text:
    In the Matter of the Estate of Margaret Leupp, Deceased. Hannah Sullivan, Appellant; Fifth Avenue Bank of New York et al., Respondents. In the Matter of the Accounting of Fifth Avenue Bank of New York, as Executor of Margaret Leupp, Deceased, Respondent. John L. Lee et al., Respondents; Hannah Sullivan, Appellant.
    Argued January 3, 1938;
    decided January 18, 1938.

      Alfred J. Talley and James A. McKaigney for appellant.

      Gerard T. Remsen for Fifth Avenue Bank of New York, respondent.

      John E. Mack for John L. Lee et ah, respondents.
   Orders affirmed, with costs payable out of the estate; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Application of Steve Kaminsky, a Member of St. John’s Greek Catholic Church of Syracuse, Appellant. Michael Puchar et al., Appellants; Harry Hnatko et al., Respondents.
    Argued January 3, 1938;
    decided January 18, 1938.

      Clifford H. Searl for appellants.

      William H. Bamerick, L. Earl Higbee and Frederick Feuss for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Edward P. Patten, Deceased. Leila H. Van Dermore, Respondent; Kittie M. England, as Administratrix of the Estate of Edward P. Patten, Deceased, Appellant.
    Argued January 3, 1938;
    decided January 18, 1938.

      Milton B. Knox for appellant.

      Harry W. Williams for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of Denis W. Corrigan, as Executor of John Maguire, Deceased, Respondent. Agnes Tierney, Individually and as Administratrix of the Estate of Mary Maguire, Deceased, Appellant; Helen M. Smith et al., Respondents.
    Argued January 4, 1938;
    decided January 18, 1938.

      Barnett J. Nova and Ralph Stout for appellant.

      Charles C. Stevenson and John J. McManus for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Angelo Tsagaris, Respondent, against Sheriff of the County of Kings, Defendant. F. F. & C. Restaurant, Inc., Appellant.
    Submitted January 17, 1938;
    decided January 18, 1938.

      Isaac Weinberg for motion.

      S. Stanley Kreutzer opposed.
   Motion granted and appeals dismissed.


text:
    Abram L. Gibbs, Appellant, v. Home Insurance Co., New York, Defendant, and Archibald Taylor Co., Inc., Respondent.
    Submitted January 10, 1938;
    decided January 18, 1938.

      John Bright for motion.

      Morris M. Oppenheim opposed.
   Motion granted and appeal dismissed unless appellant files and serves undertaking on appeal within ten days, in which event the motion is denied. This court has no power to dispense with the undertaking required by section 593 of the Civil Practice Act.


text:
    Sophie C. Zinovoy, Respondent, v. Minnie Lieberman, Individually, as Administratrix of the Estate of David H. Lieberman, Deceased, etc., Appellant.
    Submitted January 10, 1938;
    decided January 18, 1938.

      David Haar and Robert H. Epstein for motion.

      Robert Daru, Maurice Heilman and Louis H. Levin opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion. (See 277 N. Y. 652.)


text:
    The People of the State of New York, Respondent, v. Thomas R. Hughes and Milton Speiser, Appellants.
    Argued November 22, 1937;
    decided January 25, 1938.

      I. Maurice Wormser, George Gordon Battle, Irving Mariash and Leo Klugherz for Milton Speiser, appellant.

      David P. Siegel and Samuel Hassen for Thomas R. Hughes, appellant.

      William Copeland Dodge, District Attorney (Felix C. Benvenga, Bernard Botein, Lyon Boston and Richard H. Weis of counsel); for respondent.
   As to each defendant, judgment affirmed; no opinion.

Concur: Lehman, O’Brien, Loughran and Finch, JJ. Dissenting: Crane, Ch. J. Rippey, J., concurs as to defendant Hughes, but dissents as to defendant Speiser. Taking no part: Htjbbs, J. (See 277 N. Y. 342, 596.)


text:
    In the Matter of the Claim of Isabelle Kane, Respondent, against Morse Dry Dock and Repair Company, Appellant. State Industrial Board, Respondent.
    Argued January 5, 1938;
    decided January 25, 1938.

      Francis J. Ryan, Jr., and Courtland Palmer for appellant.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Joseph A. McLaughlin of counsel), for State Industrial Board, respondent.
   Appeal dismissed, with costs; no opinion. (See 277 N. Y. 652.)

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


text:
    In the Matter of the Claim of Meta Gaites, Respondent, against Society for the Prevention of Cruelty to Children et al., Appellants. State Industrial Board, Respondent.
    Argued January 5, 1938;
    decided January 25, 1938.

      William B. Davis and E. C. Sherwood for appellants.

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

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


text:
    In the Matter of the Claim of Talmadge Mosley, Respondent, against Sinram Brothers, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued January 5, 1938;
    decided January 25, 1938.

      William B. Davis and E. C. Sherwood for appellants.

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

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


text:
    In the Matter of the Claim of Nellie A. McDowell, Respondent, against Flatbush Congregational Church et al., Appellants. State Industrial Board, Respondent.
    Submitted January 5, 1938;
    decided January 25, 1938.

      Jeremiah F. Connor for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs. (See Matter of Moochler v. Herrick & Son, 272 N. Y. 545.) No opinion.

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


text:
    In the Matter of the Claim of Jacob Smith, Respondent, against Estate of S. D. Coykendall et al., Appellants. State Industrial Board, Respondent.
    Submitted January 5, 1938;
    decided January 25, 1938.

      Frank L. Ward for appellants.

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

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


text:
    John Popow, an Infant, by Mike Popow, His Guardian ad Litem, Respondent, v. Central School District No. 1 of the Towns of Hillsdale et al., Appellant. Mike Popow, Respondent, v. Central School District No. 1 of the Towns of Hillsdale et al., Appellant.
    Argued January 5, 1938;
    decided January 25, 1938.

      Samuel B. Coffin and J. D. Bell for appellant.

      Harold V. A. Drumm for respondents.
   In each action, judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Veronica G. Boylan. Thomas Boylan, Appellant; Veronica Vogel et al., Respondents.
    Argued January 6, 1938;
    decided January 25, 1938.

      Edward B. Murphy and William L. Clay for appellant.

      Earl F. Case for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    William V. Cullen, Appellant, v. State of New York, Respondent.
    (Claim No. 23428.)
    Argued January 6, 1938;
    decided January 25, 1938.

      A. Stanley Copeland for appellant.

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

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


text:
    M. Lowenstein & Sons, Inc., Appellant, v. Adley Express Company, Inc., Respondent.
    Argued January 6, 1938;
    decided January 25, 1938.

      George I. Janow and Herman Young for appellant.

      Vincent A. O’Connor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Leona Dodge, Appellant, v. Niagara Falls Gazette Publishing Company, Respondent.
    Argued January 7, 1938;
    decided January 25, 1938.

      Frank G. Raichle for appellant.

      Clarence R. Runals, Robert L. Rice, Jr., and J. Franklin Maddever for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Marselis C. Parsons, Appellant, v. Rye National Bank et al., Respondents.
    Argued January 10, 1938;
    decided January 25, 1938.

      Benjamin I. Shiverts for appellant.

      Herbert Barry and Henry W. Proffitt for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Caldwell and Ward Brass Company, Respondent, v. State of New York, Appellant.
    (Claim No. 24242.)
    Argued January 10, 1938;
    decided January 25, 1938.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden, Joseph I. Butler and John H. Walrath of counsel], for appellant.

      John F. Nash for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anna Handel, as Administratrix of the Estate of John J. Handel, Deceased, Appellant, v. New York Rapid Transit Corporation, Respondent.
    Argued January 10, 1938;
    decided January 25, 1938.

      William A. Blank and Bernard Meyerson for appellant.

      Andrew F. Van Thun, Jr., and George D. Yeomans for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John J. Reynolds, Appellant, v. Irving Trust Company, Respondent.
    Argued January 10, 1938;
    decided January 25, 1938.

      Arthur II. Haaren, Joseph A. Barrett and Frank W. Demuth for appellant.

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

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


text:
    Village of Cornwall, Appellant, v. County of Orange, Respondent.
    Argued January 11, 1938;
    decided January 25, 1938.

      Henry Hirschberg for appellant.

      Percy V. D. Gott, County Attorney, for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Morris Sadof, Appellant, v. Samuel Tannenbaum, Respondent, Impleaded with Another.
    Argued January 11, 1938;
    decided January 25, 1938.

      Edward Weinfeld and Louis Kunen for appellant.

      Albert H. Tannenbaum for respondent.

      H. H. Nordlinger, Edwin L. Garvin, John K. Watson and Julius Henry Cohen for American Arbitration Association et al., amici curix.

   Judgment affirmed, with costs; no opinion.

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


text:
    Grace H. Murray et al., as Executors of Elizabeth H. Stanton, Deceased, Appellants, v. City of New York, Respondent, and A. Gordon Murray et al., as Committee, Appellants, Impleaded with Another.
    Submitted January 24, 1938;
    decided January 25, 1938.

      George Gordon Battle, Albert G. Avery and A. Gordon Murray for motion.

