text:
    Dorothy Berwick, an Infant, by John Berwick, Her Guardian ad Litem, et al., Appellants, v. Board of Education of the City of White Plains, Respondent.
    Argued March 23, 1937;
    decided April 27, 1937.

      Oliver K. King for appellants.

      Alfred M. Bailey and William A. Earl for respondent.
   Judgment affirmed, with costs; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of American League Baseball Club of New York, Inc., Appellant, against Frank J. Taylor, as Comptroller of the City of New York, Respondent.
    Argued March 23, 1937;
    decided April 27, 1937.

      Byron Clark and Byron Clark, Jr., for appellant.

      Paul Windels, Corporation Counsel (Meyer Bernstein, Osear S. Cox and Sol Charles Levine of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Chew Wing, Appellant.
    Argued March 23, 1937;
    decided April 27, 1937.

      Jacob Shientag, Alvin I. Perlmutter, Maxwell Shapiro and Cornelius F. Collins, Jr., for appellant.

      William Copeland Dodge, District Attorney {Felix C. Benvenga and Philip A. Donahue of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Ralph Lisa, Appellant.
    Argued March 23, 1937;
    decided April 27, 1937.

      Joseph Lonardo, Alfred C. Scuderi, Michael F. Ruggiero and Viola lorio for appellant.

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

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


text:
    Leonora Speyer, Appellant, v. Louis G. Hamersley, Respondent.
    Argued March 24, 1937;
    decided April 27, 1937.

      Eugene TJntermyer, Abraham, Shamos and Mitchell Salem Fisher for appellant.

      Bartow H. Hall and James G. Holland for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Goodhue Livingston, Respondent, v. City of New York, Appellant.
    Argued March 24, 1937;
    decided April 27, 1937.

      Paul Windels, Corporation Counsel (Seymour B. Quel and Paxton Blair of counsel), for appellant.

      William F. Wund and Allen Moss for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis L. Cage, as Executor of Isaac Wiseman, Deceased, Respondent, v. Fannie Rosenberg, Appellant.
    Argued March 24, 1937;
    decided April 27, 1937.

      Afoses H. Rothman and Albert Wald for appellant.

      Edwin R. Wolff for respondent.
   Judgment affirmed,, with costs; no opinion.

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


text:
    Jewish Hospital Association of Philadelphia, Appellant, v. 910 West End Avenue Corporation et al., Defendants, and Straus National Bank and Trust Company of New York et al., Respondents.
    Submitted March 24, 1937;
    decided April 27, 1937.

      Albert Mannheimer and Joel Irving Friedman for appellant.

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

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


text:
    Selma Blumenstein, an Infant, by Julia Blumenstein, Her Guardian ad Litem, Respondent, v. Sarah Jabloner et al., Appellants, Impleaded with Another.
    Argued March 25, 1937;
    decided April 27, 1937.

      Joseph S. Robinson, Emile Z. Berman and Louis Helfenstein for appellants.

      Shepard Broad and Irvin Husin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Laurence H. Rutland, Respondent, v. Henry F. Thurston, Appellant.
    Submitted March 24, 1937;
    decided April 27, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 543.)


text:
    Greater New York Export House, Inc., Appellant, v. Arthur L. Peirson et al., Individually and as Trustees et al., Defendants, and Charles I. Frank, Individually and as Trustee, et al., Respondents.
    Argued April 19, 1937;
    decided April 27, 1937.

      Walter S. Seidman for motion.

      Edward Áksél and Robert Aronstem opposed.
   Motion by Max N. Koven and Lloyds First Mortgage Company to dismiss appeal granted and appeal dismissed, with costs, and ten dollars costs of motion.


text:
    John Cerasole, Respondent, v. Anna Egenberger et al., Defendants, and Central Hanover Bank and Trust Company, Appellant.
    Submitted April 19, 1937,
    decided April 27, 1937.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 351.)


text:
    Henni Mansbacher, Respondent, v. Prudential Insurance Company of America, Appellant.
    Submitted April 19, 1937;
    decided April 27, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 140.)


text:
    In the Matter of David Kraus, Appellant, against John H. Delaney et al., Constituting the Board of Transportation of the City of New York, Respondents.
    Submitted April 19, 1937;
    decided April 27, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for motion.
   No one opposed.

Motion granted and appeal dismissed, with costs, and ten dollars costs of motion unless undertaking is filed and appellant pays ten dollars costs within ten days, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Peter Thompson, Appellant.
    Argued April 19, 1937;
    decided April 27, 1937.

      Henry Hirschberg, District Attorney, for motion.

      Henry Hunter opposed.
   Motion granted and appeal dismissed.


text:
    Frances A. Massey, Respondent, v. Globe and Rutgers Fire Insurance Company, Appellant.
    Submitted April 19, 1937;
    decided April 27, 1937.
   Motion for reargument denied, without costs. In affirming the judgment of the Appellate Division, without opinion, we do not adopt all that may be said in the opinion of that court. This is well understood by the profession. The question of the defendant’s good faith was not before us on this appeal; therefore, in affirming the judgment of the Appellate Division we did not undertake to approve what was said by that court about good faith. (See 273 N. Y. 531.)


text:
    Marie B. Swanton, Respondent, v. John Curley, Appellant.
    Submitted April 19, 1937;
    decided April 27, 1937.
   Motion to amend remittitur or for a reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 325.)


text:
    Emil Hauser, Appellant, v. Augusta M. Bartow, Respondent.
    Submitted April 19, 1937;
    decided April 27, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 370.)


text:
    Central Hanover Bank and Trust Company, Appellant, v. Frederick Kraft et al., Respondents.
    Submitted April 19, 1937;
    decided April 27, 1937.
   Motion for reargument and to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 634)


text:
    Mariette Leslie-Cotton, Appellant, v. Hugh D. Cotton, Individually and as Trustee, et al., Respondents.
    Submitted April 19, 1937;
    decided April 27, 1937.
   Motion for reargument of motion for leave to appeal denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 678.) We cannot see that the case of Townshend v. Frommer (125 N. Y. 446) is inconsistent with the decision in this case.


text:
    Oswego River Realty Corporation et al., Appellants and Respondents, Impleaded with Another, v. Sweet Brothers Paper Manufacturing Company, Inc., Respondent and Appellant, Impleaded with Others.
    Submitted April 19, 1937;
    decided April 27, 1937.
   Motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended so as to read as follows: “ Judgment of the Appellate Division modified to eliminate any adjudication of riparian ownership or water rights in the pool above the dam and as so modified affirmed, without costs.” (See 272 N. Y. 505.)


text:
    Marian S. Honeyman, Appellant, v. Herbert G. Hanan, as Executor of Herbert W. Hanan, Deceased, Respondent.
    Submitted April 26, 1937;
    decided April 27, 1937.
   Motion for reargument or to amend the remittitur granted to the extent of permitting a reargument and case set down for May 17, 1937. (See 271 N. Y. 564.)


text:
    The People of the State of New York ex rel. Ida W. Schick, Appellant, v. Rolland B. Marvin, as Mayor of the City of Syracuse, et al., Respondents.
    Submitted April 26, 1937;
    decided April 27, 1937.

      James C. Tormey, Corporation Counsel {John F. Hmiel of counsel), for motion.

      James F. Brazell, Frank J. Cregg, Jr., and Thomas J. Lowery opposed.
   Motion denied.


text:
    In the Matter of the Accounting of Charles H. Stoll et al., as Executors and Trustees under the Will of Antonin Chapal, Deceased. Charles H. Stoll, as Successor Trustee, etc., Appellant; Claudia Chapal et al., Respondents.
    Submitted April 26, 1937;
    decided April 30, 1937.

      Edward B. SchulJdnd for motion.

      Charles H. Stoll opposed.
   Motion denied, with leave to renew on argument of appeal.


text:
    M. P. Moller, Inc., Appellant, v. Temple Israel of Washington Heights, Inc., et al., Respondents.
    Submitted April 26, 1937;
    decided April 30, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 571.)


text:
    Town of Oyster Bay, Appellant, v. Robert Moses et al., Respondents.
    Submitted April 26, 1937;
    decided April 30, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 631.)


text:
    Augusta C. Ottmann, as Administratrix of the Estate of Milford H. Ottmann, Deceased, Appellant, v. Village of Rockville Centre et al., Respondents, Impleaded with Another.
    Submitted April 19, 1937;
    decided May 18, 1937.
   Motion for reargument and to amend the remittitur granted to the extent of permitting reargument as to the liability of the individual defendant Otto Stoye. Case set down for argument during the fourth week of the present session. (See 273 N. Y. 205.)


text:
    In the Matter of Robert Y. Clark et al., Copartners under the Firm Name of Clark & Davis, Respondents, against Reed W. Smith, as Comptroller of the Town of Harrison, Appellant.
    Submitted May 17,1937;
    decided May 18, 1937.

      Conrad H. Sullivan for motion.

      Robert Y. Clark, Frank M. Gagliardi, William D. Cunningham and Alfred M. Bailey opposed.
   Motion denied, without costs, on the ground that appeal lies as a matter of right.


text:
    In the Matter of the Estate of Ida Ashner, Deceased. Belle Swilling, Appellant; Norman L. Marks, as Executor of Ida Ashner, Deceased, Respondent.
    Argued April 19, 1937;
    decided May 25, 1937.

