text:
    John Hancock Mutual Life Insurance Company of Boston, Massachusetts, Appellant, v. Louis H. Pink, as Superintendent of Insurance of the State of New York, Respondent.
    Argued December 9, 1937;
    decided January 11, 1938.

      Frederick C. Tanner, Byron K. Elliott and William B. Moore for appellant.
    Equalization of the total tax burden for the privilege of carrying on business, as between New York companies doing business in Massachusetts and Massachusetts companies doing business in New York, is the manifest purpose and object of section 33 of the Insurance Law (Cons. Laws, ch. 28). (People v. Fire Association, 92 N. Y. 311; State ex rel. New England Mut. Life Ins. Co. v. Reinmund, 13 N. E. Rep. 30; State ex rel. Attorney-General v. Fidelity & Casualty Ins. Co., 31 N. E. Rep. 658; State ex rel. Crittenberger v. Continental Ins. Co., 116 N. E. Rep. 929; Pacific Mut. Life Ins. Co. v. State, 296 Pac. Rep. 813 i Bankers Life Co. v. Richardson, 218 Pac. Rep. 586; Life & Casualty Ins. Co. v. Coleman, 25 S. W. Rep. [2d] 748; Metropolitan Life Ins. Co. v. Boys, 129 N. E. Rep. 724; State v. American Ins. Co., 137 N. E. Rep. 338; Cochrane v. Bankers Life Co., 30 Fed. Rep. [2d] 918.) Equalization of the total tax burden requires that credit should be given to the plaintiff in fixing the amount of the retaliatory tax for the amount of excise taxes on premiums paid by the plaintiff to the city of New York. (New York Steam Corp. v. City of New York, 268 N. Y. 137; Garfield v. New York Tel. Co., 268 N. Y. 549; Matter of Osborne v. Cohen, 272 N. Y. 55; Matter of Atlas Television Co., 273 N. Y. 51; Life & Casualty Ins. Co. v. Coleman, 25 S. W. Rep. [2d] 748; Pacific Mut. Life Ins. Co. v. State, 296 Pac. Rep. 813.) If municipal taxes are deductible from the retaliatory tax credit should be given not only for the excise tax on premiums paid by the plaintiff to the city of New York in 1934 but also for similar taxes paid in 1935. (People v. Albany Ins. Co., 92 N. Y. 458; People ex rel. Connecticut Mut. Life Ins. Co. v. Kelsey, 116 App. Div. 97; 188 N. Y. 541; People ex rel. N. Y. Rapid Transit Corp. v. Loughman, 226 App. Div. 149; Cochrane v. Bankers Life Co., 30 Fed. Rep. [2d] 918.)

      John J. Bennett, Jr., Attorney-General (Leonard M. Gardner and Henry Epstein of counsel), for respondent.
    The Superintendent of Insurance has correctly calculated the retaliatory tax due from the appellant under section 33 of the Insurance Law. Taxes paid to the city of New York for the privilege of doing business during the year 1935 can in no event be allowed as a credit against the 1934 retaliatory tax. (People v. Metropolitan Surety Co., 158 App. Div. 647.)
   O’Brien, J.

Section 33 of the Insurance Law (Cons. Laws, ch. 28) provides in substance that if, by the laws of any State, an insurance corporation of this State shall be required to make payment for taxes greater than are imposed upon similar corporations of such other State by the laws of this State, all similar insurance corporations of that State shall be required to pay to the Superintendent of Insurance of this State for taxes an amount equal to the amount of such charges and payments imposed by that State upon a New York insurance corporation.

Plaintiff is a Massachusetts corporation. Pursuant to section 20 of chapter 63 of the General Laws of Massachusetts, an excise tax of $418,136.09 would have been levied upon a New York corporation doing a similar business in that State. For the privilege of exercising its corporate franchise within this State during the year 1934, plaintiff paid to the State Tax Commission, pursuant to section 187 of the Tax Law (Cons. Laws, ch. 60), the sum of $300,287. It also paid to the Comptroller of the City of New York for the year 1934 the sum of $8,850.53. For the year 1935 it paid to the Comptroller of the City of New York $18,170.76.

The Superintendent of Insurance of this State having levied upon the plaintiff a tax in the amount of $117,849.09 as the difference between the $300,287 paid to the Tax Commission of this State pursuant to section 187 of the Tax Law and the $418,136.09, the amount payable by a similar New York insurance corporation to the State of Massachusetts, plaintiff seeks to deduct from the $117,849.09 such sums as have been paid to the Comptroller of the City of New York.

