text:
    In the Matter of Joseph Lo Presti, by His Attorney-in-Fact, Thomas Lo Presti, Respondent, against Joseph D. McGoldrick, as State Rent Administrator, Appellant, et al., Defendant.
    Argued October 22, 1954;
    decided December 31, 1954.

      Beatrice Shainswit and Walter S. Fried for appellant. Carmelo A. Parlato for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    Lucy Coccaro, Respondent, v. Anthony Coccaro, Appellant.
    Argued November 29, 1954;
    decided December 31, 1954.

      Kermit Gitenstein for appellant.

      Samuel Korb for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of R. E. Associates, Inc., Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued December 1, 1954;
    decided December 31, 1954.

      David Gerhardt for appellant.

      Beatrice Shainswit and Walter 8. Fried for Joseph D. McGoldrick, State Rent Administrator, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Fboessel, JJ. Taking no part: Van Voobhis, J.


author:
      Per Curiam.
     Van Voobhis, J.

text:
    Hempstead Theatre Corporation et al., Respondents, v. Metropolitan Playhouses, Inc., et al., Appellants, et al., Defendants.
    Argued October 21, 1954;
    decided December 31, 1954.

      Lester Samuels, Milton C. Weisman and Louis M. Weber for appellants.

      Bernard Bernstein and Stanley D. Halperin for respondents.
   Per Curiam.

We agree with the courts below that the cause of action under attack should not be dismissed for legal insufficiency. It is impossible to say what facts may be developed under the allegations of this cause of action at the trial. It may not be said, as a matter of law, that the term ‘‘ gross receipts ’ ’, as used in the percentage lease before us, excludes the entire amount of $2,000,000 recovered by the tenant in settlement of the Federal antitrust suit. In short, questions of fact are presented which must be determined upon a trial.

The order should be affirmed, with costs, the first question certified answered in the affirmative, and the second question certified answered in the negative.

Van Voobhis, J.

(dissenting). This is an action to recover percentage rent based on the operation of certain motion picture theatres. The seventh cause of action, whose legal sufficiency is challenged by defendants-appellants (hereafter called ‘‘ Skouras ”), alleges that the rental payable under all of these leases was at an annual fixed minimum plus an ‘‘ aggregate annual percentage rental based upon the yearly gross receipts derived from the operation ” of said theatres. The proportion of gross receipts allocable to the several plaintiffs is immaterial to the present motion.

The question is whether the $2,000,000 in cash together with other property paid to Skouras by Loew’s, Inc., under an agreement in settlement of a civil claim under the Federal antitrust laws constitutes " gross receipts ” upon which a percentage is payable to the landlords as additional rent under the leases.

There is no material difference between the definitions of gross receipts contained in the various rental agreements. The term is defined in substantially the same manner in each instrument " to include all income and revenue arising from the operation of each of the demised premises * * * including all receipts of whatsoever kind derived from each of said demised premises, and without limiting the generality of the foregoing, shall include: (1) all box office receipts excluding taxes on admissions; (2) all rentals and/or income derived from apartments, stores, offices or rentable space contained in said theatres, and all income derived from concessions and advertising; (3) all net receipts derived from the sale of admission or coupons outside of the box office.”

The majority of the Appellate Division apparently adopted the reasoning of Special Term that it cannot be said as a matter of law that money is excluded from gross receipts which is received by a tenant of a moving picture theatre as damages allegedly caused to it by operators of other similar theatres acting in violation of the antitrust laws. These damages were charged to have been caused by a competitor of Skouras in resorting to monopolistic practices whereby these theatres leased by plaintiffs to Skouras were rendered second-run picture houses. Skouras was paid $2,000,000 in settlement of this claim. Special Term held that prima facie this money was received by Skouras from the operation of these theatres. No majority opinion was written at the Appellate Division, but the dissenting-opinion by Presiding Justice Peck states that “ The majority of the court is of the opinion that plaintiffs should not be foreclosed, on motion addressed to the complaint, from the opportunity of developing at the trial their theory that the payment received by Skouras in settlement of the litigation against Loew’s in some respect represented ‘ gross receipts ’ of the theatres in which plaintiffs were entitled to share.” (283 App. Div. 922.) The theory upon which this cause of action has been sustained was evidently that the antitrust claim could not have been advanced against Loew’s except in conjunction with the operation of these theatres by Skouras, and, hence, that the settlement included “ income and revenue arising from the operation ” of these theatres, within the definition of gross receipts contained in these leasehold agreements.

We agree with the dissenting Justices at the Appellate Division that, where the result is indicated inevitably upon the face of the complaint, it is prejudicial to permit the cause of action to proceed to trial. In that event, the decision of the motion addressed to the pleading disposes of the issue between the parties if the evidence at the trial coincides with the facts alleged. It is therefore necessary to examine whether plaintiffs would be entitled to recover if all of the facts were proved which are alleged in the seventh cause of action in the supplemental complaint.

The reasons stated in the dissenting opinion for rejecting the sufficiency of the seventh cause of action are also persuasive. Even if it were assumed for purposes of argument that the settlement money was paid by Loew’s to Skouras as income and revenue arising from the operation of the theatres, it would necessarily have been net income. All of these leases and agreements make it clear that the percentage rent is to be paid with respect to the gross receipts. Yet the seventh cause of action in the supplemental complaint alleges that “ The payment provided for as aforesaid was based upon the loss of profits sustained by defendant Skouras in consequence of the loss of gross receipts at the theatres Manifestly loss of profits did not measure the gross receipts at these theatres or at any others. These profits which Skouras was prevented by Loew’s from reaping at these theatres were not derived from actual business transacted at them, but from a hypothetical quantity of gross receipts that never were received at the box offices. If these landlords were entitled to recover percentage rents with regard to any aspect of these transactions, the percentages would have had to be computed upon the larger theoretical amounts which the box offices would have grossed if Loew’s monopolistic practices had not rendered them second-run motion picture theatres. And the hypothetical volume of gross receipts would need to have been estimated at big enough figures to defray operating expenses of the theatres, including payment of rent, before yielding the profits on which Skouras’ settlement was based.

If plaintiffs were entitled to recover percentage rents computed upon lost profits of Skouras from the operation of these theatres, as plaintiffs claim under their seventh cause of action, it would follow that Loew’s paid Skouras too much in settlement. Loss of profits was the maximum that Skouras could have recovered in the antitrust suit under the heading of compensatory damage to business or property (U. S. Code, tit. 15, § 15). Profits could be computed only after deducting all rent including percentage rent payable for the use of these theatres. If plaintiffs were correct in their theory, whatever percentage rent they succeeded in recovering from Skouras ought to be refunded to Loew’s inasmuch as Skouras could have had no right to recover anything to apply on that item from Loew’s in the first place. Whether plaintiffs have a cause of action in their own right against Loew’s is another matter, not decided now, but however that question might be resolved it is clear that plaintiff’s claim against Skouras and Skouras’ claim against Loew’s are mutually exclusive. Any omission to include percentage rent in the settlement obtained by Skouras against Loew’s could not have been inadvertent; it would have been impossible, no matter how vigilant Skouras might have been, to have recovered anything by way of additional percentage rent payable to the landlord. Skouras would have been confined by the Federal Courts in the antitrust litigation to lost profits except for treble damages and other unrelated items. Rent payable to a landlord could not have been included in the category of profits prevented. It follows that the tenant could not have sued on behalf of the landlord, could not have recovered anything payable to the landlord under its own cause of action, nor could the landlord have joined in the tenant’s action inasmuch as any right to recovery on the part of the landlord would not have been derivative but independent and in the landlord’s own right.

This circumstance appears to have led the United States District Courts for the Southern District of New York and for the District of New Jersey, in the only two cases upon the point cited to support the holding below, to conclude that a cause of action for damage to the real property belongs to the owner rather than to the operator of the motion picture theatre (Camrel Co. v. Paramount Film Distr. Corp., U. S. Dist. Ct., S. D. N. Y., March 30, 1944, C. C. H. Trade Cases, par. 57233; East Orange Amusement Co. v. Vitagraph, U. S. Dist. Ct., N. J., June 24, 1943, C. C. H. Trade Cases, par. 52956). In both of those cases motions to dismiss complaints of owners of theatres were denied, where the suits were brought for damages against distributors of motion pictures on the theory that the value of the real estate had been impaired by monopolistic practices in rendering them second run motion picture houses. The United States District Court for the Eastern District of Pennsylvania thought in Harrison v. Paramount Pictures (115 F. Supp. 313, 316-317, decided Sept. 11, 1953) “ that if this landlord has any rights at all in the property which could be injured by a conspiracy to withhold first-run pictures, directed against or participated in by the tenant, they are remote, uncertain and insubstantial.” In the' Harrison case, the landlord was suing for diminution in rent from his real property rather than for general depreciation.

Defendants-appellants urge that damages to a landlord under such circumstances would in any event be too remote, and that if plaintiffs would be precluded from recovering against Loew’s for that reason, a fortiori they could not recover percentage rent against Skouras. In support of the defense of remoteness, which in this context would mean that the grounds for suit in the antitrust litigation are too far removed from the present issue to classify as gross receipts the money paid in settlement, defendants-appellants point out that in consideration of the settlement Skouras released Loew’s from claims for treble damages, forfeitures, counsel fees and other litigation expense (U. S. Code, tit. 15, § 15). Under no theory could percentage rent be computed upon those items, nor can it be readily understood how a lump sum paid in settlement for an acquittance from all of those claims could be broken down and apportioned into specified amounts allocated to each component factor, at least not without what would amount to a trial of the antitrust suit in the State courts.

The order appealed from should be modified so as to direct judgment to be entered dismissing the seventh cause of action alleged in the supplemental complaint against appellants Metropolitan Playhouses, Inc., and Skouras Theatres Corporations as well as against. Circuit Vendors, Inc., and, as so modified, affirmed, with costs to appellants. The questions certified should be answered as follows: Question No. 1 concerning whether the seventh cause of action states facts sufficient to constitute a cause of action, should be answered in the negative; question No. 2 concerning whether Special Term erred in failing to grant appellants’ motion to dismiss the seventh cause of action, should be answered in the affirmative.