      William C. Chanter, Corporation Counsel (Herman Horowitz and Arthur A. Segall of counsel), opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements. If there be a constitutional question appeal will lie as of right.


text:
    Frances B. Doell, as Administratrix of the Estate of Andrew Doell, Deceased, Appellant, v. Lena Bull et al., Respondents. A. D. Realty Corporation, Respondent, v. Frances B. Doell, as Administratrix of the Estate of Andrew Doell, Deceased, Appellant.
    Submitted January 12, 1938;
    decided January 27, 1938.

      A. J. Oshei Hoschek, Herbert S. Felner and Joseph M. Metnick for appellant.

      Meyer Kirscheribaum for respondents.
   In each action, judgment affirmed, without costs; no opinion.

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


text:
    Amusement Securities Corporation, Respondent, v. Academy Pictures Distributing Corporation et al., Appellants, Impleaded with Others.
    Argued January 12, 1938;
    decided January 27, 1938.
    J. Jack London, Bertram A. Mayers and Milton C. Jacobs for Academy Pictures Distributing Corporation et al., appellants.

      Saul E. Rogers, Milford Fenster and Sol Ringel for Producers Laboratories, Inc., et al., appellants.
    I. Maurice Wormser and Arthur J. Homans for respondent.
   Judgment, so far as appealed from, affirmed, with costs; no opinion. (See 277 N. Y. 672.)

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


text:
    Edwin C. Doulin, Respondent, v. State of New York, Appellant.
    (Claim No. 23654.)
    Argued January 12, 1938;
    decided January 27, 1938.

      John J. Bennett, Jr., Attorney-General (Leon M. Lay den, Henry Epstein and Burns F. Barf or d of counsel), for appellant.

      Samuel F. Frank, Arthur W. Weil, Richard Kulze, Charles W. Kappes, Joseph J. Pellicane and Samuel L. Sargent for respondent.
   Judgment appealed from affirmed, with costs; no opinion.

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


text:
    Rae Greenberg, Respondent, v. Prudential Insurance Company of America, Appellant.
    Argued January 13, 1938;
    decided January 27, 1938.

      Merwin F. LeVine and Solon Weit for appellant.

      Leo Fixler for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Bjarne Bensen, Respondent, v. Frederick W. Kristeller et al., Appellants.
    Argued January 13, 1938;
    decided January 27, 1938.

      Richard Steel for appellants.

      Matthew M. Liff for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Irving Trust Company et al., as Trustees, Appellants, v. Yona-Varah Realty Corporation et al., Defendants, and George A. Harder, Respondent.
    Argued January 13, 1938;
    decided January 27, 1938.

      William 0. Robertson and Martin Lippman for appellants.

      Bernard Sobol for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis Danzis, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Argued January 13, 1938;
    decided January 27, 1938.

      Herbert F. Garrick for appellant.

      Hugo Wintner, Robert J. Fox, Robert P. Schur and Abraham Harris for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Corn Exchange Bank Trust Company, Respondent, v. Island Park-Long Beach, Inc., et al., Defendants, and Leslie J. Ekenberg, as Trustee in Bankruptcy of Island Park-Long Beach, Inc., Appellant.
    Argued January 13, 1938;
    decided January 27, 1938.

      Nathan April for appellant.

      Spotswood D. Bowers, Harold E. Brennan and Stewart W. Bowers for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anne R. Schwartz, as Administratrix of the Estate of Frank V. Schwartz, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 24089.)
    Argued January 14, 1938;
    decided January 27, 1938.

      Charles J. Ranney and John J. Mackrell for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph L. Delaney and Leon M. Lay den of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Ruth Cornell, Respondent, v. J. J. Newberry Company, Appellant.
    Argued January 14, 1938;
    decided January 27, 1938.

      Gerald W. O’Connor, Philip J. Fitzgerald and Claude V. Pallister for appellant.

      W. 8. Barrett and James G. Burke for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael Banner, Appellant, v. Lyon & Healy, Inc., Defendant, and Jay C. Freeman, Respondent.
    Argued January 17, 1938;
    decided March 1, 1938.

      J. W. Edwards for appellant.

      J. J. Kramer and J. 0. Kramer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel H. Henis, Respondent, v. Charles Shankroff, Appellant.
    Argued January 17, 1938;
    decided March 1, 1938.

      Albert D. Schanzer and William Plean for appellant.

      Benjamin Kirschstein, Maxwell Slade and Harvey L. Gardner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Maria Rohrs, Appellant, v. Lawyers Trust Company, as Successor Trustee, Respondent, Impleaded with Others.
    Argued January 17, 1938;
    decided March 1, 1938.

      Jacob Shientag, Samuel Hoffman and Charles D. Hoffman for appellant.

      Herbert A. Wolff, Justin N. Reinhardt, Theodore S. Jaffin and Benjamin Kaplan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mattie K. Voorhees, Respondent, v. County of Nassau, Appellant. John C. Voorhees, Respondent, v. County of Nassau, Appellant.
    Argued January 17, 1938;
    decided March 1, 1938.

      LeRoy O. Edwards, Robert II. Duvall and James L. Dowsey for appellant.

      Joseph F. Hanley and William J. Sullivan for respondents.
   In each action, judgment affirmed, with costs; no opinion.

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


text:
    Joseph A. Stafford, Appellant, v. New York Central Railroad Company, Respondent.
    Argued January 17, 1938;
    decided March 1, 1938.

      W. Tobin Lennon for appellant.

      John E. Leach, Franklin R. Brown and Mark N. Turner for respondent.
   Judgment of the Appellate Division dismissing the complaint modified by granting a new trial, with costs to abide the event. The evidence made a question for the jury, and the complaint should not have been dismissed. No opinion.

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


text:
    Johanna Meyer, as Administratrix of the Estate of Elmer Meyer, Jr., Deceased, Appellant, v. Michael M. Pleshkopf, Individually and Doing Business as Brush Farm Riding School, et al., Respondents.
    Submitted January 19, 1938;
    decided March 1, 1938.

      Harold M. Phillips, Alvin R. Cowan and Nathan Finkelstein for appellant.

      William L. Shumate and Alfred W. Andrews for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    Percy K. Hudson et al., Appellants, v. Town of Oyster Bay, Respondent, Impleaded with Others.
    Argued January 19, 1938;
    decided March 1, 1938.

      Joshua D. Jones and Alfred H. Sarno for appellants.

      Arthur A. Ballantine, Samuel S. Isseks and Charles I. Wood for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Richard Leibman, an Infant, by Richard E. Leibman, His Guardian ad Litem, et al., Respondents, v. Eighteenth School District of the Town of Hempstead, Appellant.
    Argued January 19, 1938;
    decided March 1, 1938.

      H. H. Brown and James E. Turner for appellant.

      David C. Broderick and Solomon Silverstein for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    William Cosel, an Infant, by Nathan B. L. Cosel, His Guardian ad Litem, Appellant, v. Steeplechase Amusement Company, Inc., Respondent.
    Submitted January 20, 1938;
    decided March 1, 1938.

      Jeremiah A. O’Leary for appellant.

      William B. Shelton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Charles LaPlaca, Respondent, v. Thomas H. Murphy, as Warden of Clinton Prison, Appellant.
    Argued January 20, 1938;
    decided March 1, 1938.

      John J. Bennett, Jr., Attorney-General (Victor F. Boire and Patrick H. Clune of counsel), for appellant.

      Mary Karr Jackson for respondent.
   Order affirmed; no opinion.

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


text:
    William J. Keegan, Appellant, v. William F. Seeth, as Executor of James I. Elliott, Deceased, et al., Respondents.
    Submitted January 20, 1938;
    decided March 1, 1938.

      Mortimer Michael and Joseph F. Soviero for appellant.

      Henry C. Frey and J. Nash Williams for William F. Seeth, as executor, respondent.

      Milton Kleitman for Mary A. M. Elliott, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Grace Forlenza et al., Respondents, v. New York Rapid Transit Corporation, Appellant.
    Argued January 20, 1938;
    decided March 1, 1938.

      Andrew F. Van Thun, Jr., and George D. Yeomans for appellant.

      Murray Eisenberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Locomotive Engineers Mutual Life and Accident Insurance Association, Plaintiff, v. Melissa I. Locke, Respondent, and Georgina Putnam, Appellant.
    Argued January 20, 1938;
    decided March 1, 1938.

      George E. Phillies for appellant.

      Walter F. Hofheins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Percy A. Countryman, as Executor of Nina Countryman, Deceased, Respondent, v. State of New York, Appellant. Ernest L. Countryman, an Infant, by Percy A. Countryman, His Guardian ad Litem, Respondent, v. State of New York, Appellant. Cora J. Countryman, an Infant, by Percy A. Countryman, Her Guardian ad Litem, Respondent, v. State of New York, Appellant. Robert P. Countryman, an Infant, by Percy A. Countryman, His Guardian ad Litem, Respondent, v. State of New York, Appellant. Iva E. Countryman, an Infant, by Percy A. Countryman, Her Guardian ad Litem, Respondent, v. State of New York, Appellant. Percy Countryman, Respondent, v. State of New York, Appellant.
    (Claim No. 22047.)
    (Claim No. 22048.)
    (Claim No. 22049.)
    (Claim No. 22050.)
    (Claim No. 22051.)
    (Claim No. 22052.)
    Argued January 20, 1938;
    decided March 1, 1938.