E the amount of $27,021.29, consisting of $8,850.53 and $18,170.76 paid to the Comptroller of the City of New York pursuant to Local Law No. 9 and Local Law No. 18 of the City of New York (Local Laws, 1934, pp. 108, 129), constitute taxes for the year 1934 required or imposed by the “ laws of this State,” then this sum must be added to the $300,287 paid pursuant to section 187 of the Tax Law and should be deducted from the retaliatory tax of $117,849.09.

The question is whether the taxes paid under the local laws are taxes required or imposed for the year 1934 by the " laws of this State.” Since the sum of $18,170.76 paid by plaintiff pursuant to Local Law No. 18 of the year 1934 was paid for the privilege of conducting its business during the year 1935, this amount cannot be considered in relation to the tax imposed for the year 1934. However, the ultimate issue of law is whether the sum of $8,858.53 paid by plaintiff pursuant to Local Law No. 9 of the year 1934 as an excise tax for the privilege of conducting its business within the city of New' York are taxes required or imposed by the laws of this State.” Local Law No. 9 was adopted by virtue of the authority delegated by the enabling act, chapter 302 of the Laws of 1934.

Chapter 302 of the Laws of 1934, which became a law April 25, 1934, is entitled An act to enable, temporarily, any city of the state having a population of one million inhabitants or more to adopt and amend local laws, imposing in any such city any tax and/or taxes which the legislature has or would have power and authority to impose and to limit the application of such local laws,” and it empowers any city having a population of one million inhabitants to adopt local laws imposing in any such city any tax which the legislature has or would have the power to impose and to make provision for the collection thereof. It also directs that a tax imposed hereunder shall have application only within the territorial limits of such city and shall be in addition to any and all other taxes. Revenues resulting from “ the imposition of taxes authorized by this act ” (§ 2) shall be paid into and credited to the general fund of the city.

Local Law No. 9 of the year 1934 became a law May 22, 1934, and provides by section 2: Imposition of tax. (a) For the privilege of carrying on or exercising for gain or profit within the city of New York any trade, business profession, vocation, or commercial activity other than a financial business, during the balance of the calendar year nineteen hundred thirty-four, every person shall pay an excise tax.” Chapter 873- of the Laws of 1934, which became a law August 18, 1934, has the same title as chapter 302 except that the phrase “ to relieve the people of any such city from the hardships and suffering caused by unemployment ” is added after the words which the legislature has or would have power and authority to impose.” Local Law No. 18 of the year 1934 is entitled “ A local law to raise revenue for the purpose of relieving the people of the city of New York from the hardships and suffering caused by unemployment, by the imposition of a tax upon the privilege of carrying on or exercising within the city of New York, any trade, business, profession, vocation, commercial activity or financial business carried on for gain or profit and making provision for the collection thereof.” Section 12 of this local law provides that all revenues resulting from the taxes imposed by this local law shall not be credited to the general fund but shall be deposited in a separate account and shall be available and used solely and exclusively for the purpose of relieving the people of the city of New York from the hardships and suffering caused by unemployment.”

If these taxes have been imposed, even indirectly, by virtue of the enactment of chapter 302 of the Laws of 1934, or of chapter 873 of the Laws of 1934, then they have been imposed by the laws of this State and plaintiff is entitled to credit for the amount paid for the year 1934 through the operation of the local laws adopted in pursuance of the enabling acts.

The purpose of the enabling acts, chapter 302 of the Laws of 1934 and chapter 873 of the Laws of 1934, is the same as that incorporated in chapter 815 of the Laws of 1933 which was the subject of decision by this court in New York Steam Corp. v. City of New York (268 N. Y. 137). It was by virtue of these enabling acts that the local laws were adopted, and the source of the imposition of these taxes is not to be found in the local laws themselves. The enabling acts were passed by the Legislature for a State purpose, public health and welfare. Both opinions in the New York Steam Corp. case emphasize this fact and that the city acted merely as an agent of the State, and the concurring opinion stresses the proposition that the Legislature did not delegate its taxing powers to the extent of abdicating its constitutional function. The conclusion follows that plaintiff, in paying the tax of $8,850.53 for the year 1934, paid a tax which was imposed by the laws of this State within the meaning of section 33 of the Insurance Law. This amount was paid in addition to the $300,287 which was paid pursuant to section 187 of the Tax Law.