Desmond, Dye, Fuld and Froessel, JJ., concur in Per Curiam opinion; Van Voorhis, J., dissents in an opinion in which Lewis, Ch. J., and Conway, J., concur.

Order affirmed, etc.


text:
    James G. Greims, Respondent, v. Bankers Trust Company et al., Appellants; James G. Greims, Jr., by Edgar P. Feeley, His Guardian ad Litem, et al., Respondents, et al., Defendants.
    Argued November 17, 1954;
    decided December 31, 1954.

      James Adam Murphy for Bankers Trust Company, appellant.

      Jacob Shientag, special guardian ad litem for Joan Greims and another, infants, appellants, and Edward J. Gould, special guardian ad litem for Gerard F. Greims, infant, and others, appellants.

      David Saperstein and Isaac M. Barnett for James G. Greims, respondent.

      Edgar P. Feeley, guardian ad litem for James G. Greims, Jr., infant, respondent.

      Franje A. F. Severance for Eugenie de B. Greims, respondent.
   Judgment affirmed, with costs to respondents payable out of the trust fund; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of the Claim of Salvatore De Stefano, Respondent, against Consolidated Tile Co., Inc., Respondent, and Merritt Chapman & Scott Corporation et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued December 2, 1954;
    decided December 31, 1954.

      Urban 8. MulveTiill for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polanshy, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Yoobhis, JJ.


text:
    The People of the State of New York, Respondent, v. Romulo Rosario, Appellant.
    Argued November 30, 1954;
    decided December 31, 1954.

      William B. Northrop and Oscar Gonzalez-Suarez for appellant.

      Frank S. Hogan, District Attorney (Charles W. Manning and Bichard G. Denser of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Feoessel and Van Vooehis, JJ.


text:
    In the Matter of the Accounting of Harry F. Whiton et al., as Trustees under the Will of Emma D. Ross, Deceased, Appellants. Jeanette B. Donnell, Respondent.
    Argued December 3, 1954;
    decided December 31, 1954.

      Carl 0. Olson and Frank J. Williams, Jr., for appellants.

      Desmond F. Reilly for respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessbl and Van Voorhis, JJ.


author: Fuld, J.

text:
    George W. Wilkes, Respondent, v. City of New York, Appellant.
    Argued November 15, 1954;
    decided December 31, 1954.

      Adrian P. Burke, Corporation Counsel (Andrew Bellanea and Seymour B. Quel of counsel), for appellant.

      Samuel Korb and Thomas Bussell Jones for respondent.
   Judgment affirmed, with costs.

Concur: Lewis, Ch. J., Conway, Desmond, Dye and Fboessel, JJ. Fold, J., dissents in an opinion in which Van Voobhis, J., concurs.

Fuld, J.

(dissenting). I find no evidence to support the finding, implicit in the jury’s verdict, of negligence or fault on the part of the police officer or the defendant City of New York.

As I read the record, we have a case where a police officer of over twenty-five years ’ experience in the Department, did what he did, not only to effect an arrest and to overcome resistance, but in self-defense, to save himself from a possible fatal beating at the hands of a drunk crazed powerful individual who had already inflicted serious injuries upon him. He shot at his drunken assailant after the latter, a much younger and bigger man, had twice thrown him to the ground, held him by the throat and was ‘ coming for * * * [him] again. ’ ’ Indeed, he had already been struck a number of times, the blood was running into * * * [his] left eye * * * and the other eye was a little * * * saggy from getting hit so often.” It was only after reliance upon his fists and night stick had proved futile and the drunkard was grabbing and pulling at his service revolver that the officer did the only thing left for him to do; he fired at his attacker.

A police officer may use any “ necessary means to effect the arrest ” of a defendant who flees or resists arrest (Code Crim. Pro., § 174). In a case where a crowd has collected and stands in the line of fire, a finding of fault or negligence may be warranted if an officer fires repeatedly at a fleeing suspect. But that is not this case. It may not here be said that the officer — weakened and bloodied by repeated blows, his night stick useless — acted recklessly or improvidently when he resorted to the use of his gun, and, then, only after carefully firing a warning shot into the air.

In point of fact, as already indicated, the officer was faced with more than an attempt to overcome resistance and effect an arrest. He was actually fighting for his life. At any rate, though, whichever it was, I would say, as a matter of law, that he did no more than was necessary and, in the doing, used no more force than was required.

I would reverse the judgment and dismiss the complaint.

Judgment affirmed.


text:
    In the Matter of the Claim of John Griffiths, Respondent, against Robert H. Shaffrey et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued December 2, 1954;
    decided December 31, 1954.

      Paul F. Donohue for appellants.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Dandy, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Vooehis, JJ.


author: Van Voobhis, J.

text:
    International Harvester Credit Corporation et al., Appellants, v. Allen J. Goodrich et al., Constituting the State Tax Commission of the State of New York, Respondents.
    Argued November 19, 1954;
    decided December 31, 1954.

      John T. De Graff, Ralph D. Semerad and John J. Kelly , Jr., for appellants.

      Nathaniel L. Goldstein, Attorney-General {Henry 8. Manley' and Wendell P. Brown of counsel), for respondents.
   Judgment affirmed.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Fboessel, JJ. Van Voobhis, J., dissents in the following opinion.

Van Voobhis, J.

(dissenting). As conditional vendors of commercial motor vehicles, appellants’ property in these vehicles has been destroyed through subordination to accumulated highway use taxes (Tax Law, art. 21) accruing with reference to other vehicles owned and operated by the conditional vendee, in many instances prior to delivery to the vendee of appellants’’ automotive equipment. Appellants could not have ascertained! the tax liabilities of the vendee prior to sale, even if the books of the State Tax Commission had been open to them, inasmuch, as the vendee had filed incorrect tax returns. A similar situation existed during the periods of time while appellants’ motor vehicles were in the possession of the conditional vendee. Highway use taxes accruing with respect to the vehicles sold by appellants can be given priority over appellants’ property interests in those vehicles, but it seems to me to constitute deprivation of property without due process of law and denial of the equal protection of the laws, to subject the recognized property interest of a conditional vendor to taxes which have accrued against the conditional vendee without reference to these vehicles, and in substantial part, before they were delivered to the conditional vendee or even manufactured. In voting to modify the judgment appealed from in these respects, I do not imply that some of the objects of this part of article 21 of the Tax Law could not be realized by legislation giving effect to legitimate property rights of conditional vendors under such circumstances.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. George Futterman, Appellant.
    Argued October 21, 1954;
    decided December 31, 1954.

      Edward H. Levine and Vernon G. Rossner for appellant.

      Franh 8. Bogan, District Attorney (Richard G. Denser of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ck. J., Desmond, Dye and Fuld, JJ. Conway, Froessel and Van Voorhis, JJ., dissent in part and vote to reverse the judgment insofar as it convicts defendant of subornation of perjury and vote to order a new trial upon the ground that under the charge of the court it became the law of the case that defendant could not be convicted unless the jury were convinced beyond a reasonable doubt that defendant caused Blumenthal to visit the attorneys’ offices, and that said attorneys aided in inducing or procuring Blumenthal to change his testimony and testify falsely at the trial; there being no corroboration of Blumenthal’s testimony concerning what occurred in the attorneys’ offices.


text:
    Howland S. Davis et al., Appellants, v. George C. Fraser et al., as Trustees of Texas Pacific Land Trust under a Declaration of Trust Made by Charles J. Canda and Others, et al., Respondents.
    Submitted November 15, 1954;

    decided December 31, 1954.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 307 N. Y. 433.]


text:
    Leo Greenberg et al., Appellants, v. City of New Rochelle et al., Respondents.
    Submitted November 29, 1954;
    decided December 31, 1954.

      Richard P. Donovan, Murray C. Fuerst, Corporation Counsel, and Daniel Danziger for motion.

      Joseph Lotterman opposed.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Ralph B. Wattley, Appellant, v. Mutual Life Insurance Company of New York, Respondent.
    Submitted November 29, 1954;
    decided December 31, 1954.

      John Harlan Amen and Alfred J. Jollon for motion.

      Frank A. Frits opposed.
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    In the Matter of the Claim of James R. Knapp, Respondent, against Syracuse University, Appellant. Workmen’s Compensation Board, Respondent.
    Argued December 2, 1954;
    reargument ordered December 31, 1954.


author: Per Curiam.

text:
    Mutual Life Insurance Company of New York, Appellant, v. Tailored Woman, Inc., Respondent.
    Argued November 29, 1954;
    decided December 31, 1954.

      Philip Feldman and M. J ames Spitser for motion.

      George A. Spiegelberg opposed.
   Per Curiam.

Defendant moves for an order dismissing two appeals to this court taken, as of right, by plaintiff pursuant to notices of appeal dated March 24, 1954, and October 14, 1954, upon the ground that neither appeal is taken from the judgment finally determining the action.

On May 5, 1953, a final judgment in an action in the sum of $129,331.77, was entered in the office of the clerk of the County of New York in plaintiff’s favor. On appeal the Appellate Division modified that judgment, awarding costs of the appeal to the defendant and referring the matter to an Official Referee to determine the damages, if any, to which plaintiff was entitled. On February 10,1954, judgment was entered thereon. By notice of appeal dated March 24, 1954, plaintiff has taken an appeal seeking a review of that determination. Such appeal must be dismissed for the reason that neither a direction for a reference nor an award of costs is a final determination.

Following entry of the judgment of February 10, 1954, the Appellate Division resettled its order so as to direct that the judgment of May 5,1953, be modified by providing that plaintiff recover $6,799, with interest and costs in lieu of the present judgment for the sum of $129,331.77 and that said judgment as so modified be * * * affirmed ”, with costs of the appeal to the defendant. The order concluded with the sentence: * ‘ Let judgment be entered accordingly ”.

Section 621 of the Civil Practice Act provides that, in a case such as this, a certified copy of the order of the Appellate Division made upon appeal shall be transmitted to the clerk of the Supreme Court and “ The judgment, if any, rendered or directed, pursuant to any such order, shall be entered by ” such clerk. Accordingly, the clerk of the Supreme Court, New York County, should have entered a judgment on the resettled order of the Appellate Division dated June 8, 1954, pursuant to the direction of that court contained in said resettled order. The appeal to this court should then have been taken from that judgment for section 591 of the Civil Practice Act, which deals with appeals to this court, provides that in an action the appeal may be taken only “ from the judgment entered in the office of the clerk of the court to whom the certified copy of the order of the appellate division was transmitted as prescribed in section six hundred and twenty-one of this act ”.