      Thomas A. McKennell and Irving Schneider for appellant.

      Max Shliver, Stanley Wolder and Julius Appelman for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of the Accounting of Westchester Trust Company, as Executor of Denis F. Gerbereux, Deceased, Appellant; Anna M. Gerbereux et al., Respondents.
    Argued April 19, 1937;
    decided May 25, 1937.

      Robert W. Crawford and Gerald Donovan for appellant.

      Irving Schneider and Ambrose V. McCall for respondents.
   Order affirmed, with costs payable by appellant personally. No opinion.

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


text:
    The People of the State of New York ex rel. Owenjay Realty Company, Inc., Respondent, against James J. Sexton et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Three Proceedings.)
    Argued April 19, 1937;
    decided May 25, 1937.

      Paul Windels, Corporation Counsel (Oscar S. Cox and Frances W. Lehrich of counsel), for appellants.

      Eugene Fay for respondent.
   Orders affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Public Fuel Service, Inc., Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued April 20, 1937;
    decided May 25, 1937.

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

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

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


text:
    Yvonne A. LeBaron, Respondent, v. Auguste Bartoli et al., as Ancillary Administrators with the Will Annexed of the Estate of Francois Coty Deceased, Appellants.
    Argued April 20, 1937;
    decided May 25, 1937.

      David Brady, Kenneth F. Simpson and Leo Brady appearing specially for appellants.

      Samuel Seabury, Francis L. Kohlman and George Trosk for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Will of Eugenia C. Ely, Deceased. Marie E. E. Fallon, Appellant; Security Trust Company of Rochester et al., as Executors of and Trustees under the Will of Eugenia C. Ely, Deceased, Respondents.
    Argued April 20, 1937;
    decided May 25, 1937.

      Erwin Bruce Hallett and H. Catherine Wagner Vaughan for appellant.

      Charles P. Williams for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring title to Real Property Required for Opening and Extending Avenue K and Flatlands Avenue, in the Borough of Brooklyn. Michael Holzman, Respondent.
    Argued April 20, 1937;
    decided May 25, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair, Daniel M. Cohen and Reuben Levy of counsel), for appellant. '

      Abraham L. Doris and Max Bloom for respondent.
   Order affirmed, with costs. Motion to dismiss appeal denied. No opinion.

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


text:
    Institute of the Metropolis, Inc., Appellant, v. University of the State of New York et al., Respondents.
    Submitted April 20, 1937;
    decided May 25, 1937.

      Emil Klein and Simon H. Braunstone for appellant.

      John J. Bennett, Jr., Attorney-General (Dorothy U. Smith and Henry Epstein of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Esther R. Halpern et al., Respondents, against Thomas W. Whittle et al., Composing the Board of Assessors of the City of New York, et al., Appellants.
    Argued April 20, 1937;
    decided May 25, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair and Alfred D. Jahr of counsel), for appellants.

      Joseph B. Kenny, Harry B. Chambers, Harry H. Chambers and Maurice Janklow for respondents.
   Order affirmed, with costs. First question certified answered in the negative, and second question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Will of Edward W. Browning, Deceased. Alex P. Watts et al., as Executors of Florence Biggs, Deceased, et al., Appellants; Title Guarantee and Trust Company, as Executor of Edward W. Browning, Deceased, Respondent, Impleaded with Others.
    Argued April 21, 1937;
    decided May 25, 1937.

      Benjamin F. Schreiber, Morris Buchter, Harold M. Hoffman and Edward J.-Chapman for appellants.

      Joseph V. McKee, Henry Cohen and William T. Griffin for respondent.

      Daniel A. Shirk, Edwin R. Wolff and Alexander Pfeiffer for Dorothy B. Hood.

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer of counsel), for State of New York.
   Order affirmed, with costs. First question certified answered in the affirmative. Second question not answered, an answer being unnecessary in view of the affirmative answer to the first question certified. No opinion.

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


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of the General Indemnity Corporation of America. Capital Fire Insurance Company, Appellant.
    Argued April 21, 1937;
    decided May 25, 1937.

      Harry Green for appellant.

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

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


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, Appellant, for an Order to Take Possession of the Property and Liquidate the Business of Lloyds Insurance Company of America; Lyman A. Spalding et al., Respondents.
    Argued April 21, 1937;
    decided May 25, 1937.

      Irvin Waldman and Alfred C. Bennett for appellant. James A. Doherty, in person, and for Thomson & McGinty, respondents.

      Lyman A. Spalding, in person {John H. Jackson and Francis G. Hoyt of counsel), respondent.
   Orders affirmed, with separate bills of costs to each claimant; no opinion.

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


text:
    In the Matter of the Claim of Emilie Pilloud, Respondent, against 350 Park Avenue Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued April 27, 1937;
    decided May 25, 1937.

      William Warren Dimmick for appellants.

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

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


text:
    In the Matter of the Claim of Amy Frank, Respondent, against Economy Sales Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued April 21, 1937;
    decided May 25, 1937.

      Paul Koch for appellants.

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

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


text:
    In the Matter of the Claim of Cornelia Kahl, Respondent, against Sinclair Refining Company, Appellant. State Industrial Board, Respondent.
    Submitted April 21, 1937;
    decided May 25, 1937.

      John J. Conners, Jr. for appellant.

      Harold J. O’ Keeffe for claimant, respondent.

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

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


text:
    In the Matter of the Claim of Lizzie Wakefield, Respondent, against World -Telegram et al., Appellants. State Industrial Board, Respondent.
    Submitted April 21, 1937;
    decided May 25, 1937.

      James P. Allen, Jr., and John P. Smith for appellants.

      George V. Grainger for claimant, respondent.

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

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


text:
    Schnur Realty Co., Inc., Appellant, v. 906 Intervale Avenue Realty Corporation et al., Respondents, Impleaded with Another.
    Argued April 21, 1937;
    decided May 25, 1937.

      Hyman J. Reit for appellant.

      Bernard Hershkopf, Karl Propper and Abraham Leichter for respondents.
   Orders reversed and matter remitted to Special Term to proceed in accordance with Heiman v. Bishop (272 N. Y. 83), with costs in all courts to abide the event. No opinion.

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


text:
    Morris Standard, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.
    Argued April 21, 1937;
    decided May 25, 1937.

      James D. Ewing for appellant.

      Leo F. Sherman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Thomas McMeekan, Appellant, against Department of Health of the City of New York et al., Respondents.
    Argued April 21, 1937;
    decided May 25, 1937.

      Louis Susman and William Levin for appellant.

      Paul Windels, Corporation Counsel {EdmundL. Palmieri, Julius Isaacs and Leonard M. Wallstein, Jr., of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Joseph Halpert, Appellant, against Harris M. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents. Isabelle L. Lepke, Intervener, Respondent, and Others, Interveners.
    Argued April 22, 1937;
    decided May 25, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair and David I. Shivitz of counsel), for Board of Standards and Appeals, respondent.

      George J. Rudnick for intervener, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Emma Rosenthal, as Surviving Executrix of Jesse Rosenthal, Deceased, Respondent, against Mark Graves et al., Constituting the State Tax Commission, et al., Appellants.
    Submitted April 22, 1937;
    decided May 25, 1937.

      John J. Bennett, Jr., Attorney-General (Seth T. Cole and Harry T. O’Brien, Jr., of counsel), for appellants. Thomas A. S. Beattie and Sidney A. Wolff for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Abraham Suderov, Deceased. State Tax Commission, Appellant; Bernard N. Cantor et al., as Executors of Abraham Suderov, Respondents.
    Submitted April 22, 1937;
    decided May 25, 1937.

      Seth T. Cole and Mortimer M. Kassell for appellant.

      J. G. Engel for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Eileen Boyd et al., Appellants, v. American Can Company, Respondent, Impleaded with Others.
    Argued April 22, 1937;
    decided May 25, 1937.

      Thomas J. Milan and Morris Zweibel for appellants.

      James B. Sloane and Leonard B. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Public Service Commission, Respondent, against New York Central Railroad Company, Appellant.
    Argued April 22, 1937;
    decided May 25, 1937.

      Kenneth Creble for appellant.

      Gay H. Brown, Sherman C. Ward, Sidney Kabalkin and Laurence J. Olmsted for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Public Service Commission, Respondent, against New York Central Railroad Company, Appellant.
    Argued April 22, 1937;
    decided May 25, 1937.

      Kenneth Crehle for appellant.

      Gay H. Brown, Sherman C. Ward, Sidney Kaballdn and Laurence J. Olmsted for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Public Service Commission, Respondent, against New York Central Railroad Company et al., Appellants.
    Argued April 22, 1937;
    decided May 25, 1937.

      Kenneth Creble for appellants.

      Gay H. Brown, Sherman C. Ward, Sidney Kabalkin and Laurence J. Olmsted for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Public Service Commission, Respondent, against New York Central Railroad Company, Appellant.
    Argued April 22, 1937;
    decided May 25, 1937.

      Kenneth Créble for appellant.