The judgment of the Appellate Division should be modified by crediting to plaintiff the sum of $8,850.53 and, as so modified, affirmed, with costs.

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Bippey, JJ., concur. -

Judgment accordingly.


source: Caselaw Access Project

author: Hubbs, J. Lehman, J.

license: Public Domain

text:
    I. & I. Holding Corporation, Respondent, v. Isidor Gainsburg, Appellant.
    Submitted November 17, 1937;
    decided January 11, 1938.

      Bernard Hershkopf for appellant.
    The pledge sets forth no legal consideration for the defendant’s promise. (Pershall v. Elliott, 249 N. Y. 183; Vanderbilt v. Schreyer, 91 N. Y. 392; Melnick v. Kukla, 228 App. Div. 321; De Cicco v. Schweiser, 221 N. Y. 431; Fire Ins. Assn. v. Wickham, 141 U. S. 564; Philpot v. Gruninger, 14 Wall. 570; Dougherty v. Salt, 227 N. Y. 200; Walton Water Co. v. Village of Walton, 238 N. Y. 46; Matter of Smathers, 153 Misc. Rep. 132; Macedon & Bristol Plank Road Co. v. Snediker, 18 Barb. 317; Utica & S. R. Co. v. Brinckerhoff, 21 Wend. 139; Remmey v. Van De Carr, 177 App. Div. 237; Presbyterian Church of Albany v. Cooper, 112 N. Y. 517; Twenty-third St. Bap. Church v. Cornell, 117 N. Y. 601; Trustees of Hamilton College v. Stewart, 1 N. Y. 581; Hull v. Pearson, 38 App. Div. 588; Matter of Tummonds, 160 Misc. Rep. 137.) The plaintiff may not rely on any consideration other than that specified in the subscription. (Philpot v. Gruninger, 14 Wall. 570; De Cicco v. Schweizer, 221 N. Y. 431; Dougherty v. Salt, 227 N. Y. 200; Walton Water Co. v. Village of Walton, 238 N. Y. 46; Hyde v. United States, 225 U. S. 347; Sturmdorf v. Saunders, 117 App. Div. 762; 190 N. Y. 555; Budro v. Burgess, 197 Mass. 74; Vivirito v. N. Y. C. & H. R. R. R. Co., 177 App. Div. 294; Schemerhorn v. Vanderheyden, 1 Johns. 139; Moffat Coal Co. v. Miller, 173 Ill. App. 408; Cocks v. Barker, 49 N. Y. 107; Presbyterian Church v. Cooper, 112 N. Y. 517; Medical College Laboratory v. N. Y. University, 178 N. Y. 153.) None of the alleged considerations not specified in the writing has any validity. (Vanderbilt v. Schreyer, 91 N. Y. 392; Melnick v. Kukla, 228 App. Div. 321; Glahn v. Clark, 251 App. Div. 747; Trustees of Hamilton College v. Stewart, 1 N. Y. 581; Bridgewater Academy v. Gilbert, 2 Pick. 579; Presbyterian Church of

      Albany v. Cooper, 112 N. Y. 517; Matter of Taylor, 251 N. Y. 257.) The doctrine of promissory estoppel is no part of our law. (Matter of Tummonds, 160 Misc. Rep. 137; Presbyterian Church of Albany v. Cooper, 112 N. Y. 517; Allegheny College v. National C. C. Bank, 246 N. Y. 369; Martin v. Meles, 179 Mass. 114; Thorne v. Deas, 4 Johns. 84; Trustees of Hamilton College v. Stewart, 1 N. Y. 581; Kent v. Jamestown St. R. Co., 205 N. Y. 361; Pouch v. Prudential Ins. Co., 204 N. Y. 281.) In any event no basis exists for the application of the doctrine of promissory estoppel. (Ambler v. Smith, 237 App. Div. 226; Matter of Taylor, 251 N. Y. 257; Clark v. Dillon, 97 N. Y. 370; Jacobs v. Monaton R. I. Corp., 212 N. Y. 48; Trustees of Hamilton College v. Stewart, 1 N. Y. 581; Presbyterian Church of Albany v. Cooper, 112 N. Y. 517; Hull v. Pearson, 38 App. Div. 588; Twenty-third St. Bap. Church v. Cornell, 117 N. Y. 601; Keuka College v. Ray, 167 N. Y. 96.) The fifth defense is good. (Arkansas Smelting Co. v. Belden Co., 127 U. S. 379; Goldschmidt & Loewenick, Inc., v. Diamond S. F. Co., 186 App. Div. 688; Paige v. Faure, 229 N. Y. 114.)