For reasons which do not appear in the papers on this motion, the clerk of the Supreme Court, New York County, did not enter such a judgment. Instead, on August 18, 1954, an order was made at Special Term, Supreme Court, New York County, directing the clerk of New York County (a) to modify the judgment of May 5, 1953, by providing that plaintiff recover from defendant the sum of $6,799, with interest and $190.70, as costs, in lieu of the judgment for the sum of $129,331.77, and (b) to amend the judgment of February 10, 1954, in accordance with the resettled order of the Appellate Division.

We are told that on August 20, 1954, the clerk of the County of New York took the following action:

(1) on the judgment of May 5, 1953, he “ noted ”:

‘ ‘ August 20, 1954

Judgment modified by reducing the sum of $129,331.77 to $6,799.00 with interest from June 15, 1947 plus $190.70 costs by order of Court filed August 18, 1954.”;

(2) on the judgment of February 10, 1954, he " noted ”

" August 20, 1954

Judgment modified as per attached order filed August 18, 1954 ”.

On October 14,1954, plaintiff served a second notice of appeal. Counsel for plaintiff deposes that by this notice plaintiff appealed from each and every order and judgment which modified the judgment of May 5, 1953. It is his position that an appeal from everything which modifies the judgment of May 5, 1953, is an appeal from the judgment of May 5,1953, as modified by everything that occurred thereafter.

This argument assumes that an appeal from the judgment of May 5,1953, as modified by the orders of the Appellate Division thereafter entered, would be proper. We disagree. The judgment of May 5, 1953 — the only final judgment entered in this action — was entered prior to the final modification by the Appellate Division. The clear meaning of the language of section 591 of the Civil Practice Act, quoted above, is that an appeal to this court, in an action such as this, may be taken only from a judgment entered by the clerk of the Supreme Court after the Appellate Division has rendered its determination. No such judgment has been entered here. Orderly procedure and established practice required the clerk to enter a new and additional paper carrying appropriate recitals from which additional paper the plaintiff could appeal to this court (see Cohen and Karger, Powers of the New York Court of Appeals, pp. 107-108). All that the clerk did here was make notations on the original judgments. "When a proper judgment has been entered the plaintiff may serve a new notice of appeal, for the sixty-day time limit within which an appeal must he taken, as of right, runs from the date of written notice of entry of the judgment appealed from except where it is entered by the appealing party in which case the time runs from the date of entry (Civ. Prac. Act, § 592, subd. 1).

Motion to dismiss appeals granted and appeals dismissed, without prejudice to the right to appeal from a final judgment entered upon the resettled order of the Appellate Division.


text:
    Jacob Keur, Individually and Doing Business under the Name of C. Keur & Sons, Appellant, v. Prominent Bulb Company et al., Respondents, et al., Defendants.
    Submitted January 3, 1955;
    decided January 6, 1955.

      Joseph M. Paley for motion.

      George A. Burrell opposed.
   Motion denied. Appellant directed to file a brief, if any, on or before January 20, 1955. Case set down for argument during the first week of the February, 1955, session of the Court of Appeals. (County of Erie v. Continental Cas. Co., 295 N. Y. 690.) [See 307 N. Y. 830.]


text:
    Harry Magid, Respondent, v. Brooklyn Women’s Hospital et al., Respondents; William Savage, Inc., Appellant, et al., Defendants.
    Submitted January 3, 1955;
    decided January 6, 1955.

      John F. X. Finn and Norman G. Mendes for motion.

      Joseph J. Berman, Moe Levine and Max Shamis opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Amanda Banks, On Behalf of Herself and Minor Children, Respondent, against Apollo Associates, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted January 3, 1955;
    decided January 6, 1955.

      John W. Manning for motion.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky of counsel), opposed.
   Motion dismissed, with $10 costs, upon the ground that the order sought to be appealed from is nonfinal (Matter of Neu v. Van Rees Bookbinding Corp., 276 N. Y. 583).


text:
    In the Matter of the Claim of Jack Doca, Appellant, against Federal Stevedoring Company, Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted January 3, 1955;
    decided January 6, 1955.
   Motion for reargument or, in the alternative, to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 308 N. Y. 44.]


text:
    In the Matter of Lester Martin, Respondent, against Columbia Pictures Corporation, Appellant.
    Submitted January 3, 1955;
    decided January 6, 1955.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 307 N. Y. 922.]


text:
    In the Matter of the Claim of Peter Mastrodonato, Respondent, against Pfaudler Co. et al., Appellants, and Special Disability Fund, Respondent. Workmen’s Compensation Board, Respondent.
    Submitted January 3, 1955;
    decided January 6, 1955.
   Motion to amend remittitur granted, return of remittitur requested and, when returned, it will he amended by adding thereto an award of costs to movants-appellants in this court and in the Appellate Division against the respondent Workmen’s Compensation Board. [See 307 N. Y. 592.]


text:
    National Steel Corporation, Respondent, v. City of New York et al., Appellants.
    Submitted January 3, 1955;
    decided January 6, 1955.

      Stanley Buchsbaum for motion.

      Herbert B. Berk opposed.
   Motion for order postponing argument of the appeal and extending the time to serve and file the brief herein granted to the extent that defendants are allowed until thirty days from the date hereof or until ten days after the determination by the Supreme Court of the United States of the city’s petition for certiorari in Matter of United Piece Dye Works v. Joseph (307 N. Y. 780), whichever is sooner, to serve and file their brief on appeal to this court in the present case; in the meantime, argument of the present case is postponed until further direction of this court. [See 307 N. Y. 837.]


text:
    Lorraine W. J. Parker, Respondent, v. Sylvia G. Hoefer, Appellant.
    Submitted January 3, 1955;
    decided January 6, 1955.

      N. Holmes Glare for motion.

      Richard H. Weis opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that, on this appeal, there are questions involved other than the constitutionality of a statute (Civ. Prac. Act, § 588, subd. 4).


text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Submitted January 3, 1955;
    decided January 6, 1955.
   Motion for reargument denied. The trial court was fully warranted in denying defendants’ motion for a rehearing of their application for coram nobis which the trial court, after a hearing, denied some time ago and which denial this court affirmed (307 N. Y. 253). [See, also, 303 N. Y. 856; 306 N. Y. 678, 867.]


text:
    The People of the State of New York, Respondent, v. Alfred H. Vanderborg, Appellant.
    Submitted January 3, 1955;
    decided January 6, 1955.

      T. Vincent Quinn, District Attorney (George J. Began of counsel), for motion.

      Alfred E. Vanderborg, in person, opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York ex rel. Frank Lee, alias Alfred Minutolo, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Defendant. The People of the State of New York, Respondent.
    Submitted January 3, 1955;
    decided January 6, 1955.

      Frank Lee, in person, for motion.
    No one opposed.
   Motion for leave to prosecute appeal as poor person and for assignment of counsel granted and Richard W. Coughlin, Esq., 175 Broadway, Menands, New York, assigned as counsel to relator on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Norman L. Horton, Appellant.
    Submitted January 3, 1955;
    decided January 10, 1955.
   Motion for reargument or, in the alternative, to amend the remittitur denied. [See 308 N. Y. 1.]


text:
    In the Matter of Frank Del Vecchio et al., Appellants, against T. Douglas Tuomey et al., Constituting the Board of Appeals of the Village of Brightwaters, Respondents.
    Argued January 3, 1955;
    decided January 13, 1955.

      Guy 0. Walser and Richard Walser for appellants.

      John P. Cohalan, Jr., for respondents.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Yoorhis and Burke, JJ.


text:
    Ruth E. Secrist, Respondent, v. Raymond E. Secrist, Appellant.
    Argued January 3, 1955;
    decided January 13, 1955.

      Harold J. Stiles for appellant.

      Walter J. Holloran for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Magnus Stender, Respondent, v. G. S. Blodgett Co., Inc., Appellant.
    Submitted January 4, 1955;
    decided January 13, 1955.

      William T. Gallagher for appellant.

      David Gale and Alfred Sobol for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke, JJ.


text:
    Stanley Cave et al., Appellants, et al., Plaintiff, v. Irving A. Green et al., Respondents.
    Argued January 4, 1955;
    decided January 13, 1955.

      Cora T. Walker and Jawn A. Sandifer for appellants.

      Murray A. Gordon and Irving Sverdlik for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Froessel and Burke, JJ. Taking no part: Van Voorhis, J.


text:
    Howard Heller, Appellant, v. E. D. Sassoon Banking Co., Ltd., Respondent.
    Submitted January 3, 1955;
    decided January 13, 1955.

      Isaac M. Barnett for motion.

      Arthur A. Litt and Jules J. L. Hessen opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    In the Matter of the Application of Philip Landes, Appellant, against Domestic Relations Court of the City of New York, et al., Respondents.
    Submitted January 3, 1955;
    decided January 13, 1955.

      Philip Landes, in person, for motion.

      Seymour B. Quel opposed.
   Motion denied and, on the court’s own motion, appeal dismissed upon the ground that there are questions other than the constitutional validity of a statute presented (Civ. Prac. Act, § 588, subd. 4).


text:
    The People of the State of New York, Respondent, v. William Davidson, Appellant.
    Submitted January 3, 1955;
    decided January 13, 1955.
   Motion for reargument denied. [See 297 N. Y. 894.]


text:
    Sydney J. Wood, Doing Business under the Name of 53rd Street Subway Liquor Store, Respondent, v. John M. O’Grady, Individually and as President of Wine and Liquor Store Employees Union, Local 122, A. F. of L., et al., Appellants.
    Submitted January 3, 1955;
    decided January 13, 1955.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 307 N. Y. 532.]


text:
    In the Matter of Gutwirth & Errante Homes, Inc., Appellant. City of New York, Respondent.
    Argued January 6, 1955;
    decided January 20, 1955.

