text:
    In the Matter of the Claim of Sarah Babb et al., Respondents, against Conboy & Brown Construction Company et al., Appellants. State Industrial Board, Respondent.

      (Argued April 17,1934;
    decided May 22, 1934.)

      William B. Davis and E. C. Sherwood for appellants.
    The brothers and sisters of the decedent are not entitled to compensation. (Cons. Laws, ch. 67, § 17; Drummond v. Isbell Porter Co., 188 App. Div. 374; Svolos v. Marsch & Co., 195 App. Div. 674; Matter of Newham v. Chile Exploration Co., 232 N. Y. 37.) The Industrial Board erred in failing to consider the amount of compensation that would have been apportioned to the decedent’s mother, in determining the amount of compensation payable to the brothers and sisters. (Cons. Laws, ch. 67, § 16, subd. 4; Plouff v. Port Henry L., H. & P. Co., 225 App. Div. 704; Matter of DiDonato v. Rosenberg, 263 N. Y. 486.)

      Andrew D. Weinberger for claimants, respondents.
    Residents of Cana da are entitled to the same death benefits as residents of the United States. (Cons. Laws, ch. 67, § 17; Butt v. Hinkle Iron Co., 32 St. Dept. Rep. 389; Mallory v. American Bridge Co., 261 N. Y. 701; Schaubel v. Simons, Stewart & Foy, Inc., 261 N. Y. 544.) The award of fifteen per cent to each of the four minor dependents was proper as they and not the decedent’s mother had priority in any compensation award. (Ziegler v. Pictorial Review Co., 216 App. Div. 614.)

      John J. Bennett, Jr., Attorney-General {Roy Wiedersum of counsel), for State Industrial Board, respondent.
    The brothers and sisters of the decedent are entitled to compensation and the award was properly made. (Mallory v. American Bridge Co., 237 App. Div. 861; 261 N. Y. 701; Schaubel v. Simons, Stewart & Foy, Inc., 261 N. Y. 544.) The ruling of the State Industrial Board refusing to credit twenty-five per cent of the decedent’s average weekly wages, allowed a dependent mother under certain circumstances, in partial reduction of the award to the four brothers and sisters, was proper. (Ziegler v. Pictorial Review Co., 216 App. Div. 614.)
   Lehman, J.

Louis Babb died as the result of accidental injuries arising out of and in the course of bis employment. He was unmarried. A mother residing in Canada and two brothers and two sisters under the age of eighteen years were dependent upon him. The mother filed claims in behalf of herself and her four children. Then she began an action as administratrix of the decedent to recover from third parties damages for his death. The action was settled for the sum of $4,800 without the consent of the employer or carrier. For that reason the claim of the mother was not allowed and no award has been made to her. The decedent’s brothers and sisters were not entitled to any part of the recovery or settlement in the third-party action. Each of them has received an award of fifteen per cent of the decedent’s wages.

Alien dependents, residents of Canada, receive the same benefits as dependents who are residents of the United States. (Workmen’s Compensation Law [Cons. Laws, ch. 67], § 17; Matter of Mallory v. American Bridge Company, 237 App. Div. 861; affd., 261 N. Y. 701.) In the case of a decedent who leaves no wife or dependent husband and no children, the statute provides that the following amounts shall be payable: for the support of * * * brothers and sisters under the age of eighteen years, if dependent upon the deceased at the time of the accident, fifteen per centum of such wages for the support of each such person until of the age of eighteen years; and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the accident, twenty-five per centum of such wages during such dependency. But in no case shall the aggregate amount payable under this subdivision exceed the difference between sixty-six and two-thirds per centum of such wages, and the amount payable as hereinbefore provided to surviving wife (or dependent husband) or for the support of surviving child or children.” (§ 16, subd. 4.) Awards of fifteen per centum of the decedent’s wages to each of his four dependent brothers and sisters and an award of twenty-five per centum to his dependent mother would exceed sixty-six and two-thirds per centum of his wages. The appellants urge that where there is a dependent parent no awards may be made to dependent brothers and sisters which exceed in aggregate amount forty-one and two-thirds per centum of the decedent’s wages. The Industrial Board and the Appellate Division have held that awards to dependent grandchildren or dependent brothers and sisters in the amount provided by the statute are payable before any award is payable to a dependent parent or grandparent. A dependent mother may, it is said, receive an award only if a surplus remains after each dependent brother and sister has received fifteen per centum of the decedent’s wages.

The Workmen’s Compensation Law covers the entire field of remedy against an employer for industrial accident. (Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 477, 478.) There this court said that the Legislature “in the exercise of legislative judgment * * * extended the benefit of the act as far as seemed necessary to accomplish its purpose of providing compensation for those who had a right to rely upon the support of the deceased employee. * * * Under this legislation both classes, employer and employee, gained benefits and made concessions.”

Dependents are entitled to receive compensation in the amount fixed by the statute, though the employer be free from fault; but even though the employer’s fault be grievous and the loss suffered by a particular dependent far greater than the compensation provided by the statute, no dependent is entitled to receive from the employer compensation beyond the statutory provision, and in no event may the aggregate amount of compensation payable to all the dependents exceed sixty-six and two-thirds per centum of the wages of the decedent. That percentage fixes the limit of the obligation of the employer and carrier, and also the aggregate amount “ payable ” to dependents. When a deceased employee has left a number of dependents, there must at times be reduction in the amount of compensation payable to each, or elimination of compensation payable to some classes of dependents, in order to bring the total compensation payable under the statute within the limits of the carrier’s obligation.

The remedy against the employer for industrial accidents leaves untouched any right of action which the next of kin of a deceased employee might have against third parties for wrongfully causing his death, but where there is a recovery in such actions, the statute has provided the “ extent to which the shares that belonged to the dependents should be applied in reduction of the burdens that were placed upon the carrier.” (Matter of Zirpola v. Casselman, Inc., 237 N. Y. 367, 372.) The share of any recovery of damages in an action at law which belongs to a dependent entitled to compensation under the statute must be applied in reduction of the burden upon the carrier to pay such compensation.

The amount payable to dependents under the statute can in no event exceed two-thirds of the amount of the wages of the deceased employee. That limitation is upon the aggregate amount payable ” under the statute. It measures not merely the obligation of the carrier to pay but the right of dependents to receive. The dependents are classified under the statute. The amounts payable to surviving wife or dependent husband and dependent children may exceed the limitation. Then no amount is payable to other surviving dependents. The burden of the carrier’s obligation to dependents may be reduced by rights of subrogation conferred by section 29 of the Workmen’s Compensation Law, or by application of a recovery in a third-party action. Indeed, such application may entirely wipe out the carrier’s obligation to the dependents; but neither right to subrogation nor application of recovery enlarges the amount which is “ payable ” to dependents under the statute. True, because of such application there may be “no persons entitled to compensation ” within the meaning of subdivisions 8 and 9 of section 15 of the Workmen’s Compensation Law, none the less the amounts payable to dependents as provided by the statute remain unchanged and a recovery applied upon these amounts does not enlarge the statutory amounts payable or the class of persons entitled to compensation. A recovery enures to the benefit of the carrier, not to the benefit of a dependent to whom the recovery does not belong.

So we held in Matter of Plouff v. Port Henry L., H. & P. Co. (250 N. Y. 616, affg. 225 App. Div. 704). The same rule must apply when there has been a settlement without consent of the carrier. The limitation of the amounts payable ” under the provisions of the statute to dependents of the deceased employee includes the statutory compensation to the dependent’s mother, though because of the settlement of the third-party action she is no longer “ entitled to compensation.”

The Appellate Division did not decide otherwise; but it held that the right to compensation of the dependent brothers and sisters under subdivision 4 of section 16 of the statute was superior to the right to compensation of the dependent mother. We cannot find in the language of the subdivision any indication that the Legislature had such intention. Dependent brothers and sisters and grandchildren are, it is true, named first, but they are named as members of one group with dependent parents and grandparents, and larger amounts are payable to the latter. In express terms the statute has placed a limitation upon the “ aggregate amount payable under this subdivision,” and we find in that language no implication that there should be discrimination and priority in the payment of compensation among those dependents to whom compensation is payable -under that subdivision. The “ aggregate amount payable ” under subdivision 4 is in this case eighty-five per centum of the wages of the deceased employee. Each amount must be reduced so that the aggregate shall not exceed sixty-six and two-thirds per centum. The compensation payable to each brother and sister must be accordingly diminished. Each dependent brother and sister is presently entitled to an award of 11.96 per centum of the decedent’s wages.

The order of the Appellate Division and the award of the State Industrial Board should be reversed and the matter remitted to the State Industrial Board to fix the award in accordance with this opinion.

Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. John Jansen, Appellant.
    (Submitted April 18, 1934,
    decided May 22, 1934.)

      Peter W. Quinn for appellant.
    The decree of separation barred entertainment of the complaint herein. (Waring v. Waring, 100 N. Y. 570; Byrnes v. Byrnes, 126 App. Div. 619; People ex rel. Comrs. of Charities v. Cullen, 153 N. Y. 629; Kingsbury v. Sternberg, 178 App. Div. 435; People v. Schenkel, 258 N. Y. 224; People v. Meyer, 124 Misc. Rep. 285.)

      Paul Windels, Corporation Counsel (Edmund L. Pahnieri and Paxton Blair of counsel), for respondent.
    A decree of separation in favor of a husband does not abrogate his marital obligations to the extent of relieving him from liability, where his wife is in danger of becoming a burden upon the public. (Tirrell v. Tirrell, 232 N. Y. 224; Harding v. Harding, 203 App. Div. 721; Leith v. Leith, 124 Misc. Rep. 24; Veeck v. Veeck, 218 App. Div. 822; People ex rel. Berman v. Berman, 197 N. Y. Supp. 502; Kingsbury v. Sternberg, 178 App. Div. 435; People v. Schenkel, 258 N. Y. 224; City of New York v. Cohen, 143 Misc. Rep. 27; 259 N. Y. 645; People v. McCarthy, 139 Misc. Rep. 746; 257 N. Y. 567; Hawkins v. Hawkins, 110 App. Div. 42; People ex rel. Heinle v. Heinle, 115 Misc. Rep. 467.)
   Lehman, J.