      Leonard G. Bisco and Samuel Chugerman for respondent.
    The complaint alleges a sufficient legal consideration for the pledge. (Allegheny College v. National Chautauqua County Bank, 246 N. Y. 369; Keuka College v. Ray, 167 N. Y. 96; Barnes v. Perine, 12 N. Y. 18; Richmondville Union Seminary v. McDonald, 34 N. Y. 379; Presbyterian Society v. Beach, 74 N. Y. 72; Wayne & Ontario Coll. Inst. v. Smith, 36 Barb. 576; Richmondville Union Seminary v. Brownell, 37 Barb. 535; Roberts v. Cobb, 103 N. Y. 600; Russian Symphony Society, Inc., v. Holstein, 199 App. Div. 353; Matter of Barker, 158 Misc. Rep. 803; 249 App. Div. 336; Mechanicville War Chest, Inc., v. Butterfield, 110 Misc. Rep. 257; Mechanicville War Chest, Inc., v. Ryan, 110 Misc. Rep. 448; Washington Heights M. E. Church v. Comfort, 138 Misc. Rep. 236; Trustees of R. P. D. Church v. Hardenbergh, 48 How. Pr. 414;
      Hutchins v. Smith, 46 Barb. 235; Walton Water Co. v. Village of Walton, 238 N. Y. 46.) If there is no request in the pledge itself the request may, nevertheless, be implied. Even without consideration appellant would be liable upon the doctrine of promissory estoppel. But since there is sufficient legal consideration alleged in the donee’s acts pursuant to the express or implied request of the donor, it is unnecessary to look to that doctrine for support. (Barnes v. Perine, 12 N. Y. 18; Allegheny College v. National Chautauqua Co. Bank, 246 N. Y. 569; Keuka College v. Bay, 167 N. Y. 96; Eaton v. Reich, 258 N. Y. 202; Matter of First M. E. Church v. Howard’s * Estate, 133 Misc. Rep. 723; Trustees of R. P. D. Church v. Hardenbergh, 48 How. Pr. 414; Wayne & Ontario Collegiate Institute v. Smith, 36 Barb. 576; Richmondville Union Seminary v. McDonald, 34 N. Y. 379; Presbyterian Society v. Beach, 74 N. Y. 72; Russian Symphony Society, Inc., v. Holstein, 199 App. Div. 353.) In pleading consideration the language of the pledge agreement is not exclusive, but should be read together with paragraph seventh of the complaint. (Presbyterian Church of Albany v. Cooper, 112 N. Y. 517; Strobe v. Netherland Co., 245 App. Div. 573; Keuka College v. Ray, 167 N. Y. 96; Barnes v. Perine, 12 N. Y. 18; Hutchison v. Ross, 262 N. Y. 381; Miller v. McKenzie, 95 N. Y. 575; Dilcher v. Nellany, 52 Misc. Rep. 364; Matter of Taylor, 251 N. Y. 257.) The fifth defense that the subscription agreement was unassignable was properly stricken out by the court below as insufficient in law. (Goldschmidt & Loewenick, Inc., v. Diamond S. F. Co., 186 App. Div. 688; Arkansas Smelting Co. v. Belden Co., 127 U. S. 379; Hopkins v. Upshur, 20 Tex. 89; Mt. Carmel Church v. Journey, 77 Tenn. 215; Gerner v. Church, 43 Neb. 690; Bank of American Forks v. Smith, 44 Utah, 284; Oconto Chamber of Commerce v. Grandall, 175 Wis. 477; Vanny v. Duprez, 72 Ind. 26; Southern Hotel Co. v. Choucteau, 53 Mo. 572; Matter of Black, 138 App. Div. 562; Johnson v. Williams,
      95 N. Y. 668; Croocke v. Kings County, 97 N. Y. 421; Matter of Heyes, 149 Misc. Rep. 890; 241 Ápp. Div. 907; Rosenthal v. National Folding B. & P. Co., 226 N. Y. 313; Farone v. Hall, 128 Misc. Rep. 794; Janvey v. Loketz, 122 App. Div. 411.)
   Hubbs, J.

