and Robert G. Surridge for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Laurence B. Halleran, Appellant, v. Saveria Manzione et al., Defendants, and Florence M. Kimball, Individually and as Administratrix of the Estate of George Griffin, Deceased, et al., Respondents.
    Argued November 14, 1939;
    decided November 28, 1939.

      A. I. Madison and Clinton T. Roe for appellant.

      Samuel Robert Weltz and Benjamin M. Franklin for respondents.
   Order affirmed, with costs. First, second, third, fourth and sixth questions certified answered in the aifirmative. Fifth question certified not answered. No opinion.

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


text:
    James H. Fay, Respondent, v. John J. O’Connor et al., Appellants.
    Argued November 14, 1939;
    decided November 28, 1939.

      John J. O’Connor, in person, and Kermit F. Kip for appellants.

      George G. Lake for respondent.
   Order affirmed, without costs, and question certified answered in the affirmative. No opinion.

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


text:
    Nicola De Nisi, Appellant, v. J. Krugman Co., Inc., et al., Respondents.
    Argued November 14, 1939;
    decided November 28, 1939.

      Howard L. Kuttner and Philip M. Bisik for appellant.

      Arthur K. Wing, George S. Wing and John H. Brogan for J. H. Krugman Co., Inc., respondent.

      Lyman A. Spalding for T. G. R. Construction Corp., et al., respondents.

      H. H. Brown and E. C. Sherwood for Nathan Dubin, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Allied Owners Corporation, Appellant, against James J. Sexton et al., Constituting the Board of Taxes and Assessments for the City of New York, Respondents.
    Argued November 14, 1939;
    decided November 28, 1939.

      Stephen Callaghan and Barnett J. Nova for appellant.

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

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


text:
    In the Matter of 320 West 37th Street, Inc., Appellant, against Joseph D. McGoldrick, as Comptroller of the City of New York, Respondent.
    ' Submitted November 13, 1939;
    decided November 28, 1939.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 132.)


text:
    Clarence O. Johnson et al., Appellants, v. Yolande Colter et al., Respondents.
    Submitted November 20, 1939;
    decided November 28, 1939.

      Elmer Weil and J. Edmund Kelly for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants serve and file undertaking on appeal and pay ten dollars costs within ten days, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Sidney Markman and David Goldberg, Appellants.
    Argued October 17, 1939;
    decided November 30, 1939.

      David F. Price and Harry Werner for Sidney Markman, appellant.

      Leo Heady for David Goldberg, appellant.

      William F. X. Geoghan, District Attorney (Edward H. Levine of counsel), for respondent.
   As to the defendant Markman; Judgment of conviction affirmed; no opinion.

As to the defendant Goldberg: Judgment of conviction reversed and new trial ordered. The evidence is not sufficient to warrant the finding of the defendant’s guilt beyond a reasonable doubt. No opinion.

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


text:
    In the Matter of the Claim of Anna Kirby against Bloomingdale Bros, et al., Respondents. State Industrial Board, Appellant.
    Argued November 15, 1939;
    decided November 30, 1939.

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

      Lawson R. Jones and Joseph M. Meehan for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Marie V. Bagdalik, Respondent, against Flexlume Corporation, Employer, and State Insurance Fund, Appellant.
    Submitted November 15, 1939;
    decided November 30, 1939.

      George J. Hayes and Bernard Botein for appellant.

      Noel S. Symons, Louis P. Friedman and I. Greenfield for claimant, respondent.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order reversed and claim dismissed, with costs in all courts. The employee’s work in Chicago makes applicable the rule laid down in Matter of Cameron v. Ellis Construction Co. (252 N. Y. 394). No opinion.

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


text:
    In the Matter of the Claim of John J. Mulderry, Appellant, against Coyle Wrecking Corp., Inc., et al., Respondents. State Industrial Board, Respondent.
    Submitted November 15, 1939;
    decided November 30, 1939.

      Neil Hesson, Jr., and Donald Gallagher for appellant.

      George J. Hayes and Bernard Botein for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    Knickerbocker Village, Inc., Respondent, against William Reid, as City Collector of the City of New York, et al., Appellants.
    Argued November 15, 1939;
    decided November 30, 1939.

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

      H. H. Nordlinger, Harold Biegelman and Jacob M. Dinnes for respondent.

      Ira S, Bobbins for New York State Superintendent of Housing, amicus curios.

   Order affirmed, with costs, on the ground that the assessment is a tax and not one for a local improvement. No opinion.

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


text:
    In the Matter of State Tax Commission, Respondent, against Herbert N. Rawlins, Appellant.
    Submitted November 15, 1939;
    decided November 30, 1939.

      James R. Peering for appellant.

      Mortimer M. Kassell and Paul Newman for respondent.
   Appeal dismissed, without costs. Order appealed from is not a final order. No opinion.

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


text:
    Hattie Schrage, Respondent, v. Harry G. Doran Building Corporation, Appellant.
    Argued November 15, 1939;
    decided November 30, 1939.

      William A. McLaughlin for appellant.

      Arthur Morris and Morris Okoshken for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of William Maas, Deceased. Clara T. Cooke et al., as Executors of William Maas, Deceased, Appellants; Elizabeth D. Maas et al., Respondents.
    Argued November 15, 1939;
    decided November 30, 1939.

      Charles B. Sullivan and Homer E. Peters for appellants. John T. DeGraff and William K. Sanford for Elizabeth D. Maas, respondent.

      George W. Foy, special guardian, for Dorothy M. Maas, respondent.
   Order affirmed, with costs to all parties appearing payable out of the estate. No opinion.

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


text:
    Hiram E. Meeker, as Receiver of First National Bank in Mamaroneck, Respondent, v. Oramam Realty Corporation, Appellant.
    Argued November 16, 1939;
    decided November 30, 1939.

      Theodore S. Jaffin, Lawrence S. Greenbaum and Bernard L. Baskin for appellant.

      Monroe J. Cahn and Harold M. Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Herbert B. Myron, as Executor of Ellen Daly, Deceased, Appellant. John M. Trainor, Respondent.
    Argued November 16, 1939;
    decided November 30, 1939.

      John F. Wright for appellant.

      Leyden E. Brown for respondent.
   Order affirmed, with costs, payable out of the estate; no opinion-

Concur: Cbane, Ch. J., Lehman, Hubbs, Loughban, Finch and Rippey, JJ. Taking no part: O’Bbien, J.


text:
    The People of the State of New York ex rel. Michael Kilgallen, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted November 16, 1939;
    decided November 30, 1939.

