author: Crane, J. Pound, Ch. J. (concurring in result). Crouch, J. (dissenting).

text:
    In the Matter of Chase Mellen, Jr., Respondent, against The Board of Elections of the City of New York. David H. Knott, as Chairman of the New York County Committee of the Democratic Party, Appellant.
    (Argued October 20, 1933;
    decided October 24, 1933.)

      John T. Dooling for appellant.

      Abraham S. Gilbert for respondent.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly of counsel), for Board of Elections of the city of New York.
   Crane, J.

On Tuesday night, October 3, 1933, Judge Frederic Kernochan was nominated by the county committee of the Republican party of New York county, for the office of judge of the Court of General Sessions. The certificate of nomination was filed with the Board of Elections the following morning a little after the noon hour. On the following Monday, October 9, 1933, the Board of Elections reconsidered its action and then decided that the certificate had been filed too late to entitle the name to be placed upon the official ballot. On an application to the Supreme Court the action of the Board of Elections has been reversed and the certificate restored to its place in the files. The Special Term order has been affirmed by the Appellate Division, and leave to appeal to this court granted.

The attitude of the petitioner and his advisers has been that the certificate was filed in time.

The nomination was made by the county committee to fill the vacancy caused by the death of Judge Levine on August 27,1933. This occurred too late for a nomination to be made at the next primary election, September 19, 1933, and the method adopted was that provided by the Election Law for such cases. These special provisions, the petitioner claims, justify the filing of the certificate of nomination at a later date than is permitted for regular nominations.

In all these matters we are controlled by the provisions of the Election Law (Cons. Laws, ch. 17). Section 140 of that law states the times for filing petitions and certificates and for holding conventions. Subdivision 5 says: “ 5. A certificate of party nomination for an office to be filled at the time of a general election shall be filed not later than the fifth Tuesday preceding such election, and for an office to be filled at an election at a time other than that of a general election shall be filed not later than twenty-one days preceding such election.”

Subdivision 10 applies to the situation here, and reads in part as follows: If a vacancy described in subdivision seven of section one hundred and thirty-one occur too late to comply with the provisions of this section, the certificates of nomination, declination and to fill a vacancy in such nomination shall be filed as soon as practicable.” The subdivision 7, referred to, reads: “ A party nomination of a candidate for election to fill a vacancy, occurring after the fifth Tuesday preceding the fall primary, in an elective office required to be filled at the next general election, * * * shall be filled, after the day of such primary, by a majority vote of a quorum * * * of the members of the county committee or committees last elected in the political subdivision in which such vacancy is to be filled * * *.”

August 27, 1933, the date of Judge Levine’s death, occurring after the fifth Tuesday preceding the primary, to be held on the 19th day of September, the nomination for the office had to be made after the day of such primary ” by the county committee last elected, that is, elected on September 19, 1933. Pursuant to the provisions of the Election Law, the primary call provided that the members of the county committee, elected on September 19th, should meet for organization purposes, pursuant to the statute, on September 28th. On that date, the president, secretary and treasurer of the county committee were elected. The president-elect, Chase Mellen, Jr., is the petitioner herein. According to subdivision 5 of section 140, above quoted, the certificate of the ordinary or general party nominations had to be filed not later than October 3rd. This was the last day, unless extended in this case by subdivision 10, above quoted. This limitation, or final date for filing certificates, was known to all parties, and was in no way dependent upon the death of Judge Levine or the vacancy occurring in his office. Certificates of party nominations had to be filed not later than October 3rd. Between September 28th, the date when the new county committee commenced to function, and October 3rd, there were four days, excluding Sunday, and including the third.

The president of the county committee, existing before September 19th, had issued the call to nominate a candidate for the vacancy in the Court of General Sessions. He fixed the evening of October 3rd for this meeting, knowing, as he must have known, that by midnight of that day the certificate of nomination must be filed with the Board of Elections. The nomination made that night was in accordance with law, but, instead of sending the certificate immediately thereafter to the Board of Elections, the officers of the committee waited until the next morning, believing that subdivision 10 of section 140 extended the time for filing nominations, under these circumstances, to a period defined in the words, “ as soon as practicable.”

We hesitate to thus extend the duties and powers of nominating committees. The Legislature has fixed the time within which nominating certificates must be filed, and the reason is self-evident. There must be a definite period before election when nominations must be closed and the electors informed of the candidates and issues to be presented on Election Day.

An exception is made where a vacancy is created which must be filled at the next general election (Public Officers Law; Cons. Laws, ch. 47, § 42), and for which the nomination must be made by committees instead of by conventions or at the primaries. What is this exception? We have given it in that part of subdivision 10, above quoted, and we should not extend it by interpretation. If the vacancy occurs too late to file the nominating certificate on October 3rd, then it may be filed as soon as practicable. Judge Levine’s death did not occur too late to enable the officers of the county committee to make the nomination and to file the certificate before midnight on October 3rd. Conceding that the committee could not function before September 28th, there were four days during which it could meet and make the nomination. The reasons furnished for not meeting may have appealed to the officers of the committee, but they did not render action impossible,— possibly inconvenient. Even the meeting on the night of October 3rd gave at least two hours to take a certificate from Fortieth street to the Municipal Building, or the Board of Elections. The circumstance wherein a vacancy may occur too late to permit the filing of the certificate of nomination not later than the fifth Tuesday preceding the election, is where a vacancy does not permit of a nomination before that time, in the exercise of all reasonable diligence.

The words, too late to comply with the provisions of this section,” would be unnecessary if the certificates of nomination could be filed as soon as practicable whenever a county committee was obliged to make a nomination. A vacancy having occurred within five weeks of primary day, the general provisions of the Election Law, including the filing of the certificates of nomination not later than the fifth Tuesday preceding the election, must be complied with, unless the vacancy comes so late that compliance is not reasonably possible.

The justice at Special Term did not take this view of the law, and intimated, in his opinion, that the certificate filed at noon of October 4th was filed in time. Some of the judges of this court — perhaps the majority — are of the opinion, for the reasons just given, that this is not a correct interpretation of the Election Law. However, the decision of the point is not necessary for the affirmance of the Appellate Division order, as, under our ruling in the Lauer case, decided herewith (262 N. Y. 416), the Supreme Court, in the exercise of discretion, could have corrected this mistake made in filing the paper too late. That it was a mistake is quite evident. The Board of Elections, in the first instance, accepted the certificate, believing it to have been filed in time. The petitioner and his legal advisers acted upon the same assumption, and the justice at Special Term has taken the same view of the law. Here is a matter where the principles enunciated by us in the Lauer case should be applied. The Supreme Court, under section 330 of the Election Law, shall determine any question arising in respect to the nomination of any candidate, as justice may require. This permits some discretion upon proper showing to correct errors and mistakes made in the filing of certificates of nomination where no harm can come to any party and the election machinery in other respects will be in no way affected.

The Appellate Division, in affirming the order of the Special Term, may have exercised this discretion. It had power on review of the order to do what the Special Term judge might have done in the first instance. The order is silent as to whether the affirmance was on the law or in discretion. Where the order does not state upon what ground the decision is based, and it may have been granted as a matter of discretion, the order is not subject to our review. (People ex rel. Flynn v. Woods, 218 N. Y. 124.) If it be that the case is one not involving discretion, then the silent order of the Appellate Division will be considered as having been made on the law only. (Matter of Brennan v. Board of Education, 245 N. Y. 8, 16.) Here was a case where, upon the conceded facts, the Supreme Court could have ordered the certificate to be accepted and filed, relieving the petitioner from the mistake due to a misunderstanding. We may assume, therefore, in the absence of anything to the contrary, either in opinion or in order, that the Appellate Division exercised this discretion in affirming the order of the Special Term.

For these reasons the order of the Appellate Division appealed from should be affirmed, without costs.

Pound, Ch. J. (concurring in result).

Upon the facts in this case, a question of law is presented which can be reviewed by this court. The question is whether the nominating certificate was filed as soon as practicable after the nomination was made. This involves the question whether the nomination was made as soon as practicable after the organization of the county committee. The courts below have held that the certificate was filed in time. In this conclusion I agree. They did not relieve from default in the exercise of discretion. A county committee which did not organize until September 28th, made the nomination on October 3rd. It cannot be said that the Election Law required by implication that the committee should act more promptly, although it was possible for it to do so.

I fully agree with Crane, J., that laxity should not be tolerated in these matters. Within the law, however, the committee in this case in my opinion acted in its discretion with reasonable dispatch.

Crouch, J. (dissenting).

If the record disclosed any fact upon which there could be an exercise of discretion I should agree with the majority. There is none. We have the bare fact of delay, with nothing alleged to justify, to excuse or even to explain, it. Therein, and therein only, as it seems to me, the case differs from Matter of Lauer, decided herewith. The vacancy did not occur .too late to comply with the provisions of section 140, among which is the mandatory provision which required the certificate of nomination to be filed not later than October 3, 1933. In my opinion, the county committee, in fixing the time for its meeting, in making the nomination and in filing the certificate, was bound to act within the time set by that limitation. The case, therefore, is not one where the certificate could be filed as soon as practicable.” It is one, however, to which the rule of discretion was applicable. (Matter of Darling, 189 N. Y. 570.) But with no facts appearing upon which any discretion at all could be exercised, the conclusion seems inevitable that the order appealed from was made on the law. So made, it was wrong, and should be reversed.

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

Order affirmed.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    In the Matter of George Trosk, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.

      (Argued October 23, 1933;
    decided October 24, 1933.)

      Samuel Seabury for appellant.

      Harold R. Medina, Percival E. Jackson and William Gilbert for Recovery party, respondent.

      Horace S. Manges and Milton P. Kupfer for Samuel I. Rosenman, respondent.

      Lawrence R. Condon and Osborne A. McKegney for Edward R. Koch, respondent.

      David Vorhaus and Joseph Fischer for Moses H. Gross-man, respondent.

      Charles E. Murphy and Louis Susman for Charles B. McLaughlin, respondent.