Appellant signed and delivered to Beth Israel Hospital Association a pledge or subscription agreement reading as follows: “ To aid and assist the Beth Israel Hospital Association in its humanitarian work, and in consideration of the promises of others contributing for the same purposes, the undersigned does hereby promise to pay to the order of the Beth Israel Hospital Association at the Hospital Building, Stuyvesant Park East, New York City the sum of * * * $5,000 payable in 4 year installments, $1,250 cash. The undersigned further requests each and every other contributor to make his contribution in reliance upon the contribution of the undersigned herewith made.”

Respondent is now the holder and owner thereof. The allegation of the complaint, as to consideration, is as follows: v.

“ Seventh. That upon the said subscription and agreement, the said Beth Israel Hospital Association proceeded in its humanitarian work, obtained other like subscriptions, expended large sums of money and incurred large liabilities, and has otherwise duly performed all the conditions on its part to be performed.”

The Appellate Division, by a divided court, reversed the judgment of Special Term which dismissed the complaint, found the allegation of consideration sufficient, and struck out the fifth affirmative defense, which was:

14. That upon information and belief the pledge and agreement described in and alleged in the complaint, copy of which is thereto annexed, was by reason of the nature thereof unassignable in law on the part of the said Hospital Association or corporation.” K

The appeal to this court is on certified questions, namely:

“1. Does the complaint herein state facts sufficient to constitute a cause of action?
“ 2. Does the fifth defense contained in the answer state facts sufficient to constitute a defense to the action?”

It is unquestioned that the request that other subscribers make contributions in reliance on appellant’s contribution, stated as a consideration in the subscription agreement, is not consideration which will support appellant’s promise. (Presbyterian Church v. Cooper, 112 N. Y. 517; Twenty-third St. Baptist Church v. Cornell, 117 N. Y. 601; Cutwright v. Preachers Aid Society, 271 Ill. App. 168; Dalhousie College v. Boutilier, [Can., 1934] S. C. R. 642; College St. M. E. Church v. Kendall, 121 Mass. 528; 1 Williston on Contracts [Rev. ed.], § 116.)

The respondent’s complaint alleges that the hospital association “ has * * * duly performed all the conditions on its part to be performed.”

The question presented is whether the subscription agreement, which recites that it is made “to aid and assist ” a hospital in carrying on “ its humanitarian work,” when relied upon by the hospital by proceeding in its work, securing other subscribers, expending large sums of money and incurring large liabilities, is binding upon the subscriber and enforceable. We believe that the allegations of the complaint are broad enough to permit proof as to the conditions upon which the subscription was made and the extent of fulfillment. Evidence may be given, under the allegations in question, that the hospital, after the subscription was given, relying thereon, altered its position to the knowledge of the promisor and in the reasonable belief that the promise would be kept.” (Matter of Taylor, 251 N. Y. 257, 263.) Consideration in such a case may be shown from facts outside the subscription agreement. (Presbyterian Church v. Cooper, supra; Dougherty v. Salt, 227 N. Y. 200; Matter of Stack, 164 Minn. 57; Lasar v. Johnson, 125 Cal. 549; Keuka College v. Ray, 167 N. Y. 96.)

The subscription agreement need not on its face require the hospital to do or refrain from doing any particular thing, as urged by the appellant. The reliance is not upon a request, but upon the subscription agreement made, as recited, “ to aid * * * the hospital * * * in its humanitarian work.” The agreement can be read as though it said to aid and assist the hospital in carrying on its humanitarian work, I agree to pay.” Relying on the agreement to aid and assist by paying, the hospital acted. The subscription agreement is not a contract, but an offer to contract, which, when acted upon by incurring liability, becomes a binding obligation. (1 Williston on Contracts [Rev. ed.], § 116.) It is a unilateral contract unenforceable until acted upon by the promisee. An invitation or request to carry on its work need not be expressed in the subscription agreement — it may be implied. Nor need a request to the promisee to perform the services be expressed in the instrument; it may be implied.” (Keuka College v. Ray, 167 N. Y. 96, at p. 100.) True it is that, under our law, there must be consideration in contracts in order to make them valid.