      Michael Kilgallen, appellant, in person.

      John J. Bennett, Jr., Attorney-General {Patrick H. Chine and Edward T. Boyle of counsel), for respondent.
   Appeal dismissed, as there is no constitutional question involved. No opinion.

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


text:
    In the Matter of the Accounting of The National Commercial Bank and Trust Company of Albany, as Executor of Charles LaFontaine, Deceased, Respondent. Harriet B. LaFontaine, Appellant.
    Argued November 16, 1939;
    decided November 30, 1939.

      Lawrence G. Williams and Natalie F. Couch for appellant.

      Charles J. Herrick for respondent.
   Order affirmed, with costs to respondent payable out of the estate; no opinion.

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


text:
    Giacomo Scorca et al., Appellants, v. Maria Tricomi, Respondent, Impleaded with Another.
    Submitted November 17, 1939;
    decided November 30, 1939.

      Edward Friedman for appellants.

      Isidor Katz and Benjamin Sholemson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William M. Denman, as Trustee in Bankruptcy of Louis Finkelstein, Respondent, v. Esther G. Finkelstein et al., Appellants.
    Argued November 17, 1939;
    decided November 30, 1939.

      Sol Rubin and John R. Bushong for appellants.

      Bern Budd and Philip A. Obst for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Deborah Lagowitz, Respondent, v. United States Fidelity and Guaranty Company, Appellant.
    Submitted November 17, 1939;
    decided November 30, 1939.

      William B. Shelton and William J. McArthur for appellant.

      Adolph G. Grossman and John B. Whalen for respondent.-
   Judgment affirmed, with costs; no opinion.

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


text:
    Delia Dollendorf, Appellant, v. City of Buffalo, Respondent.
    Argued November 17, 1939;
    decided November 30, 1939.

      Daniel J. O’ Neil for appellant.

      David Diamond, Corporation Counsel (Bañ J. Shanahan of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Feer Realty Corporation, Respondent, v. Charles F. Dowe, Appellant.
    Argued November 17, 1939;
    decided November 30, 1939.

      Philip Pearlman for appellant.

      Ruth Ransom 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:
    John G. M. Hilton, Respondent, v. Madeline S. Gaston, Indivisually and as Guardian of Maude S. Hilton, an Infant, et al., Appellants, Impleaded with Others,
    Submitted November 30, 1939;
    decided November 30, 1939.

      Ernest B. Morris for motion.

      James E. Carroll and Charles L. McCann opposed.
   Motion granted and appeal dismissed, without costs.


text:
    The People of the State of New York, Respondent, v. Leonard Gerschinsky, Appellant.
    Submitted December 15, 1939;
    decided December 15, 1939.
   Motion for reargument denied. (See 281 N. Y. 581.)


author: Crane, Ch. J.

text:
    The People of the State of New York, Respondent, v. Jacob Weisberger, Irving Schwartzberg, Joseph Newman, Max Lieberman, Sol Scheiner, Samuel Binenfeld, Andrew Colambo, Louis B. Oppenheimer, Robert Traite and Samuel Levy, Appellants.
    Argued November 15, 1939;
    decided December 28, 1939.

      Samuel A. Neuburger and Samuel P. Shapiro for appellants.
    The defendants are private carriers. (Anderson v. Fidelity & Casualty Co., 228 N. Y. 475; Gerhard & Hey, Inc., v. Cattaraugus Tanning Co., 241 N. Y. 413; Utica-Clayville Bus Co. v. Waite, 233 App. Div. 297; Sanger v. Lukens, 24 Fed. Rep. [2d] 226; McCoy v. Pacific Spruce Corp., 1 Fed. Rep. [2d] 853; Hood v. State, 26 Ala. App. 507; Goodman v. N. Y., N. H. & H. R. R. Co., 3 N. E. Rep. [2d] 777; Klein v. Baker, 112 Cal. App. 157; Michigan Public Utilities Comm. v. Duke, 266 U. S. 570.) Subdivision 3(b) of section 77 of article 5 of the Traffic Regulations of the city of New York is void and unconstitutional in that it attempts to change the operations of the defendants-appellants from those of a private carrier to those of a common carrier, thereby depriving them of their property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution. (Michigan Public Utilities Comm. v. Duke, 266 U. S. 570; Frost & Frost Trucking Co. v. R. R. Comm., 271 U. S. 583; Smith v. Cahoon, 283 U. S. 553; McLeaish & Co. v. Binford, 52 Fed. Rep. [2d] 151; Rex v. Billgan, [1935] 1 D. L. R. [Ont.] 477; Denver & R. G. W. Ry. Co. v. Linck, 56 Fed. Rep. [2d] 957; Finn v. R. R. Comm., 2 Fed. Supp. 891; McIntyre v. Harrison, 172 Ga. 65; Haynes v. MacFarlane, 207 Cal. 529.)

      William F. X. Geoghan, District Attorney (Edward H. Levine of counsel), for respondent.
    The regulation is a reasonable one and not violative of the appellants’ constitutional rights. (Cherubino v. Meenan, 253 N. Y. 462;
      People ex rel. Leiberman v Vandecarr, 175 N. Y. 440; Castro v. N. Y. Railways Corp., 224 App. Div. 623; Carolan v. Venechanos, 236 App. Div. 812; People ex rel. Knoblauch v. Warden, 216 N. Y. 154; Yellow Taxicab Co. v. Gaynor, 82 Misc. Rep. 94; Waldorf-Astoria Hotel Co. v. City of New York, 212 N. Y. 97; Capitol Taxicab Co. v. Cermak, 60 Fed. Rep. [2d] 608; City of Wichita v. Home Cab Co., 141 Kan. 697; Packard v. Banton, 264 U. S. 140.)
   Crane, Ch. J.

This appeal relates to the power of the Police Department over traffic in the streets.

Section 435 of the Charter of the City of New York (effective January 1, 1938) provides:

“ The police department and force shall have the power and it shall be their duty to * * * regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health; * * *. The commissioner shall make such rules and regulations for the conduct of pedestrian and vehicular traffic in the use of the public streets, squares and avenues as he may deem necessary which shall not become effective until filed with the city clerk and published in the City Recm-d.”

The Traffic Regulations, subdivision 3(b) of section 77 of article 5, read:

“ No person shall operate or move, or cause or permit to be operated or moved, any interstate or intrastate omnibus, not having a franchise or permit from proper municipal or other competent authority over a public highway of the City of New York, except over a route designated by the Police Commissioner; nor shall such person stop on a public highway in the City of New York to take on or discharge passengers, except at stops designated by the Police Commissioner.”