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

      S. W. Brennan for respondents.
   Orders affirmed, with one bill of costs, and question certified answered in the affirmative. No opinion.

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


text:
    Sarah Oliner, Respondent, v. American-Oriental Banking Corporation, Appellant.
    Argued January 20, 1938;
    decided March 1, 1938.

      Jacob Krisel for appellant.

      Harold H. Feigin, George M. Feigin and Harry Salvan for respondent.

      Philip A. Carroll and Otey McClellan for National City Bank of New York, amicus curise.

   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    E. Clemens Horst Co., Inc., Appellant, v. Hittleman Goldenrod Brewery, Inc., et al., Respondents.
    Argued January 20, 1938;
    decided March 1, 1938.

      Chauncey B. Garver, Arnold E. Monettv and George W. Moorhead for appellant.

      Bertrand Ettinger and Edward Circus for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Parovel Nazaro, Deceased. William V. Elliott, Public Administrator of Kings County, as Administrator of the Estate of Parovel Nazaro, Deceased, Appellant; John Sinosich, Respondent.
    Submitted January 20, 1938;
    decided March 1, 1938.

      Frank Bashap and Thomas J. Snee for appellant.

      Jacob S. Honigsbaum and Max Steinberg for respondent.
   Order affirmed, with costs payable out of the fund; no opinion.

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


text:
    Gregory Ferend Co., Inc., Appellant, v. State of New York, Respondent.
    (Claim No. 24226.)
    Argued January 21, 1938;
    decided March 1, 1938.

      Arthur G. Syran for appellant.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden, Jacob S. Honigsbaum and Henry Epstein of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Dallas S. Townsend et al., as Ancillary Committee of Isabel D. McHie, Appellants. Isabel D. McHie, Respondent.
    Submitted February 28, 1938;
    decided March 2, 1938.

      Murray E. Baron for motion.

      Harold B. Medina opposed.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York, Respondent, v. Thomas R. Hughes and Milton Speiser, Appellants.
    Submitted February 28, 1938;
    decided March 2, 1938.
   Motion for reargument granted as follows: The question as to the power of this Court to reduce the sentence under section 543 of the Code of Criminal Procedure has never been decided by this Court. The point is now raised and we would like to hear oral argument. Case set down for March 14, 1938. (See 277 N. Y. 531.)


text:
    Commissioner of Public Welfare of the City of New York, Respondent, v. C. Fred Merkle, Appellant.
    Submitted February 28, 1938,
    decided March 2, 1938.

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

      John C. Donovan opposed.
   Motion denied.


text:
    In the Matter of John M. Paul, Appellant, against Thomas F. Foley, as Commissioner of Public Safety of the City of White Plains, et al., Respondents.
    Submitted February 28, 1938;
    decided March 2, 1938.

      William R. Condit, Corporation Counsel (,Samuel Faile of counsel), for motion.

      John W. Olmstead opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    James J. O’Brien, Appellant, v. New York Edison Company, Inc., et al., Respondents.
    Argued February 28, 1938;
    decided March 2, 1938.

      Henry S. Reeder for Floyd L. Carlisle et al., in support of motion.

      Raymond J. McVeigh and Gay H. Brown for Public Service Commission of the State of New York in support of motion.

      James J. O’Brien, in person, opposed.
   Motions by Public Service Commission and Floyd L. Carlisle and Frank W. Smith to dismiss appeal granted and appeal dismissed.


text:
    John J. Roe, Respondent, v. Muir C. Smyth et al., Appellants.
    Submitted February 28, 1938;
    decided March 2, 1938.

      George H. Carleton for motion.

      Douglas E. Brown opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of James J. O’Brien, Appellant, against Louis L. Kahn, a Justice of the City Court of the City of New York, Respondent.
    Argued February 28, 1938;
    decided March 2, 1938.

      Herman Hoffman for motion.

      James J. O’Brien, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Manufacturers Trust Company, as Committee of the Estate of Martha G. Gray, an Incompetent Person, Appellant and Respondent, v. Robert L. Gray, Respondent and Appellant.
    Argued February 28, 1938;
    decided March 2, 1938.

      Harold M. Kennedy for motion.

      Alexander U. Zinke opposed.
   Motion denied, with ten dollars costs.


text:
    Grace H. Murray et al., as Executors of Elizabeth H. Stanton, Deceased, Appellants, v. City of New York, Respondent, and Frank H. Appleton, as Trustee, et al., Appellants.
    Submitted February 28, 1938;
    decided March 2, 1938.

      William C. Chanler, Corporation Counsel (Davidson Sommers of counsel), for motion.

      Albert G. Avery and A. Gordon Murray for plaintiffs, appellants, and A. Gordon Murray et al., as committee, defendants, appellants, opposed.

      John B. Doyle for Frank H. Appleton, as trustee, defendant, appellant, opposed.
   Motion denied, with ten dollars costs.


text:
    Mae E. Kamps et al., Appellants, v. Crown Heights Hospital, Inc., Respondent.
    Argued January 6, 1938;
    decided March 8, 1938.

      Thomas W. Constable for appellants.

      Clarence S. Zipp, Owen F. Hughes and Daniel Miner for respondent.
   Judgment affirmed, with costs. The nurse was employed by the patient and not by the hospital. The court does not decide any other question upon this record. No opinion.

Concur: Lehman, O’Brien, Hubbs and Finch, JJ.; Crane, Ch. J., Loughran and Rippey, JJ., dissent upon determining this question solely as a matter of law.


text:
    Doris M. Willcox, an Infant, by Bertram W. Willcox, Her Guardian ad Litem, Appellant, v. County of Erie, Respondent. Bertram W. Willcox, Appellant, v. County of Erie, Respondent.
    Argued January 7, 1938;
    decided March 8, 1938.

      Layton H. Vogel for appellants.

      Harold J. Adams and Percy R. Smith for respondent.
   Judgments affirmed, with costs. The court is of the opinion that there was no evidence of negligence in this case. The court does not pass upon any other question presented. No opinion.

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


text:
    Tommie E. Huntt, Appellant, v. Johnston & Collins Company et al., Respondents.
    Argued January 10, 1938;
    decided March 8, 1938.

      Harold L. Alien and Arthur J. Egan for appellant.

      Bernard J. McGlinn, William J. Moran and Louis P. Galli for Travelers Insurance Company, respondent.

      James F. McNaboe for Johnston & Collins Company, respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Thorer & Hollander, Inc., Respondent, v. Irving Trust Company, as Trustee in Bankruptcy of Abraham Morgenstern et al., Copartners, Doing Business as A. Morgenstern & Bro., Respondent, and Morris Fuchs, Appellant, Impleaded with Others. Louis A. Cohen & Bro., Inc., Respondent, v. Irving Trust Company, as Trustee in Bankruptcy of Abraham Morgenstern et al., Copartners, Doing Business as A. Morgenstern & Bro., Respondent, and Morris Fuchs, Appellant, Impleaded with Others.
    Argued January 12, 1938;
    decided March 8, 1938.

      Copal Mintz and Alexander A. Falk for appellant.

      Stephen Broohs-Rosenthal, David W. Kahn and Max Edelman for respondents.
   In each action: Judgment so far as appealed from affirmed, with costs. No opinion.

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


text:
    Edward A. Trumpbour et al., Respondents, v. Arthur A. Johnson Corporation, Appellant.
    Argued January 13, 1938;
    decided March 8, 1938.

      (Emil V. Pilz and Asa B. Kellogg for appellant.

      Richard J. Stull and Philip A. Gore for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph S. Fay, Respondent, v. Samuel Robinson et al., Appellants. Thomas Foley et al., Respondents, v. Samuel Robinson et al., Appellants.
    Submitted January 17, 1938;
    decided March 8, 1938.

      Louis B. Boudin and Moms Shapiro for appellants.

      Charles H. Tuttle and Thomas E. Kerwin for respondents.
   Judgments modified by striking therefrom the direction enjoining defendants from taking legal proceedings, and as so modified affirmed, without costs. No opinion.

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


text:
    Cascade Automatic Sprinkler Corporation, Appellant, v. State of New York, Respondent.
    (Claim No. 22060.)
    Argued January 21, 1938;
    decided March 8, 1938.

      Charles Adkins Baker for appellant.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden and James H. Glavin, Jr., of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elizabeth F. Vilkomerson, Appellant, v. Tri-State Investors Corporation et al., Respondents.
    Submitted January 21, 1938;
    decided March 8, 1938.

      Robert H. Elder, Otho 8. Bowling and Elizabeth F. Vilkomerson (in person) for appellant.

      Albert Adams, Samuel Meyers and Morris Meyers for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. James Fanti, Respondent.
    Argued January 24, 1938;
    decided March 8, 1938.

      John J. Bennett, Jr., Attorney-General (.Maurice H. Matskin, Joseph A. McLaughlin and Abraham H. Brodsky of counsel), for appellant.

      C. Joseph Danahy for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Loughran and Rippey, JJ. Talcing no part: Hubbs, J. Finch, J., dissents in the following memorandum:

I dissent and vote to reverse. To construe the statute thus narrowly is unnecessarily to limit the reasonable enforcement of a provision of the criminal law enacted for the public welfare.


text:
    The People of the State of New York, Respondent, v. Leo T. Farley, Appellant. The People of the State of New York, Respondent, v. John E. Farley, Appellant.
    Argued January 24, 1938;
    decided March 8, 1938.