We realize that the principles upon which courts of differing jurisdictions have placed their decisions sustaining subscriptions for charitable purposes are all subject to criticism from a legalistic standpoint. Nevertheless we feel that we should follow the decisions of our own courts, extending, as they do, over a long period. The principle controlling our decisions has “ been too firmly established in this State to be disturbed by judicial decision.” (Glennan v. Rochester Trust & S. D. Co., 209 N. Y. 12, 19.) Our courts have definitely ruled that such subscriptions are enforceable on the ground that they constitute an offer of- a unilateral contract which, when accepted by the charity by incurring liability in reliance thereon, becomes a binding obligation. (12 Cornell Law Review, 467; Selected Readings on the Law of Contracts, p. 559.) The view that a subscription is an offer to contract which becomes binding as soon as work has been begun in reliance on the promise is strengthened by the adoption of the following statement in the Restatement of Contracts:

§ 45. If an offer for a unilateral contract is made, and part of the consideration requested in the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or, if no time is stated therein, within a reasonable time.” (American Law Institute, Restatement of the Law of Contracts, vol. 1.)

Courts, in passing on subscription agreements for charitable purposes, have sustained them under the rule of promissory estoppel in cases where the promisee has acted on the promise to pay by incurring liability. We need not go so far as to base our decision on the doctrine of promissory estoppel, as stated in Allegheny College v. National Chautauqua County Bank (246 N. Y. 369). That doctrine need not be applied to save a subscription where a request or invitation that the promisee go on with its work can be implied from the subscription agreement. It is only when a request or an invitation to carry on cannot be implied in fact that it is necessary to invoke that doctrine. In the complaint there is alleged some consideration. It must be remembered that this case involves only a motion on the pleadings. The cases cited by appellant, where there has been a trial and • failure of proof, are not in point. The argument of appellant that the paroi evidence rule applies and that under it no new or different consideration can be proved, has no application on this motion on the pleadings.

That the agreement or pledge was assignable in law is also clear. It is a promise to pay to the order of the Beth Israel Hospital Association.” There is no statutory-restriction against the assignability of such a subscription and we are referred to no decision tending to deny the assignability of an instrument of this character. This court has indicated the rule applicable in Rosenthal Paper Co. v. National Folding B. & P. Co. (226 N. Y. 313).

Section 41 of the Personal Property Law (Cons. Laws, ch. 41) provides:

“ Any claim or demand can be transferred, except in one of the following cases: * * *
“ (3) Where a transfer thereof is expressly forbidden by a statute of the state, or of the United States, or would contravene public policy.”

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

Lehman, J.

(dissenting). Subscriptions to a charitable corporation are enforceable only if the charitable corporation gives some consideration for the promise to pay, or was induced, by the promise, to perform some act which it would otherwise not have performed. (Matter of Taylor, 251 N. Y. 257.) Though the doctrine of consideration is not applied “ in all its ancient rigor ” to charitable subscriptions, yet the question in each case still is whether the enforcement of the charitable subscription “ can be squared with the doctrine of consideration as qualified by the doctrine of promissory estoppel.” (Allegheny College v. National Chautauqua County Bank, 246 N. Y. 369, 374.)

In this case the subscription is not, in form, a promise to pay the sum specified in consideration of a promise to be performed hereafter by the charitable corporation, nor is it, in form, either a request to the corporation to perform a specified act or a promise to pay conditioned upon the performance of any act by the hospital. On the contrary, a promise to “ aid and assist ” a hospital in its humanitarian work ” assumes that the hospital expects to continue its work, and the pledge or subscription here expressly recites that the consideration for the promise of the defendant is the promises of others contributing for the same purposes,” and the only request contained in the subscription instrument is addressed to each and every other contributor to make his contribution in reliance upon the contribution of the undersigned herewith made.” As Judge Hubbs points out in his opinion, it is unquestioned that the request that other subscribers make contributions in reliance on appellant’s contribution, stated as a consideration in the subscription agreement, is not consideration which will- support appellant’s promise.” That being true, it follows, of course, that the complaint is insufficient unless it alleges some other consideration.