Certain families in Brooklyn, Kings county, finding it difficult to get their young children to school, combined and hired an omnibus for the purpose of taking the children to school, picking them up and bringing them home after school. The omnibus stopped at the various homes for the children. The parents paid a certain proportion of the expense, or charge rate for this transportation. No cash fares were collected. The buses did not stop to take passengers. They were not public carriers in that they undertook to carry the public for hire, but were conveyances, like an automobile hired for a special occasion and for a special purpose, and confined in the passage through the streets to this work for which they had been hired. The appellants operated these buses and made the contracts with the parents. The buses ran through West Thirty-seventh street, Neptune avenue, Mermaid avenue, Stillwell avenue, Guider boulevard and other streets to reach the Abraham Lincoln High School on Ocean parkway and West avenue. Twenty children, it is said, were thus transported to the high school and back.

The defendants have been arrested and charged with the violation of the Charter and ordinance, as above quoted, because they did not apply for and obtain from the Police Commissioner a designated route in which to operate the buses. The fact that the buses were to call for the children at their various homes and were restricted to carrying the children called for under contract makes it quite evident that the ordinance was never intended to apply to such a case or situation. How could the Police Commissioner designate a route when these private conveyances, private in this sense and in this user, were to call for the respective customers at their homes? The ordinance has no application to this situation. The defendants have obtained every other license and permit required by law or ordinance, and complied with all regulations. (See Gerhard & Hey, Inc., v. Cattaraugus Tanning Co., 241 N. Y. 413; Michigan Public Utilities Commission v. Duke, 266 U. S. 570.)

The defendants are not guilty of violating the ordinance and the judgments should be reversed and the informations dismissed.

Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgments reversed, etc.


author: Hubbs, J.

text:
    People ex rel. New York City Omnibus Corporation et al., Appellants, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued November 15, 1939;
    decided December 28, 1939.

      James A. Fowler, Jr., and Robert M. Bozeman for appellants.
    The defect was not jurisdictional. (People ex rel. Durham Realty Corp. v. Cantor, 234 N. Y. 507; People ex rel. Denney v. Clark, 257 App. Div. 905.) On a question not covered by the provisions of the city charter and the Tax Law (Cons. Laws, ch. 60) resort must be had to the Civil Practice Act which provides (§ 105) that a defect must be disregarded if a substantial right shall not be thereby prejudiced. (People ex rel. American Sugar Refining Co. v. Sexton, 274 N. Y. 304; People ex rel. Adrian Corp. v. Sexton, 251 App. Div. 181; People ex rel. Di Leo v. Edwards, 247 App. Div. 331; People ex rel. Empire Mortgage Co. v. Cantor, 198 App. Div. 317; Matter of Corwin, 135 N. Y. 245; People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417; People ex rel. Gleason v. Purdy, 223 N. Y. 88; Wood v. Duff-Gordon, 222 N. Y. 88.)

      William C. Chanler, Corporation Counsel (Hyman W. Kehl and Arthur A. Segall of counsel), for respondents.
    The failure to submit a verified petition is a jurisdictional defect. (Ponsrok v. City of Yonkers, 254 N. Y. 91; Mozarsky v. Whinston Bros., Inc., 254 N. Y. 552; Gessner v. City of New York, 276 N. Y. 505; Matter of Passero & Sons, Inc., 237 App. Div. 638; Ayers v. City of Buffalo, 233 App. Div. 330; People ex rel. Laurelton Dev. Co. v. Purdy, 190 App. Div. 957; People ex rel. McCutcheon v. Miller, 255 App. Div. 957; People ex rel. Schwarz v. Miller, 256 App. Div. 956.) There must be explicit compliance with the statutory requirements. (Matter of Corwin, 135 N. Y. 245; People ex rel. Commercial Mutual Ins. Co. v. Commissioners, 144 N. Y. 483; People ex rel. Grossman v. Goldfogle, 219 App. Div. 68; People ex rel. O’Neil v. Purdy, 188 App. Div. 485; People ex rel. Greenwood v. Feitner, 77 App. Div. 428; People ex rel. Soeurbee, Inc., v. Purdy, 179 App. Div. 748; 222 N. Y. 657; Rock Island, A. & L. R. R. Co. v. United States, 254 U. S. 141; People ex rel. Huff v. Graves, 277 N. Y. 115; Matter of Passero & Sons, Inc., 237 App. Div. 638; Matter of Warren, 171 App. Div. 936; People ex rel. Realty Associates v. Purdy, 190 App. Div. 948.)
   Hubbs, J.

This is an appeal by the relators from an order of the Appellate Division unanimously affirming an order of Special Term which granted a motion to quash the writ of certiorari and dismiss the proceedings. Leave to appeal has been granted by the Appellate Division.

•The proceeding is to review and correct the assessed valuation of a street railway bam. It was commenced in June, 1932, and the writ directed the respondents, constituting the City Tax Commission, to file a return by September 26, 1932. No return was ever filed. The Corporation Counsel consented in August, 1938, to an order directing the respondents to file a return or be cited for contempt. At the end of the thirty-day period no return was filed but, instead, the Corporation Counsel moved to quash the writ and dismiss the proceeding on the ground that the petition was defective because not properly verified. That motion was granted, and affirmed by the Appellate Division. Assessments upon property valued at millions of dollars are involved and it is stipulated that the decision in this case shall be binding on other cases of the same type now before the courts.

The petition in the proceeding was signed by the president of the New York Railways Corporation, and the notary signed the verification, but the president did not sign the verification. The Special Term granted the motion to dismiss without leave to correct the defect, deciding that a verification not signed by the affiant is defective, and that in this tax certiorari proceeding, because of that defect, the court did not acquire jurisdiction. Appellant finds no fault with the first proposition, that this verification is defective, but claims that the defect injthe verification is'" not jurisdictional and should be disregarded under the remedial provisions of the Civil Practice Act.

Section 906 (later 907) of the former Charter of the City of New York (Laws of 1901, ch. 466, as amd.) provides: “ A certiorari to review or correct on the merits any final determination of the board of taxes and assessments shall be allowed by the supreme court * * * on the verified petition of the party aggrieved * * *.”

Section 290 of the Tax Law (Cons. Laws, ch. 60) provides: Contents of petition. Any person assessed upon any assessment-roll, claiming to be aggrieved by any assessment for property therein, may present to the supreme court a petition duly verified setting forth that the assessment is illegal, specifying * * *.”