      Arthur J. W. Hilly, Corporation Counsel {J. Joseph Lilly of counsel), for Board of Elections of the city of New York, respondent.
   Crane, J.

Most of the questions iraised on this appeal have been before the courts in former years with the result thakcertain rulings regarding independent nominations have become fairly well established. When an independent body nominates by petition candidates for certain offices without making nominations for other offices to be filled at the same election those in sympathy with the general independent movement and members of the same body have the right to file petitions of nominations for these other offices using the same name and emblem. This was Matter of Wechsler (134 App. Div. 378, 379). The court there said, “In a broad sense all the electors who hold the same general political views as the city, county and borough candidates have a right as to the district candidates to use the same name and emblem.”

In Matter of Folks (134 App. Div. 376) it was held that it is always a question of good faith as to whether or not the particular persons nominated to fill up the ticket or the petitioners are in sympathy with the movement. This case was affirmed (196 N. Y. 540). These cases were decided in 1909 under the old Election Law. Following in 1912, came Matter of O’Brien, wherein the National Progressive party had nominated a full State ticket but had failed and, as stated in the opinion, omitted intentionally the nomination of a justice of the Supreme Court in the Third Judicial District. This nomination was made by independent electors filing a petition solely for this office, using the name and emblem of the National Progressive party. Objection was raised to this independent nomination for justice of the Supreme Court on the ground that it did not have the approval of the independent State party or organization. The Appellate Division (152 App. Div. 856, 859) said: “ The petition being regular and being the one first filed we think it must be assumed that the signers were members of the National Progressive party, and that it cannot be assumed that they were not in good faith members of that party but were in fact members of either the Republican or Democratic party. * * * It cannot be assumed, in the absence of proof, that such petition was made by members of another party, or that it was made in bad faith for the purpose of foisting upon the National Progressive party a candidate distasteful to the leaders or the members of the party, or for the purpose of aiding a nominee or member of another party.” It was further held that although the committee of the party nominating for State offices had objected to the fifing of this independent petition for nomination to the Supreme Court, yet the members of the party were greater than the committee and were not to be controlled by it. Believing as we do that the objection on the part of the committee was not sufficient to deprive the members of the party from making a nomination if they saw fit, and assuming, as we must, that the petition was signed by members of the Progressive party, it follows that it was sufficient to place the respondent in nomination ” (p. 860). This case was affirmed by this court (206 N. Y. 694) with a very strong dissent by Chief Judge Cullen, concurred in by two of his associates, emphasizing most of the objections now raised by the appellants in this case. There is this difference, however. The dissent was based upon the fact that the State nominators did not intend to file petitions for a Supreme Court justice in the Third Judicial District and that such action could not be taken in opposition to the will and purpose of the governing committee of the State organization. In other words, if the State organization through its control committee had authorized or approved of the filling up of the judicial ticket there would probably have been no dissent in this court. We may say in passing that the case now before us involves no such disagreement in the party organization, the opposition to the fifing of the petition coming from nominees of other parties.

These cases we have referred to with some particularity for the reason that by 1912 they had explained the Election Law regarding independent nominations and had stated these rulings for the guidance of electors and election officials. The Election Law under which they were decided (Laws of 1909, ch. 22, §§ 122, 123 and 124) is the same as the recodification of the Election Law under which we are now operating (Laws of 1922, ch. 588, § 137). The Legislature of the State must have known of these decisions and has made no change. Even in rewriting the present law in 1922, the provision for independent nominations (§ 137) was an embodiment of the old law of 1909. This silence or inaction in the face of these decisions laying down a rule of conduct for election officials is more than mere acquiescence; it is an approval of this interpretation and a declaration in effect that these rulings are a part of the Election Law. We", therefore, should be very slow in overturning them. Change, if any, must come from the Legislature.'

At a meeting of the members of the Recovery party held in the Hotel Biltmore, New York city, on the sixth day of October, 1933, the members agreed to unite as a committee to advocate the election of Joseph V. McKee, as mayor, and candidates for comptroller, president of the board of aldermen, borough presidents and district attorney of New York county. The party adopted the name of the Recovery party and chose its emblem. It chose a committee of three, “an executive committee of said committee and duly authorized us as such executive committee to determine for the Recovery party whether or not candidates should be nominated by the Recovery party other than those above mentioned and whether or not the right to the use of the name or emblem of the Recovery party should be granted to or permitted by any other bodies or candidates,” etc. This executive committee gave its consent and approval to the nomination by the Recovery party of Philip J. McCook, Samuel I. Rosenman, Charles B. McLaughlin and Edward R. Koch for justices of the Supreme Court in the First Judicial District. Petitions were prepared and filed in behalf of these four candidates. Like petitions were also filed for the Recovery ticket in behalf of Dennis O’Leary Cohalan and Moses H. Grossman. It is conceded or at least not denied that the petitioners for all these six ■nominees to fill five places (for there were only five places to fill), were in sympathy with the Recovery party program and members of it. More than three thousand of the signers to each petition were original signers to the petition for McKee and his associates. The question, therefore, of any lack of harmony or disagreement between the petitioners and the main body is not in this case; neither is there any question of bad faith. Four of the candidates had the approval of the executive committee appointed by the Recovery party and the fifth, Moses H. Grossman, while disapproved by the executive committee, was, within the rulings in the O’Brien case, nominated by a sufficient number of the Recovery party members to entitle him to a place upon the ticket.

As before stated, there is no claim made that the nominators of Grossman were out of sympathy with the Recovery party or were not members of it; nor is there any- claim made that his nomination is the result of any trick or unfair methods, or for the purpose of injuring in any way the purposes and aim of the Recovery party. The order of the Special Term ordering his name with the other four upon the ticket, affirmed by the Appellate Division, has not been appealed from by any representative party or body in behalf of the Recovery party and on argument it was stated that that party now asks for the affirmance of the order below, thus approving of his nomination.

Any question which may have been originally in the case by reason of the petitions for the nomination of Mr. Cohalan has been removed by the fact that he consented to the order striking his petition from the files. What might have been the order or procedure if he had not taken this action is now beside the point. (See Matter of Independent Nominations, 186 N. Y. 266.)

Section 137 of the Election Law providing for independent nominations also provides that the same petitions must name a committee of three to fill vacancies occurring in the nominations. There is no provision in this law for the appointment of an executive committee or control committee to regulate the party or to make or approve of other nominations, yet a glance at the facts in the above cases which I have cited shows that every such independent party had some such committee created at its organization. This court as well as the Appellate Divisions has recognized the purposes of such a committee, at least to the extent that its action in approving of a nomination while not controlling was indicative of the harmony which existed between petitioners and the independent body. In Matter of Wechsler (supra) it was said that the acts and preferences of such a committee while by no means controlling are entitled to great weight and consideration in determining which set of nominators fairly represent and are in sympathy with the general ticket.

Back of all the objections raised in this case there hovers the query whether it be possible for an independent body to nominate for one or more offices with the declared policy and expressed purpose of nominating for no others, concentrating upon these alone. Can it be that an independent body has no control whatever over nominations for all the other offices which are to be filled at the coming election? The question does not arise in this case for the reasons which we have stated, so that this is not the occasion to pass upon the point. We refer to it in order that the matter may be left open for further consideration.

One word more. We have not overlooked the force of the appellant’s argument that the original petition should be final as to the officers placed in nomination.

If the petition or the facts pertaining to the creation of the independent body show clearly the intent to nominate for no other offices then as we have just said, the question is not in this case as these facts do not appear here. On the other hand, if the claim is made as to any petition nominating but a few out of many then the impossibility of adopting such a ruling seems almost self-evident. The petitioners to nominate must be electors in the particular district. If all the 115,000 petitioners nominating McKee for mayor reside in Manhattan and.the Bronx they could not nominate a justice of the Supreme Court in the Second Judicial District, even if they desired to do so without filing a separate petition by electors residing in that judicial district. Separate and independent petitions must be filed if it be the desire to nominate for all the offices to be filled in a territory covering various independent political divisions. The point was considered in Matter of O’Brien (152 App. Div. 856, at p. 861).

For the reasons here stated the order appealed from should be affirmed, without costs.

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

Order affirmed.


author: Pound, Ch. J.

text:
    In the Matter of the County of Oswego, Appellant, against Langdon C. Foster, as Chamberlain of the City of Fulton, Respondent.
    (Submitted October 18, 1933;
    decided October 27, 1933.)

      William M. Gallagher for appellant.

      Don Carlos Buell for respondent.'
   Pound, Ch. J.

The salient facts are as follows: In accordance with the provisions of the charter of the city of Fulton (Laws of 1902, ch. 63, § 243), the board of supervisors at its annual session in the fall of 1931 did not cause the State and county tax apportioned to the city of Fulton to be spread upon any tax roll of property within said city, as is the procedure generally in accordance with the provisions of section 59 of the Tax Law (Cons. Laws, ch. 60), but in accordance with the provisions of this section of said charter by resolution certified the total amount of tax to be levied in the city for State and county purposes to the common council of the city of Fulton. In accordance with sections 44 and 245 of the city charter, the amount so certified, amounting to the sum of $168,754.27, which together with the sum of $14,131.52 certified under other statutes, amounting to the sum of $182,885.79, was caused to be levied and raised by general tax upon the taxable property of the city of Fulton by the common council of said city. In accordance with section 246 of said charter the city clerk extended the tax against the different parcels, and the completed rolls were turned over to the city chamberlain, who proceeded to collect the same, and on the date the return herein was filed had collected in excess of $200,000.

Section 260 of the said charter directs the chamberlain to pay over to the treasurer of Oswego county on or before July 1st, all moneys received by him for county and State taxes. Prior to July 1, 1932, the chamberlain had paid over to the treasurer the sum of $75,500 to apply upon such State and county levy, and on June 28, 1932, the county treasurer had demanded the payment of the balance on or before July 1st as required by the said charter. Mandamus was granted at Special Term to enforce such payment, but the order was reversed by the Appellate Division.