      John E. Sullivan for Leo T. Farley, appellant.

      Judson R. Hoover for John E. Farley, appellant.

      Walter B. Reynolds, District Attorney, for respondent.
   As to each defendant: Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anna Swift, Appellant.
    Argued January 24, 1938;
    decided March 8, 1938.

      Walter H. Poliak, Charles L. Sylvester, Sidney Kaminsky and James D. C. Murray for appellant.

      Thomas E. Dewey, District Attorney (Felix C. Benvenga and Harris B. Steinberg of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Daniel Romano, Respondent.
    Argued January 24, 1938;
    decided March 8, 1938.

      William F. X. Geoghan, District Attorney {Henry J. Walsh of counsel), for appellant.

      John Gar Jone for respondent.
   Order affirmed; no opinion.

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


text:
    A. M. Andrews Investment Corporation, Respondent, v. Trans-Lux Daylight Picture Screen Corporation, Appellant.
    Argued January 24, 1938;
    decided March 8, 1938.

      Leavitt J. Hunt for appellant.

      Stanley Osserman and Theodore F. Tonkonogy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of David D. Rounds, Deceased. David G. Rounds et al., Appellants; Gilbert W. Klinck, as Executor of and Trustee under the Will of David D. Rounds, Deceased, et al., Respondents.
    Argued January 24, 1938;
    decided March 8, 1938.

      Dethloffs E. 'Klein for appellants.

      Milton E. Kaeselau for Gilbert W. Klinck, as executor, etc., et al., respondents.

      Stanley H. Montfort for Anna J. R. Nordstrom, respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    Kenneth S. Guiterman, Appellant, v. Frank E. Taplin et al., Respondents, Impleaded with Others.
    Argued January 24, 1938;
    decided March 8, 1938.

      Hugh F. O’Donnell and Frank M. Swacker for appellant.

      C. Frank Reavis and Martin D. Jacobs for Frank E. Taplin, respondent.

      Martin Conboy, John Vance Hewitt and Gilman L. Sessions for Pennsylvania Railroad Company et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Arthur Wolf, Respondent, v. Title Guarantee and Trust Company, Appellant.
    Argued January 25, 1938;
    decided March 8, 1938.

      C. Elmer Spedick and Ralph A. Woodend for appellant.

      John Bogart and Abraham P. Wilkes for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Siberian Fur & Flax Co., Ltd., Appellant, v. Irving Trust Company, Respondent.
    Argued January 25, 1938;
    decided March 8, 1938.

      Harris Jay Griston and Samuel Fine for appellant.

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

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


text:
    Alice Ranalli, as Administratrix of the Estate of William J. Ranalli, Deceased, Appellant, v. Robert H. Breed et al., Respondents.
    Submitted January 25, 1938;
    decided March 8, 1938.

      Emanuel B. Endlich for appellant.

      Almet R. Latson, Jr., Leonard J. Supple and George A. Timone for respondents.
   Judgment affirmed, with costs; no opinion. A question under the Federal Constitution was presented and necessarily passed upon by this court. The plaintiff contended that to hold the first, second, fifth and sixth causes of action alleged in her complaint are barred by section 50, subdivision 1, of" the Civil Practice Act of the State of New York would deprive plaintiff of property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. This court held to the contrary.

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


text:
    Mariano Nasello, Appellant, v. Home Insurance Company of New York, Respondent. (Action No. 1.) Rose Nasello, Appellant, v. Home Insurance Company of New York, Respondent. (Action No. 2.) Rose Nasello, Appellant, v. Queens Insurance Company of New York, Respondent. (Action No. 3.) Rose Nasello, Appellant, v. City of New York Insurance Company, Respondent. (Action No. 4.) Rose Nasello, Appellant, v. Royal Insurance Company of England, Respondent. (Action No. 5.) Rose Nasello, Appellant, v. New York Underwriters Insurance Company of New York, Respondent. (Action No. 6.)
    Argued January 25, 1938;
    decided March 8, 1938.

      Walter F. Cherry and William L. Clay for appellants.

      Percival D. Oviatt and Robert L. Griffith for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Anna Richter, Appellant, v. Richard A. Geis, Respondent, Impleaded with Another.
    Argued January 25, 1938;
    decided March 8, 1938.

      Arthur L. Burchett for appellant.

      Herman B. Forman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edlux Construction Corporation, Respondent, v. State of New York, Appellant.
    (Claim No. 23935.)
    Argued January 26, 1938;
    decided March 8, 1938.

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

      James Gibson for respondent.'
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Benjamin Hodder, Respondent, against Fleisher Engineering Co., et al., Appellants. State Industrial Board, Respondent.
    Submitted January 26, 1938;
    decided March 8, 1938.

      Clarence B. Tippett for appellants.

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

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


text:
    In the Matter of the Claim of Herschel D. Sullivan, Respondent, against Rochester Smelting & Refining Company et al., Appellants. State Industrial Board, Respondent.
    Argued January 26, 1938;
    decided March 8, 1938.

      Noel S. Symons and John E. Leach for Exchange Mutual Indemnity Insurance Company, appellant.

      Lawrence H. Ogden for claimant, respondent.

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

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


text:
    In the Matter of the Claim of Alfred C. Jones, Respondent, against International Mercantile Marine Company et al., Appellants. State Industrial Board, Respondent.
    Argued January 26, 1938;
    decided March 8, 1938.

      William B. Davis and E. C. Sherwood for appellants.

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

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


text:
    In the Matter of the Claim of Blanche Flinn, Respondent, against Remington Rand, Inc., Appellant. State Industrial Board, Respondent.
    Argued January 26, 1938;
    decided March 8, 1938.

      Thomas A. Clarke, C. P. Franchoi and J. A. W. Simson for appellant.

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

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


text:
    Cities Service Asphalt Products Company, Respondent, v. Marcelino Garcia et al., Copartners under the Firm Name of Garcia & Diaz, Appellants.
    Submitted January 26, 1938;
    decided March 8, 1938.

      Edgar B. Kraetzer, Herbert M. Statt and David L. Corbin for appellants.

      George H. Cohn and Sydney H. Gleich for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rae Wallens, Appellant, v. Erie County Savings Bank, Respondent.
    Argued January 26, 1938;
    decided March 8, 1938.

      Edward H. Wolkind for appellant.

      Leonard W. if. Zingler, John S. N. Sprague and Walker Carr for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph H. Wanek, Respondent, v. Great Atlantic and Pacific Tea Company, Appellant.
    Submitted January 27, 1938;
    decided March 8, 1938.

      B. G. Eadie for appellant.

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

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


text:
    Lyle Miller, Respondent, v. M. & D. Holding Corporation, Appellant, Impleaded with Another.
    Submitted January 27, 1938;
    decided March 8, 1938.

      Joseph F. Murray and William J. McArthur for appellant.

      George Spedor and S. Lawrence Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Empire Monument Company, Respondent, against Richard J. Lewis, as Sheriff of Albany County, Respondent, and Mary C. Ross et al., Appellants.
    Argued January 27, 1938;
    decided March 8, 1938.

      Charles J. Duncan for appellants.

      Charles J. Tobin and Thomas T. Heney for St. John’s Roman Catholic Church, amicus cur ice.

      Louis R. Yaguda for Sheriff of Albany county, respondent.

      Ernest L. Boothby for Empire Monument Company, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Christie B. Garlasco, Respondent, v. Gilbert M. Smith et al., as Liquidating Trustees of Manhattan Brass Company et al., Defendants, and Wertshore Realty Corporation et al., Appellants.
    Submitted February 28, 1938;
    decided March 8, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 666.)


text:
    In the Matter of the Accounting of Bankers Trust Company, as Trustee under the Will of A. Walker Otis, Deceased. Maude D. Hendrickson, Appellant and Respondent; William B. Stitt, as Special Guardian for Margaret E. Otis, an Iufant, Respondent and Appellant; Bankers Trust Company, as Trustee, Respondent.
    Submitted February 28, 1938;
    decided March 8, 1938.
   We think our opinion in Matter of Otis (276 N. Y. 101) does not imply that fiduciaries may distribute surplus income before all advances from principal are repaid. We are also of opinion that no valid distinction may be made in that regard between principal obligations ” and income obligations.”


text:
    Frederick Bedell, Respondent, v. Dictograph Products Company, Inc., Appellant.
    Submitted February 28, 1938;
    decided March 8, 1938.
   ¿Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 657.)


author: Per Curiam.

text:
    Elizabeth Kuhn, as Administratrix of the Estate of Francis Kuhn, Deceased, Appellant and Respondent, v. City of New York et al., Defendants; P. J. Carlin Construction Company, Appellant, and Albee Godfrey Whale Creek Company, Inc., Respondent.
    Submitted February 28, 1938;
    decided March 8, 1938.
   Per Curiam.