      Gay H. Brown, Sherman C. Ward, Sidney Kabalhin and Laurence J. Olmsted for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Public Service Commission, Respondent, against Long Island Railroad Company, Appellant.
    Argued April 22, 1937;
    decided May 25, 1937.

      Ottó M. Buerger and Louis J. Carruthers for appellant.

      Gay H. Brown, Sherman C. Ward, Sidney Kabalkin and Laurence J. Olmsted for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Public Service Commission, Respondent, against Long Island Railroad Company, Appellant.
    Argued April 22, 1937;
    decided May 25, 1937.

      Otto M. Buerger and Louis J. Carruthers for appellant.

      Gay H. Brown, Sherman C. Ward, Sidney Kabalkin and Laurence J. Olmsted for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Margaret Neulander, Appellant, against Board of Examiners of Board of Education of City of New York et al., Respondents.
    Argued April 21, 1937;
    decided May 25, 1937.

      Osmond K. Fraenkel for appellant.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri, Paxton Blair and Cyrus C. Perry of counsel), for respondents.
   Order affirmed, without costs, on authority of Matter of Sloat v. Board of Examiners (274 N. Y. 367). No opinion.

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


text:
    In the Matter of Frank Rose et al., Appellants, against Victor J. Shankey et al., Constituting the Town Council of the Town of Haverstraw et al., Respondents.
    Submitted April 22, 1937;
    decided May 25, 1937.

      H. Eliot Kaplan for appellants.

      Walter A. McDermott and Ernest W. Hofstatter for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title to Land for the Establishment of a Public Beach in the Borough of Queens. Metro Investing and Credit Corporation et al., Appellants; Harry Lambros, Respondent.
    Argued April 22, 1937;
    decided May 25, 1937.

      Leo B. Mittelman, A. Joseph Geist, Isaac Katz and Charles Lamb for Metro Investing and Credit Corporation et al., appellants.

      F. Campbell Good for Harry Lambros, respondent.

      Paul Windels, Corporation Counsel (Paxton Blair and Reuben Levy of counsel), for City of New York, respondent.
   Appeal as to the City of New York dismissed, with costs; otherwise order affirmed, with costs. No opinion.

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


text:
    In the Matter of the Accounting of Central Hanover Bank and Trust Company, as Executor of and Trustee under the Will of Frank L. Scott, Deceased. Northwestern Mutual Life Insurance Company of Milwaukee, Wisconsin, Appellant; Central Hanover Bank and Trust Company, as Executor, et al., Respondents.
    Argued April 23, 1937;
    decided May 25, 1937.

      Isaac M. Barnett and Boy Plant for appellant.

      Samuel A. Pleasants and Benjamin G. Myron for executor, respondent.

      John P. O’Brien for David Sherwood et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Lina Sommer, Appellant and Respondent, v. Paul Sommer, Respondent and Appellant.
    Argued April 23, 1937;
    decided May 25, 1937.

      Alexander U. Zinke and Charles W. Silver for plaintiff, appellant and respondent.

      Paul A. Crouch and John A. Miller for defendant, respondent and appellant.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Eljac Realty Corporation, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    Argued April 19, 1937;
    decided May 25, 1937.

      Paul Windels, Corporation Counsel (Oscar S. Cox and Murray Sendler of counsel), for appellants.

      Elmer H. Settel, Henry Cohen and Patrick A. Bolger for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. 505 Eighth Avenue Corporation, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    Argued April 19, 1937;
    decided May 25, 1937.

      Paul Windels, Corporation Counsel (Oscar 8. Cox and Murray Sendler of counsel), for appellants.

      Elmer H. Settel, Henry Cohen and Patrick A. Bolger for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of New Rochelle Trust Company, as Substituted Trustee under the Will of Charles H. Young, Deceased, Appellant; Florence Y. McKeage et al., Respondents. In the Matter of the Accounting of New Rochelle Trust Company, as Substituted Trustee under the Will of Charles H. Young, Deceased, Appellant; Margaret Young et al., Respondents.
    Argued April 21, 1937;
    decided May 25, 1937.

      Albert Ritchie and Frederick H. Seacord, Jr., for appellant.

      Frederick C. McLaughlin and Ralph A. Bullock for respondents.
   In each proceeding: order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of John W. Potter, Deceased. Sarah Weaver, Appellant; H. Martha Jones et al., Respondents.
    Argued April 23, 1937;
    decided May 25, 1937.

      Michael J. Larkin and Adrian S. Malsan for appellant.

      Harold M. Hartness for respondents.
   Order affirmed, with costs payable out of the estate: no opinion.

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


text:
    In the Matter of the Application of The People of the State of New York, by James A. Beha, as Superintendent of Insurance, for an Order to Take Possession of the Property and Conserve the Assets of the First Russian Insurance Company. First Russian Insurance Company et al., Appellants; Superintendent of Insurance of the State of New York, as Liquidator of First Russian Insurance Company, et al., Respondents.
    Argued April 26, 1937;
    decided May 25, 1937.

      Paul C. Whipp for First Russian Insurance Company et ah, appellants.

      Robert J. Sykes and William C. Morris for Francis J. Donnelly, appellant.

      John M. Downes and Alfred L. Green for Superintend-ant of Insurance, respondent.

      Walter H. Poliak, G. Frank Dougherty and Samuel J. Silverman for G. Frank Dougherty et al., respondents.

      Borris M. Komar for George Brussendorff et al., respondents.

      Samson Selig for Andrew Ditmar et al., respondents.

      Edward Ross Aranow and Irvine J. Shubert for Ruth Lippner et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Lucy Anderson, Appellant, v. Title Guarantee and Trust Company, Respondent.
    Argued April 26, 1937;
    decided May 25, 1937.

      Henry Pleus and Julius Datler for appellant.

      Herman S. Axelrod and Milton Maurice Meyer for Charles L. Meckenberg, amicus curiae.

      Richard S. Holmes, Harold P. Winans and Wilber Stammler for respondent.
   Order affirmed, with costs. First and second questions certified answered in the negative. No opinion.

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


text:
    In the Matter of Winnifred Villovic, Appellant, against Lewis J. Valentine, as Police Commissioner of the City of New York and as Trustee of the Police Pension Fund, Respondent.
    Argued April 27, 1937;
    decided May 25, 1937.

      Tesse L. Segel for appellant.

      Paul Windels, Corporation Counsel (Arthur Bainbridge Hoff, Paxton Blmr and Charles E. Hirsimaki of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of John M. Weiss et al., Respondents, against Alfred B. Jones et al., Constituting the New York City Tunnel Authority, Appellants.
    Argued April 27, 1937;
    decided May 25, 1937.

      Paul Windels, Corporation Counsel (Arthur Bainbridge Hoff, Paxton Blair and Willard M. L. Robinson of counsel), for appellants.

      Maurice Weiss for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George Small and Norman Goldstein, Appellants.
    Argued April 28, 1937;
    decided May 25, 1937.

      David R. Siegel, Samuel Hassen and David H. Shapiro for Norman Goldstein, appellant.

      Samuel Hassen for George Small, appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Aniello De Simone, Appellant.
    Argued April 28, 1937;
    decided May 25, 1937.

      Samuel Bosensweig for appellant.

      John J. Bennett, Jr., Attorney-General (Sol I. Smithline and Joseph A. McLaughlin of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Erminio Nocera, Appellant.
    Argued April 28, 1937;
    decided May 25, 1937.

      Samuel Rosenzweig for appellant.

      John J. Bennett, Jr., Attorney-General (Sol I. Smithline, Joseph A. McLaughlin and Patrick J. Hughes of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Parascand, Appellant.
    Argued April 28, 1937;
    decided May 25, 1937.

      Samuel Rosenzweig for appellant.

      John J. Bennett, Jr., Attorney-General (Sol I. Smithline, Joseph A. McLaughlin and Patrick J. Hughes of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Edward Simons, Appellant.
    Submitted April 28, 1937;
    decided May 25, 1937.

      Joseph Burger, Jack E. Levine and Morris Wagman for appellant.

      John J. Bennett, Jr., Attorney-General (Maurice H. Matzkin and Joseph A. McLaughlin of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    General Electric Company, Respondent, v. New York Contract Purchase Corporation et al., Appellants.
    Argued April 28, 1937;
    decided May 25, 1937.

      R. Randolph Hicks, Jay Leo Rothschild and Lloyd F. Thanhouser, for appellants.

      Lowell Wadmond for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Wayne County Produce Company, Respondent, v. Gordon-O'Neill Company, Inc., Appellant.
    Argued April 28, 1937;
    decided May 25, 1937.

      Samuel Gottlieb and Sidney Gondelman for appellant.

      Edmond B. Butler for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Abraham Gatner, Appellant.
    Argued April 29, 1937;
    decided May 25, 1937.

      William Copeland Dodge, District Attorney (Philip A. Donahue of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Louis Feinbaum, Appellant.
    Argued April 29, 1937;
    decided May 25, 1937.

      Eli Kriger for appellant.

      William Copeland Dodge, District Attorney (LeRoy Mandle of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Nathan Freedman, Appellant, v. New York Society for the Suppression of Vice et al., Respondents.
    Argued April 29,1937;
    decided May 25, 1937.