The question squarely presented on this appeal is as to the duty of the city chamberlain to pay from the moneys collected by him on the annual tax levy the State and county taxes, before applying the balance for city purposes. The court below has held that the sole duty of the city chamberlain is to pay to the county treasurer all moneys actually received by him for State and comity taxes on or before July 1st of each year; that it is only as to such taxes that a duty arises to pay them to the county treasurer. It rests its decision on the provision in the charter (§ 260) which reads as follows: Settlement by chamberlain for taxes collected. It shall be the duty of the chamberlain to pay over to the treasurer of Oswego county on or before the first day of July of each year all moneys received by him for county and state taxes. He shall take duplicate receipts for each payment, one of which shall be immediately filed with the city clerk. All moneys received by him for taxes shall daffy be deposited in such banks as are made depositories of the city. Except as otherwise provided by this act, the chamberlain shall settle with the county treasurer for state and county taxes in the manner required by law of town collectors. At the time of the delivering to him of the duplicate city rolls and tax warrants, the chamberlain shall receipt for the same, and shall then be charged with the whole amount which he is thereby authorized to collect. He shall not be authorized to credit himself with any amount as unpaid on any warrant until he shall make and file with the city clerk an affidavit stating the amount unpaid, and setting forth the reason in each case why such tax or assessment is or has not been collected. The common council may thereupon order and authorize said chamberlain to credit himself with the whole or any part of said tax or assessment unpaid, and the chamberlain shall be credited only with such amount as the common council shall so order. Upon settling with the common council the chamberlain must show that he has duly settled with the county treasurer for state and county funds. The city clerk shall, on the delivery of the blank tax receipts to the chamberlain, charge the chamberlain with the number of receipts delivered, and the chamberlain shall immediately examine the numbering of the receipts and report to the city clerk any irregularity found therein. The chamberlain shall receipt to the city clerk therefor, and shall be held strictly accountable for all receipts found missing at regular settlements; also for all the detached receipts, including receipts, the duplicates of which do not show the entry of taxes. All irregularities in the issuance of receipts that render them worthless must be shown on the face of the original/ which must in no case be detached from the duplicate. At the time of the annual settlement the chamberlain shall deliver to the city clerk all duplicates of receipts issued by him, and other receipts delivered and charged by the city clerk to him.”

We construe this section as meaning that the city of Fulton, through its chamberlain, should pay to the county out of the taxes received by him the amount of the State and county taxes. The city is legally bound to pay to the county the total amount of the tax to be levied by the city for State and county purposes, not the amount collected from individuals for that purpose but the amount received, available for county and State taxes.

The city of Fulton, by its charter, has placed itself in the same position that counties are placed in under the general statutes in relation to the State. The county does not collect the State and county tax from individuals. It collects it from the city. The amount charged against the city is due from the city whether the city collects it or not. The city is bound to make up any deficiency in the collections, if it does not collect the amount charged against it. (Mayor of City of New York v. Davenport, 92 N. Y. 604; Town of Amherst v. County of Erie, 260 N. Y. 361.)

In the absence of a plain expression that the city of Fulton shall be relieved of all liability except for taxes specifically collected from individuals for State and county purposes we must decline to imply such a radical departure from the general rule. We uphold the policy which requires the city to pay over to the county the amount of the State and county tax in full from the first moneys received by it on the tax ■ levy. The city may then reimburse itself by collecting the tax, or by borrowing money in anticipation of such collections.

The question of the clear legal duty of the chamberlain to pay over the full amount imposed on the city of Fulton for State and county taxes is so inextricably interwoven with the question of the liability of the city to the county therefor that we will not affirm solely on the ground that the proper remedy is by action against the city of Fulton, but will dispose of the entire question in this proceeding.

The order of the Appellate Division should be reversed and that the Special Term affirmed, with costs in this court and in the Appellate Division.

Crane, Lehman, Kellogg, Hubbs and Crouch, JJ., concur; O’Brien, J., concurs in result solely on the authority of Town of Amherst v. County of Erie (260 N. Y. 361).

Ordered accordingly.


author: Per Curiam.

text:
    In the Matter of Bernard Marcus, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York. Albert D. Schanzer et al., Respondents.
    (Argued October 25, 1933;
    decided October 27, 1933.)

      Denis M. Hurley for appellant.

      Edward H. Levine and J. W. Friedman for respondents.
   Per Curiam.

The order below is affirmed, without costs. The court, however, does not approve of the statement in the opinion of the Appellate Division that the executive committee is given no authority under the Election Law (Cons. Laws, ch. 17) to determine which of conflicting valid petitions should be recognized, if such statement is to be construed as holding that the action of the executive committee is to be given no weight in determining the question. (Matter of Trosk v. Cohen, 262 N. Y. 430.)

. The order should be affirmed, without costs.

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

Order affirmed.


text:
    In the Matter of Benjamin H. Wicksel, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York. Herbert Cohen, Appellant.
    (Argued November 1, 1933;
    decided November 2, 1933.)

      William I. Siegel for appellant.

      Marshall Snyder and Benjamin H. Wicksel for respondent.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly of counsel), for the Board of Elections of the city of New York.
   Pound, Ch. J.

This is an appeal on certified questions. (Civ. Pr. Act, § 588, subd. 4.) An application was made to require the Board of Elections to place the name of petitioner and one Franke on the ballot for the coming election as candidates for Alderman and Assemblyman respectively in the eighteenth Assembly and the forty-third aldermanic districts of Kings county, as nominees of the Fusion independent party.

Their nominating certificates had been rejected by the Board of Elections. The Board examined the petition and decided that it contained an insufficient number of names of qualified voters in the district. The total number of signatures required was 1,500. The signatures rejected by the Board were 336 not registered, 36 not residing in the district and four duplications. This brought the number below the required 1,500, so that it is unnecessary to pass on the validity of other signatures to the petition. The application is based chiefly on the ground that the Board of Elections had no power to make the determination it has made. (Matter of Lindgren, 232 N. Y. 59.)

Petitioner maintains that the Board may perform only ministerial acts which must be based upon defects appearing on the face of the petition; that the petition must be accepted as filed, although not one qualified voter subscribes thereto, and that no attack can be made thereon on grounds not appearing literally on the face of the petition itself, except in court.

The Special Term held that the Board acted within the scope of its authority. It said: Examining the petition to determine whether or not signers of independent nominating petitions are registered voters, reside in the district, or have signed twice, will reveal defects upon the face of the petition. This examination is a ministerial act. The Board of Elections, having all the facilities at hand to make these comparisons and being equipped with a staff of clerks representing the two major political parties, should make such examination. Its findings are sufficient to invalidate a petition and it will remain invalidated unless a claim is made that they erred in their work or acted in bad faith,” and denied the application. The Appellate Division reversed and remitted the matter to the Special Term to determine whether there are 1,500 valid signatures to the petition.

The case comes here on certified questions which read as follows: 1. Did the Board of Elections, in passing on the nominating petition of Benjamin H. Wicksel, as candidate on the City Fusion Ticket for Alderman in the 43d Aldermanic District and of Arthur Franke, as candidate on the City Fusion Ticket for member of Assembly, 18th Assembly District, County of Kings, at the general election, for the purpose of placing their names on the official ballot, pursuant to the provisions of Section 190 of the Election Law, have the power and authority to examine the public registration records and certified assembly district maps, showing election districts, in order to determine the due registration or non-registration and the residences of signatories to the said nominating petition? 2. In view of the action of the Board of Elections was there anything left to be submitted to the Supreme Court? ” The face of the petition reveals the residence of the petitioners. The Board of Elections is bound to take notice of the boundaries of the district. The petition also reveals duplications. The question remains whether the Board may examine the registration records to determine non-registration. We think that this also is a purely ministerial act calling for no exercise of discretion. The certificates are not regular on their face until it appears that they are signed by qualified voters in the district. “ The name of a person signing such a petition * * * shall not be counted * * * unless such person * * * be registered as a qualified voter.” (Election Law; Cons. Laws, ch. 17, § 137.) It is, therefore, within the power of the Board to ascertain whether each signer be registered as a qualified voter. (Election Law, § 142.) This is primarily a ministerial duty. The distinction between ministerial and judicial acts is that where the law prescribes the rule to be followed so as to leave nothing to the exercise of judgment or discretion, the act is a ministerial act, but where the act involves the exercise of judgment or discretion in determining whether the duty exists, the act is judicial. While it is broadly stated that “ if for any reason not appearing upon the papers the certificate is insufficient, illegal or invalid and the names of the nominees should not be placed upon the official ballot, a direction to this effect should first be made by the Supreme Court or the county judge ” (Matter of Lindgren, supra, at p. 62), this does not deprive the Board of Elections of the power to check up the names on a petition and reject those which as a matter of law have by reason of non-residence or non-registration unquestionably no right to be counted as qualified signers of a petition for an independent nomination. This we hold to be a ministerial duty. The Board follows an undeviating rule of law.

No dispute is raised on this appeal as to the invalidity of the signatures rejected by the Board. No opportunity has been had to present evidence on this point. We are called on merely to - answer the questions certified. The action of the Board was legal but not final; the whole matter is open for review in the Special Term (Election Law, § 330).

The order of the Appellate Division should be affirmed, without costs. The questions certified should be answered in the affirmative.

Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not sitting.

Order affirmed, etc.


text:
    In the Matter of Joseph J. Lerner, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York. Leonard Bronner, Jr., Appellant.
    (Argued November 1, 1933;
    decided November 2, 1933.)

      A. S. Gilbert and Abram Goodman for appellant.

      Louis B. Eppstein and John P. Cohalan for respondent.
   Per Curiam.

The candidate was entitled to a credit of twenty-five signatures deducted because the notarial jurat was not dated, since it necessarily appears the oath was taken on October 10, 1933.

The candidate is not entitled to eleven signatures for the reason that the address of the subscribing witness thereto is not described by street number but by reference merely to Assembly district-and election district which is not a compliance with sections 135 and 137 of the Election Law (Cons. Laws, ch. 17).