The defendant has been convicted upon a charge that since the 9th day of February, 1925, he “ failed and neglected to support his legally separated wife; by reason of which she is in danger or likely to be in danger of becoming a burden upon the public, in violation of Section 74 of the Inferior Criminal Courts Act.” He has been sentenced to pay five dollars weekly for the support of his wife. In his defense the defendant introduced a judgment of the Supreme Court entered on February 11th in an action brought by the wife for separation on the ground of cruel and inhuman treatment. In that action the defendant interposed a counterclaim demanding judgment of separation and, after a hearing, judgment was entered in favor of the defendant dismissing the complaint and adjudging that the said defendant * * * be * * * forever legally separated from the bed and board of Julia Ann Jansen, the said plaintiff, on the ground of the wilful abandonment of defendant by plaintiff.” The question presented upon this appeal is whether a husband in whose favor a decree of separation has been granted violates the statute and becomes a disorderly person by failure to support his wife, whereby she is in danger of becoming a public charge.

“ The husband’s obligation of support continues as long as the marriage relation is not dissolved or limited by a decree of divorce or separation. * * * A penal law may make failure to perform a duty to the State a crime, where the public interest demands its performance. Then the misconduct of the person to whom primarily the duty is owed becomes irrelevant.” (People v. Schenkel, 258 N. Y. 224, 225, 226.) In that case no decree of separation had been granted, and for that reason we held that a husband might be convicted as a disorderly person ’ as defined by subdivision 1, section 899 of the Code of Criminal Procedure,” even though the wife had perhaps been guilty of misconduct which might have furnished ground for a separation. In the case now under review a decree was granted in favor of the husband.

Even where the wife secures a decree of separation, this court has said that the obligation of the husband is not wholly terminated, but it assumes another form and rests upon different principles. Their duties and obligations towards each other during the separation arejust what the court may have prescribed, and no other.” (People ex rel. Comrs. of Charities v. Cullen, 153 N. Y. 629, 637.) In that case the court decided that the provisions of the Consolidation Act (Laws of 1882, ch. 410, § 1454 et seq.) did not apply where a decree of separation had been granted though in favor of the wife.

These provisions of the Consolidation Act have been embodied in section 74 (now § 105) of the Inferior Criminal Courts Act of the City of New York (Laws of 1910, ch. 659, amd. Laws of 1919, ch. 339), but their scope has been enlarged. Now a person “ who fails to support his wife or children when his wife has secured a decree of separation by reason of which they are without adequate support or in danger of becoming a burden upon the public ” is defined as a disorderly person. Neither the' Consolidation Act, construed in People ex rel. Comrs. of Charities v. Cullen (supra), nor the Code of Criminal Procedure, construed in People v. Schenkel (supra), contained such a clause.

That clause enlarges the scope of the statute to include a situation which lay outside of the scope of the statute heretofore construed by us. By its terms it applies where the wife has secured a decree of separation and the husband’s duty to support his wife has not been terminated, though it has assumed a different form. There is nothing to indicate that the Legislature intended that in the city of New York a husband commits a penal offense by failure to perform a marital duty to support his wife from which the courts have by decree absolved him. The Legislature has provided an additional remedy in the city of New York for failure to perform an existing duty. It has not attempted, even assuming that it could do so, to impose a marital duty in the city of New York where no marital duty exists elsewhere in the State.

The judgment should be reversed and the information dismissed.

Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ., concur.

Judgment reversed, etc.


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Plaintiff, v. Max Aaron et al., Defendants; James K. Rice, Jr., et al., Copartners under the Firm Name of J. K. Rice, Jr., & Co., Appellants, and William A. Greer et al., Copartners under the Firm Name of Greer, Crane & Webb, Respondents.

      (Argued March 15, 1934;
    decided May 22, 1934.)

      William D. Whitney, Samuel B. Stewart, Jr., and William F. Sullivan for appellants.
    The intermediate owner has none of the benefits of the stock and may not properly be subjected to the burdens. (Richards v. Robin, 175 App. Div. 296; 225 N. Y. 719; Matter of Grifenhagen v. Ordway, 218 N. Y. 451; Johnson v. Underhill, 52 N. Y. 203; Broderick v. Adamson, 148 Misc. Rep. 353; De Remer v. Brown, 165 N. Y. 410; Kelly A. B. Co. v. Barber A. P. Co., 211 N. Y. 68; Brinkley v. Hambleton, 67 Md. 169; Rogers v. Toland, 43 Penn. Super. Ct. 248; Huegle v. Bean, 43 Penn. Super. Ct. 352; Le Sassier v. Kennedy, 36 La. Ann. 539; 123 U. S. 521.)

      Leo J. Bondy, J. Norman Lewis and Arthur M. Sommerfield for Guy W. Levy et al., individually and as copartners under the firm name of Levy Bros., defendants.
    The liability to indemnify against calls or assessments arises out of the ownership of the stock and not out of the contract to purchase the same. (Johnson v. Underhill, 52 N. Y. 203; Currie v. White, 45 N. Y. 822; James v. May, [L. R.] 6 H. L. 328; Castellan v. Hobson, L. R. [10 Eq.] 47; Locke v. Farmers Loan & Trust Co., 140 N. Y. 135; Sigua Iron Co. v. Brown, 171 N. Y. 488; Humble v. Langston, 7 M. & W. 517; Richards v. Robin,
      175 App. Div. 296; 225 N. Y. 719; Matter of Griefenhagen, v. Ordway, 218 N. Y. 451.)

      Robert E. Samuels and Sidney A. Wolff for H. E. Peterson & Co., amici curios.

    A record stockholder, seeking reimbursement for an assessment levied with respect to stock which he had sold prior to the closing of the bank, has no claim against his vendee who in turn has resold the stock prior to such closing. (Richards v. Robin, 175 App. Div. 296; 225 N. Y. 719; Rogers v. Toland, 43 Penn. Super. Ct. 248; Brinkly v. Hambleton, 67 Md. 169; Matter of Grifenhagen v. Ordway, 218 N. Y. 451; Madfes v. Beverly Development Corp., 251 N. Y. 12.)

      Dudley F. Sicher, Maxwell Davidson and George Schreiber for Benjamin, Hill & Co., amici curiae.

    The record stockholder is entitled to reimbursement only from one who is the actual or equitable owner at the time of the incidence of the assessment, whether or not such then owner be the record stockholder’s immediate vendee; and the liability is not contractual, but is one of trust. (Richards v. Robin, 175 App. Div. 296; Johnson v. Underhill, 52 N. Y. 203; Rogers v. Toland, 43 Penn. Super. Ct. 248; Huegle v. Bean, 43 Penn. Super. Ct. 352; Brinkley v. Hambleton, 67 Md. 169; Le Sassier v. Kennedy, 36 La. Ann. 539; 123 U. S. 521; Broderick v. Adamson, 148 Misc. Rep. 353; Genet v. D. & H. C. Co., 136 N. Y. 593; Miller v. Schloss, 218 N. Y. 400.)

      A. Hayne de Yampert, Roger M. Blough and Winslow M. Lovejoy for White & Case, amici curiae.

    Either the registered holder or equitable owner may compel reimbursement for or indemnification against payment of an assessment from the owner on the date the assessment became payable unless such owner purchased the stock after notice of assessment and ex-assessment or is insolvent, in either of which events such recovery may be had against said owner’s vendor or any fraudulent transferor. (Richards v. Robin, 175 App. Div. 296; 225 N. Y. 719;
      Early v. Richardson, 280 U. S. 496; Johnson v. Underhill, 52 N. Y. 203; Broderick v. Adamson, 148 Misc. Rep. 353; Le Sassier v. Kennedy, 36 La. Ann. 539; Rogers v. Toland, 43 Penn. Super. Ct. 248; Brinkley v. Hambleton, 67 Md. 169; Gaffney v. People’s Trust Co., 191 App. Div. 697; 231 N. Y. 577; Matter of Grifenhagen v. Ordway, 218 N. Y. 451; Matter of Robinson v. Hayes, 207 App. Div. 718; Genet v. D. & H. C. Co., 136 N. Y. 593; Miller v. Schloss, 218 N. Y. 400.)

      Norman S. Goetz, J. Alvin Van Bergh and David Katz for Co wen & Co., amici curice.

      Carroll G. Walter and James Lee Kauffman for respondents.
    A purchaser of stock impliedly agrees to indemnify his vendor against liability for any assessment to which bis vendor may be subjected by reason of the purchaser’s failure.to have the stock transferred upon the books of the corporation; and the purchaser cannot free himself of that obligation by making a resale of the stock to a third party. (Johnson v. Underhill, 52 N. Y. 203; Burnett v. Lynch, 5 Barn. & Cres. 589; Walker v. Bartlett, 18 C. B. 845; Spencer v. Ashworth, Partington & Co., [1925] 1 K. B. 589.)

      Arthur Ofner, Warren C. Fielding, Isadore H. Cohen, Harold N. Cohen and Carl J. Austrian for Joseph A. Broderick, as Superintendent of Banks, amicus curice.

    The transfer of the stock by appellants does not relieve them from the obligation to indemnify or exonerate the respondents. (Johnston v. Laflin, 103 U. S. 800; Maxted v. Paine, [L. R.] 6 Ex. 132; Alexander v. Caro, [L. R.] 22 So. Aust. 134; Spencer v. Ashworth, Partington & Co., [1925] 1 K. B. 589; Levy v. Dunn, 160 N. Y. 504; Currie v. White, 45 N. Y. 822; Johnson v. Underhill, 52 N. Y. 203; Thompson v. Daunt, 10 L. R. New South Wales, 132; Hamilton v. Hull, 19 L. R. New Zealand, 49; Kellock v. Enthoven, [L. R.] 8 Q. B. 458; [L. R.] 9 Q. B. 241; Boultbee v. Gzowski, 29 Can. Sup. Ct. 54.)
   Lehman, J.