There is no doubt that a verification to the petition was required by the law. The question for decision is whether the Special Term had the power to allow an amendment. It apparently felt that there was no power to grant an amendment. The respondents do not contend that an amendment was denied in the exercise of discretion. Section 105 of the Civil Practice Act reads: “ Mistakes, omissions, defects and irregularities. At any stage of any action, special proceeding or appeal, a mistake, omission, irregularity or defect may be corrected or supplied, as the case may be, in the discretion of the court, with or without terms, or, if a substantial right of any party shall not be thereby prejudiced, such mistake, omission, irregularity or defect must be disregarded.”

This is a special proceeding. E we assume, as the parties herein do, that the verification was defective, it is quite apparent that the error could not be disregarded. We do not, however, pass upon the question as to whether the verification is defective, as the parties assume it to be and have not argued the question.

At common law the remedy here sought did not exist. The remedy is a creature of statute, and the statute requires a verification of the petition. The appellant urges that the alleged defect in the verification may be corrected. Appellant relies upon the case of People ex rel. Durham Realty Corp. v. Cantor (234 N. Y. 507). In that case the property under consideration was owned by James B. Duke. The petition should have been verified by him. By mistake it was verified by Durham Realty Corp. The mistake was discovered three years later. This court reversed the Appellate Division and adopted the dissenting opinion there, which stated that under the liberal provisions of the statutes of this State in regard to practice, the amendment should have been allowed.” (201 App. Div. 834, 835.)

We think that decision is controlling in the case at bar. It is urged that the case of Ponsrok v. City of Yonkers (254 N. Y. 91) is to the contrary. That case decided, as have several since that time, that a verification is defective if not signed by the petitioner himself, and that where the Legislature prescribed a method for serving notice of claim on a city only that method is sufficient. If it is not verified, a complaint, based on such a defective notice of claim, is properly dismissed. That case related to a filed claim against a city and is not an authority here. The Durham Realty case was cited in People ex rel. American Sugar Refining Co. v. Sexton (274 N. Y. 304, 307). It is relied upon in the Appellate Division, fourth department, in People ex rel. Denny v. Clark (257 App. Div. 905). The court there said: “ We think the court acquired jurisdiction to issue the writ of certiorari, notwithstanding the fact that the petition and verification were in some respects defective. The petition was akin to a complaint in an action and was amendable on motion. A verification adds nothing to a petition. The amended petition necessarily would have to be verified to comply with section 290 of the Tax Law. Thus the defect in the verification of the original petition could be corrected. The Tax Law relating to review of assessments is remedial in character and should be liberally construed to the end that the taxpayer’s right to have his assessment reviewed should not be defeated by a technicality. No substantial rights of the town were prejudiced by the granting of the amendment.”

The orders should be reversed and the motion to quash the writ of certiorari denied, with costs in all courts.

Crane, Ch. J., Loughran, Finch and Rippey, JJ., concur; Lehman and O’Brien, JJ., taking no part.

Orders reversed, etc.


author: Hubbs, J. Rippey, J.

text:
    Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Title and Guaranty Company, Respondent, v. William P. Thomas et al., as Trustees, Appellants, Impleaded with Another.
    Submitted November 30, 1939;
    decided December 28, 1939.

      Frank W. Chambers for appellants.
    In the absence of language evidencing an agreement to the contrary, the special equities between the company and the certificate holders give rise to a presumption of intent that the certificate holders should have priority over the company in the proceeds of the security. (Matter of Title & Mortgage Guaranty Co. of Sullivan County, 275 N. Y. 347.) The language of the certificate is not sufficient to rebut the presumption of intent to give certificate holders priority. (Matter of Title & Mortgage Guaranty Co. of Sullivan County, 275 N. Y. 347.) The language contained in the certificate is insufficient to entitle the company to share pro rata. (Matter of Lawyers Title & Guaranty Co. [Forshay], 169 Misc. Rep. 266; 254 App. Div. 653; 279 N. Y. 571; Title Guarantee & Trust Co. v. Mortgage Comm., 273 N. Y. 415.) It would be inequitable to permit the company to share with the certificate holders in the proceeds of the mortgage until they have been paid in accordance with the terms of the guaranty contained in the certificates. (Matter of Title & Mortgage Guaranty Co. of Sullivan County, 275 N. Y. 347; Matter of Lawyers Mortgage Co [545 West End Ave.], 272 N. Y. 554; Matter of New York Title & Mortgage Co., 272 N. Y. 556.)

      Irving H. Jurow and Edward F. Keenan for respondent.
    The agreement between the parties evidenced by the certificates in this issue specifically provides that the respondent’s retained interest is entitled to share on a parity with the certificates held by the public. (Granger v. Crouch, 86 N. Y. 494; Matter of New York Title & Mortgage Co., 157 Misc. Rep. 271; 248 App. Div. 715; 272 N. Y. 556; Matter of Lawyers Mortgage Co., 157 Misc. Rep. 813; 248 App. Div. 715; 272 N. Y. 554; Matter of Title & Mortgage Guaranty Co. of Sullivan County, 275 N. Y. 347; Matter of New York Title & Mortgage Co., 253 App. Div. 308; 278 N. Y. 488.)
   Hubbs, J.

The Lawyers Title and Guaranty Company owned a mortgage for $42,300. It sold participating certificates therein to third parties to the amount of $40,475. It repurchased one $100 certificate. It at all times retained an interest of $1,825 in the mortgage. The company is now in liquidation. The question presented for determination is whether the plaintiff, as liquidator, is entitled to share pro rata in the proceeds to be received from the mortgaged property with the third parties holding participating certificates. The mortgage company guaranteed to certificate holders the payment of the certificates. If it had not guaranteed the payment of the certificates it would be entitled to share pro rata with the certificate holders in the proceeds of the sale of the mortgaged property (Title Guarantee & Trust Co. v. Mortgage Commission, 273 N. Y. 415), but if a mortgage company guarantees payment of certificates which it sells to third parties it is not entitled to share in the proceeds received from the sale of collateral until the third-party certificate holders are paid in full unless the certificates sold clearly provide that it retains such right (Matter of Title & Mortgage Guaranty Company of Sullivan County, 275 N. Y. 347), the underlying principle being that a mortgage company which sells participating certificates in a mortgage and itself guarantees them is in the position of a debtor, and the equitable rule existing between debtors and creditors applies. On default and absence of sufficient funds to pay certificate holders other than itself in full it cannot share in the assets available until the certificate holders are paid in full. That is the law, and it is right. Having guaranteed the payment of the certificates it would be highly inequitable to permit it to step in and divert part of the security available to pay such certificate holders whom it had expressly guaranteed should be paid. No one in this case questions that principle.