It follows the petition does not contain the fifteen hundred signatures necessary for an independent party nomination.

The order should be affirmed, without costs.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not sitting.

Order affirmed.


text:
    In the Matter of the Application of The People of the State of New York, by James A. Beha, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of the Northern Insurance Company of Moscow, Appellant.
    (Reargued March 14, 1933;
    decided April 28, 1933.)

      Wendell P. Barker, Daniel A. Dorsey and Walter J. Me Nichols for appellant.

      ' John M. Downes, Alfred L. Green and Jess H. Rosenberg for respondent.

      Hartwell Cabell as amicus curiae.

   Per Curiam.

A motion for reargument having been granted herein, and it appearing that the assets of the Northern Insurance Company by the decision of this court dated February 10, 1931, entered on the opinion of the court (reported in 255 N. Y. 433), were authorized and directed to be delivered to the directors not constituting a quorum upon their giving a bond provided by said decision of this court, and that such conservators complied with the conditions of the decision by giving such bond; and that such conservators being unwilling to act, have attempted to relieve themselves from the performance of their trust by making a general assignment for the benefit of creditors to the Bank of Manhattan Trust Company which is not authorized by such decision,

And it also appearing that the surplus funds of the Northern Insurance Company referred to in said decision are still in the hands of the Superintendent of Insurance, awaiting the further order of this court,

Ordered, that the decision herein be modified by providing that the said surplus funds may be turned over to the Bank of Manhattan Trust Company and a receipt from said Bank of Manhattan Trust Company may be taken by the Superintendent of Insurance as a good and valid receipt and acquittance for such surplus funds with the same force and effect as if the conservators had not qualified to receive the surplus funds under the decision of February 10, 1931, and the said Bank of Manhattan Trust Company had been named under the second provision of said decision to receive said funds as agent or depositary in the event of the failure of the directors to qualify, upon the stipulation of the insurance company and said trust company that the funds will not be withdrawn except upon the order of a court of competent jurisdiction.

Ordered, that said decision be otherwise ratified and confirmed.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not voting. Judgment accordingly.


text:
    In the Matter of the Application of The People of the State of New York, by Albert Conway, Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of the North American Title Guaranty Company. George Helfgott, Appellant.
    (Argued April 11, 1933;
    decided April 28, 1933.)

      Meyer Kraushaar and Jesse Climenko for appellant.

      Robert N. Rose and Edward McLoughlin for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Maiorano, Appellant.
    (Argued April 12, 1933;
    decided April 28, 1933.)

      John P. Sweeny and Joseph J. Cioffi for appellant.

      Thomas C. T. Crain, District Attorney (Joshua Egelson of counsel), for respondent.
   No opinion.

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


text:
    Joseph T. Lane et al., Appellants, v. Joseph H. Paley, Respondent.
    (Argued April 12, 1933;
    decided April 28, 1933.)

      George H. Bond for appellants.

      William MacFarlane for respondent.
   No opinion.

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


text:
    Henry Guttag et al., Respondents, v. National Surety Company, Appellant.
    (Argued April 12, 1933;
    decided April 28, 1933.)

      Joseph R. Kelley and Thomas McCall for appellant.

      Louis J. Vorhaus, Joseph Fischer and Jesse Hemley for respondents.
   no opinion.

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


text:
    Arnold Oliphant, an Infant, by Hyman Oliphant, His Guardian ad Litem, et al., Respondents, v. Interborough Rapid Transit Company, Defendant, and News Syndicate Company, Inc., Appellant, Impleaded with Another.
    (Argued April 12, 1933;
    decided April 28, 1933.)

      Chester E. Barrett and Alfred W. Andrews for appellant.

      Richard J. Stull for respondents.
   no opinion.

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


text:
    John C. Simpson, an Infant, by A. C. N. Thompson, His Guardian ad Litem, Respondent, v. Teunis S. Fiero, Appellant.
    (Argued April 12, 1933;
    decided April 28, 1933.)

      J. Allan Ballman for appellant.

      George F. Roesch for respondent.
   no opinion.

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


text:
    M. H. Harris, Respondent, v. Gus K. Worms et al., Copartners under the Firm Name of Newman Bros. & Worms, Appellants.
    (Argued April 13, 1933;
    decided April 28, 1933.)

      Arthur B. Brenner and Alexander B. Siegel for appellants.

      Adam K. Stricker for respondent.
   no opinion.

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


text:
    In the Matter of the Bank of United States in Liquidation. Benno Ostertag, Respondent; Joseph A. Broderick, Superintendent of Banks of the State of New York, Appellant.
    (Submitted April 13, 1933;
    decided April 28, 1933.)

      Arthur Ofner, Warren C. Fielding, George S. Elpern and Carl J. Austrian for appellant.

      Sol S. Ostertag for respondent.
   no opinion.

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


text:
    Eugene Brennan, Respondent, v. M. L. P. Builders Corporation, Appellant.
    (Argued April 13, 1933;
    decided April 28, 1933.)

      Frederick Mellor for appellant.

      Harry A. Gair for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joe Pellerito, Appellant.
    (Argued April 14, 1933;
    decided April 28, 1933.)

      Michael D. Lombardo and Clarence G. Pickard for appellant.

      Glenn W. Woodin, District Attorney (John S. Leonard of counsel), for respondent.
   no opinion.

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


text:
    In the Matter of the Accounting of Minnie S. Westerbeke, as Temporary Administratrix of the Estate of William Westerbeke, Deceased, Appellant; Minnie A. De Graff et al., Individually and as Executors of William Westerbeke, Deceased, Respondents.
    (Submitted April 14, 1933;
    decided April 28, 1933.)

      Frederick W. Tuck, Jr., for appellant.

      James J. McDermott for respondents.
   no opinion.

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


text:
    Kings Highway Development Co., Inc., Respondent, v. Family Importing Olive Oil Co., Inc., Appellant.
    (Submitted April 24, 1933;
    decided April 28, 1933.)

      Samuel Meyers for motion.

      Matthew T. Abruzzo opposed.
   Motion granted on payment of costs and ten dollars costs of motion.


text:
    In the Matter of the Estate of Marion Borden, Deceased. John B. Hamilton, Appellant; Trustees of Masonic Hall and Asylum Fund et al., Respondents.
    (Submitted April 24, 1933;
    decided April 28, 1933.)

      John A. Dutton for motion.

      Francis Colety opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Probate of the Will of Henry Reimers, Deceased. Fred Antusch et al., Appellants; Edna L. Weigelt, Respondent.
    (Submitted April 24, 1933;
    decided April 28, 1933.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 337.)


text:
    Wellington Kenwell, Appellant, v. Clarence F. Lee, as Supervisor of the Town of Inlet, et al., Respondents.
    (Submitted April 24, 1933;
    decided April 28, 1933.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 113.)


text:
    The Midwood Sanatorium, Appellant, v. Fireman’s Fund Insurance Company of San Francisco, Respondent, Impleaded with Others.
    (Submitted April 24, 1933;
    decided April 28, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 381.)


text:
    The People of the State of New York, Respondent, v. Orgie Heath, Appellant.
    (Submitted April 24, 1933;
    decided April 28, 1933.)
   Motion to vacate the order of dismissal and for reargument denied. (See 261 N. Y. 662.)


text:
    Winifred O. McBride, as Administratrix of the Estate of Mary T. Gallagher, Deceased, Respondent, v. Quinn Burial Co., Inc., Appellant.
    (Argued April 24, 1933;
    decided May 23, 1933.)

      Frank H. Hiscock, Harry Loeb Mostow and Powell Crichton for appellant.

      James H. Hickey and E. M. Schwarzenberg' for respondent.
   Per Curiam.

The evidence clearly shows receipt by defendant of the sum of $3,000. By reasonable inference the sum of $6,114.42 also was deposited to defendant’s credit, thus making the sum of $9,114.42 which defendant received. There is no proof and no fair inference that $3,847.22, constituting part of the amount for which action is brought, ever was received by defendant. From the sum of $9,114.42 must be deducted the sum of $2,517.04 deposited by defendant to the credit of plaintiff’s intestate and the sum of $4,600, the amount of the mortgage assigned by defendant to her.

The judgment should, therefore, be modified by reducing the recovery to the sum of $1,997.38, with interest thereon from July 7, 1925, and as so modified affirmed, with costs to the appellant in all courts. (See 262 N. Y. 561.)

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not sitting.

Judgment accordingly.


text:
    United States Fidelity and Guaranty Company, Respondent, v. James B. Barry et al., Copartners under the Firm Name of Moyse & Barry, Appellants.
    (Argued March 1, 1933;
    decided May 23, 1933.)

      B. F. Norris and Frank R. Pitt for appellants.

      William J. McArthur for respondent.
   no opinion.

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


text:
    Anna Bernstein, Plaintiff, v. Milton Bedrick et al., Defendants. Samuel Rosenzweig, Appellant; Irving F. Cohen, Respondent.
    (Argued April 10, 1933;
    decided May 23, 1933.)

      Samuel Rosenzweig, in person, for appellant.

      Irving F. Cohen, in person, for respondent.
   No opinion.

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


text:
    Stanley Marczak, by John Marczak, His Guardian ad Litem, Appellant, v. Brooklyn City Railroad Company, Defendant, and Chamberlain of the City of New York, Respondent.
    (Submitted April 14, 1933;
    decided May 23, 1933.)

      . Morris Boschwitz, Samuel D. Goldstein and Harry Markowitz for appellant.

      Arthur J. W. Hilly, Corporation Counsel (William R. Wilson and Junius P. Wilson of counsel), for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Nathaniel Covington, Appellant.
    (Argued April 17, 1933;
    decided May 23, 1933.)

      Moses A. Sachs, Isidor Schiff, Paul Zizelman and William Henkel for appellant.

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph H. Hoadley, Appellant.
    (Argued April 17, 1933;
    decided May 23, 1933.)