In an action brought by the Superintendent of Banks to enforce the statutory liability of stockholders of the Bank of United States (Banking Law [Cons. Laws, ch. 2], §§ 80 and 120) the members of the firm of Greer, Crane & Webb are named as defendants. That firm appears by the books of the bank to be holders of thirty shares of the stock of the bank. The defendants, so named, had sold the stock to the firm of J. K. Rice, Jr., & Co. before the closing of the bank, and they have impleaded the members of that firm, on the ground that the buyers will be hable to them for the claim made against the stockholders of record. (Civ. Prac. Act, § 193, subd. 2.)

The firm of J. K. Rice, Jr., & Co., are dealers in securities. They agreed to buy the thirty shares of stock on December 10, 1930, at the price of 11%, and a fraction of a minute thereafter they agreed to sell the same stock to the firm of Levy Bros, at the price of 11%. The following morning the stock was delivered to J. K. Rice, Jr., & Co. against a payment of $352.50 and the same certificates were then delivered by them to Levy Bros. Upon these undisputed facts J. K. Rice, Jr., & Co., have moved for summary judgment dismissing the complaint against them. An appeal has been taken to this court from the order of the Appellate Division affirming an order of Special Term denying the motion.

The Appellate Division in its order allowing the appeal has certified the following question: “ Where a person appears by the books of a domestic bank to be a stockholder of record, but such stockholder of record has sold his shares prior to the closing of such bank by the Superintendent of Banks, and the purchaser thereof has resold such shares to a third party prior to such closing, is such purchaser from the stockholder of record liable to such stockholder of record for the amount of any assessment for which such stockholder of record may be held liable in an action by the Superintendent of Banks to recover a statutory assessment under sections 80 and 120 of the Banking Law? ”

The statute imposes liability for the debts of a bank upon “1. Such persons as appear by the books of the bank to be stockholders,” and “ 2. Every owner of stock, legal or equitable, although the same may be on such books in the name of another person.” (Banking Law, § 120.) The statutory liability of Greer, Crane & Webb as stockholders of record was not terminated by the transfer of the stock certificates to J. K. Bice, Jr., & Co., but J. K. Bice, Jr., & Co. did by such transfer become the owners, legal and equitable, of the bank stock though the stock remained on the books of the bank in the name of the original holders, and as long as they remained the actual owners, they shared the liability of the holder of record of the same stock. Their liability was coterminous with their ownership of the stock. It began when they became the owners, it ended when they transferred their ownership to another.

Ownership of stock carries with it the enjoyment of any rights or privileges attached to the stock. True, statute or charter may provide that until the stock is transferred on the books of the corporation, only the holder of the stock as shown on the books of the corporation will be recognized by the corporation as owner. (Cf. Pers. Prop. Law, Cons. Laws, ch. 41, § 164.) Nevertheless, as between record holder and a purchaser from him, the seller becomes a trustee for the purchaser and must account for benefits received. (Currie v. White, 45 N. Y. 822.) Stock ownership may carry with it charges and duties as well as privileges and benefits, and again one who accepts the benefit may find himself charged with a duty. It has been said that the “ very essence of a contract of sale and purchase, in the case of shares is, * * * that one party shall divest himself of, and the other acquire, in the name of himself, * * * the ownership of the shares; * * * and that the seller shall relinquish and be relieved from and the purchaser assume all future benefits and liabilities in respect of the shares.” (Grissell v. Bristowe, L. R., 3 C. P. 112, quoted in Johnson v. Underhill, 52 N. Y. 203.)

This court decided there that the actual owner of stock through purchase is under a duty to indemnify the seller against future liabilities arising from record ownership. This is upon the principle that the duty to bear burdens is correlative to the right to take benefits. And it is from the existence of that duty, that the law will imply the undertaking, upon the part of the vendee, to indemnify the vendor against future liabilities ” (p. 214).

The right to take benefits ” is derived from ownership and ceases with transfer of such ownership. The question now arises whether the duty to bear burdens ” continues thereafter. What was said and decided in Johnson v. Underhill (supra) does not answer that question. There the purchaser had not transferred the stock he had bought. It is true that the court formulates the obligation of a purchaser to indemnify the seller without hmitation, yet limitation may perhaps be implied from the statement that duty to bear burden and right to benefit are correlative.” The obligation arises from an implied contract. Is that contract implied in fact or in law, and what are its exact terms?

If the contract is implied in fact and is based upon a finding of actual intention, then it would seem to follow that slight difference in the fact might produce infinite variations in result. Doubtless in almost every case the inference may fairly be drawn that the seller of stock does not intend after the sale to bear the burden of any duty which might be charged against the holder of record of the stock. If the seller sought complete release from any obligation imposed upon such holder, he might insist upon a transfer of the stock on the books of the corporation before he parted with ownership. Failure to take such precaution may be due to obliviousness or to anticipation that the actual owner of the stock would meet any calls that might be made upon the stock; but ordinarily it can hardly be assumed that the parties contemplated or intended that the buyer would “ register a transfer of the, shares, and with a further undertaking, that the defendants [buyer] would indemnify the plaintiff [seller] against calls which the plaintiff [seller] might be called upon to pay, if, and so long as, the transfer was not registered.” From the peculiar circumstances in Grissell v. Bristowe (supra), the Court of Common Pleas did find such a contract implied in fact, but no such circumstances are shown here, and the question actually decided in that case was entirely different. The citation of that case in our decision in Johnson v. Underhill (supra) may hardly be considered as an indication that the same contract would be implied in entirely different circumstances. Indeed, on the same case this court also cited the case of Walker v. Bartlett (86 Eng. C. L. Rep. 844) as holding that there was an implied contract upon the part of the defendant to indemnify the vendor against calls made upon the shares, while they remained the property of the vendee.” (p. 212.) (Italics are ours.) The decision in Johnson v. Underhill may not be regarded as authority for any broader rule.

In truth it would be difficult to infer from an ordinary sale and delivery of certificates of stock an intention that the buyer should transfer the stock upon the books of the corporation. It is common knowledge that transfers of stock are often not registered upon the books of the corporation and sales are made in the light of such knowledge. That the parties intended a transfer of both benefits and burdens may be true, and it may also be true that upon equitable principles the law will imply from acceptance of benefits a quasi contractual obligation to indemnify against burdens, even though actual intention to give such indemnity is absent. Any implication of fact, however, that there was an intention that the buyer should indemnify the seller against charges even after the seller had in turn parted with the stock and the derivative right to benefits from the stock, would be without foundation.

In a number of decisions, courts of high authority in England have, nevertheless, decided that the law will imply an obligation that the buyer shall indemnify the seller against future charges, even though the buyer has in turn transferred the stock. In Spencer v. Ashworth, Partington & Co. ([1925] 1 K. B. 589) the English Court of Appeal so held. In some earlier cases the rule had been limited, but the trend of decisions in the English courts had been toward a broad obligation of indemnity, and in Spencer v. Ashworth, Partington & Co. the broad rule was expressly adopted. Indeed, in that case the parties were stock brokers and had dealt with each other only as stock brokers. Nevertheless, the broker for the buyer was held hable to the broker for the seller, who in turn had been held by the principal.

To some degree, at least, the formulation of the exact obligation imposed by law upon the buyer must depend upon the statutes which impose possible burdens upon holders of stock, and upon the customs and practices in regard to transfer of stock upon the books of corporations by those who buy and sell stock. Then, too, convenience and policy may have some influence. Differences in statutes and customs might lead the courts of this jurisdiction and England to reach different results. This court has decided that a broker who purchases stock at an auction sale is under no obligation to indemnify the seller for charges imposed after the broker delivered the stock to his -undisclosed principal. (Richards v. Robin, 175 App. Div. 296; affd., 225 N. Y. 719.) We can find no valid distinctions between purchases by brokers on the Stock Exchange and purchases by brokers at auction sales; nor can we see any valid distinction between the contractual obligations of a broker for an undisclosed principal and the obligations of a buyer who is not a broker. Our decision in Richards v. Robin (supra) must, therefore, be regarded as at variance with the broader English rule as formulated in Spencer v. Ashworth, Partington & Co. (supra).

No cases have been cited to us from any American jurisdiction where the obligation to indemnify a seller of stock has been extended beyond the time when the quasi trust relation between seller and buyer ceased. (Cf. Brinkley v. Hambleton & Co., 67 Md. 169; Rogers v. Toland, 43 Penn. Super. Ct. 248.) We are told that public policy and convenience should lead to the adoption of the broader English rule. Then it is said the seller could implead his buyer who in turn could implead a buyer to whom he in turn had sold the stock, and the ultimate liability would rest on the last solvent buyer. Thus, too, the Superintendent of Banks could learn the name of the actual owner of the stock and enforce the statutory liability imposed upon the actual owner. On the other hand, we are told that public policy and convenience is best served by the narrower rule, for otherwise the free transfer of bank stock would be unduly hampered. We cannot adopt the broader rule of the English courts, even if we were otherwise disposed to do so, without overruling our decision in Richards v. Robin, after buyers and sellers may have guided their conduct in accordance with that decision.

There is no duty upon a buyer to register a transfer of stock upon the corporate books, and no obligation arises upon equitable grounds for failure to make such a transfer. No implication in fact of an agreement by the buyer to indemnify the seller from all future charges ordinarily arises from the sale. The obligation of the buyer to indemnify the seller is implied by law. It rests not on actual agreement, but on equitable principles. Seller and buyer occupy a quasi trust relationship as long as the seller remains the holder of record and the buyer remains the actual owner of the stock. Then the law implies correlative obligations binding on each. When the buyer transfers the stock to another, then the new owner becomes entitled to the benefits of the stock. There is no privity of contract between the record holder and the new owner. The record holder may not even know that the buyer has transferred the stock to another. None the less the law makes the holder of the record title to stock a quasi trustee for the actual owner, and the law implies an obligation on the part of the record holder to account for the benefits received, and an obligation on the part of the actual owner to indemnify the record holder against liabilities. Here certainly the correlative obligations are both limited to the period when the relationship exists. In so far as the law implies correlative obligations solely from the quasi trust relationship, they depend upon privity of estate and cease when that privity terminates. That is true alike where the cestui is the original buyer and where the cestui is a subsequent assignee.