      Emanuel TJiebner, William R. Meagher and Martin J. McLaughlin for appellant.

      Robert D. Joyce, Harry E. O’Donnell and Benjamin Offner for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Yoorhis, JJ. Taking no part: Burke, J.


text:
    Ludwig Mueller, an Infant, by His Guardian ad Litem, Paul Mueller, et al., Respondents, v. Rockaway News Supply Co., Inc., Appellant, et al., Defendant.
    Argued January 4, 1955;
    decided January 20, 1955.

      Frank J. Horan for appellant.

      Isadore B. Hurwits for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of William H. Cordes, Appellant, against James G. Moore et al., Constituting the Board of Zoning Appeals of the Incorporated Village of Garden City, Respondents.
    Argued January 3, 1955;
    decided January 20, 1955.

      Ferdinand I. Haber and Joseph H. Washerman for appellant.

      George L. Hubbell, Jr., and Edward J. Walsh, Jr., for respondents.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Construction of the Will of James A. Forsch, Deceased. Esther Kirschner, as Ancillary Executrix of David M. Kirschner, Deceased, Appellant-Respondent; Milton M. Siegel et al., as Executors of James A. Forsch, Deceased, Respondents-Appellants, and New York University, Respondent.
    Argued January 5, 1955;
    decided January 20, 1955.

      Martin J. Kelly, Jr., and Henry J. Robinson, Jr., for appellant-respondent.

      Morton L. Deitch, Julius H. Sherman and Roger S. Kuhn for respondents-appellants.

      Winthrop A. Short and W. Randolph Montgomery for respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    Richard A. Hungerford et al., Respondents, v. Ocean Gardens, Inc., Appellant, and Alfred T. Davison et al., Respondents.
    Argued January 3, 1955;
    decided January 20, 1955.

      Herbert Schrank and James 8. Phair for appellant.

      Walter J. A. Mack for Richard A. Hungerford and others, respondents.

      Alfred T. Davison, respondent in person and for Nellie F. Davison and others, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Mollie Eagle, Appellant, v. Benjamin Cherney et al., Respondents.
    Submitted January 10, 1955;
    decided January 20, 1955.
   Motion for reargument denied, with $10 costs. [See 294 N. Y. 818.]


text:
    Anna M. Elgar, Appellant, v. S. H. Kress & Co., Respondent.
    Submitted January 3, 1955;
    decided January 20, 1955.

      Charles F. Houghton for motion.

      Sidney S. Levine opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days appellant serves and files an undertaking on appeal and pays $10 costs and within twenty days files the return, in which events motion denied.


text:
    In the Matter of the Arbitration between American Rail & Steel Co., Appellant, and India Supply Mission (Government of India), Respondent.
    Submitted January 17, 1955;
    decided January 20, 1955.

      Howard Hilton Spellman for motion.

      Milton E. Canter opposed.
   Motion denied. Appellant directed to serve and file a brief, if any, on or before February 1,1955. Case set down for argument during the February, 1955, session of the Court of Appeals (County of Erie v. Continental Cas. Co., 295 N. Y. 690).


text:
    The People of the State of New York, Respondent, v. Romulo Rosario, Appellant.
    Submitted January 17, 1955;
    decided January 20, 1955.
   Motion to amend the remittitur denied. [See 308 N. Y. 723.]


text:
    In the Matter of Michael F. O’Day, Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Argued January 10, 1955;
    decided January 21, 1955.

      Alvin McKinley Sylvester, Philip Wilens and Emanuel D. Black for appellants.

      Solomon E. Friesner and Nathaniel Kaplan for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fboessel and Van Voobhis, JJ. Fuld, J., dissents and votes to reverse and to reinstate the determination of the State Liquor Authority. Taking no part: Bubke, J.


text:
    Gertrude M. Jones, Appellant, v. Massachusetts Mutual Life Insurance Company, Respondent.
    Submitted January 3, 1955;
    decided January 21, 1955.

      William H. Morris for motion.

      W. Martin Jones, Jr., opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Submitted January 21, 1955;
    decided January 21, 1955.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted. [See 303 N. Y. 856; 306 N. Y. 867; 307 N. Y. 253; 308 N. Y. 747.]


text:
    Hugh K. Bennett et al., Respondents, v. Irving Trust Company, Appellant.
    Submitted February 21, 1955;
    decided February 22, 1955.

      Arnold L. Fein for motion.
    No one opposed.
   Motion to dismiss appeal or, in the alternative, for an order precluding appellant from filing a brief denied and case set down for argument during the second week of the February, 1955, session of the Court of Appeals.


text:
    Pietro Colello, Respondent, v. T. J. Stevenson & Co., Inc., et al, Defendants, and Kane Ship Repair Corp., Appellant and Third-Party Plaintiff-Appellant. Stuart Marine Painting Corp., Third-Party Defendant-Respondent.
    Submitted February 21, 1955;
    decided February 22, 1955.

      Samuel Spevach for motion.

      Mach Kreindler opposed.
   Motion to dismiss appeal denied and case set down for argument during the third week of the February, 1955, session of the Court of Appeals.


text:
    Anna M. Elgar, Appellant, v. S. H. Kress & Co., Respondent.
    Submitted February 21, 1955;
    decided February 22, 1955.

      Sidney S. Levine for motion.

      Charles F. Houghton opposed.
   Motion for order vacating order of this court dated February 9,1955, dismissing the appeal herein granted upon payment by the movant of $10 costs of motion to respondent and provided that the record on appeal and briefs be filed on or before February 28, 1955, and case set down for argument during the third week of the February, 1955, session of the Court of Appeals.


text:
    In the Matter of Roy Brenner, Appellant, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Respondents.
    Submitted February 21, 1955;
    decided February 22, 1955.

      Alvin McKinley Sylvester and Robert W. Corcoran for motion.

      Monroe I. Katcher, II, opposed.
   Motion to preclude appellant from serving and filing a brief on the appeal herein denied and case set down for argument during the third week of the February, 1955, session of the Court of Appeals.


text:
    In the Matter of Hal C. Moore, Appellant, against James R. Macduff, as Commissioner of Motor Vehicles of the State of New York, Respondent.
    Submitted February 21, 1955;
    decided February 22, 1955.

      Jacob K. Javits, Attorney-General (Philip J. Fitzgerald of counsel), for motion.

      George N. Meyl opposed.
   Motion to dismiss appeal denied and case set down for argument during the third week of the February, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Joseph C. Workman, Appellant.
    Submitted January 17, 1955;
    decided February 22, 1955.
   Motion for reargument and to amend the remittitur denied. [See 308 N. Y. 668.]


text:
    1201 Sixth Ave. Corp., Appellant, v. Altor Grill & Restaurant, Inc., Respondent.
    Argued January 11, 1955;
    decided February 24, 1955.

      Herbert J. Wallenstein for appellant.

      Harry Simon, Jerome 1. Hyman and Jacob Mar an for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of Canada Dry Bottling Company of Endicott, Inc., Respondent, v. John F. O’Connell et al., Constituting the New York State Liquor Authority, Appellants.
    Argued January 10, 1955;
    decided February 24, 1955.

      Alvin McKinley Sylvester and Robert W. Corcoran for appellants.

      Israel Margolis for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Betty Bowman, Respondent, v. Great Atlantic & Pacific Tea Company, Appellant.
    Argued January 10, 1955;
    decided February 24, 1955.

      Arthur VD. Chamberlain for appellant.

      John J. Nicit for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fxjld, Froessel, Van Voorhis and Burke, JJ,


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for Bronx River Expressway and Other Improvements, in the Borough of The Bronx. Lion Brewery of New York City, Respondent; Banner Oil Company, Appellant.
    Argued January 10, 1955;
    decided February 24, 1955.

      Nathan L. Goldstein and Joseph Z. Goldstein for appellant.

      Charles Lamb and Loretta A. Conway for Lion Brewery of New York City, respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld and Feoessel, JJ. Taking no part: Van Voorhis and Burke, JJ.


text:
    Alfred T. Manacher, Appellant, v. Central Coal Co., Inc., et al., Respondents, et al., Defendant.
    Argued January 10, 1955;
    decided February 24, 1955.

      Samuel Gottlieb and Harry Giesow for appellant.

      Eli Whitney Debevoise, Abraham Wilson and Michael H. Goff for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    In the Matter of the Arbitration between Famous Realty, Inc., Appellant, and William Savage, Inc., Respondent.
    Argued January 11, 1955;
    decided February 24, 1955.

      Walter Lubarshy, Joseph S. Wohl and Robert A. Morse for appellant.

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

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Max N. Lipetz, Appellant-Respondent, v. Albert J. Papish, Respondent-Appellant.
    Argued January 5, 1955;
    decided February 24, 1955.

      Gordon M. Lipets for appellant-respondent.

      Louis Cohen and Solomon Raffe for respondent-appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Yoobhis and Burke, JJ.


text:
    In the Matter of the Arbitration between Joseph Katz, Respondent-Appellant, and Benjamin Burkin, Appellant-Respondent. (Proceeding No. 1.) In the Matter of the Arbitration between Joseph Katz, Respondent, and Benjamin Burkin et al., Appellants. (Proceeding No. 2.)
    Argued January 7, 1955;
    decided February 24, 1955.

      Abraham Kaplan for appellant-respondent and appellants.

      Irving Levine for respondent-appellant and respondent.
   Order affirmed, without costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    M. I. Bernett, Inc., Respondent, v. Robert G. Bossert et al., Appellants.
    Submitted January 13, 1955;
    decided February 28, 1955.

      Milton Silver for appellants.

      George Horowits and Asreal A. Alpern for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    The People of the State of New York, Appellant, v. David Hyman and Harold Brinn, Respondents.
    Argued January 10, 1955;
    decided February 28, 1955.

      Walter E. Dillon and Louis Feldman for appellant.

      Abraham J. Gellinoff for respondents.
   Order affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fbobssel, Van Voobhis and Bubke, JJ.


text:
    In the Matter of the Construction of the Will of Cora E. Lewis, Deceased. The People of the State of New York et al., Respondents; Nellie S. Ploger et al., Appellants.
    Argued January 7, 1955;
    decided February 28, 1955.