      Howard J. Bloomer for appellant.

      Thomas C. T. Crain, District Attorney (.Irving J. Tell of counsel), for respondent.
   no opinion.

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


text:
    James A. Prescott, Appellant, v. Buffalo Fire Appliance Corporation, Respondent.
    (Argued April 17, 1933;
    decided May 23, 1933.)

      Robert F. Dart and Oliver F. King for appellant.

      R. R. Foster Piper for respondent.
   No opinion.

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


text:
    The People of the State of New York ex rel. Northern Finance Corporation, Appellant, v. Thomas M. Lynch et al., as Tax Commissioners of the State of New York, Respondents. (Proceedings Nos. 1 and 2.)
    (Argued April 17, 1933;
    decided May 23, 1933.)

      Roland L. Redmond for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   No opinion.

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


text:
    In the Matter of the Claim of Joseph Groszek, Respondent, against The Western Union Telegraph Company, Appellant. The State Industrial Board, Respondent.
    (Argued April 18, 1933;
    decided May 23, 1933.)

      John H. Waters, Francis R. Stark and Ralph H. Overbaugh for appellant.

      JohnJ. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   No opinion.

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


text:
    Frank N. Hoffstot et al., Appellants, v. The Fifth Avenue Hospital of the City of New York, Respondent.
    (Argued April 18, 1933;
    decided May 23, 1933.)

      Colley E. Williams, Charles S. Whitman, James J. Kirwin, Jr., and Charles T. Murphy for appellants.

      Joseph B. Cotton, Samuel Brenner and Roy F. Wrigley for respondent.
   no opinion.

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


text:
    Milton Aisenson, an Infant, by Dorothy Cohen, His Guardian ad Litem, et al., Respondents, v. National Casualty Company, Appellant.
    (Argued April 18, 1933;
    decided May 23, 1933.)

      Otho S. Bowling for appellant.

      Joseph E. Marcus and Allen E. Marcus for respondents.
   no opinion.

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


text:
    The City of New York, Appellant, v. Fifth Avenue Coach Company, Respondent.
    (Argued April 18, 1933;
    decided May 23, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (Joseph A. Devery and William E. C. Mayer of counsel), for appellant.

      Frederick H. Wood, Royal E. T. Riggs and Edward S. Pinney for respondent.
   no opinion.

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


text:
    Tiffany & Company, Respondent, v. Tiffany Productions, Inc., Appellant.
    (Argued April 18, 1933;
    decided May 23, 1933.)

      Charles H. Kelby, H. William Fitelson and I. Jack London for appellant.

      R. L. von Bernuth, M. S. Lockhart, J. M. Rose and H. J. Sillcocks for respondent.
   no opinion.

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


text:
    La Hay, Inc., Appellant, v. Pathe Exchange, Inc., Respondent.
    (Argued April 19, 1933;
    decided May 23, 1933.)

      Edward H. Kavinoky for appellant.

      Frank Gibbons for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Kellogg, O’Brien and Crouch, JJ. Lehman, J., dissents and votes to dismiss the whole proceedings for declaratory judgment. Not sitting: Hubbs, J.


text:
    Adolph J. Mainzer, Inc., Respondent, v. Coleman Gruberth, Doing Business under the Name of American Fruit Coating Company, Appellant.
    (Argued April 19, 1933;
    decided May 23, 1933.)

      Hyman H. Hammer and Israel Uhrman for appellant.

      Max D. Ordman for respondent.
   no opinion.

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


text:
    Andrew J. Arbuckle, Appellant, v. Milwaukee Stamping Company, Respondent.
    (Argued April 19, 1933;
    decided May 23, 1933.)

      Milton J. Levitt and Herman Goldman for appellant.

      Victor E. Whitlock for respondent.
   no opinion.

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


text:
    The Equitable Trust Company of New York, Appellant, v. Majestic Hotel Company, Inc., Respondent.
    (Argued April 19, 1933;
    decided May 23, 1933.)

      A. Donald MacKinnon, William Dean Embree and Andrew Jackson for appellant.

      Jack Lewis Kraus, II, Joel R. Parker and Samuel Frankel for respondent.
   no opinion.

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


text:
    I. Arthur Ganger, Appellant, v. Grace Coffee Shop, Inc., et al., Respondents.
    (Argued April 20, 1933;
    decided May 23, 1933.)

      Abram Goodman and Cyrus Levinthal for appellant.

      Jay Leo Rothschild and Louis Rivkin for respondents.
   no opinion.

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


text:
    Merton E. Lewis, Appellant, v. The Chemical Foundation, Incorporated, et al., Respondents.
    (Argued April 20, 1933;
    decided May 23, 1933.)

      Clarence W. McKay and Arthur E. Sutherland for appellant.

      Joseph H. Choate, Jr., and T. Carl Nixon for respondents.
   no opinion.

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


text:
    Anna Falco, as Administratrix of the Estate of Carmine Falco, Deceased, Appellant, v. Union Railway Company of New York City, Respondent.
    (Argued April 20, 1933;
    decided May 23, 1933.)

      Thomas A. McKennell, Salvatore Milano and Martin Shulman for appellant.

      Addison B. Scoville, Alfred T. Davison and James M. O’ Neill for respondent.
   no opinion.

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


text:
    In the Matter of George H. Schaefer, Respondent, against William A. Rathmann, as Commissioner of Public Works of the City of Buffalo, et al., Appellants.
    (Argued April 21, 1933;
    decided May 23, 1933.)

      Charles L. Feldman, Corporation Counsel (John E. Livermore of counsel), for appellants.

      M. Edwin Merwin for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. John J. Glenn, Appellant.
    (Argued April 24, 1933;
    decided May 23, 1933.)

      Ralph E. Hemstreet and Walter R. Kuhn for appellant.

      Thomas C. T. Crain, District Attorney (Felix C. Benvenga and Le Roy Mandle of counsel), for respondent.
   no opinion.

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

Dissenting: Crane and Lehman, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of Francis T. McEneny, Appellant, against Joseph V. McKee, as President of the Board of Aldermen of the City of New York, Respondent.
    (Argued April 24, 1933;
    decided May 23, 1933.)

      Louis P. Brown for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, William E. C. Mayer and Henry J. Shields of counsel), for respondent.
   no opinion.

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


text:
    A. Mae Morse, Appellant, v. The City of New York Respondent, Impleaded with Another.
    (Argued April 24, 1933;
    decided May 23, 1933.)

      Humphrey J. Lynch, Monroe J. Cahn and Jack Gross for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Charles E. Ramsgate and Samuel A. Bloom of counsel), for respondent.
   No opinion.

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


text:
    In the Matter of Canute Hansen, Appellant, against Teachers’ Retirement Board, Respondent.
    (Argued April 24, 1933;
    decided May 23, 1933.)

      Solomon Traub for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Willard S. Allen, William E. C. Mayer and Thomas W. A. Crowe of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Beien and Chough, JJ. Not sitting: Hubbs, J.


text:
    Honour B. Gelson, Appellant, v. The City of New York, Respondent.
    (Argued April 24, 1933;
    decided May 23, 1933.)

      Joseph J. Schwartz and John M. Wilson for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and Thomas W. A. Crowe of counsel), for respondent.
   no opinion.

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


text:
    Lura Raymond, as Administratrix of the Estate of Thomas E. Raymond, Deceased, Appellant, v. Republic Light, Heat & Power Co., Inc., Respondent.
    (Argued April 25, 1933;
    decided May 23, 1933.)

      Harold J. Tillou for appellant.

      Harold J. Adams and Edmund S. Brown for respondent.
   no opinion.

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


text:
    Anna M. Birch-Field, et al., Respondents, v. Davenport Shore Club, Inc., Appellant, Impleaded with Another.
    (Argued April 25, 1933;
    decided May 23, 1933.)

      F. A. W. Ireland for appellant.

      Otto A. Samuels and Benjamin I. Taylor for respondents.
   no opinion.

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


text:
    Raleigh W. Dodson, Respondent, v. Joseph C. Handshoe, Appellant.
    (Argued April 25, 1933;
    decided May 23, 1933.)

      Edward G. Griffin and Joseph C. Handshoe in person, for appellant.

      John L. Farrell and Noah A. Stancliffe for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Linwood Washington, Appellant.
    (Argued April 26, 1933;
    decided May 23, 1933.)

      Joseph Lonardo, Alexander DelGiorno and Jacob Friedland for appellant.

      Charles S. Golden, District Attorney (Mordecai Konowitz of counsel), for respondent.
   no opinion.

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


text:
    Charles Gold, Appellant, v. The City of Long Beach et al., Respondents.
    (Argued April 26, 1933;
    decided May 23, 1933.)

      E. Douglas Hamilton for appellant.

      David B. Tolins, Corporation Counsel, for City of Long Beach et al., respondents.

      John J. Curtin, Winfield 8. Palmer and Curt H. G. Heinfelden for Marisand Corporation, respondent.
   no opinion.

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


text:
    Alfred N. Hammerston, Appellant, v. Woodwell Holding Corporation, Respondent.
    (Submitted April 26, 1933;
    decided May 23, 1933.)

      Franklyn Ellenbogen for appellant.

      Solomon Pearlman and A. A. Forman for respondent.
   no opinion.

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


text:
    Marcelin Carrieu, Respondent, v. Oil Heating Corporation of New Jersey, Appellant.
    (Argued April 26, 1933;
    decided May 23, 1933.)

      Fred Flatow and Seymour Joseph for appellant.

      Victor Deutsch and Morris Gogolick for respondent.
   no opinion.

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


text:
    Edwin A. Toulon, Respondent, v. Grace Steamship Company, Defendant, and Grace Line, Inc., Appellant.
    (Argued April 26, 1933;
    decided May 23, 1933.)

      Charles B. Hickox, Vernon S. Jones and Raymond Parmer for appellant.

      Simone N. Gazan for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Max Kaplan and Harry Dolowich, Appellants.
    (Argued April 27, 1933;
    decided May 23, 1933.)