Thus the wider obligation of a buyer to indemnify the seller against all liabilities until the transfer of stock has been registered which English courts have held is implied in law must rest either upon an inference of actual intention of the parties or upon considerations which require the buyer in good conscience to protect the seller either by transfer of the stock or by indemnification in case of failure to make such transfer. Under English custom there may be a duty on the part of a broker authorized to sell stock or on the part of a buyer to register a transfer. Then there is basis for the implication of an obligation to indemnify the record holder of the stock which survives until the duty to register the transfer has been performed. In this jurisdiction there is no such duty resting upon a buyer, and it is difficult then to find any sound basis for the implication of an obligation by the buyer to indemnify the seller which continues after the buyer has terminated the quasi trust relationship between himself and the seller.

The orders should be reversed and the motion for summary judgment granted, with costs in all courts. The question certified should be answered in the negative.

Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ., concur.

Orders reversed, etc.


author: ' ¿Lehman, J. Htjbbs, J.

text:
    Herman Herzog, Respondent, v. Abraham Stern et al., as Executors of David Stern, Deceased, Appellants.
    (Argued March 1, 1934;
    decided May 23, 1934.)

      William M. Kurtz, James J. Mahoney and George J. Stacy for appellants.
    The public policy of this State denies the right to recover damages for personal injuries from the estate of a deceased wrongdoer and forbids enforcement of any cause of action of such a nature purported to be created by the statute of another State. (Loucks v. Standard Oil Co., 224 N. Y. 99; People v. Martin, 175 N. Y. 315; Matter of Girard, 2 How. [U. S.] 127; Dammert v. Osborn, 140 N. Y. 30; Cross v. U. S. T. Co., 131 N. Y. 330; Matter of Lampson, 33 App. Div. 49; 161 N. Y. 511; Hollis v. Drew Theological Seminary, 95 N. Y. 166; Hegerich v. Keddie, 99 N. Y. 258; Gorlitzer v. Wolffberg, 208 N. Y. 475; Bernstein v. Queens County Jockey Club, 222 App. Div. 191; Cregin v. Brooklyn Crosstown Ry. Co., 75 N. Y. 192.) . The result of enforcing the Virginia statute in this State would be to make a distribution of the deceased’s property contrary to the laws adopted by this State governing such distribution. (Matter of Killough, 148 Misc. Rep. 73; Clough v. Gardiner,
      111 Misc. Rep. 249; Sultan of Turkey v. Tiryakian, 162 App. Div. 613; 213 N. Y. 429; Knowlton v. Moore, 178 U. S. 41; State ex rel. McClintock v. Guinotte, 275 Mo. 298.)

      Sidney J. Feltenstein and Abraham Rosenstein for respondent.
    The legal liability of appellants is controlled by the lex loci, and that is not varied by any considerations of local public policy under the lex fori by reason of the failure of the Legislature of the forum to have spoken on the subject. (Hegerich v. Keddie, 99 N. Y. 258; Gorlitzer v. Wolffberg, 208 N. Y. 475; Cons. Laws, ch. 15, § 120; Kursa v. Overseas Shipping Co., 217 App. Div. 775; Watkins v. Comm. Stevedoring Co., 216 App. Div. 234; Lichtenstern v. Augusta-Aiken R. & El. Co., 165 App. Div. 270; Clough v. Gardiner, 111 Misc. Rep. 249; 194 App. Div. 923; Domres v. Storms, 236 App. Div. 630; Matter of Killough, 148 Misc. Rep. 73; Loucks v. Standard Oil Co., 224 N. Y. 99; Kerston v. Johnson, 185 Minn. 591; Thuna v. Wolf, 130 Misc. Rep. 306; Benton v. Safe Deposit Bank, 255 N. Y. 260; Veazey v. Allen, 173 N. Y. 359; Wikoff v. Hirschell, 258 N. Y. 28; Gregonis v. P. & R. Coal & Ice Co., 235 N. Y. 152; State of Colorado v. Harbeck, 232 N. Y. 71; Dennick v. Railroad Co., 103 U. S. 11.)

      James Marshall as amicus curies.

    The person or power which negligently inflicts injury upon another shall be held responsible to the injured party. The mere fact that no statute of identical coverage exists as part of the law of the forum will not prevent the enforcement of a transitory cause of action arising in a foreign jurisdiction under a foreign statute. (Loucks v. Standard Oil Co., 224 N. Y. 99; Fitzpatrick v. International Ry. Co., 252 N. Y. 127; Young v. Masci, 289 U. S. 253; Sheldon v. Haxtun, 91 N. Y. 124; Manhattan Life Ins. Co. v. Johnson, 188 N. Y. 108; Domres v. Storms, 236 App. Div. 630; Salimoff & Co. v. Standard Oil Co., 262 N. Y. 220; Orr v.
      Ahern, 107 Conn. 174; Chubbuck v. Holloway, 182 Minn. 225; Powell v. Great Northern Ry. Co., 102 Minn. 448.)
   ' ¿Lehman, J.

Though the cause of action created in Virginia is not penal in its nature and its enforcement does not offend our sense of justice or menace the public welfare, it by no means follows that the cause of action is enforceable against the executors of the wrongdoer. True, the foreign statute provides that such a cause of action shall not abate by the death of the wrongdoer, and the general rule is that whether a claim for damages for a wrong survives the death of the wrongdoer or of the injured person is determined by the law of the place of wrong.” (Proposed Final Draft No. 3 of the Restatement of the Law of Conflict of Laws by the American Law Institute, § 426.) (Cf. Orr v. Ahern, 107 Conn. 174; Friedman v. Greenberg, 110 N. J. L. 462.) The question, however, is not whether the cause of action created by the laws of the State of Virginia survives the death of the wrongdoer, but whether the law of this State permits the representative of the deceased wrongdoer to be sued on such a claim.

On that question the comment upon the general rule contained in the proposed draft is illuminating. “ If a claim for damages for injury survives by the law of the place of wrong, recovery may be had upon it by or against the representative of the deceased party, provided the law of the state of suit permits the representative of the deceased party to sue or be sued on such a claim. Without such power created by the law of the state of suit, no recovery can be had.”

This State has undoubted power to determine the devolution of the property of a deceased resident and how such property shall be administered. It determines upon' what claims a suit may be brought against the representatives of the decedent, and payment be enforced out of the assets of the estate. A transitory cause of action may constitute a property right. It may even bé regarded as a vested right against the wrongdoer. There can, however, be no vested right to enforce a claim for damages out of the property of a deceased resident of this State unless there is a law which permits the property of such a decedent to be applied upon the claim. At common law a claim for personal injury did not survive and could not be enforced out of the property or against the personal representatives of the deceased wrongdoer. The common law has in this regard not been changed by the Legislature. Indeed, the Legislature has expressly provided that “For wrongs done to the property rights or interests of another for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. This section shall not extend to an action for personal injuries, as such action is defined in section thirty-seven-a of the General Construction Law, except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death.” (Decedent Estate Law [Cons. Laws, ch. 13], § 120.) It is not without significance that this provision has been inserted in the Decedent Estate Law intended to govern the devolution and administration of property -within this State belonging to residents of this State,"' The Legislature has not merely failed to provide, as many other States have done, that causes of action for personal injury shell survive the death of the wrongdoer, but the Legislature, though it has affirmatively provided for the prosecution of some causes of action against the executors and administrators of a wrongdoer after his death, has expressly refused to sanction causes of action for personal injury against such executors or administrators./^ Where neither common law nor a statute permits the bringing of an action against executors or administrators of a deceased resident, the courts of this State are without jurisdiction to pass upon such a cause of action. There is here no room for speculation as to whether^the cause of action against the representatives of the deceased wrongdoer created by the .laws of the State of Virginia offends our public policyj)j-The rights and obligations of executors and administrators appointed by our courts are defined by our law, and our courts are without jurisdiction to grant a judgment binding on the executors or administrators appointed here unless our law makes provision for such actions against executors and administrators. A Each State may define the rights and obligations of those who come within its territorial bounds, and comity will ordinarily cause the sister States to permit the enforcement of such rights and obligations against their residents by resort to their' courts, but no State has any power to provide that such rights and obligations may be enforced out of the property of a deceased wrongdoer in the possession of executors or administrators appointed by the courts of another State. Here comity does not determine the jurisdiction of the courts of the decedent’s domicile. The courts are without jurisdiction, because neither common law nor statutory law provides for the maintenance of any action for personal injury against the executors or administrators of a deceased wrongdoer. •

'The result would not, however, I think, be different if the question were really one of comity, for comity depends upon the public policy of the State, and the Legislature has declared the public policy of this State . when it provided that no action for personal injuries-may be maintained against the executors or administrators 'Of antecedent who resided in this State. A rule that would permit the depletion of the estate of a deceased resident through enforcement of claims for damages for personal injuries sustained outside of the State, where the Legislature has denied such remedy for injuries within the State, seems to me unreasonable and sustained by no authority outside of the Minnesota cases cited by Judge Hubbs. There is nothing said or decided in the case of Loucks v. Standard Oil Co. (224 N. Y. 99) which supports such holding.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The second certified question should be answered in the negative and the other questions not answered.

Htjbbs, J.

(dissenting). . This is an action to recover damages caused by appellants’ testator in negligently causing personal injury to respondent in an automobile accident which occurred in the State of Virginia. At the time both were residents of this State. Appellants’ testator thereafter died while a resident of this State and his last will was probated in this State and appellants duly qualified as executors thereof.

The complaint alleges that a statute of the State of Virginia provides that an action to recover damages under such circumstances survives the death of a wrongdoer and is maintainable against his personal representatives. If the accident had happened in this State, a cause of action would not survive the death of the alleged tort feasor.