      Jas. Madison Blackwell and Martín A. Nathanson for appellant.

      Lee Hazen for New York Civil Liberties Committee, amicus curice.

      Martin Conboy, David Asch and Francis X. Walsh for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hessian Hills Country Club, Inc., et al., Appellants, v. Home Insurance Company, Respondent. Hessian Hills Country Club, Inc., et al., Appellants, v. Hartford Fire Insurance Company et al., Respondents.
    Argued April 30, 1937;
    decided May 25, 1937.

      Alfred B. Nathan and Milton J. Gordon for appellants.

      Harry A. Gair and Benjamin H. Siff for respondents.
   In each case: Judgments reversed and new trial granted, with costs to abide the event. We think the exclusion of the writing, Plaintiffs’ Exhibit 68 for Identification, was, in the circumstances appearing in the record, an error so substantial that it must be deemed to have affected the result. No opinion.

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


text:
    Hessian Hills Country Club, Inc., et al., Appellants, v. Home Insurance Company, Respondent. Hessian Hills Country Club, Inc., et al., Appellants, v. Hartford Fire Insurance Company et al., Respondents.
    Argued April 30, 1937;
    decided May 25, 1937.

      Alfred B. Nathan and Milton J. Gordon for appellants.

      Harry A. Gair and Benjamin H. Sijf for respondents.
   In each case: appeal dismissed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Garlaus, Raymond Norton, Watson Edwards and Harry Eisenberg, Appellants.
    Argued April 27, 1937;
    decided May 25, 1937.

      Maurice Edélbaum and E. Ivan Rubenstein for Anthony Garlaus, appellant.

      Burton B. Turkus and Joseph Weiss for Raymond Norton, appellant.

      David Krauss and Julius Hollander for Watson Edwards, appellant.

      Hyman Wank and Abraham H. Kesselman for Harry Eisenberg, appellant.

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

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


text:
    In the Matter of No. 17 Beekman Place, Respondent, against Edward J. Flynn, as Secretary of the State of New York, Appellant.
    Argued May 17, 1937;
    decided May 25, 1937.

      John J. Bennett, Jr., Attorney-General (F. B. Chant and Henry Epstein of counsel), for appellant.

      Albert Stickney and Charles B. McGroddy for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Max Kaplan, Doing Business under the Name of Kaplan’s Valet Service, Respondent, against Hermine C. Peyser, Appellant, Impleaded with Another.
    Submitted May 17, 1937;
    decided May 25, 1937.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 147.)


text:
    Beatrice Friedman et al., Appellants, v. L. M. Beck et al., Respondents.
    Submitted May 17, 1937;
    decided May 25, 1937.

      Bert Hamburger for motion.

      Joseph L. Forscher opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants perfect appeal within ten days, in which event the motion is denied.


text:
    In the Matter of Thomas L. Healey, Respondent, against Charles Gold, as Mayor of the City of Long Beach et al., Appellants.
    Argued May 17, 1937;
    decided May 25, 1937.

      Charles C. Clark and Morris Alfred Vogel for motion.

      David B. Tolins, Corporation Counsel, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    John E. Rosasco Creameries, Inc., Appellant, v. Henry Cohen et al., Copartners under the Firm Name of Cohen Dairy Company, Respondents.
    Submitted May 24, 1937;
    decided May 25, 1937.

      Isador Goetz for motion.

      Joseph J. Celia opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of John W. Abramson, Respondent, against Charles Gold, as Mayor of the City of Long Beach, et al., Appellants.
    Argued May 17, 1937;
    decided May 25, 1937.

      Charles C. Clark and Morris Alfred Vogel for motion.

      David B. Tolins, Corporation Counsel, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Lulu M. Geer, Respondent, v. Union Mutual Life Insurance Company, Appellant. (Actions 1 and 2.)
    Submitted May 17, 1937;
    decided May 25, 1937.
   Motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended as follows: Judgment modified by reducing the recovery to $118 with interest thereon from December 20, 1934, and with costs to plaintiff in the Municipal Court; otherwise, judgment affirmed, with costs in this court and in the Appellate Division to the defendant-appellant. (See 273 N. Y. 261.)


text:
    Ernest J. Pirman et al., Appellants and Respondents, v. Harold T. Confer et al., Respondents and Appellants.
    Submitted May 17, 1937;
    decided May 25, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 357.)


text:
    Lawrence Hanfgarn, Respondent, v. George Mark, Appellant.
    Submitted May 17, 1937;
    decided May 25, 1937.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following:

“ A question under the Federal Constitution was presented and necessarily passed upon by this court. The plaintiff contended that Sections 61-a, 61-i, of the Civil Practice Act of the State of New York (Chapter 263 of the Laws of 1935), in so far as they abolish the right of action to recover damages in an action for alienation of affections and criminal conversation, are repugnant to, and violative of, the Fourteenth Amendment to the Constitution of the United States. This' court held that such laws are not repugnant to, or violative of, the Fourteenth Amendment to the Constitution of the United States.” (See 274 N. Y. 22.)


text:
    Nassau County Trust Company, as Administrator of the Estate of Shaheenie Saleeby, Deceased, et al., Appellants, v. Nazura D. Saleeby et al., Individually and as Heirs at Law and Next of Kin of Shaheenie Saleeby, Deceased, et al., Respondents.
    Argued May 17, 1937;
    decided May 25, 1937.

      John R. Jones and Walter E. Warner for motion.

      Vito F. Lanza opposed.


text:
    Chemical Bank and Trust Company, as Trustee under Trust Indentures Executed by Mary A. Ott, Deceased, Appellant and Respondent, v. Margaret K. Ott, Individually and as Executrix of Henry L. Ott, Deceased, et al, Respondents and Appellants; Chemical Bank and Trust Company, as Administrator with the Will Annexed of Mary A. Ott, Deceased, et al., Respondents, Impleaded with Another.
    Argued April 29, 1937;
    decided June 1, 1937.

      Alfred McCormack, Carl A. de Cersdorff and George B. Turner for plaintiff, appellant and respondent.

      Thomas B. Gilchrist, Henry W. Taft and Catherine Noyes Lee for Alfred W. Ott et al., defendants, respondents and appellants.

      James Madison Blackwell for infant defendants, respondents and appellants.

      Philip W. Lowry for Margaret K. Ott, defendant, respondent and appellant.

      Paul A. Crouch and Joseph F. Mann for Edith M. O. Meixner et al., defendants, respondents and appellants.
   Judgment of the Appellate Division modified by reversing the provision thereof which charges the trustee with negligence for failure to sell stocks before it did and with interest on the Federal estate taxes, and as so modified affirmed, without costs, on the ground that under the peculiar facts of this case the trustee was not negligent in the exercise of its judgment. No opinion. (See 274 N. Y. 636.)

Concur: O’Brien, Hubbs, Loughran, Finch and Rippey, JJ. Crane, Ch. J., and Lehman, J., dissent and vote to affirm the decision of the referee.


text:
    Harry P. Jones, Appellant, v. Nellie C. Jones, Respondent.
    Argued May 17, 1937;
    decided June 1, 1937.

      Ransom 11. Qillett for appellant.

      Harry W. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Thomas Henderson, Appellant, against City of Glen Cove, Respondent.
    (Argued May 17, 1937;
    decided June 1, 1937.)

      Michael A. Petroccia for appellant.

      John P. Carson and William A. Earl for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of John Becraft, Appellant, against Daniel F. Strobel, Respondent.
    Argued May 18, 1937;
    decided June 1, 1937.

      Nicholas 0. Powers for appellant.

      Donald L. _Brush for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Central Hanover Bank and Trust Company, Respondent, v. National Surety Corporation, Appellant.
    Argued May 18, 1937;
    decided June 1, 1937.

      Samuel R. Feller, Benjamin Levin and Leo H. Hirsch, Jr., for appellant.

      Francis D. Higson for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Lands in the Borough of the Bronx as a Site for the Triborough Bridge. 122 Cypress Avenue Holding Corporation, Appellant.
    Argued May 18, 1937;
    decided June 1, 1937.

      Sidney S. Levine for appellant.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., Paxton Blair and Alfred D. Jahr of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Transit Commission, Appellant, v. Long Island Railroad Company, Respondent. City of New York, Intervener, Appellant.
    Argued May 18, 1937;
    decided June 1, 1937.

      George H. Stover and Philip Hodes for Transit Commission, appellant.

      Paul Windels, Corporation Counsel (William G. Mulligan, Jr., and Arthur A. Segall of counsel), for City of New York, appellant.

      Louis J. Carruthers and Otto M. Buerger for respondent.
   Order affirmed, with costs. The Long Island Railroad Company, having complied with all the provisions of the order and the statute regarding rate of fare, we answer the question certified in the negative. No opinion.

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


text:
    John S. Behr, Appellant, v. Chase National Bank of New York City, Respondent.
    Argued May 19, 1937;
    decided June 1, 1937.

      Edward E. Hoenig and William M. Sullivan for appellant.

      Robert H. O’Brien and Charles B. Collins for respondent.

      William L. Hanaway for Evelyn S. Bardie et al., amici curise.