It should take very clear and unambiguous language in the certificates to overcome that rule and substitute a holding that in spite of its guarantee of payment it should be permitted to share in the available assets even though the certificates which it had guaranteed should be paid remained unpaid. Such an inequitable result could be accomplished if the language used was so clear and unmistakable that the courts would be compelled to give effect to the intent of the parties as expressed in the writing. Otherwise the equitable rule should prevail. In the case at bar the wording of the certificates does not require the holding contended for by respondent.

The certificates here in question, so far as here material, read: Lawyers Title and Guaranty Company hereby assigns to the holder hereof............an undivided share of-Dollars and interest thereon at the rate of - per cent, per annum from the date hereof, in the bond and mortgage hereinafter specified, equal and co-ordinate with all other shares assigned or retained by the Company, the aggregate amount of all such shares, issued and retained, at no one time to exceed the amount then owing on said bond and mortgage.”

As we know, these mortgage certificates are sold at different times to different individuals. The words equal and co-ordinate with all other shares assigned or retained by the Company ” constitutes an agreement that the shares in question shall be equal and co-ordinate with those previously sold. That is, that the date of sale of different shares shall not in any event constitute a preference, and the shares retained by the company at the date of the sale of any particular share are retained presumably for subsequent sale, as that was the business of the company. They shall, when sold, be equal and co-ordinate with those in question and all other shares previously sold or those still remaining and retained by the company to be thereafter sold. All shares taken together, that is, all those sold and all those unsold but retained for future sale, shall not exceed the Amount at any time owing on the bond and mortgage.

That As what a purchaser of a certificate would understand the clause in question to mean and what it was intended to mean. Given that meaning an equitable result is reached.

The judgment should be reversed and judgment directed for defendants, without costs.

Rippey, J.

(dissenting). This is an appeal by defendants from the decision of the Appellate Division on a submitted controversy and an agreed statement of facts.

The mortgage was for $42,300. Certificates outstanding in the hands of the public aggregated $40,375. A certificate for $10*0 was reacquired by the company. The unsold portion at all times retained by the company was $1,825. By the stipulation it is conceded that the reacquired certificate was subordinate to the rights of the certificates outstanding in the hands of the public (Matter of Lawyers Title & Guaranty Co. [Forshay], 279 N. Y. 571). The question here presented, for the first time in this court, is whether the holders of guaranteed participation certificates are entitled to priority over the company that issued and guaranteed the certificates in the proceeds of the security where the company has at all times retained a portion of the mortgage and claims to be entitled to share equally with the other certificate holders. H

The participation certificate, so far as material, provides:

Lawyers Title and Guaranty Company hereby assigns to the holder hereof............an undivided share of -Dollars and interest thereon at the rate of - per cent, per annum from the date hereof, in the bond and mortgage hereinafter specified, equal and co-ordinate with all other shares assigned or retained by the Company, the aggregate amount of all such shares, issued and retained, at no one time to exceed the amount then owing on said bond and mortgage.”

The Appellate Division, first department, held, with two justices dissenting, that the plaintiff Superintendent of Insurance, as liquidator of the Lawyers Title and Guaranty Company, was entitled by virtue of its retained interest to share in the proceeds of the security on a parity with outside holders of participation certificates since the parties stipulated for equal and co-ordinate rights in the security not only with respect to all other shares ‘ assigned ’ by the Company to other parties but with respect to all shares ' retained by the Company.’ ” (257 App. Div. 354, 356.)

"Where the certificates are guaranteed, in the absence of language to the contrary, the presumption is that the certificate holders shall have priority on distribution over the corporation retaining part of the certificates or shares (Matter of Title & Mortgage Guaranty Company of Sullivan County, 275 N. Y. 347). The decisive test is the implied or actual intent of the parties (Granger v. Crouch, 86 N. Y. 494; Sullivan County case, p. 354). That presumption may be rebutted by unequivocal language evidencing a contrary intent. In Matter of Title & Mortgage Guaranty Company of Sullivan Company (supra, p. 355) the certificates provided that “ the share assigned by this certificate shall be a coordinate lien with all other certificates of said mortgage now or hereafter issued and any share retained by the Company.” The court held that outside certificate holders should be given priority since the foregoing clause was limited by another provision of the certificate which read that the company should have the right “ out of the proceeds of such collection to retain so much as may remain after paying to the holder hereof whatever may be due to such holder of principal and interest on this certificate as herein provided.” Referring to the first provision quoted above, which is similar to the provision here in question, the court indicated what its decision might be without the latter clause. Said the court: “ Standing alone, that clause might be read as an expression of intent that in the distribution of the proceeds of the mortgage the assignor and the assignee should share ratably. Read in its context, the clause may be given a narrower application and at most renders less clear the inference which would otherwise be inescapable that the parties intended that the certificate holders should be preferred over the mortgage company in the distribution of the proceeds of the mortgage ” (p. 356). In the certificates here in question there is no such other limiting clause. The intent is clearly shown here and is' conclusive that the parties are to share ratably in the pro-i ceeds derived from the security.

We again discussed this matter in the case of Matter of Lawyers Title & Guaranty Co. (For shay) (supra), where it was held that a reacquired interest of the company was subordinate to the rights of certificate holders under certificates containing the exact language of the certificates here involved. Leave to appeal was allowed for the purpose of determining whether the decision in Title Guarantee & Trust Co. v. Mortgage Commission (273 N. Y. 415) applied, and it was held that it did not. The distinction seems to be that in the Forshay case equality was specifically limited by the certificates to all other shares assigned or retained by the .company and it was held that the work retained ” should not be given so broad a construction as to include certificates which were assigned to others and later repurchased by the company. The dissenting opinion in the Appellate Division and the argument of appellants assert that there is no rational basis for a distinction between a certificate at all times retained by the company and one sold and later reacquired by it, but such a distinction was inferentially at least upheld in the Forshay case. The basis of decision here is that the words contained in the certificate are clear and unambiguous and are unlimited by other clauses in the certificate or by other equities and show that the parties intended to contract and actually agreed that certificates at all times retained by the company should stand on the same footing with those outstanding in the hands of the public upon distribution of the proceeds derived from the disposition of the underlying mortgage.

The last point raised by appellants is that it would be inequitable to permit the company to share with certificate holders in the proceeds of the mortgage until the certificate holders have been paid in accordance with the terms of the guaranty contained in the certificates. The certificate holders must be deemed to have bought the certificates with the understanding that the company was to share equally with them in view of'the express provision in the certificates to that effect, and, therefore, it is not inequitable to deny them preference over the company’s interest in retained shares.