The sole question present is whether the courts of this State will enforce the cause of action given by the statute of Virginia Against the representative of the estate of the deceased. The exact question has never been passed upon by this court. There are conflicting decision's in the Appellate Divisions. The Fourth Department, in Domres v. Storms (236 App. Div. 630), has decided that the action is maintainable. The opposite conclusion was reached in the Second Department in Clough v. Gardiner (194 App. Div. 923) and by the Surrogate in Matter of Killough (148 Misc. Rep. 73).

The alleged wrongful conduct of appellants’ testator created a cause of action in favor of the respondent in Virginia. That cause of action is not penal in its nature. It constitutes a transitory cause of action and a property right which will be enforced by the courts of this State unless such cause of action is contra to our public policy and “ in its nature offends our sense of justice or menaces the public welfare.” (Loucks v. Standard Oil Co., 224 N. Y. 99, 110.)

The principle was stated by Chief Justice White in Bond v. Hume (243 U. S. 15, 21): It is elementary that the right to enforce a foreign contract in another foreign country could alone rest upon the general principles of comity. But elementary as is the rule of comity, it is equally rudimentary that an independent state under that principle will not lend the aid of its courts to enforce a contract founded upon a foreign law where to do so would be repugnant to good morals, would lead to disturbance and disorganization of the local municipal law, or in other words, violate the public policy of the state where the enforcement of the foreign contract is sought.”

ylt is undoubtedly true that courts will not enforce foreign causes of action when to do so would be contrary to the public policy of the forum. It is not every difference upon some debatable question of State policy between the law of the forum and the law of the foreign State creating the cause of action which will justify a refusal to enforce the cause of action in the forum. “ There is a growing/^conviction that only exceptional circumstances should lead one of the states to refuse to enforce a right acquired in another.” (Loucks v. Standard Oil Co., supra, at p. 113.) That is particularly true in cases where the cause of action arose in a sister State rather than in a foreign country. •

More than one-half of our sister States which were formerly governed by the rule of the common law, that such an action did not survive, now have statutes similar to that of Virginia. To refuse to enforce a vested .right created by such a statute of one of those sister States upon the ground that its enforcement would be “ repugnant to good morals, would lead to disturbance and disorganization of the local municipal law,” or that such a statute “ in its nature offends our sense of justice or menaces the public welfare,” would constitute an assumed virtue and superiority which cannot be justified and which we should at least hesitate to announce.

The desirability of a close union of the States and the enforceability of the laws of each in every other is evidenced by the full faith and credit clause of the Federal Constitution. We conceive the controlling public policy to be that the courts of each State shall give effect to all valid causes of action created by the laws of another State except possibly in extreme cases when to do so would, in the words of former Chief Judge Cardozo, “ offend our sense of justice or menace the public welfare.”

Under our common law, this, cause of action would not survive the death of the tort feasor. By section 120 of the Decedent Estate Law it is provided that certain tort actions affecting property shall survive and may be maintained against the personal representative of the wrongdoer. It also provides: “ This section shall not extend to an action for personal injuries.”

Personal injury, as defined by section 37(a) of the General Construction Law (Cons. Laws, ch. 22), includes an “ injury to the person either of the plaintiff, or of another.” (Hegerich v. Keddie, 99 N. Y. 258.)

The section had the effect of changing the common law governing the survival of actions for wrongful injury to property, but did not change the rule in regard to the survival of a cause of action to recover damages for wrongfully causing the death of a person.

Does the fact that to that extent we retain the rule of the common law prevent our courts from giving effect to the statute of Virginia which has changed that rule? We think not. We recognize the fact that the courts of certain States entertain a different view and insist upon similarity of statutes. The current of authority favors the enforcement in courts of the forum of vested rights acquired in a foreign State. (26 Mich. Law Review, 439; 18 Cornell Law Quarterly, 432, 434; 12 Minnesota Law Review, 289; Walsh v. N. Y. & N. E. R. R. Co., 160 Mass. 571; Beach, Uniform Interstate Enforcement of Vested Rights, 27 Yale Law Journal, 656; Loucks v. Standard Oil Co., supra; Rick v. Saginaw Bay Towing Co., 132 Mich. 237.)

The tendency of modern decisions is toward a broader comity in the enforcement of rights created by the legislatures of sister states.” (Brown v. Perry, 104 Vt. 66; 77 A. L. R. 1294.)

“ We are not at liberty to refuse the enforcement of the foreign law in order to suit our own view of what is fair and right under the stated circumstances. Our courts ' do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.’ ” (Reilly v. Pepe Co., 108 Conn. 436, 446.)

“ We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home.” (Loucks v. Standard Oil Co., supra, at p. 111.)

The fact that there is no statute upon the subject in the forum and that the common law does not afford a remedy does not justify the courts of the forum in refusing to enforce a right acquired in a sister State. (Loucks v. Standard Oil Co., supra; Huntington v. Attrill, 146 U. S. 657; Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190, 196; Herrick v. Minn. & St. L. R. R. Co., 31 Minn. 11; Powell v. Great Northern Ry. Co., 102 Minn. 448, 452; Thompson v. Taylor, 66 N. J. L. 253; Rick v. Saginaw Bay Towing Co., supra.)

Therefore we may lay on one side as quite inadmissible the notion that the law of the place of the act may be resorted to so far as to show that the act was a tort, and then may be abandoned, leaving the consequences to be determined according to the accident of the place where the defendant may happen to be caught.” (Slater v. Mexican Nat. R. R. Co., 194 U. S. 120, 126.)

The question involved in the case at bar came before the court in Chubbuck v. Holloway (182 Minn. 225; revd. on another ground on reargument, 182 Minn. 231). It was decided on a factual situation almost identical with the facts in this case, that the courts of Minnesota should enforce against the personal representative of a deceased wrongdoer a cause of action given by a statute of Wisconsin, although to grant such remedy was contra to the law of the forum. The principle announced was reaffirmed in Kertson v. Johnson (185 Minn. 591). (Cf. Orr v. Ahern, 107 Conn. 174; Friedman v. Greenberg, 110 N. J. L. 462.)

We believe the decision of the Minnesota court expresses the correct principle and is in accord with the modern view. The respondent suffered an injury as a result of the wrongful act of appellant’s testator. The law should afford a remedy for the wrong suffered. The statute of Virginia affords such remedy. We do not find that the public policy of this State requires us to close the doors of our courts on the respondent and refuse to help him enforce the right given him by the law of the place of injury. While the statute of Virginia is not the law of this State, it does aive rise to an obligation which we should carry out. (Slater v. Mexican Nat. R. R. Co., supra; Cuba R. R. Co. v. Crosby, 222 U. S. 473, 478.)

j The first two questions certified should be answered in the affirmative, the third in the negative and the order affirmed, with costs.

Crane, O’Brien and Crouch, JJ., concur with Lehman, J.; Hubbs, J.,, dissents in opinion in which Pound, Ch. J., concurs. -

Ordered accordingly,


author: Pound, Ch. J.

text:
    Grace E. Gimenez, Respondent, v. Great Atlantic and Pacific Tea Company, Appellant, Impleaded with Another. Thomas T. Gimenez, Respondent, v. Great Atlantic and Pacific Tea Company, Appellant, Impleaded with Another.

      (Argued May 24, 1934;
    decided June 5, 1934.)

      Frank H. Hiscock and Harry C. W. Melick for appellant.
    There was no evidence that the wife in procuring the crab meat acted other than as agent for her husband and she, therefore, may not maintain an action for personal damage based on breach of warranty because no privity of contract exists between her and defendant and her action should have been dismissed. (Lindholm v. Kane, 92 Hun, 369; Bradt v. Shull, 46 App. Div. 347; Valois v. Gardner, 122 App. Div. 245; De Brauwere v. De Brauwere, 203 N. Y. 460; Stevens v. Hush, 107 Misc. Rep. 353; Cromwell v. Benjamin, 41 Barb. 558; Constable v. Rosener, 82 App. Div. 155; 178 N. Y. 587; Briggs v. Devoe, 89 App. Div. 115; Martin v. Bronx County Trust Co., 237 App. Div. 246; Holcomb v. Harris, 166 N. Y. 257; Porter v. Dunn, 131 N. Y. 314; Reynolds v. Robinson, 64 N. Y. 589; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Gearing v. Berkson, 223 Mass. 257; Jackson v. Watson & Sons, [1909] 2 K. B. 193; Chysky v. Drake Bros. Co., 235 N. Y. 468; Rinaldi v. Mohican Co., 225 N. Y. 70.) The husband’s action for loss of consortium and medical expenses of the wife being restricted solely to damages alleged to have been sustained as the result of breach of an implied warranty made to her and not to him should have been dismissed as it failed to state a cause of action. (Chysky v. Drake Bros. Co., 235 N. Y. 468; Redmond v. Borden’s

      Farm Products Co., 245 N. Y. 512; Turner v. Edison Storage Battery Co., 248 N. Y. 73; Feneff v. N. Y. C. & H. R. R. R. Co., 203 Mass. 278; Bolger v. Bery Co., 205 Mass. 420; Gearing v. Berkson, 223 Mass. 257; Marri v. Stanford St. R. R. Co., 84 Conn. 9; Bennett v. Bennett, 116 N. Y. 584; Friend v. Childs Dining Hall, 231 Mass. 65; Reed v. Livermore, 101 App. Div. 254; Romeyn v. Sickles, 108 N. Y. 651.)

      Frank L. Wiswall, Mordecai Cohen, Joseph H. Crown, Carl O. Olson and Raymond J. Riley for respondents.
    The husband’s recovery is fully sustained by the law. (Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458; Cons. Laws, ch. 69, § 199; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; P. G. Poultry Farm v. Newton B-P Mfg. Co., 248 N. Y. 293; Boyce v. Greeley Square Hotel, 228 N. Y. 106; Bernstein v. Queens County Jockey Club, 222 App. Div. 191; Kennedy v. Woolworth Co., 205 App. Div. 648; MacPherson v. Buick Motor Co., 217 N. Y. 382.) The wife’s recovery is sustained by the law. (Meyer v. Kerschbaum, 133 Misc. Rep. 330; Groce v. First National Stores, Inc., 268 Mass. 210.)
   Pound, Ch. J.