   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Mary J. Glover, an Incompetent Person, Respondent; M. O’Connell & Co., Builders, Inc., et al., Appellants.
    Submitted May 19, 1937;
    decided June 1, 1937.

      Owen E. Reilly for appellants.
    No appearance for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Dairymen’s League Co-operative Association, Inc., Respondent, v. Frank Ferguson, Appellant.
    Argued May 19, 1937;
    decided June 1, 1937.

      Bartle Gorman for appellant.

      Bradley Fuller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Zinna Griefer, Respondent, v. County of Sullivan et al., Appellants.
    Submitted May 24, 1937;
    decided June 1, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 515.)


text:
    Charles H. Levy Respondent, v. Joseph P. Day, Inc., Appellant.
    Submitted May 24, 1937;
    decided June 1, 1937.

      Myron D. Levy for motion.

      William Harvey Smith and H. Schieffelin Sayers opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Westchester Trust Company, Respondent, v. Morris Guterman, Defendant, and Louis Harrison, Appellant.
    Submitted May 24, 1937;
    decided June 1, 1937.

      John Preston Phillips for motion.

      Ulysses S. Adler opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking andjpays ten dollars costs within ten days, in which event the motion is denied.


text:
    Margaret A. Kane, Respondent, v. Ricoro Estates, Inc., et al., Defendants, and Aaron B. Salant, Appellant.
    Submitted March 22, 1937;
    decided June 2, 1937.

      Harold E. Brennan for motion.

      Elwood G. Feldstein opposed.
   Motion granted and appeal dismissed, with costs and ten dollars of motion, unless the appeal from the judgment of foreclosure is brought on for argument at the October, 1937, session of this court.


text:
    In the Matter of the Accounting of Mary M. Kneeskern, as Administratrix of the Estate of Maggie K. Smith, Deceased. Ollie Kneeskern, as Executrix of Mary M. Kneeskern, Deceased, etc., Appellant; Fred S. Lathers et al., as Administrators with the Will Annexed of the Estate of Jonas S. Smith, Deceased, Respondent.
    Submitted May 24, 1937;
    decided June 2, 1937.

      Edward R. Hall for motion.

      T. Cwthell Calderwood opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, and appeal dismissed, with costs.


text:
    The People of the State of New York, Respondent, v. James Sullivan, Appellant.
    Argued March 16, 1937;
    decided June 8, 1937.

      Maurice Edelbaum and William Lurie for appellant.

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment of conviction reversed and new trial ordered on the authority of People v. Cummings (274 N. Y. 336). No opinion.

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


text:
    In the Matter of New York State Electric and Gas Corporation et al., Appellants, against Public Service Commission of the State of New York et al., Respondents.
    Argued May 17, 1937;
    decided June 8, 1937.

      Warwick J. Kernan and Henry W. Killeen for appellants.

      Gay H. Brown and Laurence J. Olmsted for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Amos Wagoner, Respondent, against Brown Manufacturing Company et al., Appellants. State Industrial Board, Respondent.
    Argued May 20,1937;
    decided June 8, 1937.

      Raymond F. Nichols and Warren C. Tucker for appellants.

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

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


text:
    In the Matter of the Claim of Carle Van De Bogart, Respondent, against Onondaga Litholite Company et al., Appellants. State Industrial Board, Respondent.
    Submitted May 20, 1937;
    decided June 8, 1937.

      Jeremiah F. Connor for appellants.

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

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


text:
    In the Matter of the Claim of Helen Nesofsky et al., Respondents, against Jacob Ragorotsky et al., Appellants. State Industrial Board, Respondent.
    Argued May 20, 1937;
    decided June 8, 1937.

      Charles P. Bane for appellant.

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

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


text:
    In the Matter of the Accounting of Allan R. Campbell et al., as Executors of Carolyn L. Casper, Deceased, Respondents. William F. Casper, Appellant; Joel Mencher, as Special Guardian, Respondent.
    Argued May 20, 1937;
    decided June 8, 1937.

      G. Joseph Danahy, James J. Delaney and George R. Leonard for appellant.

      Allan R. Campbell (in person) and Sidney R. Fleisher for executors, respondents.

      Joel Mencher, as special guardian for Caroline Good, respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of Bond and Mortgage Guarantee Company. John N. Harman, as Clerk of the County of Kings, Appellant; Mortgage Commission of the State of New York, Respondent.
    Submitted May 20, 1937;
    decided June 8, 1937.

      Hector McG. Curren for appellant.

      Frieda B. Hennoclc, Louis Timberg and Maurice Finkelstein for respondent.
   Order affirmed, without costs; no opinion.

Concur: Cbane, Ch. J., Lehman, O’Bbien, Hubbs, Loughban, Finch and Rippey, JJ.


text:
    Associated Indemnity Corporation, Appellant, v. Abraham Chais, Respondent.
    Argued May 20, 1937;
    decided June 8, 1937.

      Maxwell Berman for appellant.

      Norman L. Maries, Isidore Meyer and Stanley Wolder for respondent.
   Appeal dismissed, with costs. The validity of a statute is not the only question involved. No opinion.

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


text:
    In the Matter of National City Bank of New York et al., Appellants; National Surety Corporation, Respondent.
    Argued May 20, 1937;
    decided June 8, 1937.

      E. Lacy Finnan, Samuel Wechsler and Benjamin F. Tracy for appellants.

      Leo T. Kissam, J. Francis Hayden, Henry W. Nichols and Alexander Foster, Jr., for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    Michelina Massaro, Respondent, v. National Fire Insurance Company of Hartford, Connecticut, Appellant.
    Argued May 21, 1937;
    decided June 8, 1937.

      Charles E. Spencer for appellant.

      Don Carlos Buell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary McCarthy, as Administratrix of the Estate of James McCarthy, Deceased, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant.
    Argued May 21, 1937;
    decided June 8, 1937.

      Charles E. Spencer, John H. Hughes and M. J. Allen for appellant.

      M. Francis Malone for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Salvatore Re, Appellant, v. E. Leon Diamond et al., Respondents.
    Argued May 21, 1937;
    decided June 8, 1937.

      Charles Berlin for appellant.

      Avel B. Silverman and Herman Wiesenthal, in person, for respondents.
   Judgment affirmed, with costs; no opinion

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


text:
    Augustus M. Powers, Appellant, v. Fireman’s Fund Insurance Company et al., Respondents, Impleaded with Another.
    Argued May 21, 1937;
    decided June 8, 1937.

      Henry Kroll and Joseph Danziger for appellant.

      Simon Greenhill, Joseph Greenhill and Bernard J. Freedman for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Daniel Halpern, Appellant.
    Argued May 24, 1937;
    decided June 8, 1937.

      Joseph Halpern and Benjamin Bag for appellant.

      Samuel J. Foley, District Attorney (George Tilzer, Sol Boneparth and Herman J. Fliederblum of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Miller, Appellant.
    Argued May 25, 1937;
    decided June 8, 1937.

      Charles E. Callahan and Judson B. Glen for appellant.

      Daniel J. O’Mara, District Attorney (,Stephen K. Pollard of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Louis H. Pink, Superintendent of Insurance of the State of New York, as Rehabilitator of Bond and Mortgage Guarantee Company, Appellant, v. Title Guarantee and Trust Company, Respondent.
    Submitted May 24, 1937;
    decided June 8, 1937.
   Motion for reargument denied. Upon this appeal we decided only that the matters alleged in the answer did not constitute debts or credits which might be offset against the cause of action alleged in the complaint based, as we said, upon “ the fraud and imposition practiced and upon the unjust enrichment of defendant under cover of confidential and fiduciary relations through the common directorate.” We expressed no opinion upon the merits of the issues which must await trial. Nothing we have said may properly be construed as an expression of opinion, or assumption, that the cause of action alleged may be established merely by proof that the result, even though, perhaps, beneficial to the plaintiff, has been accomplished by acts which are ultra vires, but not otherwise illegal and fraudulent. (See 274 N. Y. 167.)


text:
    Maud D. Lahr, Respondent, v. Mabel C. Tirrill, Appellant. John B. Lahr, Respondent, v. Mabel C. Tirrill, Appellant.
    Submitted June 1, 1937;
    decided June 8, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 112.)


text:
    William H. McCabe, Appellant, v. Louis H. Gross et al., Constituting the Board of Education of the City of Troy et al., Respondents.
    Submitted June 1, 1937;
    decided June 8, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 39.)


text:
    Colonial Discount Co., Inc., Appellant, v. Robert E. Rumens, Respondent.
    Submitted May 20, 1937;
    decided June 8, 1937.

      Joseph B. Quinlan for appellant.

      Thomas R. Fay, George A. Gibson and Ira G. Goldman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Sarah J. Marks, Appellant and Respondent, against Edward J. Grenier, Respondent and Appellant.
    Argued May 21, 1937;
    decided June 11, 1937.

      Oswald Vischi and Robert Dam for relator, appellant and respondent.

      Harold I. Gold and Edward J. Grenier for defendant, respondent and appellant.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Meyer Rudack, Appellant, against Lewis J. Valentine, as Police Commissioner of the City of New York, et al., Respondents.
    Submitted. May 26, 1937;
    decided June 11, 1937.