      Edward B. Horning for appellants.

      Edward B. Horning and Herman Lavery, in person, for Herman Lavery, special guardian for unknown distributees.

      Michael P. Geraci, Wendell P. Brown and Matthew A. Tiffany for People of the State of New York, respondent.

      Curtis 8. Bates, respondent in person.
   Decree of Surrogate’s Court affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    The People of the State of New York ex rel. 711 Corporation, Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents. [1400 Grand Concourse, Borough of The Bronx.]
    Submitted January 13, 1955;
    decided February 28, 1955.

      Sidney S. Levine for appellant.

      Leo A. LarTcin, Acting Corporation Counsel (Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis and Burke, JJ.


text:
    Town of Somers, Respondent, v. Edwin B. Covey, as Committee of the Person and Property of Nora Brainard, an Incompetent, Appellant.
    Argued January 12, 1955;
    decided February 28, 1955.

      Adolph I. King and Samuel M. Sprafhin for appellant.

      Marry M. Chambers and Stanley E. Anderson for respondent.
   Order affirmed, without costs. Question certified answered in the affirmative. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Margaret F. Eckerson, Appellant, v. Lowell B. Eckerson, Respondent.
    Argued January 12, 1955;
    decided February 28, 1955.

      Henry B. Selkowe and Irvin L. Lubar for appellant.

      Robert L. Callahan and Peter P. Smith for respondent.
   Judgment affirmed, withoifi costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Frobssel, Van Voorhis and Burke, JJ.


text:
    Ethel L. Jamison, as Administratrix of the Estate of Matthew Jamison, Deceased, Respondent-Appellant, v. Henry F. Raab, Inc., Appellant, and General Electric Company, Respondent. Henry F. Raab, Inc., Third-Party Plaintiff-Appellant, v. Augustus V. Riegel, Inc., Third-Party Defendant-Respondent. John A. Harris, Respondent-Appellant, v. Henry F. Raab, Inc., Appellant, and General Electric Company, Respondent. Henry F. Raab, Inc., Third-Party Plaintiff-Appellant, v. Augustus V. Riegel, Inc., Third-Party Defendant-Respondent. General Electric Company, Third-Party Plaintiff, v. Augustus V. Riegel, Inc., Third-Party Defendant.
    Argued January 4, 1955;
    decided February 28, 1955.

      Frederick P. Close and Arthur F. Gaynor for Henry F. Raab, Inc., appellant and third-party plaintiff-appellant.

      Joseph G. Blum, Michael F. Mayer and Eugene N. Aleinikoff for Ethel L. Jamison, respondent-appellant.

      Sidney J. Loeb and Alfred Sobol for General Electric Company, respondent and third-party plaintiff.

      Daniel Danziger and Sidney Einhorn for John A. Harris, respondent-appellant.

      William T. Gallagher for Augustus V. Riegel, Inc., third-party defendant-respondent and third-party defendant.
   Judgment affirmed, without costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Michael Kelly, Appellant, v. Otis Elevator Company, Respondent and Third-Party Plaintiff-Respondent. Barlow-Meagher Co., Inc., Third-Party Defendant-Appellant.
    Argued January 11, 1955;
    decided February 28, 1955.

      Robert R. Bauman and Amadeus J. Ward for appellant.

      William F. McNulty for respondent and third-party plaintiff-respondent.

      Jerome Teich for third-party defendant-appellant.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Arbitration between Associated Metals & Minerals Corporation, Respondent, and Fahrunissa Ogelman et al., Appellants.
    Argued January 6, 1955;
    decided February 28, 1955.

      Mahlon B. Doing and Joseph A. McManus for appellants.

      Joseph G. Slaughter, Arthur B. Hyman and Robert R. Slaughter for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Cameron Estates, Inc., Appellant-Respondent, v. George T. Deering et al., Defendants; Mary Stegmaier et al., Appellants, and County of Suffolk, Respondent.
    Submitted February 21, 1955;
    decided February 28, 1955.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 308 N. Y. 24.]


text:
    John Feeney, as Administrator of the Estate of Frank Feeney, Deceased, Appellant, v. Socony-Vacuum Oil Company, Incorporated, Respondent.
    Submitted February 28, 1955;
    decided February 28, 1955.

      Wilbur G. Silverman, Bertram J. Bembo, Jacob Rassner and Samuel Goldstein, for plaintiff.

      Herbert G. Smyth for defendant.
   Application granted and appeal dismissed, without costs.


text:
    Amanda Flamer, as Administratrix of the Estate of Thomas F. Wilson, Deceased, Appellant, v. City of Yonkers et al., Respondents.
    Submitted February 21, 1955;
    decided February 28, 1955.

      David Avstreih and Howard Rulceyser for motion.

      J. Raymond Hannon opposed.
   Motion granted.


text:
    In the Matter of Guardian Life Insurance Company of America, Appellant, against Alfred J. Bohlinger, as Superintendent of Insurance of the State of New York, Respondent.
    Submitted February 21, 1955;
    decided February 28, 1955.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 308 N. Y. 174.]


text:
    In the Matter of George J. B. Weiss, Appellant, against Board of Regents of the University of the State of New York, Respondent.
    Submitted February 21, 1955;
    decided February 28, 1955.

      Jacob K. Javits, Attorney-General (Henry 8. Manley of counsel), for motion.

      Archibald Palmer opposed.
   Motion to dismiss appeal granted and appeal dismissed upon the ground that no substantial constitutional question is presented.


text:
    Elizabeth Meiners, Respondent, v. Harry R. Chinigo, Appellant.
    Submitted February 21, 1955;
    decided February 28, 1955.

      Edward J. Speno for motion.
    No one opposed.
   Motion granted and appeal dismissed upon the ground that no judgment has been entered upon the order of the Appellate Division and the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Henry Heimowitz, Now Known as Henry Hymes, Appellant.
    Submitted February 21, 1955;
    decided February 28, 1955.

      Henry Heimowitz, in person, for motion.
    No one opposed.
   Motion granted and Edward T. Boyle, Esq., 210 Metcalf Building, Auburn, New York, assigned as counsel to defendant on the appeal herein.


text:
    Gussie Perlmutter, Respondent, v. Beth David Hospital, Appellant and Third-Party Plaintiff. Blood Transfusion Association, Third-Party Defendant.
    Submitted February 21, 1955;
    decided February 28, 1955.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 308 N. Y. 100.]


text:
    Henry L. Pope, as Administrator of the Estate of Evelyn M. Pope, Deceased, Appellant, v. State of New York, Respondent
    (Claim No. 30718.)
    Argued January 18, 1955;
    decided March 3, 1955.

      Henry William Koch and Theodore M. Coburn for appellant.

      Jacob K. Javits, Attorney-General (Lawrence H. Wagner and Henry 8. Manley of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the City of New York, Acting on Behalf of the New York City Housing Authority, Respondent, Relative to Acquiring Title to Real Property Bounded by Seward Avenue and Other Streets in the Borough of The Bronx, Selected as a Site for Sound View Houses. A. F. & G. Realty Corp. et al., Appellants.
    Argued January 17, 1955;
    decided March 3, 1955.

      Bernard L. Bermant for A. F. & Gf. Realty Corp., appellant.

      Milton H. Harris, Harry E. O’Donnell and Benjamin Offner for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Taking no part: Burke, JJ.


text:
    Utica Mutual Insurance Company, Individually and on Behalf of Joseph Weiss, Appellant, v. Amsterdam Color Works, Inc., Respondent, et al., Defendants.
    Argued January 12, 1955;
    decided March 3, 1955.

      Jacob D. Fuchsberg and B. Hoffman Miller for appellant.

      Benjamin H. Siff, Frederick Mellor and John Tullman. for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Desmond, Dye, Froessel, Van Voorhis and Burke, JJ. Conway, Ch. J., and Fuld, J., dissent and vote to reverse and to grant a new trial upon the ground that the record presents a question of fact for the jury as to contributory negligence.


text:
    Long Island Land Research Bureau, Inc., Respondent, v. Town of Hempstead, Appellant.
    Argued January 20, 1955;
    decided March 3, 1955.

      John A. Morhous, Town Attorney (Harriette B. Norris of counsel), for appellant.

      Mildred McGinity for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conwat, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    Harry Waller, Respondent, v. City of New York, Appellant.
    Argued January 17, 1955;
    decided March 3, 1955.

      Alfred Weinstein and Seymour B. Quel for appellant.

      Ben M. Selbst for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Taking no part: Burke, J.


text:
    Daniel T. Mallett et al., Appellants, v. Village of Mamaroneck et al., Respondents.
    Argued January 18, 1955;
    decided March 3, 1955.

      George E. Klein for appellants.

      Anthony Sansone for Village of Mamaroneck and others, respondents.

      Charles C. Peters and Wesley S. Sawyer for Stuart Close, Inc., respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voobhis and Burke, JJ.


text:
    The People of the State of New York ex rel. Arthur G. Marsh, Respondent, against Walter B. Martin, as Warden of Attica State Prison, Appellant.
    Argued January 14, 1955;
    decided March 3, 1955.

      J. Bruce MacDonald and Raymond B. Madden for appellant.

      James R. Gannon and Arthur G. Marsh, in person, for Arthur Gr. Marsh, respondent.
   Order affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    The People of the State of New York, Respondent, v. Edward Walker, Appellant.
    Argued January 18, 1955;
    decided March 3, 1955.

      Arthur E. Kirchheimer for appellant.

      Theodore M. Coburn, District Attorney (Charles W. Avery of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    The People of the State of New York, Respondent, v. Frederick W. Roberts, Appellant. The People of the State of New York, Respondent, v. John S. Bicknell, Appellant. The People of the State of New York, Respondent, v. Frederick M. Norton, Appellant.
    Argued January 18, 1955;
    decided March 3, 1955.

      Arthur E. Kirchheimer for appellants.

      Arthur W. Wilson, District Attorney (Rocco Regitano of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fold, Froessel, Van Vookhis and Burke, JJ.


text:
    In the Matter of Salvatore Cannizzaro et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, et al., Respondents.
    Argued January 17, 1955;
    decided March 3, 1955.