These are separate appeals in actions brought by a wife and her husband, which were tried together.

The wife’s amended complaint sets forth two causes of action: (1) Breach of warranty, and (2) negligence. Trial, however, was limited to the count for breach of warranty, it being claimed that certain crab meat procured by the wife in a sealed can from appellant, a retailer, was not fit for human consumption “ in that it contained a deleterious substance other than crab meat,” and that as a result of the deleterious substance her stomach became lacerated and cut. The husband’s action was for loss of consortium and medical expenses for his wife. It originally was based solely on negligence but at the trial his complaint was amended so as to ehminate negligence and base the action on breach of the implied warranty alleged to have been made to bis wife.

The wife’s cause of action seems clearly established. She bought a can of crab meat from the retailer. Under section 96 of the Personal Property Law (Cons. Laws, ch. 41) she bought with an implied warranty of fitness. (Ryan v. Progressive Grocery Stores, Inc., 255 N. Y. 388, 393.) She could maintain an action for breach of the implied warranty. (Rinaldi v. Mohican Co., 225 N. Y. 70, 75.) The question reserved in the Rinaldi case, whether an action would lie in favor of others, was settled in the Ryan case by holding that the husband might sue when the wife acted simply as his agent in making the purchases; when the only contract in such case existed between the husband and the seller and when the cause of action in contract accrued to him. This was the rule laid "down in Gearing v. Berkson (223 Mass. 257), which was cited without approval in the Rinaldi case (supra). As it does not appear that the Rinaldi case has ever been modified by this court, we take the law to be that where the wife is the purchaser the right of action is hers, and that she is presumably the purchaser.

The question next arises as to whether the husband may maintain an action for breach of implied warranty to recover for the consequential damage sustained by him for “ loss of bis wife’s services, loss of society and expense incurred for medical attendance and treatment,” as alleged in his amended complaint. In Gearing v. Berkson (supra) the court said that the cause of action for breach of warranty rests on contractual relations and hence there is no warranty except to the person to whom the sale is made. The same rule is laid down in this court in Chysky v. Drake Bros. Co. (235 N. Y. 468), which held in substance that “ to sustain a finding that there was a breach of warranty, express or implied, there must have been evidence of contract between the parties, for without a contract there would be no warranty.”

There can be no doubt that the husband’s action as stated in his amended complaint was for breach of warranty and not for negligence. He had alleged no cause of action for negligence, no reliance on such cause of action in fact. His complaint should have been dismissed.

The question may arise why recovery is allowed the husband for consequential damages caused by illness of the wife in actions for breach of contract of a railroad company made with the wife to convey safely. The answer is that any one sustaining damage by reason of such a breach of duty may maintain an action, bottomed on the violation of a public duty imposed independent of contract. The causes of action are quite independent of each other. Therefore, it is presumed that the husband was entitled to recover for such expenses as are here in issue. The nature of the action is essentially in tort where the rule is that one who is injured by the delict of another is entitled to recover his damage from the wrongdoer. (Cf. note, 47 Harvard Law Review, 1443.)

Some reliance is placed by the respondent on the expressions of His cock, Ch. J., in the opinion in Abounader v. Strohmeyer & Arpe Co. (243 N. Y. 458), fortified by the opinion of O’Brien, J., in Pine Grove Poultry Farm, Inc., v. Newton By-Products Mfg. Co. (248 N. Y. 293), to sustain a recovery under the Agriculture and Markets Law (formerly Farms and Markets Law) (Cons. Laws, ch. 69). It is there held that a public statute, such as the Farms and Markets Law, need not be pleaded. Neither is there any requirement that during the trial it shall be brought to the attention of the court or opposing counsel if the facts found by the jury upon abundant evidence constitute as matter of law a violation of the statute. Helpful as such expressions may be and sound as is the law they state, they have no application here. Violation of duty under the Agriculture and Markets Law is said to be negligence as matter of law. As such, the husband might recover for his loss due to his wife’s injuries. Here the husband disclaims negligence and emphatically relies on breach of warranty without contractual relation. The wife’s action rests unequivocally on breach of contract and not on negligence. Indeed, the husband’s complaint was amended to disclaim negligence and allege the breach of an implied warranty. A liberal construction of the complaint will not bring it under the Agriculture and Markets Law.

Even if the complaint might be so tortured out of its natural meaning, the question still remains whether an act in violation of the Agriculture and Markets Law is alleged. We reserve an answer for an occasion when such an answer is essential to the decision.

Section 199 of the Agriculture and Markets Law provides in part as follows:

§ 199. Adulteration of food, generally. Food shall be deemed adulterated * * *

5. If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health.”

The deleterious ingredient was not added to the canned crab meat. It was developed in the can after canning. Technically it did not amount to adulteration under the statute.

' We do not overlook the fact that a sort of third party beneficiary rule might be invoked to give the husband a cause of action in contract. The answer to that contention is that the courts have never gone so far as to recognize warranties for the benefit of third persons.

The judgment in the wife’s action should be affirmed, with costs. The judgment in the husband’s favor should be reversed and the complaint dismissed, with costs in all courts.

Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Judgment accordingly.


text:
    City Bank Farmers Trust Company, as Trustee under the Will of G. Waldo Smith, Deceased, Appellant, v. G. Waldo Smith, Jr., et al., Respondents, Impleaded with Others.
    (Submitted April 27, 1934;
    decided June 5, 1934.)

      Charles Angulo for appellant.
    Even though a lease has been made by a trustee pursuant to the approval of the court in a proceeding under sections 106 and 107 of the Real Property Law (Cons. Laws, ch. 50), he, nevertheless, retains his implied common-law power to modify such lease in so far as it affects the trust interest, as distinguished from the remainder or reversion. (Matter of

      City of New York [110th St.], 81 App. Div. 27; Weir v. Barker, 104 App. Div. 112; Matter of Armory Board, 29 Misc. Rep. 174; Frankfort Trust Co. v. Schulte, Inc., 302 Penn. St. 421; Hubbell v. Hubbell, 172 Iowa, 538; Matter of McCaffrey, 50 Hun, 371; Gomez v. Gomez, 147 N. Y. 195; Losey v. Stanley, 147 N. Y. 560; Matter of Easterly, 202 N. Y. 466; Matter of O’Donnell, 221 N. Y. 197.) When a lease has been made by a trustee pursuant to the approval of the court in a proceeding under sections 106 and 107 of the Real Property Law, the trustee as the legal owner of a life estate in the leased premises, acquires under the lease itself certain rights against the lessee. As the legal owner of these rights, the trustee must possess the requisite power to waive some of them when the lessee is in default and unable to perform in full, and such waiver is necessary in order to prevent their total loss. (Matter of McIntyre, 24 App. Div. 167.)

      William H. Page and Richard M. Page for G. Waldo Smith, Jr., respondent.
    Having entered into a lease under sections 106 and 107 of the Real Property Law, the appellant has no power to modify the rental provided for in such lease, without the authorization of the court. (Thirty-nine Cortlandt Street Corp. v. Lambert, 209 App. Div. 575; Aimone Mfg. Co. v. Schultz, 210 App. Div. 41; 240 N. Y. 662.)
   Lehman, J.

Because the appellant urged that it had no opportunity to argue some of the questions determined by this court in affirming the judgment of the Appellate Division (City Bank Farmers Trust Co. v. Smith, 263 N. Y. 292, 296), reargument was granted. Upon such reargument we adhere to our original decision and to all that we said in the opinion of the court.

The trustee has sought and obtained the approval of the Supreme Court, in accordance with sections 106 and 107 of the Real Property Law (Cons. Laws, ch. 50), for a lease of premises for a term expiring September 30,1947. The trustee’s estate was hmited to the duration of the trust. In the absence of a statute a lease for a definite term by a trustee conferred no estate upon the tenant which would continue after the expiration of the trust though'the term of the lease had not then expired. (Gomez v. Gomez, 147 N. Y. 195; Matter of City of New York [110th St.], 81 App. Div. 27; affd., 179 N. Y. 572.)

The best interest of the trust estate ” might dictate the leasing of the trust estate for a fixed and certain term measured in years rather than by the uncertain duration of the trust estate. The statute provides that if that is shown to the satisfaction of the court,” it may authorize the trustee to lease such property for a term exceeding five years “ upon such terms and conditions as seem just and proper.” The statute was not intended to restrict the power of the trustee without the approval of the court to enter into a lease for a term exceeding five years which would be valid so long as the trust estate continues. The trustee has not chosen to exercise such power. If it had done so, then doubtless the trustee could have agreed with the tenant upon any modification of the lease which seemed to it for the best interest of the trust estate. The power to make a lease by necessary implication includes the power to abrogate the lease or change its terms. When the authority to make the lease is dependent upon the approval of the court, then it follows that the authority to change its terms is dependent upon like approval.

During the duration of the trust estate the trustee has duties to perform in connection with the collection of rentals and the enforcement of the terms of the lease. The trustee’s duties and powers in that regard are analogous to those of a life tenant of property which has been leased. Discretion in the exercise of those powers rests with him. In order to promote the best interests of the trust estate, a trustee may, at times, waive a breach of the provisions of the lease. A modification of its provisions to relieve the tenant in advance .of any of the obligations of the lease, even during the duration of the trust, is pro tanto the making of a new lease and that is beyond the powers of the trustee unless he obtains the approval of the court.

The purpose of the statute is to enable a trustee to make a lease with the approval of the court which would be for the best interest of the trust estate ” though beyond the trustee’s power without such approval. The lease, when so made, is a single lease for a definite term. Benefit to the trust estate must be shown before the extraordinary statutory power to bind the estates of remaindermen can be exercised. The purpose of the statute would be frustrated if, after the court had fixed the terms and conditions which are just and proper, those terms and conditions might be changed in accordance with the discretion of the trustee during the duration of the trust estate. If the trustee terminated the lease because of breaches which have occurred, a new lease for the unexpired term could be made only with the approval of the court in accordance with the statute. The like approval is necessary even for a temporary modification of the lease to avoid threatened loss or damage to the estate. Delay, incident to application to the court, might, it is true, thwart the trustee’s efforts to avoid the loss. Waiver of past breach may be insufficient. That is a possible disadvantage inherent in any restriction upon the powers of a trustee, but the trust estate cannot have the benefit of a lease which would be beyond the powers of the trustee without the approval of the court and repudiate the restrictions which are a condition for the giving of the approval.