The judgment appealed from should be affirmed.

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

Judgment reversed, etc.


author: Finch, J.

text:
    Harry L. Rockwell, Appellant, v. City of Syracuse, Respondent, Impleaded with Others.
    Argued November 22, 1939;
    decided December 28, 1939.

      Ralph Shulman for appellant.
    Since the claim was actually subscribed and duly verified, service of a typewritten copy thereof was a substantial compliance with section 244 of the Second Class Cities Law (Cons. Laws, ch. 53). (Magee v. City of Troy, 48 Hun, 383; 119 N. Y. 640; Soper v. Town of Greenwich, 48 App. Div. 354; Scheer v. Village of Perry, 119 App. Div. 606; Lang v. City of Troy, 256 App. Div. 743; Sheehy v. City of New York, 160 N. Y. 139; Missano v. Mayor, 160 N. Y. 123; Sweeney v. City of New York, 225 N. Y. 271; Shaw v. City of New York, 83 App. Div. 212; Halpin v. City of New York, 82 App. Div. 311; People ex rel. Kenyon v. Sutherland, 81 N. Y. 1; People v. Williams, 149 N. Y. 1; Allen v. Fink, 211 App. Div. 411; Liggett Co. v. Broadway-John Street Corp., 220 App. Div. 195; Hood v. State, 113 Misc. Rep. 404; Manhattan Life Ins. Co. v. Alexander, 89 Hun, 449; Brooklyn City R. R. Co. v. City of New York, 139 Misc. Rep. 691; Surace v. Danna, 248 N. Y. 18; Drake v. Gilmore, 52 N. Y. 389.) Since the statute does not require subscription and the claim was in fact subscribed and verified, the omission of the subscription from the notice of claim is immaterial. (Barrett v. Joslynn, 9 Misc. Rep. 407; Clark’s Cove Fertilizer Co. v. Stever, 29 Misc. Rep. 571; Hood v. State, 113 Misc. Rep. 404; Harrison v. Wright, 1 N. Y. State Repr. 736; Evans v. Backer, 101 N. Y. 289; Littauer v. Stern, 177 N. Y. 233; Hull v. Canandaigua Electric Light Co., 55 App. Div. 419; Sullivan v. Harney, 53 Misc. Rep. 249.)

      James C. Tormey, Corporation Counsel (George T. Driscoll of counsel), for respondent.
    The notice of claim is defective in that the notices served upon the defendant-respondent were not signed by the claimant. (Ponsrok v. City of Yonkers, 254 N. Y. 91; Matter of Passero & Sons, Inc., 237 App. Div. 638; Bonny v. City of New York, 156 App. Div. 287; Krall v. City of New York, 44 App. Div. 259; Purdy v. City of New York, 193 N. Y. 521; Cotriss v. Medina, 139 App. Div. 872; 206 N. Y. 713; Dollendorf v. City of Buffalo, 255 App. Div. 930; Thomann v. City of Rochester, 256 N. Y. 165.)
   Finch, J.

In an action to recover damages for personal injuries, typewritten copies only of the alleged claim were served upon the proper officials. Claimant is directed by the statute to serve a claim signed by claimant and verified by oath, as a prerequisite to the right to sue the municipality. The receipt of such a notice obviously requires that it be met with immediate and adequate preparations for defense or perhaps compromise and settlement. All this presumes the good faith and bona fides of the notice, founded as it is upon the solemnity of an oath and the consequences of false swearing. Must the same obligations to defend result from the service of a mere typewritten copy of an alleged verified claim, for false statements as to which, if there is no original, there could be no prosecution for perjury? The statute (Second Class Cities Law [Cons. Laws, ch. 53], § 244) is clear. The city shall not be hable in a civil action for damages or injuries to person or property * * * alleged to have been caused or sustained, in whole or in part, by or because of any omission of duty, wrongful act, fault, neglect, misfeasance or negligence on the part of the city, or any of its agents, officers or employees, unless a claim therefor in writing, verified by the oath of the claimant, containing a statement of the place of residence of the claimant, by street and number, if any, otherwise such facts as will disclose such place of residence with reasonable certainty, and describing the time when, the particular place where and the circumstances under which the damages or injuries were sustained, the cause thereof and, so far as then practicable, the nature and extent thereof, shall within three months after the happening of the accident or injury or the occurrence of the act, omission, fault or neglect out of which or on account of which the claim arose, be presented to the common council and served upon the mayor or city clerk and notice of intention to commence an action thereon be served upon the corporation counsel * *

We may not disregard these express commands of the Legislature accompanying permission to sue a municipality. As was said by this court in Thomann v. City of Rochester (256 N. Y. 165, 172), per Cardozo, J.: The Legislature has said that a particular form of notice, conveyed with particular details to particular public officers, shall be a prerequisite to the right to sue. The courts are without power to substitute something else.” (See, also, Ponsrok v. City of Yonkers, 254 N. Y. 91, 95.)

The case of People ex rel. New York City Omnibus Corp. v. Miller (282 N. Y. 5), handed down herewith, is entirely different in its facts, as there there was the signature of the president]of_the"party making the claim at the end of the petition for certiorari, and a proper verification by a notary, but not signed by the president a second time. The statute would not seem to require more than one signing and one verification. There was, therefore, a perfectly valid claim, which if necessary could be amended, whereas in the case at bar, so far as the city could tell, there was no signature and no verification of the claim, and only the service of what purported to be a copy of an original which with impunity might not exist at all. Where the statute permits the service of a copy, the direction is plain. The service of process in an action is not a true analogy, as there the original is kept for the purpose of filing in court.

The judgment of the Appellate Division should be affirmed, with costs.

Crane, Ch. J., Lehman and Hubbs, JJ., concur; Loughran and Rippey, JJ., dissent; O’Brien, J., taking no part.

Judgment affirmed.


author: Loughran, J.

text:
    Louis S. Goldstein, Respondent, Impleaded with Another, v. Tri-Continental Corporation et al., Defendants, and Earle Bailie et al., Appellants.

      Argued November 14, 1939;
    decided December 28, 1939.