      A. Bernard King for appellants.

      Anthony Gurreri and Seymour B. Quel for respondents.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Taking no part: Burke, J.


text:
    Freda K. Berger, Appellant, v. City of New York et al., Respondents.
    Argued January 13, 1955;
    decided March 3, 1955.

      Isidore Ginsberg for appellant.

      Leo A. Larkin, Acting Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for respondents.
   Judgment affirmed, with costs, without prejudice to plaintiff’s taking such appropriate action as she may be advised in connection with set-back and area restrictions as to a conforming use. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld and Van Voorhis, JJ. Taking no part: Froessel and Burke, JJ.


text:
    Mollie Eagle, Appellant, v. Benjamin Cherney et al., Respondents.
    Submitted February 28, 1955;
    decided March 3, 1955.
   Motion for reargument denied. [See 294 N. Y. 818.]


text:
    Susan Goldner, Appellant, v. Hanus Goldner, Respondent.
    Submitted February 28, 1955;
    decided March 3, 1955.

      Louis B. Fruthin and Herbert Fruthin for motion.

      Sidney Roffman opposed.
   Motion dismissed insofar as it seeks leave to appeal from that part of the order of the Appellate Division denying a motion to punish for contempt, upon the ground that said part of said order does not finally determine the action within the meaning of the Constitution; insofar as it seeks leave to appeal from that part of the order of the Appellate Division granting the motion to amend the final decree of separation, this motion is denied upon the ground that the appeal lies as of right.


text:
    In the Matter of the Probate of the Will of Clarence A. Barnes, Deceased. Alice Keisinger et al., Appellants; Joseph De Santo et al., as Executors of Clarence A. Barnes, Deceased, Respondents.
    Submitted February 28, 1955;
    decided March 3, 1955.

      Philip L. Zenner for motion.

      John G. Carmer, Jr., and John W. Miles opposed.
   Motion dismissed upon the ground that the order does not finally determine a special proceeding within the meaning of the Constitution.


text:
    In the Matter of Frank Del Vecchio et al., Appellants, against T. Douglas Tuomey et al., Constituting the Board of Appeals of the Village of Brightwaters, Respondents.
    Submitted February 21, 1955;
    decided March 3, 1955.
   Motion for reargument denied. [See 308 N. Y. 749.]


text:
    Silvia Muscillo, Respondent, v. Helen Muscillo et al., as Temporary Administrators of the Estate of Severino Muscillo, Deceased, et al., Appellants.
    Submitted February 21, 1955;
    decided March 3, 1955.
   Motion to amend remittitur granted and remittitur amended so as to grant costs of the appeal in the Court of Appeals to plaintiff-respondent. [See 308 N. Y. 675.]


text:
    The People of the State of New York, Respondent, v. Edward A. Boehm and Fritz Boehm, Appellants.
    Submitted February 28, 1955;
    decided March 3, 1955.

      Edward A. Boehm and Frits Boehm, in person, for motion.
    No one opposed.
   Motion to have appeal heard upon original record and typewritten briefs and for assignment of counsel granted and William H. McKeon, Esq., 401 Metcalf Building, Auburn, New York, assigned as counsel to defendants on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Robert Harms, Appellant.
    Submitted February 28, 1955;
    decided March 3, 1955.
   Motion for reargument or, in the alternative, for clarification of the opinions denied. [See 308 N. Y. 35.]


text:
    Craig Rice-Bishop, Respondent, v. St. Nicholas Sports Arena, Inc., Appellant, et al., Defendants.
    Submitted February 28, 1955;
    decided March 3, 1955.

      Sidney N. Zipser for motion.

      Leon G. Garlen, Jacob D. Fuchsberg and Hannibal Milan® opposed.
   Motion dismissed upon the ground that the order does-not finally determine the action within the meaning of the Constitution.


text:
    Benjamin Marshall, Appellant, v. City of New York et al., Respondents.
    Argued January 20, 1955;
    decided March 10, 1955.

      Eugene J. Morris, Gustave G. Rosenberg, Leon Himmelfarbe and Albert J. Rosenthal for appellant.

      Leo A. Larkin, Acting Corporation Counsel (Robert E. Hugh and Seymour B, Quel of counsel), for City of New York, respondent.

      James 1. Cuff, William J. Kenney, Lillian E. ,Cuff and Hobart R. Marvin for Standard Water Proofing Corporation, respondent.
   Judgment affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Taking no part: Burke, J.


text:
    In the Matter of Anker Tjersland et al., Respondents, against Paul P. Brennan et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.
    Argued January 17, 1955;
    decided March 10, 1955.

      Leo A. Larkin, Acting Corporation Counsel (Pauline K. Berger and Seymour B. Quel of counsel), for appellants.

      Joseph Patrick Acer for respondents.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Taking no part: Burke, J.


text:
    Rudolph Weiss, Doing Business under the Name of Beverly Pharmacy, Respondent, v. Irving Maidman, Doing Business as Beverly Hotel, Appellant.
    Argued January 13, 1955;
    decided March 10, 1955.

      Harry J. Halperin and Alexander S. Natanson for appellant.

      FranJc A. Frits, Arthur P. West, Cyril Crimmins and Joseph Feinstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Claim of May Yarkum, Appellant, against Rosenblum and Weller et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued January 20, 1955;
    decided March 10, 1955.

      Frank Scheiner for appellant.

      Samuel Schub and Milton Pfejfer for Rosenblum and Weller and another, respondents.
   Order of Appellate Division reversed and award of the Workmen’s Compensation Board reinstated, with costs in this court and in the Appellate Division upon the ground that there is substantial evidence to support the award. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld and Froessel, JJ. Van Voorhis and Burke, JJ., dissent and vote to affirm upon the opinion of the Appellate Division.


text:
    Crouse Irving Hospital, Appellant-Respondent, v. City of Syracuse, Appellant, and County of Onondaga, Respondent.
    Argued February 21, 1955;
    decided March 10, 1955.

      George T. Driscoll, Corporation Counsel (Robert J. Cooney, Jr., of counsel), for appellant.

      Philip C. Wood for appellant-respondent.

      Julian W. Edgcomb, County Attorney (Eli Gingold of counsel), fpr County of Onondaga, respondent.
   Judgment affirmed, with costs. Question certified not answered. Appeals taken by the City of Syracuse and Crouse Irving Hospital, as of right, from the order of the Appellate Division, dismissed. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Joan M. Quigley, as Administratrix of the Estate of Charles J. Quigley, Deceased, Appellant, v. State of New York, Respondent. Joan M. Quigley, Appellant, v. State of New York, Respondent.
    (Claim No. 30521.)
    (Claim No. 30522.)
    Argued January 14, 1955;
    decided March 10, 1955.

      John W. Tabner and Nathan M. Medwin for appellant.

      Jacob K. Javits, Attorney-General (John B. Davison and Henry S. Manley of counsel), for respondent.
   In each action: Judgment affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fund, Frobssel, Van Voorhis and Burke, JJ.


text:
    Benjamin A. Cohen, Doing Business under the Name of Beunswick Mills, Respondent, v. Echavarria, Cabo & Cia, Ltda., Appellant.
    Argued January 5, 1955;
    decided March 10, 1955.

      Charles C. Parlin, Jr., for appellant.

      Julian Liberman for respondent.
   On appeal from judgment: Judgment affirmed, with costs; no opinion.

On appeal from order: Appeal dismissed for nonfinality; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Henry Des Fosses et al., Respondents, v. Santuccio Rastelli et al., Appellants.
    Argued January 5, 1955;
    decided March 10, 1955.

      Harvey E. Kates for appellants.

      Guy 0. Walser and Richard W. Walser for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    The People of the State of New York, Respondent, v. Mary Teeter, Appellant.
    Submitted January 18, 1955;
    decided March 10, 1955.

      Anthony G. D’Amanda for appellant.

      Harry L. Rosenthal, District Attorney (Leon N. Armer of counsel), for respondent.
   Per Curiam.

Defendant was convicted after a trial without a jury of the crime of endangering the morals of a minor in violation of subdivision 2 of section 483 of the Penal Law. The prosecution alleged that defendant permitted and assisted a man to have intercourse with her sixteen-year-old daughter.

Two police officers testified to a confession which the defendant made to them. Apart from the testimony establishing the confession, the only other proof of the crime in the record consists of the testimony of two other police officers who testified as to statements made to them by the daughter. This was hearsay and inadmissible and to which objection was properly made.

The testimony of defendant’s confession, standing alone, is ‘‘ not sufficient to warrant [her] conviction, without additional proof that the crime charged has been committed. ’’ (Code Crim. Pro., § 395; People v. Cuozzo, 292 N. Y. 85 [1944].) The complaining witness was not interrogated concerning the occurrence.

The judgments should be reversed and a new trial ordered.

Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke, JJ., concur.

Judgments reversed, etc.


text:
    David Miller, Appellant-Respondent, v. Greyvan Lines, Inc., Appellant; E. F. Daley, Inc., Respondent, et al., Defendants.
    Argued February 22, 1955;
    decided March 10, 1955.

      John E. Leach, Jacob S. Linett and J. Edmund Kelly for appellant.

      William H. Eepp and Edward E. Kavinolcy for appellant-respondent.

      Leland G. Davis for respondent.
   Judgment affirmed, with costs to plaintiff Miller against defendant Greyvan Lines, Inc., and to defendant Daley against plaintiff Miller. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Niagara Junction Railway Company, Appellant, v. Erie Railroad Company, Respondent.
    Argued January 21, 1955;
    decided March 10, 1955.

      Lauman Martin, James O’Malley, Jr., and Halcyon G. Skinner for appellant.

      William G. Conable and Albert K. Hill for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Fuld, Froessel, Van Voorhis and Burke, J J. Taking no part: Dye, J.


text:
    Dorothy Barrell, Appellant, et al., Plaintiff, v. Lammerts, Inc., et al., Respondents.
    Submitted February 28, 1955;
    decided March 10, 1955.

      Joseph 8 per ama for motion.