The judgment should be affirmed, without costs.

Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ., concur. *

Judgment affirmed.


text:
    In the Matter of the Probate of the Will of Willard H. Jones, Deceased. Fannie Michael, Appellant; The Charity Organization Society of the City of New York et al., Respondents.
    (Argued January 8, 1934;
    decided February 27, 1934.)

      Herbert C. Smyth, Jr., for appellant.

      Neil P. Cnllom and Frederick M. Schlater for Charity Organization Society of the City of New York et al., respondents.

      Francis Smyth and Richard N. Crockett for New York Association for Improving the Condition of the Poor et al., respondents.
   Appeal dismissed, with costs, on the ground that, assuming but not deciding that the order appealed from is a final order in a special proceeding, the order does not directly involve the construction of the Constitution of the State or of the United States. (Civ. Prac. Act, § 588, subd. 1.) No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O'Brien, Hubbs and Crouch, JJ.


text:
    Miriam H. Smith, Respondent, v. Malcolm K. Smith, Appellant.
    (Argued January 10, 1934;
    decided February 27, 1934.)

      John Kirkland Clark, Julius Hallheimer and Edward T. Welch for appellant.

      J. Karlin O’Connell for respondent.
   Order affirmed, without costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Cathryn Gavin, as Administratrix of the Estate of David J. Gavin, Deceased, Appellant, v. Eugene Malherbe, Defendant, and Joseph Schasnick, Jr., Respondent.
    (Argued January 10, 1934;
    decided February 27, 1934.)

      Herman A. Gray, Moses Kaplan and Louis Lazarus for appellant.

      Jean A. Keller and William Butler for respondent.
   Judgment affirmed, with costs; no opimon.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Elizabeth R. Monahan, Respondent, v. Anna F. Kenny et al., Appellants.
    (Argued January 10, 1934;
    decided February 27, 1934.)

      Alexander Pfeiffer for appellants.

      Peter W. Quinn and Henry Willis Smith for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Bessie Horne, Appellant, v. Augustus S. Houghton, Respondent.
    (Submitted January 11, 1934;
    decided February 27, 1934.)

      Henry C. Burnstine for appellant.

      Woolsey A. Shepard for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ,


text:
    Samuel Diener, Respondent, v. Carmen Cab Corporation et al., Defendants, and The New York Central Railroad Company, Appellant.
    (Argued January 11, 1934;
    decided February 27, 1934.)

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

      Samuel H. Stuttman and Jay S. Jones for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Mary Dana, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    (Argued January 18, 1934;
    decided February 27, 1934.)

      David Goldstein and Thomas G. Frost for appellant.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Rochester Trust and Safe Deposit Company, Respondent, v. Herbert J. Stull, Appellant, Impleaded with Others.
    (Argued January 11, 1934;
    decided February 27, 1934.)

      Herbert J. Stull, in person, for appellant.

      William C. Combs for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Raymond Miller, Respondent, against Lisk Manufacturing Company et al., Appellants. State Industrial Board, Respondent.
    (Argued January 11, 1934;
    decided February 27, 1934.)

      John D. Sullivan for appellants.

      Glenn L. Buck 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: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Utica Gas and Electric Company, Appellant, v. C. Lester Merry et al., as Trustees of the Village of Frankfort et al., Respondents.
    (Argued January 11, 1934;
    decided February 27, 1934.)

      J. Theodore Cross and Bernon K. Tourtelot for appellant.

      Charles Dickerman Williams for McIntosh & Seymour Corporation, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Paul Boritsos, Respondent, v. Bush Terminal Railroad Company, Appellant.
    (Argued January 11, 1934;
    decided February 27, 1934.)

      Chester Bordeau and John Von Sneidern for appellant.

      Thomas A. Shaw and Kalman Bess for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Kellogg, O’Brien, Hubbs and Crouch, JJ. Dissenting: Lehman, J.


text:
    In the Matter of the Bank of United States. The Superintendent of Banks of the State of New York, Respondent; Bank of America National Association, Appellant.
    (Argued January 11, 1934;
    decided February 27, 1934.)

      Alfred J. L’Heureux and Thomas A. Sully for appellant.

      Leo C. Fennelly, Arthur Ofner, Warren C. Fielding, Edward V. Mallon and Carl J. Austrian for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Elizabeth B. Vanderkloot, Respondent, v. Edward W. Harden et al., Copartners under the Firm Name of Campbell Starring & Co., Appellants.
    (Argued January 12, 1934;
    decided February 27, 1934.)

      Kevie Jaffe for appellants.

      William J. Dawley for respondent.
   Judgments reversed, with costs in all courts, and motion for summary judgment denied on the ground that defendant’s affidavits disclose a substantial question of fact which should be tried. No opinion. (See 264 N. Y. 511.)

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    The Fresnillo Company, Appellant, v. The Chase National Bank of the City of New York, Respondent.
    (Argued January 12, 1934;
    decided February 27, 1934.)

      William Mason Smith and Lewis A. Spence for appellant.

      George L. Trumbull for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien and Crouch, JJ. Not voting: Kellogg and Hubbs, JJ.


text:
    Wallace A. Love, as Administrator of the Estate of Richard W. Love, Deceased, Appellant, v. Charles C. Donald, Respondent.
    (Submitted January 12, 1934;
    decided February 27, 1934.)

      T. Arthur Hendricks for appellant.

      John M. Reynolds for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch', JJ.


text:
    New Amsterdam Casualty Company, Respondent, v. Concord Casualty and Surety Company, Appellant.
    (Submitted January 12, 1934;
    decided February 27, 1934.)

      Fred Flatow and Seymour Joseph for appellant.

      Hyman Grill and Albert J. Hiers for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York, Respondent, v. Antonio Cumbo, Appellant.
    (Argued January 15, 1934;
    decided February 27, 1934.)

      Ira H. Morris and Charles E. Bostwick for appellant.

      Bay F. Fowler, District Attorney (.Anthony Miceli of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    The People of the State of New York, Respondent, v. Carl Olans, Appellant.
    (Argued January 15, 1934;
    decided February 27, 1934.)

      Samuel L. Nadler for appellant.

      William C. Dodge, District Attorney {John C. McDermott of counsel), for respondent.
   Judgment reversed and new trial ordered for errors in the exclusion of evidence; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    James A. Tillman, Appellant, v. Russo-Asiatic Bank, Respondent.
    (Argued January 15, 1934;
    decided February 27, 1934.)

      Borris M. Komar for appellant.

      Maurice Léon and André Maximov for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Christ Keck et al., Appellants, v. Metropolitan Life Insurance Company, Respondent.
    (Argued January 16, 1934;
    decided February 27, 1934.)

      John C. Little, Jr., for appellants.

      Eugene Van Voorhis for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    County of Niagara, Appellant, v. City of Lockport, Respondent.
    (Argued January 16, 1934;
    decided February 27, 1934.)

      Robert L. Rice, Jr., and George M. Tuttle for appellant.

      J ames J. Sullivan and Merton K. Doty for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    Frank Pagano, as Administrator of the Estate of Federico Pagano, Deceased, Appellant, v. John Loughlin et al., Copartners under the Firm Name of Loughlin Bros., Respondents.
    (Argued January 16, 1934;
    decided February 27, 1934.)

      William F. Lally for appellant.

      James A. Nooney and Ralph O. L. Fay for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Charles W. Anderson, Appellant, v. International Mercantile Marine Company, Respondent.
    (Argued January 16, 1934;
    decided February 27, 1934.)

      Frank C. Laughlin, Stewart W. Bowers and 0. II. Droege for appellant.

      Charles R. Hickox, Vernon S. Jones and Raymond Parmer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    Northwestern Fire and Marine Insurance Company, Appellant, v. Fred T. Ley & Co., Inc., Defendant, and Cowles Towing Company, Inc., Respondent.
    (Argued January 16, 1934;
    decided February 27, 1934.)

      Charles S. Desmond for appellant.

      Arthur E. Otten for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Lehman, O’Brien and Crouch, JJ. Dissenting: Crane and Hubbs, JJ. Not voting: Kellogg, J.


text:
    City Masons Supply Co., Inc., Respondent, v. Zinbar Realty Co., Inc., et al., Appellants, Impleaded with Others.
    (Argued January 16, 1934;
    decided February 27, 1934.)

      Aaron Powsner for appellant.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Thomas Dunphy, Appellant, v. The State of New York, Respondent. John J. Hannan, Appellant, v. The State of New York, Respondent.
    (Claim No. 20156.) (Claims Nos. 19314 and 19951.)
    (Argued January 17, 1934;
    decided February 27, 1934.)

      J. Stanley Carter for Thomas Dunphy, appellant.

      J. Stanley Carter, M. J. Conboy and Alfred M. O’ Neill for John J. Hannan, appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John M. Dooley of counsel), for respondent.
   Judgment in each case affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Select Theatres Corporation, as Successor of Lee Shubert et al., as Receivers of Shubert Theatre Corporation, Respondent, v. Gene Buck, Appellant.
    (Argued January 17, 1934;
    decided February 27, 1934.)

      David Greenstein for appellant.

      Milton R. Weinberger and William Klein for respondent.
   Order affirmed, with costs, and questions certified answered in the negative. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of Graybar Construction Corporation, Respondent, against Charles W. Berry, as Comptroller of the City of New York, Appellant.
    (Argued January 17, 1934;
    decided February 27, 1934.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Henry J. Shields and Nelson Rosenbaum of counsel), for appellant.

      David Morgulas and M. Carl Levine for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Margaret S. Seamans, Appellant and Respondent, v. Gulf Refining Company, Respondent and Appellant.
    (Argued January 17, 1934;
    decided February 27, 1934.)