      Leo Guzik and Horace London for appellants.

      Samuel J. Foley, District Attorney (Sol. Boneparth, Herman J. Fliederblum and William H. Jackson of counsel), for respondent.
   no opinion.

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


text:
    The People of the State of New York, Appellant, v. Thomas J. Mangan, Elmer J. Churchill and Sigmund A. Friedlander, Respondents.
    (Argued April 27, 1933;
    decided May 23, 1933.)

      John J. Bennett, Jr., Attorney-General (John T. Cahill and Charles T. Keane, Jr., of counsel), for appellant.

      Clayton R. Lusk and Frank J. Mangan for Thomas J. Mangan, respondent.

      Clayton R. Lusk for Elmer J. Churchill, respondent.

      Herman Friedlander, Sol Lipschitz and Orange L. Van Horne for Sigmund A. Friedlander, respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg and Crouch, JJ.

Dissenting: O’Brien, J. Not sitting: Hubbs, J.


text:
    Maude Sanchez, as Administratrix of the Estate of Armando Sanchez, Deceased, Respondent, v. Charles Maggiolo, Defendant, and C. Maggiolo, Inc., Appellant.
    (Argued April 28, 1933;
    decided May 23, 1933.)

      George J. Stacy for appellant.

      Jay Leo Rothschild, Louis Rivkin and Leon Goodman for respondent.
   no opinion.

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

Dissenting: Lehman, J. Not sitting: Hubbs, J.


text:
    Nellie Priola, Respondent, v. The City of New York, Appellant.
    (Submitted April 28, 1933;
    decided May 23, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (William R. Wilson of counsel), for appellant.

      Frank W. Holmes and William O’Dwyer for respondent.
   no opinion.

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


text:
    The People of the State of New York ex rel. Lillie M. Holt, Appellant, v. Lillian Lambert et al., Respondents.
    (Submitted April 28, 1933;
    decided May 23, 1933.)

      Nathaniel Ellenbogen and Hyman J. Eisenberg for appellant.

      Dieran Simsarian, in person, for Dieran Simsarian and Lilhan Lambert, respondents.

      Rudolph Stand, Henry Salitan, in person, and Gerald G. Schwartz, for Henry Salitan, respondent.
   no opinion. (See 262 N. Y. 561.)

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


text:
    Louise de L. Reese, Respondent, v. Algernon B. Reese, Appellant.
    (Submitted May 8, 1933;
    decided May 23, 1933.)
   Motion for reargument denied, with ten dollars and necessary printing disbursements. (See 260 N. Y. 617.)


text:
    Richard J. Pearl, Appellant, v. Seventh Avenue Film Co., Ltd., et al., Respondents.
    (Argued April 17, 1933;
    denied May 24, 1933.)

      Frederick Malcolm Wolf for motion.

      Bertram A. Mayers opposed.
   Motion denied with leave to renew on argument of appeal. (See 262 N. Y. 605.)


text:
    In the Matter of the Estate of Sara D. B. Comfort, Deceased. Jessie F. Comfort et al., as Executors of Sara D. B. Comfort, Deceased, Appellants; Charles H. Van Buren et al., Respondents.
    (Submitted May 22, 1933;
    decided May 24, 1933.)

      Ernest E. Wheeler for motion.

      John L. Ketcham opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Elmore R. Fay, Respondent, v. John Miller et al., Constituting the Village Board of the Village of Pleasantville et al., Appellants.
    (Submitted May 22, 1933;
    decided May 24, 1933.)

      David H. Moses for motion.

      Wendell P. McKown opposed.
   Motion denied, with ten dollars costs.


text:
    Mary A. Naccash, Respondent, v. Hildansid Realty Corporation et al., Defendants, and Sidonia Summers, Appellant. Mary A. Naccash, Respondent, v. Hildansid Realty Corporation et al., Defendants, and Louis Summers, Appellant.
    (Submitted May 22, 1933;
    decided May 24, 1933.)

      Leslie J. Ekenberg for motions.

      Solomon Rotwein opposed.
   Motions granted and appeals dismissed, with costs and ten dollars costs of motions, unless the parties are ready for argument of appeals on third Monday of present session, in which event motions denied. (See 262 N. Y. 588.)


text:
    Nat Friedman & Son, Inc., Respondent, v. The City of New York, Appellant.
    (Submitted May 22,1933;
    decided May 24, 1933.)

      David Segal for motion.

      Arthur J. W. Hilly, Corporation Counsel (William H. King of counsel), opposed.
   Motion denied.


text:
    Leland Y. Robinson, Plaintiff, v. Antonia K. Zak, as Executor of Johanna Remling, Deceased, and Long Island State Bank and Trust Company, as Executor of Johanna Remling, Deceased, et al., Respondents.
    (Argued May 22, 1933;
    decided May 24, 1933.)

      Guy O. Walser for motion.

      J. Harry Saxstien opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Piedmont Hotel Company, Respondent, v. A. E. Nettleton Company, Appellant. .
    (Argued May 22, 1933;
    decided May 24, 1933.)

      Henry S. Fraser for motion.

      Edward Schoeneck opposed.
   Motion denied with leave to renew on the argument of the appeal.


text:
    Ernes Realty Corporation, Plaintiff, v. Jacob Brenner et al., Defendants. Hyman Derkatch, Respondent; Bernard Besdine, as Receiver, Appellant.
    (Submitted May 22, 1933;
    decided May 24, 1933.)

      Forrest S. Chilton for motion.

      Charles J. Beckinnella opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Nieman-Irving & Company, Inc., Respondent, v. John R. Lazenby, Appellant, and William A. Delano et al., Copartners under the Firm Name of Delano & Aldrich, Respondents.
    (Argued May 22, 1933;
    decided May 24, 1933.)

      Louis Selzer for motion.

      Irving I. Goldsmith opposed.
   Motion denied, with ten dollars costs.


text:
    James H. MacLauchlan, Respondent, v. Henry M. Behre et al., Appellants.
    (Argued April 25, 1933;
    decided May 31, 1933.)

      Manton Marks and Albert J. Rifkind for appellants.

      Harry Kirshbaum and Samuel Feuer for respondent.
   no opinion. (See 262 N. Y. 663.)

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


text:
    May V. Saunders, Appellant, v. The City of New York, Respondent.
    (Submitted May 22, 1933;
    decided May 31, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (Arthur H. Kerns of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion. (See 262 N. Y. 539.)


text:
    Robins Dry Dock and Repair Company, Appellant and Respondent, v. Navigazione Libera Triestina, S. A., Respondent, and Moran Towing and Transportation Company, Inc., Appellant.
    (Submitted May 22, 1933;
    decided May 31, 1933.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 455.)


text:
    Anna M. Sweeny, Appellant, v. May C. Wait, Respondent.
    (Submitted May 22, 1933;
    decided May 31, 1933.)
   Motion for reargument granted and case set down for argument or submission on Monday, June 5, 1933. (See 261 N. Y. 690; 262 N. Y. 566.)


text:
    State Bank of Commerce of Brockport, New York, by Joseph A. Broderick, as Superintendent of Banks, Appellant, v. Howard G. Stone, as Treasurer of the Farm Department of the Monroe County Farm and Home Bureau Association, Respondent.
    (Submitted May 22, 1933;
    decided May 31, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 175.)


text:
    David H. Levine et al., Copartners under the Firm Name of David H. Levine Bedding Company, Respondents, v. Atlas Assurance Company, Ltd., of London, England, et al., Appellants.
    (Submitted May 22, 1933;
    decided May 31, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 711.)


text:
    In the Matter of the Probate of the Will of Caroline Stern, Deceased. S. Sidney Stern, Appellant; New York Trust Company et al., Respondents.
    (Submitted May 22, 1933;
    decided May 31, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 617.)


text:
    Genaro Lafredo, Respondent, v. Bush Terminal Company, Appellant.
    (Submitted May 22, 1933;
    decided May 31, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 323.)


text:
    In the Matter of the Claim of Luis Hernandez, Respondent, against Harry Weinstock et al., Appellants, and The Fidelity and Casualty Company of New York, Respondent.
    (Submitted May 22, 1933;
    decided May 31, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 702.)


text:
    Irwin Heim, an Infant, by Sidney Heim, His Guardian ad Litem, et al., Respondents, v. The Mitchell-Harlee Camps, Inc., Appellant, Impleaded with Another.
    (Argued April 24, 1933;
    decided June 6, 1933.)

      James I. Cuff, Hobart R. Marvin, Max J. Hamburger and James I. McGuire for appellant.

      Humphrey J. Lynch, Joseph L. Hochman and Emanuel Morganlander for respondents.
   no opinion.

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

Dissenting: Crane, Lehman and Crouch, JJ.


text:
    In the Matter of the Estate of Bernard F. Callahan, Deceased. Commercial Casualty Insurance Company, Appellant; Flora Callahan et al., Respondents.
    (Argued May 22, 1933;
    decided June 6, 1933.)

      David S. Konheim and William Lurie for appellant.

      David S. Edgar, Jr., Randolph J. Hernandez. and Frederick W. Sparks for petitioner-respondent.

      Donald P. MacArthur for administrator-respondent.
   no opinion.

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


text:
    In the Matter of John O. Nelson, Appellant, against Civil Service Commission et al., Respondents.
    (Argued May 22, 1933;
    decided June 6, 1933.)

      John O. Nelson, in person, for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Henry J. Shields and J. Joseph Lilly of counsel), for respondents.
   No opinion.

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


text:
    In the Matter of Philip S. McNally, Respondent, against Amy B. Youngs et al., Appellants.
    (Argued May 22, 1933;
    decided June 6, 1933.)

      Gustav Lange, Jr., for appellants.

      William M. Kilcullen, Harry Pfeffer and Emil Morosini, Jr., for respondent.
   No opinion.

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


text:
    Ora G. Lawbaugh, Plaintiff, v. Grace A. Sweeney et al., Defendants, Amy B. Youngs et al., Appellants, and Philip S. McNally, Respondent.
    (Argued May 22, 1933;
    decided June 6, 1933.)