      Joseph G. Fenster for appellant.

      Paul Windels, Corporation Counsel (Francis J. Bloustein and Paxton Blair of counsel), for Lewis J. Valentine et al., respondents.

      Harold Riegelman, H. H. Nordlinger and Jacob M. Dinnes for League of Mutual Taxi Owners, Inc., et al., interveners, respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Grant Lunch Corporation, Appellant.
    Submitted May 26, 1937;
    decided June 11, 1937.

      Lawrence Kovalsky and David Goldstein for appellant.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri, Paxton Blair and Ralph W. Thomas of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Star Metal Smelting and Refining Company, Inc., Appellant.
    Argued May 26, 1937;
    decided June 11, 1937.

      Nathan Silverman for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Charles E. Ramsgate of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the Application of The Board of Estimate and Apportionment of the City of New York Relative to Carrying Eliot Avenue Across the Right of Way of the New York Connecting Railroad Company. The City of New York, Appellant; Transit Commission of the State of New York et al., Respondents.
    Argued May 26, 1937;
    decided June 11, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair, Joseph L. Weiner and Arthur A. Segall of counsel), for appellant.

      Madison G. Gonterman and Gilbert N. Peed for New York Connecting Railroad Company, respondent.

      Frank C. Bowers, Wallace A. Kroger and George H. Stover for Transit Commission, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Irem H. Stryker, Jr., Appellant, against The Board of Education of the City of New York, Respondent.
    Argued May 26', 1937;
    decided June 11, 1937.

      Theodore H. Kenworth for appellant.

      Paul Windels, Corporation Counsel (.Arthur Bainbridge Hoff, Paxton Blair and Jeremiah M. Evarts of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Frances McMahon et al., Respondents, v. Staten Island Coach Company, Inc., Appellant.
    Argued May 27, 1937;
    decided June 11, 1937.

      Bertram G. Eadie for appellant.

      Lloyd R. Christopher and Joseph P. Walsh for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mae M. Cope, Respondent, v. John Wanamaker of New York, Appellant.
    Argued May 27,1937;
    decided June 11, 1937.

      David Cohen for appellant.

      Benjamin Barondess, I, William Beisman and Philip B. Geldzahler for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Wilfred Schwab, Appellant, v. Globe Indemnity Company, Respondent.
    Argued May 27, 1937;
    decided June 11, 1937.

      Louis J. Wolff and Harding Cowan for appellant.

      F. A. W. Ireland for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Richard Verity et al., as Executors and Trustees under the Will of Charles H. Verity, Deceased, Appellants, v. Metropolis Land Company, Respondent, Impleaded with Another.
    Argued May 27, 1937;
    decided June 11, 1937.

      Eugene B. Hurley and Paul J. Leach for appellants.

      Joseph M. Creamer and Starr Corey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Electric Bond and Share Company, Respondent, v. The State of New York, Appellant.
    Submitted May 27, 1937;
    decided June 11, 1937.

      John J. Bennett, Jr., Attorney-General {Leon M. Layden and Henry Epstein of counsel), for appellant.

      Saul Gordon and Alex M. Hamburg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Fred D. Smith et al., Respondents, v. American Automobile Fire Insurance Company, Defendant, and American Automobile Insurance Company, Appellant.
    Argued May 28, 1937;
    decided June 11, 1937.

      Harold B. Epp for appellant.

      Sol Rubin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mabel J. Brinkerhoff, as Administratrix of the Estate of Frederick T. Brinkerhoff, Deceased, Respondent, v. Pennsylvania Railroad Company, Appellant.
    Argued May 28, 1937;
    decided June 11, 1937.

      Harold J. Adams and Percy R. Smith for appellant.

      Arthur VD. Chamberlain for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elizabeth Murray, Respondent, v. Great Atlantic and Pacific Tea Company, Appellant.
    Submitted May 28, 1937;
    decided June 11, 1937.

      Caruihers Ewing and William Harry Montgomery for appellant.

      Leonard J. Supple for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Brooklyn Trust Company, Appellant, v. Ernest Jesper et al., Respondents.
    Submitted May 28, 1937;
    decided June 11, 1937.

      Daniel McNamara, Jr., and Israel I. Davidson for appellant.

      Joseph E. Marcus and Allen E. Marcus for Ernest Jesper, respondent.

      Jay Genzer for Torkel Larsen, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret Hovell, as Administratrix of the Estate of Edgar T. Hovell, Deceased, Respondent, v. Victor J. Dowling et al., as Receivers of Interborough Rapid Transit Company, Appellants.
    Submitted May 28, 1937;
    decided June 11, 1937.

      A. H. Cole, Louis S. Carpenter and James L. Quackenbush for appellant.

      Abraham Engelman and Walter Klein for respondent.
   Judgments reversed and new trial granted, with costs to abide the event, on the ground that there was no evidence of negligence sufficient to warrant submission of the case to the jury. No opinion.

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


text:
    Syril Liedeker et al., Appellants, v. Sears, Roebuck & Co., Inc., Respondent, Impleaded with Another.
    Argued May 28, 1937;
    decided June 11, 1937.

      Abraham Engelman, Harry J. Engel, Leo Thomas and Emil Katzka for appellants.

      Alan M. Stroock, Peter I. B. Levine and Milton Socolof for respondent.

      C. E. Fitzgerald, James McPhillips and Frederick G. Bascom for Telescope Folding Furniture Company, defendant.
   Judgment affirmed, with costs; no opinion.

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


text:
    Helen Shaw et al., Appellants, v. Irving Trust Company, as Trustee under the Will of Grace S. Seidler, Deceased, Respondent.
    Argued May 28, 1937;
    decided June 11, 1937.

      Morris Oelbman for appellants.

      Ralph H. Terhune and E. C. Sherwood, for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Theresa Sgarlata, Respondent, v. City of Schenectady, Appellant. (Actions Nos. 1 and 2.)
    Argued May 28, 1937;
    decided June 11, 1937.

      Thomas W. Wallace, Corporation Counsel (Arlen T. St Louis of counsel), for appellant.

      John R. Parker for respondent.
   In each action, judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Katherine H. Brown, Deceased.
    Submitted June 7,1937;
    decided June 11, 1937.
   Motion for a reargument denied. Opinion modified so as to state that there was no question raised regarding domicile or residence in New York State. (See 274 N. Y. 10.)


text:
    579 Flatbush Avenue Realty Corporation, Respondent, v. Rosruth Realty Corporation, Appellant, Impleaded with Others.
    Submitted June 7, 1937;
    decided June 11, 1937.

      Irwin N. Wilpon for motion.

      Clarence B. Campbell and Robert L. Callahan opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements. (See Gallagher v. Perot, 203 App. Div. 651; 235 N. Y. 561.)


text:
    Diego Tejado, Respondent, v. Daniels and Kennedy, Inc., Appellant.
    Submitted June 7,1937;
    decided June 11, 1937.

      Irving A. Scheinberg and Bernard H. Packman for motion.

      ■Grover C. Sniffen opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Chemical Bank and Trust Company, as Trustee under Trust Indentures Executed by Mary A. Ott, Deceased, Appellant and Respondent, v. Margaret K. Ott, Individually and as Executrix of Henry L. Ott, Deceased, et al., Respondents and Appellants, and Chemical Bank and Trust Company, as Administrator with the Will Annexed of Mary A. Ott, Deceased, et al., Respondents, Impleaded with Another.
    Submitted June 7, 1937;
    decided June 11, 1937.
   Motion for reargument of the appeal of the appellant Clarence F. Ott in so far as it relates to the validity of the instruments of April 12, 1930, purporting to modify the provisions of the trust indenture executed by Mrs. Mary A. Ott on February 19, 1929, denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 572.)


text:
    Eugene A. Perkins, Respondent, v. Guaranty Trust Company of New York, Defendant, and Idonah S. Perkins, Appellant.
    Submitted June 10, 1937;
    decided June 11, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 250.)


text:
    Sears, Roebuck and Company, Appellant, v. 9 Avenue-31 Street Corporation et al., Respondents.
    Submitted June 8, 1937;
    decided June 11, 1937.


text:
    In the Matter of New York Credit Men’s Association, Inc., Appellant, against Jacob Schneider et al. Defendants, and Dora Schneider, Respondent.
    Argued April 19, 1937;
    decided June 11, 1937.
   Motion to vacate order of dismissal denied. (See 273 N. Y. 625.)


author: O’Brien, J.

text:
    In the Matter of the Will of John W. Clark, Deceased. Sidney J. Loeb et al., as Executors and Trustees under the Will of John W. Clark, Deceased, Appellants; Mary M. Clark, Respondent.

      Argued March 17, 1937;
    decided July 13, 1937.

      Sidney J. Loeb for appellants.
    The will complied with section 18 of the Decedent Estate Law (Cons. Laws, ch. 13) which required only that a trust equivalent to the intestate share be established. (Matter of Rich, 149 Misc. Rep. 843 ; 242 App. Div. 613; Matter of Curley, 151 Misc. Rep. 664; Matter of Bommer, 159 Misc. Rep. 513.) The grant of broad powers to executors or trustees would not confer- an absolute right of election upon the surviving spouse. (Matter of Bommer, 159 Misc. Rep. 511.)