      William D. Whitney, Frederick H. Wood, Joseph Day Lee and George M. Billings for appellants.
    The appellant directors of Selected Industries cannot be held liable in this action on account of their vote, as its directors upon its board, in favor of amendments to its charter. (Rathbone v. Ayer, 196 N. Y. 503; Meinhard v. Salmon, 249 N. Y. 458; Wendt v. Fischer, 243 N. Y. 439; Globe Woolen Co. v. Utica G. & E. Co., 224 N. Y. 483; Billings v. Shaw, 209 N. Y. 265; Jackson v. Ludeling, 21 Wall. 616; Pink v. Title Guarantee & Trust Co., 274 N. Y. 167; Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185; Pollitz v. Wabash R. R. Co., 207 N. Y. 113; Farmers’ Loan & Trust Co. v. New York & Northern R. Co., 150 N. Y. 410; Munson v. Syracuse, G. & C. R. R. Co., 103 N. Y. 58; Gamble v. Queens County Water Co., 123 N. Y. 91; McQuade v. Stoneham, 263 N. Y. 323; Fells v. Katz, 256 N. Y. 67; Lindgrove v. Schluter & Co., 256 N. Y. 439; New York Trust Co. v. American Realty Co., 244 N. Y. 209; Continental Ins. Co. v. N. Y. & H. R. R. Co., 187 N. Y. 225.) The claim for alleged losses arising out of the acts of the directors of Tri-Continental Corporation in voting its holdings of stock of Selected Industries, in ratification of the amendment of the latter’s charter, is barred by the six-year Statute of Limitations. (Shaw v. Cock, 78 N. Y. 194; Merritt v. Scott, 3 Hun, 657; Smith v. Staten Island Land Co., 175 App. Div. 588; Harriss v. Tams, 258 N. Y. 229; McConnell v. Caribbean Petroleum Co., 278 N. Y. 189; McConnell v. Williams S. S. Co., 239 App. Div. 393; 265 N. Y. 594; New York Central & H. R. R. R. Co. v. Kinney, 260 U. S. 340.) The claim for damages alleged in the fourth cause of action is barred by the Statute of Limitations. (Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Potter v. Walker, 276 N. Y. 15; Hanover Fire Ins. Co. v. Morse Dry Dock & R. Co., 270 N. Y. 86; O’Brien v. Fitzgerald, 143 N. Y. 377; 150 N. Y. 572; Dykman v. Keeney, 154 N. Y. 483; Hayes v. Brooklyn Heights R. R. Co., 200 N. Y. 183; Peters v. Delaplaine, 49 N. Y. 362; Colrick v. Swinburne, 105 N. Y. 503; Reed v. State, 108 N. Y. 407; Schutz v. Morette, 146 N. Y. 137; Minion v. Warner, 238 N. Y. 413; Welles v. Yates, 44 N. Y. 525; Brick v. Cohn-Hall-Marx Co., 276 N. Y. 259.) The courts have power to dismiss a part of a separately stated and numbered count or cause of action under rule 107 (6) of the Rules of Civil Practice. (Lloyd v. R. S. M. Corp., 251 N. Y. 318; Lowe v. Lowe, 265 N. Y. 197.) The claim to relief in respect of certain alleged losses suffered by Tri-Continental by reason of the acts of the appellants in causing it to purchase its own stocks was not interposed within six years after the right to relief by action in respect thereof accrued. (Thomas v. Harvie’s Heirs, 23 U. S. 146; 2 Perry on Trusts [14th ed.], p. 1486; Angell on Limitations [6th ed.], § 148.)

      Edward A. Rothenberg, Joseph Nemerov, Robert Gordon and A. Edward Moskowitz for respondent.
    A cause of action was stated against the defendants who were directors of both corporations in respect of their voting in favor of charter amendments which changed the capital structure of the one corporation to the damage of the other. It was the duty of the “ common directors ” to refrain from voting on matters affecting the interests of both corporations. (Munson v. Syracuse, G. & C. R. R. Co., 103 N. Y. 59; Pink v. Title Guarantee & Trust Co., 164 Misc. Rep. 128; Globe Woolen Co. v. Utica G. & El. Co., 224 N. Y. 483; Bosworth v. Allen, 168 N. Y. 157; Winter v. Anderson, 242 App. Div. 430; Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185.) The second cause of action stated against the defendant directors of Tri-Continental who voted the stock of Selected Industries held by Tri-Continental in favor of the amendments of the charter of Selected Industries is not barred by the Statute of Limitations. The statute was tolled by the service of the original complaint, since the additional allegations in the present complaint do not constitute a new cause of action. (Harriss v. Tams, 258 N. Y. 229.) The fourth cause of action being an action for the recovery of profits is governed by the ten-year Statute of Limitations. The allegation in paragraph fifty with respect to the incidental losses suffered by the corporation by reason of the same wrongful acts of the same defendant directors is part of the cause of action and is likewise governed by the ten-year Statute of Limitations, since the remedy at law is inadequate. (Potter v. Walker, 276 N. Y. 15; Falk v. Hoffman, 233 N. Y. 199; Hanover Fire Ins. Co. v. Morse Dry Dock & R. Co., 270 N. Y. 86.) The sixth cause of action is one for the recovery of profits and is governed by the ten-year Statute of Limitations. The allegations contained therein with respect to the incidental losses suffered by the corporation by reason of the same wrongful acts of the same defendant directors is part of the cause of action and is likewise governed by the ten-year Statute of Limitations, since the remedy at law is inadequate. (Potter v. Walker, 276 N. Y. 15.)
   Loughran, J.

This action to redress wrongs alleged to have been done to Tri-Continental Corporation is brought in its behalf by one of its stockholders. Tri-Continental Corporation is an- investment company that was formed through a consolidation of two like companies. The consolidation was brought about by J. & W. Seligman & Co., a partnership of investment bankers. Because one of the predecessor companies also was named Tri-Continental Corporation, the parties say “ New Tri-Continental when they speak of the consolidated company.

The defendants other than New Tri-Continental include: (1) present and former directors of that corporation; (2) present and former directors of the two predecessor investment companies; and (3) present and former members of J. & W. Seligman & Co. We shall call these groups the defendants.

The complaint contains twelve separate statements of alleged causes of action. We are concerned with three only of these counts — the second, fourth and sixth. The defendants are the appellants here. They present four of five questions that have been certified to us by the Appellate Division.

(1) The first question certified relates to allegations of the second count which in substance are as follows: Selected Industries, Inc. (which was largely controlled by New Tri-Continental), had outstanding three classes of stock — prior, convertible and common. New Tri-Continental owned substantial amounts of this common and of this convertible stock, but owned none of this prior stock. By amendments to the charter of Selected Industries, Inc., the stated capital of that corporation was reduced and a surplus was established out of which dividends on such prior stock were paid, with the result that the actual and potential value of such common stock and of such convertible stock was decreased to the damage of New TriContinental as an owner thereof. Certain of the defendants (how many is not made clear) were. directors of Selected Industries, Inc., and of New Tri-Continental and voted on the board of Selected Industries, Inc., for such amendments to its charter, in violation of the duty owed by said defendants as directors of New Tri-Continental to the latter corporation and its stockholders to conserve its assets and to act solely in the interest of the corporation and of its stockholders.” We are to say in the first place whether the foregoing allegations state facts sufficient to establish a liability to New Tri-Continental on the part of the defendants who were directors-in-common of New Tri-Continental and of Selected Industries, Inc.