In our previous decision (274 N. Y. 118) we granted a new trial as against P. J. Carlin Construction Company to enable the plaintiff to present additional evidence if she had any and so desired. Plaintiff now requests that, in the event reargument is denied, we dismiss the complaint instead of awarding a new trial so that she may proceed under the Workmen’s Compensation Law. The amendment is made to comply with her request.


text:
    Hose-McCann Corporation, Appellant and Respondent, v. Carl Pauluhn et al., Respondents and Appellants.
    Submitted February 28, 1938;
    decided March 8, 1938.
   Motion to amend remittitur denied, with ten dollars costs. (See 276 N. Y. 669.)


text:
    In the Matter of the Claim of Isabelle Kane, Respondent, against Morse Dry Dock and Repair Company, Appellant. State Industrial Board, Respondent.
    Submitted February 28, 1938;
    decided March 8, 1938.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 277 N. Y. 533 .)


text:
    Sophie C. Zinovoy, Respondent, v. Minnie Lieberman, Individually, as Administratrix of the Estate of David H. Lieberman, Deceased, etc., Appellant.
    Submitted February 28, 1938;
    decided March 8, 1938.
   Motion for reargument of motion to dismiss appeal denied, with ten dollars costs and necessary printing disbursements. (See 277 N. Y. 530.)


text:
    Helen J. Glaser, Appellant, v. Walter T. Glaser, Respondent.
    Submitted February 28, 1938;
    decided March 8, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 296.)


text:
    County Securities, Inc., Respondent, v. Alice Seacord, Appellant, Impleaded with Others.
    Submitted March 7, 1938;
    decided March 8, 1938.

      Sidney H. Posner for motion.

      Morgan H. Seacord opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files return and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    Chase National Bank of the City of New York, Respondent, v. Mary Turner et al., Defendants, and Kathleen N. O’D. Candee, Individually and as Executrix of William F. S. Hart, Deceased, Appellant.
    Submitted March 7, 1938;
    decided March 8, 1938.

      Edward F. X. Ryan for motion.

      Marie C. Candee opposed.
   Motion denied, without costs.


text:
    In the Matter of Rockland County Corporation et al., Respondents, against Edward J. Flynn, as Secretary of State of New York, et al., Respondents, and Michael McCabe, Appellant.
    Submitted February 28, 1938;
    decided March 15, 1938.

      Thomas Gagan for appellant.

      Charles J. Hardy, Jr., Theodore L. Harrison and Henry H. Haire for petitioners, respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Morton Lexow, Respondent, against Morris S. Tremaine, as Comptroller of the State of New York, Defendant, and Commercial Casualty Insurance Company, Appellant, Impleaded with Another.
    Argued February 28, 1938;
    decided March 15, 1938.

      I. J. Beaudrias for appellant.

      Ellis J. Staley, Thomas T. Heney and William H. Jenkins, Jr., for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Frank Prisco, Respondent, against Pasquale Guiliano, Defendant, and Continental Casualty Company, Appellant. State Industrial Board, Respondent.
    Argued March 1, 1938;
    decided March 15, 1938.

      Joseph F. Hanley and John H. Munley for appellant.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for State Industrial Board, respondent.

      Victor D. Borst, Jr., for claimant, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Alexander D. Snow, as Liquidating Partner of Greer, Crane & Webb, Respondent, against Thomas S. McLane, as Committee of the Person and Property of William A. Greer, Appellant. In the Matter of William A. Greer, an Incompetent Person. Thomas S. McLane, as Committee of the Person and Property of William A. Greer, Appellant; Alexander D. Snow, as Liquidating Partner of Greer, Crane & Webb, Respondent.
    Argued March 1, 1938;
    decided March 15, 1938.

      Matthew B. Sentner and C. Parker Lattin for appellant.

      Kenneth M. Spence and Henry G. Hotchkiss for respondent.
   Orders affirmed, without costs; no opinion.

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


text:
    Charles Gerben, as Director of Gerben-Hecht Rim Wheel Corporation, Appellant, v. Gerben-Hecht Rim Wheel Corporation, Defendant, and Alloys and Products, Inc., et al., Respondents.
    Argued March 1, 1938;
    decided March 15, 1938.

      Henry H. Silverman and Joseph Tenner for appellant.

      Jerome C. Strumpf, Monroe Goldwater, Frederick C. Scheel, Irwin Grinsberg and Charles K. Bermack for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Herman S. Whaley, Appellant, against Elmer F. Andrews, Individually and as Acting Industrial Commissioner and as Industrial Commissioner of the New York State Department of Labor, Respondent.
    Argued March 1, 1938;
    decided March 15, 1938.

      Ruth Whitehead Whaley and Herman S. Whaley (in person) for appellant.

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune of counsel), for respondent.
   Appeal dismissed, without costs. The order appealed from is not a final order. No opinion.

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


text:
    Alvin M. Higgins, Appellant, v. Peekskill Star Corporation et al., Respondents.
    Argued March 1, 1938;
    decided March 15, 1938.

      Robert H. Elder and Otho S. Bowling for appellant.

      Charles Blank for respondents.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    Alvin M. Higgins, Appellant, v. Wilthur Newspapers, Inc., et al., Respondents.
    Argued March 1, 1938;
    decided March 15, 1938.

      Robert H. Elder and Otho S. Bowling for appellant.

      Charles Blank, James Dempsey and Robert E. Dempsey for respondents.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    The People of the State of New York ex rel. Michael Carnevale, Appellant, v. Joseph H. Brophy, as Warden of Auburn Prison, Respondent.
    Submitted March 1, 1938;
    decided March 15, 1938.

      Michael Carnevale, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Edward T. Boyle and Patrick II. Clune of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Angela Fitzgerald, Respondent, v. Lewis A. Ladabouch et al., Appellants.
    Argued March 1, 1938;
    decided March 15, 1938.

      John H. Broderick and Henry S. Bayly for appellants.

      J. Clarence Herlihy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ettie Liebowitz, as Administratrix of the Estate of Julius Liebowitz, Deceased, Appellant, v. Denison Realty Corporation, Respondent.
    Argued March 1, 1938;
    decided March 15, 1938.

      Myron Wisoff and William S. Butler for appellant.

      Bernard 0. Barton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    United States of America, Appellant, v. President and Directors of the Manhattan Company, Respondent, Impleaded with Others.
    Submitted March 7, 1938;
    decided March 15, 1938.
   Motion for reargument and to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 396.)


text:
    Amusement Securities Corporation, Respondent, v. Academy Pictures Distributing Corporation et al., Appellants, Impleaded with Others.
    Submitted March 8, 1938;
    decided March 15, 1938.
   Motions for reargument denied, with ten dollars costs and necessary printing disbursements. (See 277 N.Y. 557.)


text:
    George Gise et al., Infants, by Hannah Kenny, Their Guardian ad Litem, Appellants, v. Brooklyn Society for the Prevention of Cruelty to Children, Respondent.
    Submitted March 8, 1938;
    decided March 15, 1938.
   Motion for reargument denied, without costs. (See 276 N. Y. 503.)


text:
    Dorothy A. Redmond, Respondent, v. Alan Fox, Appellant, Impleaded with Another.
    Submitted March 14, 1938;
    decided March 15, 1938.

      Harold B. Tollman for motion.

      I. Bernard Halpern opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking on appeal within ten days, in which event the motion is denied.


text:
    The People of the State of New York ex rel. Arthur Page, Appellant, against Joseph H. Brophy, as Warden of Auburn Prison, et al., Respondents.
    Submitted March 14, 1938;
    decided March 15, 1938.

      John J. Bennett, Jr., Attorney-General {Bernard L. Alderman of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of Williston Benedict, as Executor of Russell Benedict and May S. Benedict, Deceased, Appellant, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate and Apportionment of the City of New York, as Trustees of the New York City Employees’ Retirement System, Respondents.
    Argued March 2, 1938;
    decided March 18, 1938.

      Isidor Nemoirth and Edmund J. Pickup for appellant.

      William C. Chanter, Corporation Counsel {Seymour B. Quel and Paxton Blair of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Edward J. Joyce et al., Respondents, against Edward Schirmer et al., Constituting the Civil Service Commission of the City of White Plains, Appellants.
    Argued March 2, 1938;
    decided March 18, 1938.

      H. Eliot Kaplan for appellants.

      Francis B. Doherty for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Harry J. Levine, Appellant.
    Argued March 3, 1938;
    decided March 18, 1938.

      I. Gainsburg and Harold I. Cohen for appellant.

      Thomas E. Dewey, District Attorney (Felix C. Benvenga and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Lillian Liggins, Respondent, v. Arthur W. Corse, as Executor of John Corse, Deceased, Appellant. Georgia Randall, Respondent, v. Arthur W. Corse, as Executor of John Corse, Deceased, Appellant.
    Argued March 3, 1938;
    decided March 18, 1938.

      George Trosk and Millard H. Ellison for appellant.

      Stephen Callaghan, Ralph Stout and Isidor Neuwirth for respondents.
   In each action: Judgment affirmed, "with costs; no opinion.

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


text:
    Elizabeth C. Reisinger et al., Appellants, v. The Pullman Company, Respondent.
    Argued March 3, 1938;
    decided March 18, 1938.

      Paul D. Compton and Wayne D. Bird for appellants.

      Donald M. Dunn and Herbert S. Ogden for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    J. A. Healey, Respondent, v. R. H. Macy & Co., Inc., Appellant.
    Argued March 3, 1938;
    decided March 18, 1938.

      Leon Lauterstein, Emanuel Dannett and Joseph F. Finnegan for appellant.