      Charles A. Kussmaul, Carl S. Heidenreich and Charles F. Gerhmann

    for Gustave Bommer et al., as executors of Emil Bommer, deceased, et al., amici curiæ. No vested right exists under section 18 of the Decedent Estate Law until the decree of the Surrogate’s Court is made determining the existence of that right. (Brearley School v. Ward, 201 N. Y. 358; Matter of Bergdorf, 206 N. Y. 309; People v. Livingston, 6 Wend. 526.)

      Robert P. Schur, Robert J. Fox and Hugo Wintner for respondent.
    The trust provisions give the widow the right to reject the will and to elect to take her intestate share. (Matter of Curley, 245 App. Div. 255; 269 N. Y. 548; Matter of Bommer, 159 Misc. Rep. 517.) The amendment to the Decedent Estate Law was not retroactive. (Orinoco Realty Co. v. Bandler, 233 N. Y. 24; Addiss v. Selig, 264 N. Y. 274; Auto Car Sales Co. v. Hansen, 270 N. Y. 414; Benton v. Wickwire, 54 N. Y. 226; Hollenbach v. Born, 238 N. Y. 34; Columbus Trust Co. v. Upper Hudson E. & R. Co., 190 N. Y. Supp. 737; Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261; City of New York v. Lawrence, 250 N. Y. 429; People v. Board of Supervisors, 16 N. Y. 424; Matter of Miller, 110 N. Y. 216; Laird v. Carton, 196 N. Y. 169; Brearley School v. Ward, 201 N. Y. 358.) The rights of the petitioner had fully vested before the passage of the amendment. (Matter of Bommer, 159 Misc. Rep. 511; People v. Powers, 174 N. Y. 104; Norris v. Beyea, 13 N. Y. 273; Westervelt v. Gregg, 12 N. Y. 202; Luhrs v. Eimer, 80 N. Y. 171.)
   O’Brien, J.

By paragraph fourth, subdivision (a), of his will, executed August 3, 1933, John W. Clark established a trust for the benefit of his wife, Mary M. Clark, during her fife, to consist of one-half of his net estate. In paragraph fourth, subdivision (b), he expressed his intention that such provision was made in lieu of dower and of all rights of election as provided by section 18 of the Decedent Estate Law (Cons. Laws, ch. 13). By codicil executed September 29, 1934, he amended paragraph fourth, subdivision (b), by adding this provision: “ However, if my wife shall not accept the provisions herein contained in her favor, then it is my will that she shall receive no portion of my estate whatsoever and the bequest herein contained for her benefit shall thereupon be and the same hereby is revoked and shall become a portion of my residuary estate.” Bj- paragraph seventh of his will the testator empowers his executors and trustees to retain any of his property in the same form as it might be at the time of his death and to make distribution in kind at such value as they should in their unrestricted discretion appraise it. The value so fixed should be binding upon all persons interested in his estate. The trustees are authorized by the same paragraph to invest in securities other than those designated by law as legal investments for trustees and by paragraph ninth they are relieved of giving a bond for the faithful discharge of their duties. By paragraph fifth the testator disposes of the remaining half of his estate by bequeathing legacies to certain relatives and friends. In subdivision (p) of that paragraph he directs in the event that such legacies should exceed one-half of his net estate, that they should proportionately abate.

After the will was admitted to probate, the respondent Mary M. Clark, as surviving spouse, gave written notice of election under section 18 of the Decedent Estate Law to take her intestate share against the will. This proceeding is one to determine the validity of her election. The Surrogate and the Appellate Division have decreed that the widow has validly exercised her right of election, to take against the terms of the will. This result was reached on the theory that the decision in Matter of Curley (245 App. Div. 255; affd., 269 N. Y. 548) is controlling.

In affirming the order in the Curley case without opinion, this court did not adopt the reasoning of the opinion at the Appellate Division. In reaching the same conclusion we were controlled by the fact that the trust created by that testator did not constitute the intestate share but we did not go so far as to decide that the trust must comply with section 111 of the Decedent Estate Law and section 21 of the Personal Property Law (Cons. Laws, ch. 41). In the case before us the testator bequeathed in trust for his widow’s life one-half of his net estate which, unlike the provisions in the Curley will, must necessarily amount to that sum and which, unlike the trust in the Curley case, will yield a substantial income. Here we have a trust in substance as well as form. The provisions of the seventh paragraph of the will now before us enjoin the exercise of discretion by the trustees in appraising and evaluating the properties. This discretion, although described as “ unrestricted,” must, of course, be genuine and not arbitrary. We do not read this provision as an attempt to perpetrate a fraud. The Surrogate has jurisdiction to direct an equitable distribution and valuation of the assets so as to insure to the widow her intestate share. Nothing in this will indicates an intent by the testator to establish such a trust as will yield little or no income or otherwise ingeniously to deprive the widow of her intestate rights. A testamentary gift of an equal sum with the intestate share, or a gift in trust of such a sum for the use of the surviving spouse for life, or a combination of such gifts providing .in the aggregate at least such a sum, should constitute an equivalent of the intestate share. * * * We conceive its [the Legislature’s] intent to have been that the equivalent substitute of the intestate share in the form of a trust should be none other than a trust for the benefit of the surviving spouse throughout life.” (Matter of Byrnes, 260 N. Y. 465, 470, 471, 474.) This will, when fairly read, confers upon the widow all the rights which section 18 of the Decedent Estate Law gives her. There is no way by which the executors and trustees can deprive her of her share. As so interpreted, her rights are preserved and, accordingly, she may not elect.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed and the petition dismissed, with costs in all courts payable out of the estate.

Crane, Ch.yJ., Lehman, Htjbbs, Loughran, Finch and Rippey, JJ., concur.

Order reversed, etc.


author: Rippey, J.

text:
    In the Matter of the Accounting of Bankers Trust Company et al., as Trustees under the Will of John T. Waring, Deceased, Respondents. Leslie A. Waring et al., Appellants. Jessie T. Waring, Individually and as Executrix of John T. Waring, Jr., Deceased, et al., Respondents.

      Argued May 18, 1937;
    decided July 13, 1937.

      Joseph S. Robinson for appellants.
    Article 3 of the Decedent Estate Law (Cons. Laws, ch. 13), as amended by chapter 229 of the Laws of 1929, effective September 1, 1930, reclassifying heirs at law and next of kin, was intended to specify the distributees in cases of intestacy. The law, however, even if applicable to wills, is not retroactive and, therefore, cannot affect the will of John T. Waring, Sr., which was probated in the year 1907. (United States Trust Co. v. Miller, 57 Misc. Rep. 500; Burns v. Burns, 190 N. Y. 211; Matter of Chalmers, 264 N. Y. 239; Matter of Germaine, 268 N. Y. 475; Nelson v. Russell, 135 N. Y. 137.) The estate vested in those persons who answered the description “ next of kin ” immediately upon the testator’s death in the year 1907. The intention of the testator as gathered from the entire will was to confine the disposition of his estate entirely to those of his own blood and to permit no part of his property to go elsewhere. (Matter of Ossman v. Von Roemer, 221 N. Y. 381; Matter of Leonard, 143 Misc. Rep. 172; Matter of Gates, 239 App. Div. 666; Connelly v. O’Brien, 166 N. Y. 406; Matter of Rossiter, 254 N. Y. 583; Cammann v. Bailey, 210 N. Y. 19; Nelson v. Russell, 135 N. Y. 137; Hersee v. Simpson, 154 N. Y. 496; Matter of Evans, 234 N. Y. 42; Matter of White, 263 N. Y. 576; Matter of Rowland, 139 Misc. Rep. 335; Trowbridge v. Coss, 126 App. Div. 679; 195 N. Y. 596; Wadsworth v. Murray, 161 N. Y. 274; Fell v. McCready, 236 App. Div. 390; Carr v. Smith, 161 N. Y. 636; Matter of Bump, 234 N. Y. 60; Keteltas v. Keteltas, 72 N. Y. 312.)

      Stewart W. Rowe and Charles C. Fenno for Jessie T. Waring, respondent.
    In the absence of a contrary intention expressed in the will, a gift to “ next of kin ” imports a reference to the statute. (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; New York Life Ins. & Trust Co. v. Hoyt, 161 N. Y. 1.) The remainder was contingent and vested on the life tenant’s death. (Doctor v. Hughes, 225 N. Y. 305; Arnot v. Arnot, 75 App. Div. 230; Matter of Kingsbury, 192 App. Div. 206; Schlereth v. Schlereth, 173 N. Y. 444; Matter of Crane, 164 N. Y. 71; Matter of Evans, 234 N. Y. 42; Matter of Baer, 147 N. Y. 348; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Salter v. Drowne, 205 N. Y. 204.) A distribution pursuant to the statute in effect at the date of death of the life beneficiary does not involve retrospective application of that statute. (Whittemore v. Equitable Trust Co., 162 App. Div. 607; Cox v. Hart, 260 U. S. 427; Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Matter of Angarica, 157 Misc. Rep. 98; Matter of Scudder, 156 Misc. Rep. 633; Matter of Canfield, 136 Misc. Rep. 551; 256 N. Y. 610.) The division of the fund should be made in accordance with the statute. (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; United States Trust Co. v. Nathan, 112 Misc. Rep. 502; Matter of Foster, 242 App. Div. 796; 270 N. Y. 624.)
   Rippey, J.