There is no allegation that the amendments to the charter of Selected Industries, Inc., were in any way unjustified in themselves. There is no allegation that the vote of any director of Selected Industries, Inc., was other than in the best interests of that corporation. The plaintiff would have the court say that when directors-in-common of a parent corporation and its subsidiary are acting on the board of the subsidiary, their votes (irrespective the merits and no matter what the consequences to the subsidiary) must be cast in the sole and exclusive interest of the parent corporation. This generalization, we think, is obviously unsound. No authority cited goes so far and the most relevant decision we have found looks the other way. (Continental Ins. Co. v. N. Y. & H. R. R. Co., 187 N. Y. 225.) We find no difficulty in ruling that the allegations of the present division of the complaint do hot state any actionable wrong of the defendant directors-in-common.

(2) The second question certified relates to so much of the second count as alleges that in August, 1931, the defendants while acting as directors of New Tri-Continental caused its holdings of stock of Selected Industries, Inc., to be voted in ratification and approval of the amendments to the charter of Selected Industries, Inc. If these allegations state a distinct actionable wrong of the defendant directors of New Tri-Continental asserted for the first time in the pleading now before us (a second amended complaint served in August, 1938), the Statute of Limitations is a defense.

The courts below agreed with the plaintiffs that as to this alleged wrong of the defendant directors of New TriContinental the statute had been tolled by service of the original complaint. Respecting the allegations last mentioned, Special Term said: While the ratification was not alleged in the first complaint, it would appear that these new facts alleging it do not constitute a new and separate cause of action, but are merely a part and amplification of the acts by which the stockholders and the company are alleged to have been defrauded.” As thus employed by the Special Term, the phrase cause of action ” means the violation of a duty- — not the existence of a remedial right to have the court repair a wrong. We cannot adopt the view so expressed.

So far as this complaint discloses, the act of ratification performed by the defendant directors of New Tri-Continental was a completely independent act. To be sure, that act related to the prior corporate action of Selected Industries, Inc., but that prior action (so far as this complaint alleges it) was itself completely independent. Any cause of action for the ratification was thus distinct from any cause of action for the separate initiation of the amendments by the directors of Selected Industries, Inc.

The original complaint was silent in respect of any action by the board of directors of New Tri-Continental. The charges therein were made only against those defendants who were directors of Selected Industries, Inc., and also of new Tri-Continental.” Some of the defendants who were directors of New Tri-Continental were not directors of Selected Industries, Inc. We think the original complaint did not convey notice to the defendant directors of New Tri-Continental that they were to be held to answer for their conduct on the board of that corporation. The cause of action now sought to be stated against them because of their ratification of the amendments to the charter of Selected Industries, Inc., is upon a different obligation or liability, and for different conduct from that specified in the original complaint.” (Harriss v. Tams, 258 N. Y. 229, 243.) Accordingly the six-year Statute of Limitations is a bar to that cause of action. (Civ. Prac. Act, former § 48, subd. 3.) The period of limitations is now three years. (Civ. Prac. Act,_§ 49, subd. 7.)

(3) The defendants do not press so much of their appeal as is presented by the third question certified.

(4) The fourth question certified relates to the following allegations of the. fourth count:

“Forty-eighth. That pursuant to the general plan or scheme to utilize the Tri-Continental Corporations for their own benefit, even to the derogation of the interests of the said corporations and the stockholders thereof, the various defendants, and in particular, Seligman & Company, caused the Tri-Continental Corporations * * * to enter into and take over certain syndicate participations * * * for the purpose of relieving Seligman & Company of said obligation, and Seligman & Company, through its control of the several Tri-Continental Corporations, caused them to participate with Seligman & Company in underwriting or purchasing numerous securities * * *

“ Forty-ninth. That, as a result of the participations in said securities by the Tri-Continental corporations, Seligman <fe Company was relieved of its obligations to invest large sums of money in said securities and was thereby enabled to make large underwriting profits without assuming risk of loss and without the investment of capital.

“ Fiftieth. That, as a result of said purchases and sales of various securities and said participations by the TriContinental corporations in said securities, the TriContinental corporations have suffered losses aggregating many millions of dollars; that said losses were caused by the acts of Seligman & Company and the individual defendants who were the directors of the Tri-Continental corporations and who authorized and/or ratified said acts, all of which were done in violation of their duties and obligations to the corporations and to the stockholders thereof.”

The defendants contend that the allegations just quoted state two distinct causes of action •— one of tort for the alleged losses and the other to establish a constructive trust of the alleged profits. All the securities in question were purchased more than six years before the commencement of this action. Hence the defendants say that the six-year Statute of Limitations is a bar to what they assert is the. separate cause of action in tort for the alleged losses.

The courts below have read this division of the complaint as not stating any distinct right of recovery for injury to the property of New - Tri-Continental. They ruled, on the contrary, that what is stated is a single cause of action for an accounting to recover profits received by the defendant directors of New Tri-Continental through Seligman & Co., exceeding the loses to New Tri-Continental resulting from the same transactions. The conclusion below was that the ten-year Statute of Limitations is applicable (Civ. Prac. Act § 53). We agree that this was the right interpretation of the face of the complaint. (Potter v. Walker, 276 N. Y. 15.)

(5) The fifth and last question certified relates to allegations in the sixth count that the defendants caused New Tri-Continental to purchase its own preferred and common stocks for the purpose of supporting the market prices thereof; that thereby the defendants realized higher prices for shares of the same stocks sold by them individually; and that by reason of said purchases of its own preferred and common stock at the higher and excessive prices as aforesaid, New Tri-Continental suffered great loss and damage.” This cause of action is in character essentially the same as the cause of action last discussed above. We agree with the courts below that again the ten-year Statute of Limitations applies on the face of the pleading.

The orders should be modified in accordance with this opinion and, as so modified, affirmed, with costs to appellants in all courts. The first and second questions certified should be answered in the negative. The fourth and fifth questions certified should be answered in the affirmative. The third question certified need not be answered. (See 282 N. Y. 683.)

Crane, Ch. J., Lehman, Hubbs, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.