      Frederick W. R. Pride and John A. Wells for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Florence H. Finnegan, Appellant, v. Helen Humes et al., Respondents.
    Submitted March 4, 1938;
    decided March 18, 1938.

      Edmund Fitzgerald for appellant.

      Milton Garter for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    George F. Moon, Respondent, v. J. J. Hoy, Jr., et al., Appellants.
    Argued March 4, 1938;
    decided March 18, 1938.

      Harry H. Flemming and Earl S. Jones for appellants,

      Lester Robert Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert Handy, an Infant, by James R. Handy, His Guardian ad Litem, Respondent, v. Hadley-Luzerne Union Free School District No. 1, Appellant.
    Argued March 4, 1938;
    decided March 18, 1938.

      G. E. Fitzgerald and James McPhillips for appellant.

      Glenn A. Frank for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed and new trial granted, with costs to abide the event. Evidence of notice of any defect in the slide is lacking. No opinion.

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


text:
    New Rochelle Trust Company, as Trustee, Respondent, v. Florence C. Biddle, Appellant, Impleaded with Others.
    Argued March 4, 1938;
    decided March 18, 1938.

      John P. McGrath for appellant.

      Walter H. Young and Robert Jackson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, Fred J. Hull, Appellant.
    Argued January 19, 1938;
    decided April 12, 1938.

      Joseph A. Solovei, Caesar B. F. Barra, Sol A. Klein and Joseph Weiss for appellant.

      Hiram C. Todd, Special Assistant Attorney-General (.Franklin S. Poliak, Egbert W. Doughty and Milton D. Lifset of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Crane, Ch. J., O'Brien, Hubbs, Finch and Rippey, JJ. Lehman and Loughran, JJ., dissent on the ground that the evidence fails to prove guilt beyond a reasonable doubt.


text:
    The People of the State of New York, Respondent, v. Michael J. Mooney and James Murphy, Appellants.
    Argued March 1, 1938;
    decided April 12, 1938.

      Henry V. Scardapane, Leo Healy and Solomon Pearlman for Michael J. Mooney, appellant.

      Maurice Edelbaum, Caesar B. F. Barra, James A. Higgins and Ralph J. Barra for James Murphy, appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Terrence Roberts, Appellant.
    Argued March 2, 1938;
    decided April 12, 1938.

      Rudolph Stand, Charles A. Hickey and Murray H. Klinger for appellant.

      Thomas E. Dewey, District Attorney (Felix C. Benvenga of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Lawrence Marks, Appellant.
    Argued March 7, 1938;
    decided April 12, 1938.

      E. Ivan Rubenstein, Leo Healy and Ruth G. Goldberg for appellant.

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

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


text:
    In the Matter of the Will of Mary A. Guilmartin, Deceased. Hazel Abrams et al., Appellants; City Bank Farmers Trust Company, as Executor of Mary A. Guilmartin, Deceased, et al., Respondents.
    Argued March 7, 1938;
    decided April 12, 1938.

      Julian D. Rosenberg, George Baker and Melvin S: Brotman for appellants.

      William S. Siemon, as special guardian for Helen Guilmartin, an infant, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Helen Libaris, as Administratrix of the Estate of Andrew J. Libaris, Deceased, Appellant, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company, Respondent.
    Argued March 7, 1938;
    decided April 12, 1938.

      Ralph Stout, Stephen Callaghan and Alfred Ekelman for appellant.

      A. H. Cole, Louis S. Carpenter and James L. Quackenbush for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. There was a question of fact for the jury. No opinion.

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


text:
    Elizabeth Tagg, Respondent, v. Frank J. Senner, Appellant, Impleaded with Another.
    Argued March 7, 1938;
    decided April 12, 1938.

      Clarence S. Zipp, Daniel R. Harvey and Daniel Miner for appellant.

      Ralph Stout and Louis Rothhard for respondent.
   Judgments so far as appealed from reversed and complaint against appellant dismissed, with costs in all courts. The record fails to disclose any evidence of negligence or nuisance as against appellant. (See, also, subdivision 2 of section 583 of Civil Practice Act.) No opinion.

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


text:
    Maguire & Company, Inc., Appellant, v. Lent & Lent, Inc., at al., Respondents, Impleaded with Others.
    Argued March 7, 1938;
    decided April 12, 1938.

      Walter Fairchild and Mason G. Kassel for appellant.

      Alexander Zager and Jules S. Tomkin for respondents.

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

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


text:
    Rae Ranzal, Appellant, v. Charles C. Hood et al., Respondents, Impleaded with Others.
    Submitted March 7, 1938;
    decided April 12, 1938.

      Meyer Kraushaar for appellant.

      Leslie Kirsch, Joseph Glass and Emanuel Linhardt for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    James Kelly, Appellant, v. State of New York, Respondent.
    (Claim No. 24332.)
    Argued March 7, 1938;
    decided April 12, 1938.

      Joseph B. Kenny, Harry B. Chambers and Harry H. Chambers for appellant.

      John J. Bennett, Jr., Attorney-General (Harold Green-stein, Leon M. Lay den and James H. Glavin, Jr., of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Charles Feinberg, Deceased. Jack Katz, Appellant; Samuel Feinberg, as Administrator with the Will Annexed of Charles Feinberg, Deceased, Respondent.
    Argued March 8, 1938;
    decided April 12, 1938.

      Jay Leo Rothschild and David Brady for appellant.

      William Macy, Max M. Greenfield and Charles J. Hyman for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O'Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York, Respondent, v. Excelsior Savings Bank, Appellant.
    Argued March 8, 1938;
    decided April 12, 1938

      Philip Wiltchik for appellant.

      William C. Chanler, Corporation Counsel (James Hall Prothero and Paxton Blair of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Cross & Brown Company, Appellant.
    Argued March 8, 1938;
    decided April 12, 1938.

      Peter W. Quinn for appellant.

      William C. Chanler, Corporation Counsel (James Hall Prothero and Paxton Blair of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rifpey, JJ.


text:
    The People of the State of New York, Respondent, v. Raphaelo Caputo, Appellant.
    Argued March 8, 1938;
    decided April 12, 1938.

      Carl C. Banno for appellant.

      Thomas E. Dewey, District Attorney (Karl Grebow and Harris B. Steinberg of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Herman Straub, Appellant, v. Smith-Gray Corporation et al., Respondents.
    Submitted March 8, 1938;
    decided April 12, 1938.

      Leopold Blumberg for appellant.

      Jeremiah A. O’Leary for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Jacob Fink, Respondent, v. 37 West 36th Street Company, Appellant, Impleaded with Another.
    Submitted March 8, 1938;
    decided April 12, 1938.

      William B. Shelton for appellant.

      J. Irving Weissman and Ralph Weller for respondent.
   Order of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division. (See Cullings v. Goetz, 256 N. Y. 287.) No opinion.

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


text:
    In the Matter of James F. Shanley, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    Argued March 9, 1938;
    decided April 12, 1938.

      William C. Chanler, Corporation Counsel (Paxton Blair and Henry J. Shields of counsel), for appellants.

      Abraham J. Rosenblum for respondent.
   Order of Appellate Division reversed and determination of Commissioners of Taxes affirmed, without costs. The Appellate Division was not justified on the evidence in annulling the determination. No opinion.

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


text:
    39 Broadway, Inc., Appellant, v. Columbia Gas & Electric Corporation et al., Respondents, Impleaded with Others.
    Argued March 9, 1938;
    decided April 12, 1938.

      William F. Bleakley and Hamilton Mclnnes for appellant.

      William D. Whitney, Hugh A. Fulton and Harold R. Medina, Jr., for Columbia Gas & Electric Corporation, respondent.

      Ralph Royall and James G. Holland for David W. Smyth et al., respondents.

      Henry S. Hooker and Raymond D. Thurber for Mabel T. Filor et al., as trustees of the estate of Walter H. Filor, deceased, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jack Redmond, Respondent, v. Columbia Pictures Corporation, Appellant
    Argued March 9, 1938;
    decided April 12, 1938.

      Louis D. Frohlich, Herman Finkelstein and Irving Moross for appellant.

      William Weisman, Norman Laidhold, Bernard Krosney and Bernard L. Baskin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alfred Feinblum et al., Respondents, v. City of New York, Appellant, Impleaded with Others.
    Submitted March 9, 1938;
    decided April 12, 1938.

      William C. Chanler, Corporation Counsel (Leonard M. Wallstein, Jr., and Paxton Blair of counsel), for appellant.

      Max Taylor, Arthur Ofner and Julius L. Neidle for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Richard R. Fritz, an Infant, by William H. Fritz, His Guardian ad Litem, Respondent, v. City of Buffalo, Appellant.
    Argued March 10, 1938;
    decided April 12, 1938.

      David Diamond, Corporation Counsel (Bart J. Shanahan of counsel), for appellant.

      Harold Horowitz for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ray E. Senkus, Respondent, v. New York Central Railroad Company, Appellant.
    Argued March 10, 1938;
    decided April 12, 1938.

      K. O. Mott-Smith and Clive C. Handy for appellant.

      Thomas J. 0’ Neill and Joseph G. Saile for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Villani, Appellant.
    Argued March 10, 1938;
    decided April 12, 1938.