      Gustav Lange, Jr., for appellants.

      William M. Kilcullen, Harry Pfeffer and Emil Morosini, Jr., for respondent.
   No opinion.

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


text:
    In the Matter of the Claim of Elsie Lobdell et al., Respondents, against Ernest Ervay, Respondent, and Lumber Mutual Casualty Insurance Company of New York, Appellant. State Industrial Board, Respondent.
    (Submitted May 23, 1933;
    decided June 6, 1933.)

      Jeremiah F. Connor and Dickinson S. Talley for appellant.

      John J. Bennett, Jr., Attorney-General {John R. O’Hanlon and Henry Epstein of counsel), for State Industrial Board, respondent.

      Harry Moseson for Frederick R. Young, respondent.
   no opinion.

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


text:
    In the Matter of the Claim of Sarah Miller, Respondent, against New York Dock Company, Appellant. State Industrial Board, Respondent.
    (Submitted May 23, 1933;
    decided June 6, 1933.)

      William J. Carr and Charles E. Hotchkiss for appellant.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Henry Epstein of counsel), for State Industrial Board, respondent.
   no opinion.

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

Dissenting: Kellogg, J. Not sitting: Hubbs, J.


text:
    In the Matter of the Claim of Melchion Ott against The Green-Wood Cemetery, Respondent. State Industrial Board, Appellant.
    (Submitted May 23, 1933;
    decided June 6, 1933.)

      JohnJ. Bennett, Jr., Attorney-General (John R. O’Hanlon and Henry Epstein of counsel), for State Industrial Board, appellant.

      J. Wesley Seward and Henry H. Anderson for respondent.
   no opinion.

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


text:
    In the Matter of the Claim of Anton Remmert against C. Weidenmeyer et al., Respondents. State Industrial Board, Appellant.
    (Argued May 23, 1933;
    decided June 6, 1933.)

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

      Joseph.B. Hurewitz for respondents.
   no opinion.

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

Dissenting: Lehman, J. Not sitting: Hubbs, J.


text:
    In the Matter of the Claim of Gus Kocko against Harris Coal Company, Inc., et al., Respondents. State Industrial Board, Appellant.
    (Argued May 23, 1933;
    decided June 6, 1933.)

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly of counsel), for The City of New York, amicus curise.

      Lawrence S. Timen and Peter P. Corcoran for respondents.
   No opinion.

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


text:
    In the Matter of the Claim of John Dalberth, Respondent, against Iuppa & Battle Company et al., Appellants. State Industrial Board, Respondent.
    (Argued May 23, 1933;
    decided June 6, 1933.)

      Charles J. O’Brien and Eugene Raines for appellants.

      John J. Bennett, Jr., Attorney-General (John R. 0’Hanlon and Henry Epstein of counsel), for State Industrial Board, respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Robert Washington, Appellant.
    (Submitted May 22, 1933;
    decided June 6, 1933.)

      Thomas C. T. Crain, District Attorney (Le Roy Mandle of counsel), for motion.

      Le Roy Campbell opposed.
   Motion granted and appeal dismissed.


text:
    May V. Saunders, Appellant, v. The City of New York, Respondent.
    (Submitted June 5, 1933;
    decided June 6, 1933.)
   Motion to vacate order dismissing appeal granted and default opened upon payment of ten dollars costs and on condition that the appeal be perfected within ten days from date; otherwise denied, with ten dollars costs. (See 262 N. Y. 521.)


text:
    In the Matter of the Accounting of John J. Fenelon, as Administrator of the Estate of Bessie Fenelon, Deceased, Respondent. Elizabeth Yauch, Appellant.
    (Submitted June 5, 1933;
    decided June 6, 1933.)
   Motion for reargument granted. Return of remittitur requested and case set down for argument or submission on June 7, 1933. (See 262 N. Y. 57, 308.)


text:
    In the Matter of the Claim of Joseph Petrone et al., Respondents, against United States Trucking Corporation, Appellant. State Industrial Board, Respondent.
    (Submitted May 23, 1933;
    decided June 13, 1933.)

      Paul Koch for appellant.

      John J. Bennett, Jr., Attorney-General (Isaac Frank and Henry Epstein of counsel), for State Industrial Board, respondent.
   no opinion.

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


text:
    In the Matter of the Claim of James Curtis, Respondent, against Lawrence Garage, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued May 24, 1933;
    decided June 13, 1933.)

      Frank L. Ward and F. E. Coursen for appellants.

      John J. Bennett, Jr., Attorney-General (Isaac Frank and Henry Epstein of counsel), for State Industrial Board, respondent.
   no opinion.

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


text:
    In the Matter of the Claim of James E. Daley against H. C. Miner Lithographing Company et al., Respondents. State Industrial Board, Appellant.
    (Argued May 24, 1933;
    decided June 13, 1933.)

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

      Frank L. Ward for respondents.
   No opinion.

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


text:
    In the Matter of the Claim of Carrie Egan against James A. Hearn & Son et al., Respondents. State Industrial Board, Appellant.
    (Argued May 24, 1933;
    decided June 13, 1933.)

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon and Henry Epstein of counsel), for State Industrial Board, appellant.

      Frank L. Ward and F. E. Coursen for respondents.
   no opinion.

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


text:
    In the Matter of the Claim of Henry J. McGuckin, Respondent, against Estate of George Baker, Inc., Respondent, and Ætna Life Insurance Company, Appellant. State Industrial Board, Respondent.
    (Argued May 24,1933;
    decided June 13, 1933.)

      Frank L. Ward for appellant.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum, John R. O’Hanlon, Hector A. Bobichon and Henry Epstein of counsel), for State Industrial Board, respondent.
   No opinion.

Concur: Lehman, Kellogg, O’Brien and Crouch, JJ.

Dissenting: Pound, Ch. J., and Crane, J. Not sitting: Hubbs, J.


text:
    In the Matter of Mildred R. Boylan, an Incompetent Person. Daniel J. Boylan, Appellant; Katie C. Rogers, Respondent.
    (Argued May 24, 1933;
    decided June 13, 1933.)

      Walter A. Fullerton for appellant.

      John E. Roeser for respondent.
   no opinion.

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


text:
    Donald D. Cornell, as Administrator of the Estate of Leon Cornell, Deceased, Respondent, v. Acme Road Machinery Company, Appellant.
    (Argued May 24, 1933;
    decided June 13, 1933.)

      Nathaniel F. Breen and Louis L. Waters for appellant.

      Delos M. Cosgrove for respondent.
   no opinion.

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


text:
    In the Matter of the Application of the City of Yonkers, Appellant, Relative to Acquiring Title to Real Property Required for the Widening of Warburton Avenue. M. E. D. Corporation et al., Respondents.
    (Argued May 25, 1933;
    decided June 13, 1933.)

      Leonard G. McAneny, Corporation Counsel (J. Raymond Hannon and Morris L. Rosenwasser of counsel), for appellant.

      William A. Walsh and Joseph J. McCann for Louis A. Van Dyk et al., respondents.

      William J. Wallin, Charles J. Tobin and Richard Edie,-Srd, for M. E. D. Corporation et al., respondents.

      John A. Wallace for Wilfred F. Fuller et al., respondents.
   No opinion.

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


text:
    The People of the State of New York ex rel. Louis A. Cerf, Appellant, v. Thomas M. Lynch et al., Constituting the State Tax Commission of the State of New York, Respondents.
    (Argued May 25, 1933;
    decided June 13, 1933.)

      Albert Handy for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig and Henry Epstein of counsel), for respondents.
   no opinion.

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


text:
    In the Matter of International Railway Company et al., Appellants, against Public Service Commission of the State of New York, Respondent.
    (Argued May 25, 1933;
    decided June 13, 1933.)

      Edward E. Franchot for International Railway Company, appellant.

      James S. Flanagan for Lawrence H. Schultz et al., as receivers of Western New York Motor Lines, Inc., appellants.

      Paul Folger, Harry Myron Chamberlain and Charles G. Blakeslee for Public Service Commission, respondent.
   no opinion.

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


text:
    The Jarl Company, Appellant, v. Village of Crotonon-Hudson et al., Respondents. J. Laura J. Starke Belknap, Appellant, v. Village of Croton-on-Hudson et al., Respondents. Alice Davis, Appellant, v. Village of Croton-onHudson et al., Respondents.
    (Argued May 25, 1933;
    decided June 13, 1933.)

      Alexander S. Andrews for The Jarl Company, appellant.

      Thomas 0. Barnes for J. Laura J. Starke Belknap, appellant.

      Herman Tocher for Alice Davis, appellant.

      Edgar A. B. Spencer and Maurice Herman for respondents.
   no opinion.

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

Dissenting: Crane and Lehman, JJ. Not sitting: Hubbs, J.


text:
    Alice MacLean, as Administratrix, with the Will Annexed, of Margaret Churchill, Deceased, Appellant, v. Alden Hart, Respondent.
    (Argued May 26, 1933;
    decided June 13, 1933.)

      John T. Norton for appellant.

      Fred Linus Carroll, John M. Carroll and Theodore R. Haviland for respondent.
   no opinion.

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

Dissenting: Kellogg and Crouch, JJ. Not sitting: Hubbs. J.


text:
    Millie Gitlin, Respondent, v. David Storch, Inc., Appellant.
    (Submitted May 26, 1933;
    decided June 13, 1933.)

      Alvin R. Cowan and Harold M. Phillips for appellant.

      Harry A. Gair and Leon Shalov for respondent.
   no opinion.

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


text:
    Erich Herzog, Respondent, v. Sachs Quality Furniture, Inc., Appellant, Impleaded with Another.
    (Submitted May 26, 1933;
    decided June 13, 1933.)

      William R. Hill for appellant.

      Harry A. Gair for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Meyer Rashba, Appellant.
    (Argued May 29, 1933;
    decided June 13, 1933.)