      Charles Eno and Gustave Nadel for plaintiff, appellant and respondent.

      Charles H. Street for defendant, respondent and appellant.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Ethel London, Respondent, v. Herman M. Hessberg, Individually and as Sheriff of Kings County, Defendant, and Arnold M. Schmidt et al., as Executors of Herman M. Hessberg, Deceased, Appellants.
    (Argued January 17, 1934;
    decided February 27, 1934.)

      Reginald S. Hardy for appellants.

      Morris Okoshken for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Catherine Symonds, as Executrix of Ward Symonds, Deceased, Respondent, v. Buffalo, Rochester and Pittsburgh Railway Company, Appellant.
    (Argued January 17, 1934;
    decided February 27, 1934.)

      William C. Co?nbs for appellant.

      Albert J. Waterman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Addie H. Rhodes, Appellant, v. The Ocean Accident and Guarantee Corporation, Limited, Respondent. George O. Rhodes, Appellant, v. The Ocean Accident and Guarantee Corporation, Limited, Respondent.
    (Argued January 18,1934;
    decided February 27,1934.)

      Henry P. Nevins and Joseph A. Nevins for appellants.

      Frank 0. Raichle and Jules C. Randal for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Lehman, Kellogg, Htjbbs and Crouch, JJ. Dissenting: Pound, Ch. J., and O’Brien, J.


text:
    Adirondack Core and Plug Company, Appellant, v. The New York Central Railroad Company et al., Defendants, and Massachusetts Bonding and Insurance Company, Respondent.
    (Argued January 18. 1934;
    decided February 27, 1934.)

      Fred L. Smith for appellant.

      Phillip T. Young for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    City Bank Farmers Trust Company, as Trustee, Respondent, v. The Charity Organization Society of the City of New York et al., Defendants, and Emmett H. Bellamy, as Trustee, et al., Appellants.
    (Argued January 18, 1934;
    decided February 27, 1934.)

      Ferdinand I. Haber and William Pitt Mason, Jr., for appellants.

      Charles A. Taussig and Benjamin B. Avery for respondent.

      Neil P. Cullom and Henry W. Steingarten for The Metropolitan Museum of Art et ah, defendants, as amici curice.

   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York ex rel. Gerosa Paladino Holding Corporation, Appellant, against Mark Graves et al., Constituting the State Tax Commission of the State of New York, Respondents.
    (Argued January 18, 1934;
    decided February 27, 1934.)

      Moses H. Rothman for appellant.

      Russell D. Morrill and Francis L. Casey for White and Case, amici curiae.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York ex rel. Ramapo Manufacturing Company, Appellant, v. Thomas M. Lynch et al., Constituting the State Tax Commission of the State of New York, Respondents.
    (Argued January 22, 1934;
    decided February 27, 1934.)
    • Albert Handy for appellant.

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

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    Harry C. Hallenbeck et al., Plaintiffs, v. Annette M. Hallenbeck et al., Defendants; Isadora E. Mangles, Appellant, and Chamberlain of the City of New York, Respondent.
    (Argued January 23, 1934;
    decided February 27, 1934.)

      Frank A. Kister for appellant.

      Arthur J. W. Hilly, Corporation Counsel (,Sigmund F. Sarnowski and William B. Wilson of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    Peter Collis, Respondent, v. Massachusetts Bonding and Insurance Company, Appellant.
    (Argued January 23, 1934,
    decided February 27, 1934.)

      Nelson E. Spencer for appellant.

      George T. Lynn for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    In the Matter of the Estate of Edmund Hayes, Deceased. A. Glenni Bartholomew et al., as Surviving Executors of Edmund Hayes, Deceased, Appellants; The State Tax Commission of the State of New York, Respondent.
    (Submitted January 23, 1934;
    decided February 27, 1934.)

      Christopher Baldy and II. Kenneth Haller for appellants.

      Charles F. Boine for respondent.
   Order affirmed, without costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    Dampskibs Aktieselskabet Eldrid, a Corporation, Respondent, v. Guisippina Parascandola, as Administratrix of the Estate of Joseph Auditore, Deceased, Appellant, Impleaded with Another.
    (Argued January 23, 1934;
    decided February 27, 1934.)

      Edward H. Wilson and John J. Kean for appellant.

      Edgar R. Kraetzer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    The People of the State of New York, Respondent, v. Grant O. Beale, Appellant.
    (.Submitted January 23, 1934;
    decided February 27, 1934.)

      Grant 0. Beale, in person, for appellant.

      Charles B. Brasser, District Attorney, for respondent.
   Judgment affirmed; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not voting: Kellogg, J.


text:
    Edward J. Quintal et al., as Trustees in Bankruptcy of Consolidated Factors Corporation, Appellants, v. Jesse Adler et al., Defendants, and Henry H. Leon et al., Respondents.
    (Argued January 23, 1934;
    decided February 27, 1934.)

      Hamilton A. Long, Abram I. Elkus and John W. Simpson II, for appellant.

      Louis Martin Levy and Elwood G. Feldstein for Ephraim Bass et al., respondents.

      David Haar and Daniel Lowenthal for Henry H. Leon et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubes and Crouch, JJ. Not voting: Kellogg, J.


text:
    James A. Leary, as Executor of Will W. Blackmer, Deceased, Appellant and Respondent, v. Capitol Trust Company of Schenectady et al., Respondents and Appellants.
    (Submitted January 22, 1934;
    decided February 27, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 640.)


text:
    David A. Brown, Appellant and Respondent, v. Walter E. Bedell et al., Appellants, and Lester Alexander et al., Respondents.
    (Submitted January 22, 1934;
    decided February 27, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 177; 264 N. Y. 513.)_


text:
    Sarah Russ, Appellant, v. Madeline Russ, Respondent.
    (Submitted January 22, 1934;
    decided February 27, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 625.)


text:
    Samuel Chalson, Respondent, v. Lena Chalson, Appellant.
    (Submitted February 26, 1934;
    decided March 6, 1934.)

      Herbert F. Christie for motion.

      William T. Mulcahy opposed.
   Motion granted and appeal dismissed unless within ten days from the entry of the order on this motion an undertaking and case on appeal be served and filed in which event the motion is denied.


text:
    In the Matter of Howard L. Berry, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 274.)


text:
    In the Matter of Eber Burgey, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 609.)


text:
    In the Matter of Edward S. Kearney, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 610.)


text:
    In the Matter of Anthony L. Graczyk, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 611.)


text:
    In the Matter of Angelo Grasso, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 612.)


text:
    In the Matter of Francis J. Bottleburger, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 613.)


text:
    In the Matter of John Buckley, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 614.)


text:
    Eleanor R. Himmelman, an Infant, by William Himmelman, Her Guardian ad Litem, et al., Appellants, v. Pechter Baking Co., Inc., Respondent.
    (Submitted February 26, 1934;
    decided March 6, 1934.)

      Robert H. Charlton for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Ray B. Roman, Appellant, v. Kathrine Donovan et al., Doing Business as Southampton Beach Realty Company, Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)

      George L. Madden for motion.

      Irving Ben Cooper opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless plaintiff furnishes an undertaking and perfects the appeal within the next ten days and pays ten dollars costs, in which event the motion is denied, without costs.


text:
    G. A. Baker & Co., Inc., Respondent, v. Polygraphic Company of America, Inc., Appellant, Impleaded with Another. Polygraphic Company of America, Inc., Appellant, v. G. A. Baker & Co., Inc., Respondent. (Consolidated Actions.)
    (Submitted February 26, 1934;
    decided March 6, 1934.)

      Joseph Quittner for motion.

      J. Alvin Van Bergh opposed.
   Motion denied, with ten dollars costs and necessary-printing disbursements, on the ground appellant has the right to appeal without permission.


text:
    Frank X. Scherer, Respondent, v. East Side National Bank of Buffalo, Appellant.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 190.)


text:
    In the Matter of Anna S. Coleman, Appellant, against Francis Preston, Respondent.
    (Submitted February 26, 1934;
    decided March 6, 1934.)

      Francis Preston, in person, for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Angeline Kawacz, Individually, and as Administratrix of the Estate of Frank Kawacz, Deceased, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 166.)


text:
    In the Matter of the Estate of Ellen Hayes, Deceased. Arthur G. Hays et al., Appellants; Oliver W. Hayes et al., Respondents.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 219.)


text:
    The Woman’s Hospital of the State of New York, Plaintiff, v. Loubern Realty Corporation et al., Defendants. Grace E. Secore, Appellant; Daniel Greenwald, as Receiver, Respondent.
    (Submitted February 26, 1934;
    decided March 6, 1934.)

      Frederick Mellor for motion.

      Nathan Silverman opposed.
   Motion denied.


text:
    Elizabeth Mayo et al., Respondents, v. The New York Central Railroad Company, Appellant, Impleaded with Others. (Action No. 1.) Elizabeth Mayo et al., Respondents, v. The New York Central Railroad Company, Appellant. (Action No. 2.)
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 277.)


text:
    Francis X. McQuade, Respondent, v. Charles A. Stoneham et al., Appellants.
    (Submitted February 26, 1934;
    decided March 6, 1934.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 323.)


text:
    In the Matter of Victor Nagler, Appellant, against J. Charles Zimmerman, as City Judge of Long Beach, Respondent.
    (Submitted February 26, 1934;
    decided March 6, 1934.)

      Stephen Callaghan for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of James T. M. Bleakley, Appellant, against James J. Sexton et al., as Commissioners of the Department of Taxes and Assessments of the City of New York, et al., Respondents.
    (Argued February 26, 1934;
    decided March 6, 1934.)

      Paul Windels, Corporation Counsel (S. M. Meyer of, counsel), and John S. Dunn for motions.

      James T. M. Bleakley, in person, opposed.
   Motions granted and appeal dismissed, with costs and- ten dollars costs of motion, unless within ten days after entry of order herein the appellant files the statutory undertaking and pays ten dollars costs, in which event motions are denied.