      Hugo E. Rogers for appellant.

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Mary A. Emanuel, Appellant, v. Long Island Railroad Company, Respondent.
    Argued March 11, 1938;
    decided April 12, 1938.

      Louis Bergner and Solomon Millendorf for appellant.

      Paul Tison and Louis J. Carruthers for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. There was a question of fact for the jury. No opinion.

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


text:
    Peter Danna, an Infant, by Salvatore Danna, His Guardian ad Litem, et al., Respondents, v. Staten Island Rapid Transit Railway Company, Appellant.
    Argued March 11, 1938;
    decided April 12, 1938.

      Harold B. Oalces and Robert Schwebel for appellant.

      Seymour Kempner, Arthur L. Fishbein and Elias Bernstein for respondents.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Jamestown Wood Finishing Company, Inc., Appellant, v. Penn Mutual Life Insurance Company of Philadelphia, Respondent. Mary C. Montgomery, Appellant, v. Penn Mutual Life Insurance Company of Philadelphia, Respondent.
    Argued March 11, 1938;
    decided April 12, 1938.

      James A. Hughes and Benjamin 8. Dean for appellants.

      McKinley L. Phillips for respondent.
   In each action: Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O'Brien, Hubbs, Loughran, Pinch and Rippey, JJ.


text:
    In the Matter of the Accounting of Guaranty Trust Company of New York, as Surviving Trustee under the Will of Zettie Dalsimer, Deceased, Appellant; Carrie Thalheimer et al., Respondents. In the Matter of the Accounting of Guaranty Trust Company of New York, as Surviving Trustee under the Will of Zettie Dalsimer, Deceased, Appellant; Carrie Dalsimer, Individually and as Executrix of Nathan S. Dalsimer, Deceased, Respondent. In the Matter of the Accounting of Guaranty Trust Company of New York, as Surviving Trustee under the Will of Zettie Dalsimer, Deceased, Appellant; Elmer F. Quinn, as Special Guardian, et al., Respondents.
    Argued March 14, 1938;
    decided April 12, 1938.

      John W. Davis, Theodore Kiendl, Otis T. Bradley and Edwin E. Peterson for appellant.

      Harold Riegelman, H. H. Nordlinger, David B. Lefkowitz, Julius Cutler, Murray C. Spett," Jessie Silberfein and Elmer F. Quinn, as special guardian, for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Carl L. Bixby, Appellant, v. Coleman Dawson et al., Respondents.
    Argued March 14, 1938;
    decided April 12, 1938.

      M. E. Harby and Robert C. Richter for appellant.

      Hamilton Hicks for Coleman Dawson, respondent.

      Walter R. Barry, Frederic R. Coudert, Jr., and Thomas W. Kelly for Jergens Woodbury Sales Corporation et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert S. Wilson, Respondent, v. James C. Quinn et al., Individually and as Members of the New York City Alcoholic Beverage Control Board, et al., Appellants.
    Argued March 14, 1938;
    decided April 12, 1938.

      William H. Ticho for appellants.

      Richard S. Temko for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Bensonhurst National Bank of Brooklyn, Respondent, v. City of New York, Appellant, Impleaded with Another.
    Argued March 14, 1938;
    decided April 12, 1938.

      William C. Chanler, Corporation Counsel (James Hall Prothero, Paxton Blair and Nelson Rosenbaum of counsel), for appellant.

      Isaac Reiss and Samuel Firestone for respondent.

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

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


text:
    The People of the State of New York ex rel. Tobacco and Allied Stocks, Inc., Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued March 15, 1938;
    decided April 12, 1938.

      Walter H. Poliak, John F. Wharton and Mordecai Rochlin for appellant.

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

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


text:
    In the Matter of Richard P. Limburg, Respondent, against Carrol M. Snyder, Appellant.
    Argued March 15, 1938;
    decided April 12, 1938.

      Charles H. Griffiths, Gordon Miller and Waitem W. Westall for appellant.

      Charles Z. Meddlie and Julius Weiss for petitioner, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    United Appraisal Company, Inc., Appellant, v. Concettina Fuca et al., Respondents.
    Submitted March 16, 1938;
    decided April 12, 1938.

      Cyrus Levinthal and Samuel Mezansky for appellant.

      Alexander Del Giorno and Michael S. Meyerowitz for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Louis Steinberg, Max Steinberg, Harry B. Rutkins, Michael C. E. Thiede and Vincent A. Valentine, Appellants.
    Argued March 16, 1938;
    decided April 12, 1938.

      George Z. Medalie and Jack Horowitz for Louis Steinberg et al., appellants.

      Seymour Mark and Irving Weiss for Harry B. Rutkins, appellant.

      Karl Propper for Michael C. E. Thiede, appellant.

      Howard Henig for Vincent A. Valentine, appellant.

      Samuel J. Foley, District Attorney (Sol. Boneparth, Herman J. Fliederblum and Arthur G. Carney of counsel), for respondent.
   As to each defendant: Judgment affirmed; no opinion.

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


text:
    Lena Eagan, Respondent, v. Great Atlantic & Pacific Tea Company, Appellant. Hugh A. Eagan, Respondent, v. Great Atlantic & Pacific Tea Company, Appellant.
    Argued March 17, 1938;
    decided April 12, 1938.

      Caruthers Ewing and William H. Montgomery for appellant.

      Leonard J. Supple for respondent.
   In each action: Judgment affirmed, with costs; no opinion.

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


author: Finch, J.

text:
    Michael Strebler, Respondent, v. Title Guarantee and Trust Company, Appellant.
    Argued March 2, 1938;
    decided April 12, 1938.

      Timothy N. Pfeiffer, Edward N. Perkins and John M. Friedman for appellant.

      Grant Hoerner for respondent.
   Judgment modified by deducting therefrom the $248 claimed under the second cause of action, and as so modified affirmed, without costs. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lohghran and Rippey, JJ.; Finch, J., dissents in part in the following memorandum:

Finch, J.

(dissenting in part). I concur in the modification as to the deduction claimed under the second cause of action, but I vote to reverse and grant a new trial on the ground that the price the certificate would bring in the market is an improper basis for fixing damages. (Matter of New York Title & Mortgage Co., 277 N. Y. 66.)


text:
    In the Matter of Morris P. Paley, an Attorney, Appellant. Thomas E. Dewey, as District Attorney of the County of New York, Respondent.
    Argued April 11, 1938;
    decided April 12, 1938.

      Thomas E. Dewey, District Attorney (Charles G. Daley of counsel) for motion.

      Harold H. Corbin, opposed.
   Motion granted and appeal dismissed.


text:
    Gussie Garb et al., Respondents, v. Amalgamated Properties, Inc., Appellant.
    Submitted April 11, 1938;
    decided April 12, 1938.

      Harry Lesser for motion.

      Robert H. Charlton opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion.


text:
    Eugene A. Perkins, Plaintiff, v. Guaranty Trust Company of New York, Defendant, and Idonah S. Perkins, Respondent. Guy H. Rieger, Appellant.
    Argued April 11, 1938;
    decided April 12, 1938.

      George A. Ferris for motion.

      Chauncey E. Treadwell and Guy Hughes Riegel, in person, opposed.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York ex rel. Frank Ambrosio, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted April 11, 1938;
    decided April 12, 1938.

      John J. Bennett, Jr., Attorney-General (Everett D. Mereness of counsel), for motion.

      Frank Ambrosio, in person, opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    Ernest Riddell, Respondent, v. Martin L. Rizzo, Appellant.
    Submitted April 11, 1938;
    decided. April 12, 1938.

      Harry Gittleson for motion.

      M. Emanuel Balt opposed.
   Motion denied, with ten dollars costs.


text:
    Jessie B. Ingersoll, as Administratrix of the Estate of Robert H. Ingersoll, Deceased, Appellant, v. Liberty Bank of Buffalo, Respondent.

      Argued March 18, 1938;
    decided April 13, 1938.

      John L. Heider for appellant.
    The plaintiff established the negligence of the defendant in maintaining a defective stairway. (Brenner v. Landsmann Co., 181 App. Div. 331; Cahill v. Kleinberg, 233 N. Y. 255.) The question of causal connection was properly submitted to the jury. The inference upon which defendant’s liability is predicated is based on direct evidence and not upon conjecture or speculation. (Warner v. N. Y., O. & W. Ry. Co., 209 App. Div. 211; 239 N. Y. 507; Swistak v. Erie R. R. Co., 208 App. Div. 553; Hart v. Hudson River Bridge Co., 80 N. Y. 622; Wildigg v. City of Brooklyn, 80 Hun, 602; 145 N. Y. 640; Fordham v. Gouverneur Village, 160 N. Y. 541; Galvin v. Mayor, 112 N. Y. 223; Maslin v. Childs, 146 App. Div. 174; Bornstein v. Faden, 149 App. Div. 37; 208 N. Y. 605; Smith v. State, 151 App. Div. 810; Sackheim v. Pigueron, 215 N. Y. 62; Stump v. Burns, 219 N. Y. 306; Fagan v. Atlantic Coast Line R. R. Co., 220 N. Y. 301; Frate v. State, 245 App. Div. 442; Tortora v. State, 269 N. Y. 167; Fish v. Estate of McCarthy, Inc., 224 App. Div. 160.)