      Wallace H. Miller opposed.
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    Mabel E. McLean, Appellant, v. William McKinley, Respondent.
    Submitted March 7, 1955;
    decided March 10, 1955.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 307 N. Y. 920.]


text:
    Raymond F. Roll, Jr., as Trustee in Bankruptcy of Fago Construction Corporation, Respondent, v. Anthony Fago et al., Doing Business as Fago Bros. Contracting Co., Appellants.
    Submitted February 28, 1955;
    decided March 10, 1955.

      Hyman Karnofshy and Maurice Frey for motion.

      Edward H. Wolhind and William R. Emblidge opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements, upon the ground that neither the order nor judgment finally determines the action within the meaning of the Constitution.


text:
    Sydney J. Wood, Doing Business under the Name of 53rd Street Subway Liquor Store, Respondent, v. John M. O’Grady, Individually and as President of Wine and Liquor Store Employees Union, Local 122, A. F. of L., et al., Appellants.
    Submitted February 21, 1955;
    decided March 10, 1955.
   Motion for reargument or, in the alternative, to amend the remittitur denied. [See 307 N. Y. 532.]


text:
    The People of the State of New York ex rel. Lawrence I. Lynch, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent.
    Argued February 28, 1955;
    decided March 11, 1955.

      Edward T. Dunleavy for appellant.

      Jacob K. Javits, Attorney-General (William 8. Elder, Jr., and Henry 8. Manley of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Yoorhis and Burice, JJ.


text:
    Bennet Gordon, Appellant-Respondent, v. Helen Mazur et al., Individually and as Trustees, Respondents-Appellants.
    Argued February 24, 1955;
    decided March 11, 1955.

      Abraham Wilson and Harold N. Sclnvinger for appellant-respondent.

      Samuel Gottlieb and Harry Giesow for respondents-appellants.
   Judgment affirmed, without costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    The People of the State of New York, Respondent, v. Leonardo Salemi, Appellant.
    Argued February 25, 1955;
    decided March 11, 1955.

      Jacob Shientag and Rudolph Stand for appellant.

      Frank S. Hogan, District Attorney (Charles W. Manning and Richard G. Denser of counsel), for respondent.
   Order affirmed, upon the ground that coram nobis does not lie. This determination is made without prejudice to an application for a new trial in respect to the dying declaration. No opinion.

Concur: Conway, Ch. J., Dye, Fulo, Froessel and Burke, JJ. Desmond and Van Voorhis, JJ., dissent upon the ground that they are of the opinion that coram nobis should lie under these circumstances in a capital case.


text:
    In the Matter of Coplin Yaras, Appellant. City of Albany, Respondent.
    Argued February 25, 1955;
    decided March 11, 1955.

      Ernest B. Morris for appellant.

      Harold E. Koreman, Corporation Counsel (Samuel Jacobs of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    The People of the State of New York, Respondent, v. Hyman Kronick, Alias Kenneth Meyer, Alias James Rawlins, Alias Kenneth Ley, Alias Kenneth Hunding, Alias Kenneth Hundred, Alias Wolcott Wright, Appellant.
    Argued March 3, 1955;
    decided March 11, 1955.

      Francis G. Leffler for appellant.

      Joseph F. Gagliardi, District Attorney (Leonard Bubenfeld of counsel), for respondent.
   Orders reversed and matter remitted to the County Court, Westchester County, with direction to vacate and set aside the sentence imposed upon defendant as a fourth felony offender by that court on May 29, 1950, and to dismiss as a basis for multiple offender treatment previous convictions had in the State of Maryland in 1933 for violations of the Code of Public General Laws, 1924 (art. 27, § 36), and in the State of Delaware in 1938 for violation of chapter 150 of the Revised Code of Delaware, 1935 (§ 5192), and to resentence the defendant as a second felony offender (Penal Law, § 1941). It appears that the crimes for which those convictions were had, as defined by the respective statutes of those States, would not be felonies if committed in New York (Penal Law, §§ 402, 403, 404, 405; People ex rel. Marsh v. Martin, 284 App. Div. 156, affd. 308 N. Y. 823; People v. Olah, 300 N. Y. 96). No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of Fiesta Realty Corp., Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent, and Eusmelis Santiago et al., Interveners-Respondents.
    Argued January 19, 1955;
    decided March 11, 1955.

      George B. Tepper for appellant.

      Beatrice Shainswit and Hortense W. Gabel for State Rent Administrator, respondent.

      John W. Williams and Harry Wallach for intervenersrespondents.
   Order reversed and petition dismissed, without costs, upon the ground that the order of remand by the State Rent Administrator to the local rent administrator to fix maximum rent did not finally determine the rights of the parties, and that whether this building is subject to rent control cannot be reviewed under these circumstances until a maximum rent has been fixed (Civ. Prac. Act, § 1285, subd. 3; L. 1946, ch. 274, § 9, subd. 1, as amd. by L. 1951, ch. 443). No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Jacob Keur, Individually and Doing Business under the Name of C. Keur & Sons, Appellant, v. Prominent Bulb Company et al., Respondents, et al., Defendants.
    Argued February 22, 1955;
    decided March 11, 1955.

      George A. Burrell for appellant.

      Joseph M. Paley for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Sam Dicenzo, as Administrator of the Estate of Albert Dicenzo, Deceased, Appellant, v. New York Shovel & Crane Corp., Respondent, et al., Defendant.
    Argued February 25, 1955;
    decided March 11, 1955.

      Arthur Karger, Milton'Boxer and Harry H. Lipsig for appellant.

      Samuel Gottesman and Harold H. Wolgel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Froessel, Van Voobhis and Burke, JJ. Taking no part: Fuld, J.


text:
    Charles Smithling, as Administrator of the Estate of Henry Smithling, Deceased, Appellant, v. Simon Goldman, as Executor of Isaac Goldman, Deceased, Respondent.
    Argued February 25, 1955;
    decided March 11, 1955.

      Warner M. BoucJc and Samuel M. Hesson for appellant.

      Daniel Scanlon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Accounting of George W. Fischer, as Executor of Virginius B. Hirst, Deceased, Respondent. Harriet E. Hirst, Appellant; Leonard Farbstein, as Substituted Special Guardian for Jane Hirst and Others, Infants, Respondents.
    Argued March 1, 1955;
    decided March 11, 1955.

      Douglas M. Amann and Jacob P. Howard for appellant.

      Donald M. Harris, Lean Schaeffer and Charles M. Arah for George W. Fischer, respondent.

      Leonard Farbstein, special guardian for Jane Hirst and others, infants, respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate; no opinion.

Concur: Conwat, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of Gerard E. Connors et al., Respondents, against Jasper P. Messina et al., Appellants. [Peoples Party.] In the Matter of Gerard E. Connors et al., Respondents, against Jasper P. Messina et al., Appellants. [Clean Government Party.]
    Argued March 10, 1955;
    decided March 11, 1955.

      Joseph A. Suossi for appellants.

      Jacob J. Pincus and David Holman for respondents.
   In each proceeding: Order affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Claims of Richard E. Lasher et al., Claimants, and Wallace Oakes et al., Respondents. Edward Corsi. as Industrial Commissioner, Appellant.
    Argued February 25, 1955;
    decided March 11, 1955.

      Jacob K. Javits, Attorney-General (Francis R. Curran and Henry 8. Manley of counsel), for Edward Corsi, Industrial Commissioner, appellant.
    No appearance for respondents.
   Order affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Fboessel, Van Vooehis and Bubke, JJ.


text:
    In the Matter of John P. Crane, Appellant, against George P. Monaghan, as Fire Commissioner of the Fire Department of the City of New York, et al., Respondents.
    Argued February 24, 1955;
    decided March 11, 1955.

      Daniel P. A. Sweeney and Irving A. Silverman for appellant.

      Leo A. Larldn, Acting Corporation Counsel (Victor J. Herivits and Seymour B. Quel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Taking no part: Burke,'J.


text:
    Harry Gilbert, Appellant, v. William J. Van Kleeck, as Administrator of the Estate of Samuel J. Van Kleeck, Deceased, and as Administrator with the Will Annexed of John D. Van Kleeck, Deceased, et al., Defendants, and Crosby-Mertz, Inc., Intervenor-Respondent.
    Submitted March 7, 1955;
    decided March 11, 1955.

      Samuel W. Eager, Jr., for motion.

      John E. Egan opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days appellant serves and files an undertaking on appeal and within twenty days serves and files the record on appeal and pays $10 costs, in which events motion denied and case set down for argument during the April, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Angelo De Angelo, Appellant.
    Submitted March 11, 1955;
    decided March 11, 1955.
   Motion for order vacating order of the Court of Appeals dated January 21, 1954, which dismissed appeal, denied. [See 306 N. Y. 743.]


text:
    The People of the State of New York, Respondent, v. Leonardo Salemi, Appellant.
    Submitted January 17, 1955;
    decided March 11, 1955.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning April 18, 1955, fixed for the execution of the death sentence. [See 306 N. Y. 863.]


text:
    Helen Kriss, Appellant, v. City of New York, Respondent.
    Submitted March 7, 1955;
    decided March 11, 1955.

      Harold M. Leeds for plaintiff-appellant.
    No one opposed.
   Application granted and appeal dismissed, without costs.


text:
    In the Matter of C. David Nash et al., Appellants, against Calvin Van Pelt, as Clerk of the Village of Northport, et al., Respondents.
    Argued March 14, 1955;
    decided March 14, 1955.

      Joseph Fennelly, Jr., Charles W. Root, and Frank J. Mack for appellants.

      Bernard C. Smith, William G. Bushell and Richard J. Graf for respondents.
   Order of the Appellate Division and that of Special Term reversed and nominating petitions for respondents Henry F. Richardson, Gilbert H. Scudder and L. Paul Ahlers for village offices of the Village of Northport, New York, declared invalid and the clerk of the Village of Northport directed to delete the names from the ballot upon the ground that the failure of the signers of the petitions to comply with the provisions of section 138 of the Election Law rendered the petitions invalid. (Matter of Lieblich v. Cohen, 286 N. Y. 559; Matter of McKeever v. Hornidge, 306 N. Y. 876; Matter of Connors v. Messina, 308 N. Y. 877.) No opinion.

Concur: Conway, Ch. J., Dye, Froessel, Van Voorhis, Burke and Cohn, JJ.