      Harold R. Medina, John W. Jordan and Harry Kalman for appellant.

      Thomas C. T. Crain, District Attorney (John C. McDermott of counsel), for respondent.
   no opinion.

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


text:
    The People of the State of New York, Appellant, v. Jacob Manowitz, Respondent.
    (Argued May 29, 1933;
    decided June 13, 1933.)

      Elvin N. Edwards, District Attorney (Philip Huntington of counsel), for appellant.

      Harold R. Medina, William F. McNulty and Morris Alfred Vogel for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Max Ginsberg, Appellant.
    (Submitted May 31, 1933;
    decided June 13, 1933.)

      H. Thornton Banks, Samuel L. Miller and Alfred Selter for appellant.

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   no opinion.

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


text:
    The Chase National Bank of the City of New York, Respondent, v. United States Trust Company of New York et al., as Trustees, Appellants.
    (Argued May 31, 1933;
    decided June 13, 1933.)

      Harold R. Medina, William Gilbert, Harry K. Davenport and Edward A. McInnes for appellants.

      Timothy Newell Pfeiffer and Schuyler William Livingston for respondent.
   no opinion.

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


text:
    Harold Bedford, Respondent, v. Dyer-Kane Company et al., Defendants, and Globe Indemnity Company, Appellant.
    (Argued May 31, 1933;
    decided June 13, 1933.)

      F. A. W. Ireland for appellant.

      Alton W. Teale and Morton Lexow for respondent.
   no opinion.

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


text:
    Louis F. Rothschild et al., Copartners under the Firm Name of L. F. Rothschild & Co. et al., Respondents, v. The First National Bank of Hancock, New York, Appellant. Louis F. Rothschild et al., Copartners under the Firm Name of L. F. Rothschild & Co. et al., Respondents, v. The First National Bank of Binghamton, New York, Appellant.
    (Argued May 31, 1933;
    decided June 13, 1933.)

      Isaac H. Levy for appellants.

      James F. Donnelly, Mark Eisner, Samuel Michelman and Albert C. Kelly for respondent.
   no opinion.

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


text:
    George W. Gerlach, Appellant, v. National Assets Corporation et al., Respondents.
    (Argued May 31, 1933;
    decided June 13, 1933.)

      Abraham Green for appellant.

      James F. Donnelly, Victor S. Gettner and Sidney Segal for Denis M. Hurley, as receiver of National Assets Corporation, respondent.

      Morris J. Junger for William H. Byington, respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Kellogg and O’Brien, JJ. Lehman and Crouch, JJ., dissent as to the defendant Byington and vote for a new trial. Not sitting: Hubbs, J.


text:
    Winifred O. McBride, as Administratrix of the Estate of Mary T. Gallagher, Deceased, Respondent, v. Quinn Burial Co., Inc., Appellant.
    (Submitted June 5, 1933;
    decided June 13, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 469.)


text:
    The People of the State of New York ex rel. Lillie M. Holt, Appellant, v. Lillian Lambert et al., Respondents.
    (Submitted June 5, 1933;
    decided June 13, 1933.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 511.)


text:
    Sarah Russ, Appellant, v. Madeline Russ, Respondent.
    (Submitted June 5, 1933;
    decided June 13, 1933.)

      Milton H. Greenwald for motion.

      Herman Horowitz opposed.
   Motion denied.


text:
    Arthur Drawer et al., Copartners, under the Firm Name of Fayette Silk Mills, Respondents, v. Mendelson Bros. Factors, Inc., Appellant.
    (Submitted June 5, 1933;
    decided June 13, 1933.)
   Motion to amend remittitur granted; return of remittitur requested, and when returned it will be amended to read as follows:

“ Judgment of Appellate Division modified by striking out so much thereof as provides that plaintiffs recover of defendant the sum of $5,573.99 principal, interest and costs, and inserting in place thereof a provision that plaintiffs recover of defendant a partial judgment in the sum of $3,177.64, with interest from March 1, 1932, and costs. As so modified, judgment affirmed and partial judgment granted with costs to appellant in this court and the Appellate Division. Motion for summary judgment otherwise denied.” (See 262 N. Y. 53.)


text:
    Wellington Kenwell, Appellant, v. Clarence F. Lee, as Supervisor of the Town of Inlet, et al., Respondents.
    (Submitted June 12, 1933;
    decided June 13, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 113.)


text:
    David A. Brown, Appellant and Respondent, v. Myer Davidow, Appellant, and Walter E. Bedell et al., Respondents.
    (Submitted June 12, 1933;
    decided June 13, 1933.)

      George P. Halperin for motion.

      Abraham Benedict opposed.
   Motion denied.


text:
    Meyer Blumberg, Appellant, v. Frank Giorgio, Jr., as Trustee in Bankruptcy of Nox Realty Corporation, Respondent.
    (Submitted June 12, 1933;
    decided June 13, 1933.)

      Robert Daru for motion.

      Meyer Blumberg opposed.
   Motion denied.


text:
    In the Matter of the Claim of John Dalberth, Respondent, against Iuppa & Battle Company et al., Appellants. State Industrial Board, Respondent.
    (Submitted June 12, 1933;
    decided June 13, 1933.)
   Motion for reargument granted to the following extent: Return of remittitur requested and when returned it will be amended by adding the words, “ The court considered the question as to whether section 15, subdivision 5-a of the Workmen’s Compensation Law (Laws of 1930, ch. 316, § 2) was violative of section 1 of the Fourteenth Amendment to the United States Constitution and found that the subdivision was constitutional.” (See 262 N. Y. 537.)


text:
    Howard G. Bishop, Appellant, Impleaded with Another, v. Willis P. Thomas et al., Defendants, Bessie B. Akin et al., Appellants, and New York Central Railroad Company et al., Respondents.
    (Argued February 28, 1933;
    decided July 11, 1933.)

      Joseph B. Thompson for appellants.

      Harold Swain, Crosby J. Beakes, Frederick L. Wheeler, Arthur H. Indell and Jacob Aronson for the New York Central Railroad Company, respondent.

      Milton C. Palmer for Washburne and Todd Company, respondent.

      Charles Adkins Baker for Bay State Shoe and Leather Company, respondent.

      John J. Bennett, Jr., Attorney-General (Hugh Reilly and Arthur J. Stern of counsel), for the People of the State of New York, respondent.
   no opinion.

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


text:
    Anna M. Sweeny, Appellant, v. May C. Wait, Respondent.
    (Reargued Juno 6, 1933;
    decided July 11, 1933.)
    (See 261 N. Y. 690; 262 N. Y. 521.)
   No opinion.

Concur: Pound, Ch. J., Kellogg, O’Brien and Hubbs, JJ. Crane, Lehman and Crouch, JJ., dissent and vote to modify the judgment of the Appellate Division by granting a new trial.


text:
    Elsie MacD. Saville, Individually and as Ancillary Administratrix of the Estate of Albert J. MacDonald, Deceased, Respondent, v. Robert Sweet et al., Appellants, Impleaded with Others.
    (Argued April 28, 1933;
    decided July 11, 1933.)

      E. H. Sykes for Robert Sweet, appellant.

      Chester B. McLaughlin for Howard Myers et al., appellants.

      J. Adam Murphy and Joseph M. Hartfield for respondent.
   no opinion.

Concur: Pound, Ch. J., O’Brien, Hubbs and Crouch, JJ. Crane, J., dissents and votes to reverse and dismiss the complaint. Lehman and Kellogg, JJ., dissent on the ground that a joint judgment is not permissible in this case.


text:
    The People of the State of New York, Respondent, v. Stephen R. Witherell, Appellant.
    (Argued May 29, 1933;
    decided July 11, 1933.)

      Victor Levine and Saul Kauffman for appellant.

      William D. Ingram, District Attorney, for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Andrew Ruffino, Appellant.
    (Argued May 29, 1933;
    decided July 11, 1933.)

      Joseph Aronstein, John J. Duff and Robert Aronstein for appellant.

      Samuel J. Foley, District Attorney (Sol. Boneparth, Herman J. Fliederblum and Sylvester Ryan, of counsel), for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Jordan and George Swan, Appellants.
    (Argued May 29, 1933;
    decided July 11, 1933.)

      Thomas D. Austin, Edward T. Johnberg, Jr., and Philip Frank for John Jordan, appellant.

      James J. Munro and C. Gordon Lamude for George Swan, appellant.

      Charles S. Colden, District Attorney (Mordecai Konowitz of counsel), for respondent.
   no opinion.

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


text:
    Anna B. McCowan, as Administratrix of the Estate of James McCowan, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant. Jennie Christie, as Administratrix of the Estate of Leigh Christie, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    (Argued June 1, 1933;
    decided July 11, 1933.)

      Clarence P. Moser for appellant.

      Bayard J. Stedman for respondents.
   no opinion.

Concur: Crane, Lehman, Kellogg and Crouch, JJ. Pound, Ch. J., and O’Brien, J., dissent on the authority of Crough v. New York Central Railroad Company (260 N. Y. 227, 231). Not sitting: Hubbs, J.


text:
    Mary Kiley, an Infant, by George F. Kiley, Her Guardian ad Litem, Respondent, v. James Weir et al., Appellants. Reba Frame, Respondent, v. Leslie A. Kiley et al., Appellants.
    (Argued June 1, 1933;
    decided July 11, 1933.)

      Raymond F. Nichols for James M. Weir, appellant.

      Chester Winslow for Leslie A. Kiley, appellant.

      Fred J. O’Donnell and Willard R. Pratt for respondents.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Alexander Carrion and Frank Negron, Appellants.
    (Argued June 1, 1933;
    decided July 11, 1933.)

      Walter A. Lynch, Thomas H. McManus and Morris E. Spector for Alexander Carrion, appellant.

      Charles V. Halley, Jr., and James A. Sullivan for Frank Negron, appellant.

      Samuel J. Foley, District Attorney (Sol. Boneparth, Herman J. Fliederblum and Eugene G. Schulz, of counsel), for respondent.
   no opinion.

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