      Frank Gibbons and E. C. Market for respondent.
    There was no causal connection between the existence of the alleged defect and the injury to plaintiff’s intestate. (Lopez v. Campbell, 163 N. Y. 340; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Scharff v. Jackson, 216 N. Y. 598; White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Schmidt v. Michel Brewing Co., 221 N. Y. 228; Lamb v. Union Ry. Co., 195 N. Y. 260; Warner v. N. Y., O. & W. Ry. Co., 209 App. Div. 211; Szpyrka v. International Ry. Co., 213 App. Div. 390; Cantor v. National Surety Co., 208 App. Div. 370.) The words spoken by the decedent were merely a narrative of a past transaction, and not admissible in evidence for any purpose. (Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274; Martin v. New York, N. H. & H. R. R. Co., 103 N. Y. 626; People v. Del Vermo, 192 N. Y. 470; Greener v. General Electric Co., 209 N. Y. 135; Hill v. Erie R. R. Co., 221 App. Div. 518; People v. Sprague, 217 N. Y. 373; People v. Lewis, 238 N. Y. 1; People v. Strewl, 246 App. Div. 400.)
   Finch, J.

Did the plaintiff establish a prima fade case sufficient to warrant submission to the jury of the questions of negligence on the part of the defendant and its causal connection with the injury to the decedent?

In this action for personal injuries based on negligence, the jury returned a verdict in favor of the plaintiff, and the trial court denied a motion for a new trial. Upon appeal, the Appellate Division unanimously reversed in a memorandum opinion in which inter alla it was said: Assuming that the stairway in question was defective and that the defect was due to the negligence of the defendant, there is no causal connection between the existence of the defect and the injury to the plaintiffs’ intestate.” (252 App. Div. 921.)

The verdict of the jury was supported by the following facts: The decedent was the lessee of the lower apartment of a two-family house owned by the defendant. The tenants of both apartments used the basement and the one stairway leading thereto. This stairway was constructed of wood, and the treads were badly worn, shaky and loose at the back. The bottom step had been cracked and had been nailed back on; the second step from the bottom also was cracked for several inches at the center. This condition was called to the attention of representatives of the defendant, and one of them looked at the step but, although other portions of the house were repaired, the carpenters were not authorized to and failed to repair the stairway.

On the morning of the accident the plaintiff had occasion to go down to the basement, and she found the stairs in the condition described above. Thereafter, plaintiff and her husband, the decedent, were away from the house for several hours, and when they returned a neighbor informed them that a box addressed to the decedent had been delivered at the home of the neighbor. The decedent, a large man weighing 214 pounds, brought the box into the house and placed it in the kitchen. The box was a corrugated paper carton, seventeen and one-half inches long, seventeen and one-half inches wide, and twelve and one-half inches high, and weighed thirty-two pounds. About twenty minutes after he had brought the box into the kitchen, the decedent picked it up and started down the stairs to the basement. Plaintiff then heard a crash. She ran to the stairway, which was only four or five steps from where she was standing, and saw the decedent at the foot of the stairs leading to the basement, on the basement floor, grasping at his chest.” The decedent said, “ Something broke,” and then as part of the same sentence, he said, Something gave away in here,” and pointed to his chest.

After assisting the decedent upstairs, the plaintiff inspected the stairway and found that a piece had broken off from the tread of the second step up from the bottom. The appearance of both the tread and the broken piece showed that there was an old crack in the tread, partly filled by paint which had been applied more than four years prior to the accident. The broken piece was thirteen inches in length and about one and one-fourth inches at its widest point.

Several months after the accident the decedent died. At the trial there was medical testimony that the accident was the cause of his death.

The plaintiff contends that the decedent, while carrying the box, stepped on the tread of the second step, and that the defective edge broke off and caused him to lose his balance and fall. The defendant contends that the decedent fainted or, because of physical weakness, lost his footing, and that the tread was broken by the carton which had fallen from the hands of the decedent or had slid down the steps. The trial court submitted to the jury the question as to which inference should be drawn. The jury heard the evidence, examined the tread and the broken piece and the carton, and found a verdict in favor of the plaintiff. The Appellate Division reversed and dismissed the complaint on the ground that the plaintiff had failed to show a causal connection between the defect in the stairway and the injury to the plaintiff.

The plaintiff asserts that the inference which the jury drew is the normal and reasonable inference to be drawn from the facts. The decedent, in descending the stairs, would have to step on the defective tread. It is natural for a defective tread to give way when a large man, weighing 214 pounds and carrying a thirty-two pound package steps upon it. Although the piece which broke off was not large, it was large enough to cause the decedent to lose his balance, especially when he was carrying a package in front of him. There is conclusive proof that the step was broken by some force or weight while the decedent was attempting to take the package to the basement. The defendant does not contend that the step was not broken, but argues that a fair inference to be drawn is that the decedent became faint or suffered a heart attack as he was descending the stairway, and dropped the box so that it struck the defective tread, causing it to break, or that the carton broke the tread when the decedent slid it down the stairway.

Although the explanation of the facts offered by the defendant is a possible one, it is of remote probability. It is extremely unlikely that the decedent slid the box down in such manner that it struck the tread and broke it and that immediately thereafter he fainted or suffered a heart attack and fell down the stairs. It also is unlikely that he fell as a result of fainting or a heart attack and in doing so dropped the package on the tread which broke. Apparently the corrugated paper carton showed no marks which one would expect to find on such a box if it had struck a step with sufficient force to break a piece off the tread. In addition, in order for the box to strike the second step, the decedent must have dropped it while he was well above the step and thus not only the box but his body would have shown bruises which naturally would result from, a fall down several steps. His body, however, showed no such bruises and what the box showed was a question for the jury.

Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury. (Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Digelormo v. Weil, 260 N. Y. 192.) This does not mean that the plaintiff must eliminate every other possible cause. The plaintiff was not required to offer evidence which positively excluded every other possible cause of the accident.” (Rosenberg v. Schwartz, 260 N. Y. 162, 166.) The existence of remote possibilities that factors other than the negligence of the defendant may have caused the accident, does not require a holding that plaintiff has failed to make out a prima facie case. It is enough that he shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. (Stubbs v. City of Rochester, 226 N. Y. 516.)

In Fordham v. Gouverneur Village (160 N. Y. 541, 548), in the course of laying a pipe line under the sidewalk of a bridge, work holes were cut in the planks of the sidewalk. At night these holes were covered by loose planks. Deceased left her home, intending to cross the bridge and soon thereafter was found on the sidewalk trying to get up. She had suffered injuries which necessited amputation of her leg at the knee, and death followed. There was evidence that one of the planks was higher than the rest of the walk. In reversing an affirmance of a nonsuit this court said: “ What are the natural and reasonable inferences to be drawn from these facts? To our minds the first inference is very strong, almost amounting to a conviction beyond a reasonable doubt, and that is that she received her injury at that place and upon that plank * * *. We think that upon the whole evidence the question was for the jury and that it might have found from the facts and the inferences drawn therefrom that the injury was produced by stumbling over this plank.”

In Tortora v. State of New York (269 N. Y. 167, 170) the claimant was injured when a heating stove exploded. The court there said: “ Inference is never certainty, but it may be plain enough to justify a finding of fact. (Hart v. Hudson River Bridge Co., 80 N. Y. 622.) ”

In Stubbs v. City of Rochester (supra), where the plaintiff brought suit on the ground that he had become ill by reason of drinking contaminated water supplied by the defendant, a new trial was granted, the court pointing out that it was not essential for the plaintiff absolutely to eliminate all of the other causes from which the disease of the plaintiff might have been contracted, (Cf. Maloney v. Kaplan, 233 N. Y. 426; Comstock v. Wilson, 257 N. Y. 231.)

The case of Scharff v. Jackson (216 N. Y. 598), relied upon by the Appellate Division, is not authority against the plaintiff. In that case bags of cement which had been piled in a warehouse fell and struck the plaintiff who was engaged in loading such bags on a truck. It was held that the plaintiff had not proven a prima facie case, because the accident with equal reasonableness might have been accounted for on the theory that the bags fell because of improper piling or because they had been undermined by the plaintiff when he removed the other bags. In White v. Lehigh Valley R. R. Co. (220 N. Y. 131) the court pointed out that there was not the slightest evidence to show the relationship of cause and effect between the negligence of the defendant and the fatal injury to the decedent.

In the case at bar the natural and reasonable inference is that the plaintiff was descending the stairway with the box, when the defective tread broke under his foot and caused him to fall. There was evidence that the decedent suffered from heart disease, and the jury might have reached the conclusion that he fell because of heart attack or dizziness. The question was one for the jury and the complaint should not have been dismissed.

This leads to a reversal. A new trial, however, must be granted. The trial court permitted the plaintiff to testify concerning a statement that her husband made after the fall, to the effect that something broke. To the extent that this might be interpreted by the jury as a statement that the step had broken, it was not a part of the res gestee and, therefore, inadmissible. (Waldele v. N. Y. Central & H. R. R. R. Co., 95 N. Y. 274; Greener v. General Electric Co., 209 N. Y. 135.)

The judgments should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien and Loughran, JJ., concur; Hubbs and Rippey, JJ., vote for reversal and reinstatement of the verdict.

Judgments reversed, etc.