       Designated pursuant to section 5 of article YI of the State Constitution in the temporary absence of Desmond and Fuld, JJ.


text:
    In the Matter of Charles P. Cullen, as Treasurer of New York Fire Insurance Rating Organization, et al., Appellants, against Alfred J. Bohlinger, as Superintendent of Insurance of the State of New York, et al., Respondents.
    Submitted April 11, 1955;
    decided April 12, 1955.

      Samuel A. Berger and Robert Fishbein for motion.

      Jacob K. Javits, Attorney-General (Samuel A. Hirshowits of counsel), and Ralph M. Carson opposed.
   Motion for extension of time within which to file return denied. Motion to vacate notice of appeal denied. Upon court’s own motion, appeal taken as of right dismissed on ground that, on this record, no substantial constitutional question has been presented.


text:
    Milton Kashner et al., Appellants, v. Ida Kapilow, Respondent.
    Argued March 1, 1955;
    decided April 14, 1955.

      Anthony J. Siminerio for appellants.

      Joseph D. Stim for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    Pauline L. Baron, Appellant, v. Nathan Schachter, Respondent.
    Argued February 28, 1955;
    decided April 14, 1955.

      Laurence E. Deutsch for appellant.

      Bernard Friedman and Jack Turret for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessbl, Van Voorhis and Burke, JJ.


text:
    Helen Bobbey, as Administratrix of the Estate of Frank Bobbey, Deceased, Respondent, v. Turner Construction Corporation, Defendant, and C. & A. Brenninkmeyer, Inc., Appellant and Third-Party Plaintiff-Appellant. A. Greene Company, Inc., Third-Party Defendant-Respondent.
    Argued January 13, 1955;

    decided April 14, 1955.

      Benjamin E. Siff and William S. O’Connor for appellant and third-party plaintiff-appellant.

      Bernard Meyer son, Max Jackrel and Norman Bard for respondent.

      Raymond C. Green, Bernard Katzen, Earry Scheehter and William E. Stieglitz for third-party defendant-respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Mitchel Valcich, Appellant, v. Depot Warehouse Realty, Inc., Respondent.
    Argued February 28, 1955;
    decided April 14, 1955.

      Albert Adams and George A. Ferris for appellant.

      Paul R. Shaw, Robert A. Siebert and Whilemina Paulus for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Yoorhis and Burke, JJ.


text:
    In the Matter of the Elimination of Grade Crossings of the New York Central Railroad Company in the City of Dunkirk. In the Matter of the Elimination of Grade Crossings of the Erie Railroad Company in the City of Dunkirk. New York Central Railroad Company, Appellant; Public Service Commission et al., Respondents.
    Argued February 28, 1955;
    decided April 14, 1955.

      Gerald E. Dwyer for appellant.

      Kent H. Brown and Joseph J. Doran for Public Service Commission, respondent.

      Jacob K. Javits, Attorney-General (Henry 8. Manley and Edward L. Ryan of counsel), for Superintendent of Public Works of the State of New York, respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    In the Matter of Christopher R. Trimble, as Administrator with the Will Annexed of Mae Malone, Deceased, Respondent, against Police Commissioner of the City of New York et al., Appellants.
    Argued February 23, 1955;
    decided April 14, 1955.

      Peter Campbell Brown, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for appellants.

      Arthur A. Beaudry for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fttld, Froessel and Van Voorhis, JJ. Taking no part: Burke, J.


text:
    Waters of White Lake, Inc., Appellant, v. Charles B. Fricke et al., Respondents.
    Argued March 7, 1955;
    decided April 14, 1955.

      F. Walter Bliss and Benjamin M. Goldstein for appellant.

      Lazarus I. Levine and Leo Salon for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fijld, Froessel, Van Voobhis and Burke, JJ.


text:
    In the Matter of Humbert Malara et al., Appellants, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued February 21, 1955;
    decided April 14, 1955.

      Louis Granat for appellants.

      Norman 8. Fenton and Hortense W. Gabel for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke, JJ.


text:
    Charles Humbeutel et al., Appellants, v. City of New York et al., Respondents, et al., Defendants.
    Argued March 1, 1955;
    decided April 14, 1955.

      Victor Konow, Lester G. Knopping and John U. Scully for appellants.

      Peter Campbell Brown, Corporation Counsel (Morgan N. Lipton, Seymour B. Quel and Victor J. Ilerwitz of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Froessel and Van Yoorhis, JJ. Taking no part: Burke, J.


text:
    Else M. Axelrad, Appellant, v. John Axelrad, Respondent.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Chester A. Lessler for motion.

      William Rosenfeld opposed.
   Motion granted.


text:
    Helen Bergmans, as Administratrix of the Estate of Joseph C. Bergmans, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 31038.)
    Submitted April 11, 1955;
    decided April 14, 1955.

      Philip Korn for motion.
    No one opposed.
   Motion granted.


text:
    Hugh Fox, an Infant, by Agnes O’Rourke, His Guardian ad Litem, et al., Appellants, v. Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children, Respondent.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Julius A. Itzkowitz for motion.
    No one opposed.
   Motion granted and Julius A. Itzkowitz, Esq., 141 Broadway, New York, N. Y., assigned as counsel to plaintiffs on the appeal herein.


text:
    Joseph Gluckman, Appellant, v. Anthony Froehlich et al., Respondents.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Marita A. Kelly for motion.

      Henderson Morrison, Jr., opposed.
   Motion granted and case set down for argument during the May, 1955, session of the Court of Appeals.


text:
    In the Matter of Samuel C. Cohen, Respondent, against Cocoline Products, Inc., et al., Appellants.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Elliot A. Wysor and Leonard S. Halpert for motions.

      Charles Gottlieb opposed.
   Motion for leave to appeal granted.

Motion for stay granted and petitioner stayed from taking any other proceedings herein pending determination of the appeal. Case set down for argument during the week of April 25,1955.


text:
    In the Matter of Mary I. Daniman et al., Appellants, against Board of Education of the City of New York, Respondent. In the Matter of Vera Shlakman et al., Appellants, against Board of Higher Education of the City of New York, Respondent.
    Submitted March 7, 1955;
    decided April 14, 1955.
   Motion to amend remittitur or, in the alternative, to recall and retain remittitur pending decision by the Supreme Court of the United States of Matter of Slochower v. Board of Higher Educ. of City of N. Y., denied. [See 306 N. Y. 532; 307 N. Y. 806.]


text:
    In the Matter of the Accounting of Leona S. Howlett, as Executrix of Harold A. Howlett, Deceased, Appellant. S. J. Reynolds, Respondent.
    Submitted November 15, 1954;
    decided April 14, 1955.
   Motion for extension of time to file return on appeal herein withdrawn. [See 283 App. Div. 991.]


text:
    In the Matter of Abe Klein, Appellant. Samuel A. Larner, Respondent.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Solomon BoshevsTcy for motion for leave to appeal.

      Bertram E. Siegeltuch and Walter M. Weisberg opposed.
   Motion for leave to appeal and for stay granted. Motion to dismiss appeal taken as of right granted and appeal dismissed upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Martin Seiferth, Jr., an Infant, et al., Appellants. William E. Mosher, as Deputy Commissioner of Health for Erie County Health Department, Respondent.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Whitney W. Gilbert for motion.

      Elmer B. Weil, County Attorney (George M. Nelson of counsel), for respondent.
   Motion granted.


text:
    James E. Miller et al., Appellants, v. Edmore Homes Corp., Respondent, et al., Defendant.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Edward G. Wolff for motion.

      Michael Goldberg for defendant-respondent.
   Motion granted.


text:
    J. Vincent O’Shea, Respondent, v. Fort Neck Construction Company, Inc., et al., Appellants, et al., Defendants.
    Submitted April 11, 1955;
    decided April 14, 1955.

      JuMus M. Gersof for motion.

      Lester B. Liphind opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Wallace Brown, Appellant.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Frank A. Jablonka for motion.
    No one opposed.
   Motion granted and case set down for argument during the May, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Submitted March 7, 1955;
    decided April 14, 1955.
   Motion for orders pursuant to section 503 of the Code of Criminal procedure granted. [See 303 N. Y. 856; 306 N. Y. 867; 307 N. Y. 253; 308 N. Y. 747.]


text:
    The People of the State of New York, Respondent, v. Thomas R. Law, Appellant.
    Submitted February 21, 1955;
    decided April 14, 1955.
   Motion for reargument denied. [See 308 N. Y. 658.]


text:
    The People of the State of New York, Respondent, v. John Francis Roche, Appellant.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Abraham J. Gellinoff for motion.

      Frank 8. Hogan, District Attorney, for the People of the State of New York, respondent.
   Motion granted and case set down for argument during the May, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Robert Youkon, Milton Youkon, Nicholas Youkon, Peter Youkon, Dorothy Youkon, Blanche Youkon and Helen Youkon, Appellants.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Jacob W. Friedman for motion.
    No one opposed.
   Motion granted and case set down for argument during the May, 1955, session of the Court of Appeals.


text:
    The People of the State of New York ex rel. Robert K. Epting, Appellant, against Wesley De Voe, as Acting Sheriff of the County of Saratoga, Respondent.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Saul Balmuth for motion.
    No one opposed.
   Motion granted.


text:
    Dessi Williams, Appellant, v. Mervin K. Alexander, Respondent.
    Submitted April 11, 1955;
    decided April 14, 1955.

      Albert Martin Cohen for motion.

      Joseph F. O’Brien opposed.
   Motion granted and Albert Martin Cohen, Esq., 16 Court Street, Brooklyn, New York, assigned as counsel to plaintiff on the appeal herein.


text:
    In the Matter of Edith E. Owens, Petitioner-Appellant, against J. Raymond McGovern, as Comptroller of the State of New York, Respondent.
    Submitted April 11, 1955;
    decided April 15, 1955.

      Jacob K. Javits, Attorney-General (George H. RotMauf of counsel), for respondent.
   Motion withdrawn.


text:
    Mildred F. McNerney et al., Appellants, v. Aetna Life Insurance Company, Respondent, et al., Defendants.
    Argued March 9, 1955;
    decided April 21, 1955.

      Sidney B. Coulter for appellants.

      Gustav P. Blaustein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.