John T. Waring, Sr., died in 1907, a resident of Westchester county, New York, leaving a last will and testament dated June 20, 1899, and two codicils dated respectively October 24, 1899, and December 13, 1901, which were admitted to probate by the Westchester County Surrogate on March 7,1907. Therein the testator set up a trust from which his executors were directed to pay to his son, John T. Waring, Jr., and to others the income during his son’s lifetime. He further provided that “ as to the distribution of the capital of the said trust fund, upon the death of the said John, I direct the said trustees to pay the same over to the lawful descendants if any, of the said John, in equal shares, per stirpes and not per capita, and if there be no such descendants to the next of kin of the said John, according to the laws of the State of New York.”

John T. Waring, Jr., died June 18, 1935, leaving a widow, Jessie T. Waring, but no descendants surviving. He also left three sisters, and certain nephews, grandnephews, nieces and grandnieces, as his only next of kin. Thereupon, the trustees petitioned for a final judicial settlement of their accounts and requested that the provisions of the will of John T. Waring, Sr., be construed so as to determine who were the distributees of the capital of the trust fund created for the benefit of the said son and the proportions thereof to which the various distributees were entitled. The Surrogate held that there was no vesting of the corpus of the trust until the death of the life beneficiary and that it should be distributed in accordance with the provisions of subdivision 4 of section 83 of the Decedent Estate Law (Cons. Laws, ch. 13) in force at the time of the death of the son, under which the widow should receive $10,000 plus one-half of the residue, and the surviving sisters and the descendants of two deceased sisters and of a deceased brother of the fife beneficiary the balance. From the decree of the Surrogate the descendants of a deceased brother who would be entitled to one-sixth of the residue should the widow not inherit appealed to the Appellate Division, second department, where the decree was unanimously affirmed. The appeal of those distributees comes to us by permission of this court.

The testator provided that, upon the death of his son without descendants, the trustees should pay the corpus of the trust to the “ next of kin ” of the son according to the laws of the State of New York.” The gift was to a definitely defined class whose membership as well as the extent and quality of their interest were to be determined by the laws in force defining membership in that class at the time of the son’s death. (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Canfield, 256 N. Y. 610.) It is claimed that the Legislature has made the widow of the son a member of that class. By amendments to the Decedent Estate Law by section 6 of chapter 229 of the Laws of 1929 (in effect September 1, 1930), it was provided that “All existing modes, rules and canons of descent are hereby abolished. * * * All distinctions between the persons who take as heirs at law or next of kin are abolished and the descent of real property and the distribution of personal property shall be governed by this article except as otherwise specifically provided by law.” (Decedent Estate Law, § 81.) By an amendment contained in the same act of the Legislature, which also went into effect on September 1, 1930, it was provided that the distributees of the personal property of a deceased person, should he die, intestate, should be his widow, who would take $10,000 plus one-half of the residue, and his brothers and sisters and their representatives, who would take the balance. (Decedent Estate Law, § 83, subd. 4; Laws of 1929, ch. 229, § 6.) But by the express terms of the act, those amendments apply “ only to the estates or wills of persons dying after August thirty-first, nineteen hundred and thirty; and the provisions of law affected by such sections in force prior to the taking effect of this act shall apply to the estates and wills of all persons dying prior to September first, nineteen hundred and thirty, with the same force and effect as if they were not hereby amended.” (Laws of 1929, ch. 229, § 21.)

The amendments are not retroactive. (Matter of Germaine, 268 N. Y. 475.) It was not the estate of the son which passed at his death, nor did it pass by his will. The estate to be distributed at the death of the son was the estate of the father passing under the father’s will. The Legislature has, by means of the saving clause, exempted from the operation of the other amendments to which reference has been made the distribution of an estate such as is involved in the case at bar, had they otherwise been applicable.

Furthermore, by abolishing the distinction between “ next of kin ” and “ heirs at law,” the Legislature did not extend the class embraced within “ next of kin ” to include other than blood relatives. No such purpose or intent can be spelled out of the provisions of section 20 or from other provisions of the act. In addition to the provisions of section 81 of the Decedent'Estate Law above quoted, that section, as amended by section 2 of chapter 174 of the Laws of 1930, also provided that11 the determination of the degrees of consanguinity of distributees of real and personal property shall be uniform, and shall be in accordance with the rules as applied immediately before the taking effect of this section to the determination of the next of kin of an intestate leaving personal property.” (Italics ours.) This is equivalent to saying that the next of kin class includes only blood relatives. That is what the law provided before September 1, 1930. What the Legislature did say was that when the expressions heirs, heirs at law, next of kin, or distributees are used in any statute affecting the descent of real property or the distribution of personal property where intestacy exists, no distinction between them may be recognized and descent of real property and distribution of personalty must be governed by the provisions of article 3 of the Decedent Estate Law, as amended by section 6 of chapter 229 of the Laws of 1929 and by section 2 of chapter 174 of the Laws of 1930, except as otherwise specifically provided by law. (Cf. Matter of Chalmers, 264 N. Y. 239.) Nothing to the contrary was decided by this court in Matter of Canfield (256 N. Y. 610). Albert Canfield died in 1879 leaving a will which was probated May 20, 1879. By the terms of the will he gave the life use of the entire estate to his wife with a provision that, at her death, the trust estate be divided into four equal parts. As to one of those parts the deceased created a trust for the benefit of his son, Robert B. Canfield, for life, with directions to his executor to transfer, upon the son’s death, one-fourth of the remainder to the son’s wife and the balance to “ his heirs at law and next of kin.” The son died April 29, 1929, leaving surviving a wife, two brothers and a grandson of his deceased sister. The question presented was as to who are to take as next of kin of a life beneficiary who died in 1929, under the will of a testator who died in 1879?” Prior to 1898, when property went to brothers and sisters, representation as next of kin ” ceased with children of deceased brothers and sisters. (Code Civ. Proc. § 2732, subds. 5, 10, 11 and 12.) In 1898, section 2732, subdivision 12, of the Code of Civil Procedure, was amended to admit among collaterals those allowed by law to inherit real estate. By section 287 of the Real Property Law (General Laws, ch. 46 [now Dec. Est. Law, § 87]; Laws of 1896 [vol. 1], ch. 547, p. 620), grandnephews and grandnieces were brought within the class of collaterals entitled to inherit real property of an intestate leaving no descendants but leaving brothers and sisters and descendants of deceased brothers or sisters surviving. By amendment to subdivision 12 of section 2732 of the Code of Civil Procedure, in effect May 18, 1905, representation among collaterals was limited to brothers and sisters and their descendants. This court held in the Canfield case that the next of kin consisted of those in the class entitled to inherit as such in 1929 and was not “ confined to the limited class fixed by the statutes of this state previous to 1905.” There was no decision to the effect that the “ next of kin ” class could be extended to include other than relatives of the blood. Thus, in the case at bar, the next of kin ” of John T. Waring, Jr., is to be determined according to the rules as applied immediately before September 1, 1930, the date when the act of 1929 took effect.

That result is in exact accord with the intent of the testator. John T. Waring, Sr., left a substantial estate and created trusts for his children other than his son John. His intent as to all those who should participate in the distribution of his estate is clear. With care and precision he provided that the bulk of the income from the trusts and the entire corpus of his estate should pass to his blood relatives. In the case of the trust to the son, he defined these blood relatives as the next of kin of the son. There is no meaning to be assigned to next of kin ” except the class constituting blood relatives. That is the primary signification of the expression (28 R. C. L. 254; Slosson v. Lynch, 43 Barb. 147; Tillman v. Davis, 95 N. Y. 17, 24), and at no time has the wife of a son been within that class. The use of that expression by the testator to define and limit the class to whom the remainder of the trust should pass was intentionally and understan din gly made and was distinctly to exclude the wife of the son. He meant that distribution should be made to that class only. The law includes within that class only blood relatives as the class might be enlarged or diminished at the time of the son’s death by the laws of the State of New York then in force. He did not say or intend to say that the residue was to be distributed to those who would be entitled to inherit under the Statute of Distribution existing at that time. He specifically said it should go to his next of kin.” No matter to whom his estate might otherwise go at that time under any statute relating to the distribution of the estate of an intestate, he limited the passing of his property to relatives of the blood, viz., to his “ next of kin.”

Had the testator here said merely that the remainder should pass according to the laws of the State of New York in effect at the time of the death of the son, distributian under the provisions of section 83, subdivision 4, of the Decedent Estate Law might have been made. He did not say so, nor did he intend to so provide, and the widow of John T. Waring, Jr., is not included as a subject of the testator’s bounty.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed in so far only as the interests of the appellants are affected thereby, with costs in all courts to the appellants and to the trustees, payable out of the estate, and the matter remitted to the Surrogate’s Court to proceed in accordance with this opinion.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Ordered accordingly.