I do not question that, as Judge Hubbs points out, consideration in such a case may be shown from facts outside the subscription agreement,” nor do I question that the agreement can be read as though it said ' to aid and assist the hospital in carrying on its humanitarian work, I agree to pay.’ ” Gifts or promises to pay money to a hospital, where no other purpose is specified, are ordinarily made “ to aid and assist the hospital in carrying on its humanitarian work,” and even if the subscription agreement did not so say, we might infer that the promise was made for that purpose in this case. That is not enough to make the promise enforceable. In some cases, particular subscription agreements have been construed as an offer to contract which when acted upon by incurring liability becomes a binding obligation. (Allegheny College v. National Chautauqua County Bank, supra; Roberts v. Cobb, 103 N. Y. 600; Keuka College v. Ray, 167 N. Y. 96; Barnes v. Perine, 12 N. Y. 18; Presbyterian Society of Knoxboro v. Beach, 74 N. Y. 72.) In all these cases, however, the subscription or promise was to become effective only if in return the beneficiary promised or actually performed some act which it otherwise would not have been obligated to perform and would not have performed except for the inducement offered by the promisor. Decision in all these cases was placed upon findings of request or offer, on the one hand, and acceptance on the other hand. The court has reached the opposite conclusion in cases where the subscription was a promise to pay a sum of money to the general funds of the beneficiary (Trustees of Hamilton College v. Stewart, 1 N. Y. 581), or to pay off an existing obligation (Presbyterian Church v. Cooper, 112 N. Y. 517), or even where a promise was made to a church for the purpose of building its church ” and though it appeared that thereafter a church was built, it did not appear that the church, after the promise was given, altered its position to the knowledge of the promisor and in the reasonable belief that the promise would be kept.” (Matter of Taylor, supra, p. 263.) No case in this court is cited, nor have I been able to find a case where a charitable subscription has been enforced without allegation and proof that the promise constituted a request which induced the beneficiary to change its position in reliance upon the promise. Indeed, there is implicit in Judge Hubbs’ opinion the assumption that a subscription to charity is, under the rule applied in this State, enforceable only if it can be construed as an offer for a unilateral contract * * * and part of the consideration requested in the offer is given or tendered by the offeree in response thereto.” (American Law Institute, Restatement of the Law of Contracts, vol. 1, § 45.)

The only allegation in the complaint challenged on this appeal, which, it is said, would admit proof that an offer has been made and accepted, is contained in paragraph seventh: “ That upon the said subscription and agreement, the said Beth Israel Hospital Association proceeded in its humanitarian work, obtained other like subscriptions, expended large sums of money and incurred large liabilities, and has otherwise duly performed all the conditions on its part to be performed.” A complaint is insufficient unless it alleges the ultimate fact upon which liability depends; even allegation of evidentiary facts from which, if unexplained, an inference of the ultimate fact would follow is insufficient. (De Cordova v. Sanville, 214 N. Y. 662.) In this case concededly the ultimate fact upon which liability might be predicated is that the plaintiff’s assignor accepted an offer made by the defendant; and the complaint seems to me significantly silent there. The allegations of the complaint should apprise the defendant of the issues he must meet and guide the trial judge in the admission and exclusion of evidence. It is said that paragraph seventh of the complaint may be construed as an allegation that “ relying on the agreement to aid and assist by paying, the hospital acted.” To show consideration the plaintiff must go further. It must prove that the plaintiff changed its position, that is, it incurred some liability or expended some money or in other respect incurred some detriment because the defendant so requested, or — if we accept the doctrine of promissory estoppel — as a consequence of the promise or in justified reliance thereon. Mere continuance of its charitable work as it might have done even if no promise had been made, does not constitute consideration for the promise or give rise to a promissory estoppel. The complaint is insufficient because even under the most liberal construction, it fails to allege that when the hospital expended large sums of money or incurred large liabilities, its acts were intended or accepted as the consideration “ requested in the offer * * * or tendered by the offeree in response thereto ” (Cf. section 45 of Restatement of Law of Contracts), or_that the hospital thereby “ altered its position * * * in the reasonable belief that the promise would be kept.” (Cf. Matter of Taylor, supra, p. 262.)

The order of the Appellate Division should be reversed and the first certified question answered in the negative.

Cbane, Ch. J., O’Bbien, Loughban, Finch and Rippey, JJ., concur with Hubbs, J.; Lehman, J., dissents, in opinion.

Order affirmed, etc.


author: Lehman, J.

text:
    Edward Duschnik, by Josephine Duschnik, His Guardian ad Litem, Respondent, v. Deco Restaurants, Inc., Appellant.
    Argued November 17, 1937;
    decided January 11, 1938.

      Harold J. Adams and Percy R. Smith for appellant.
    Plaintiff was a trespasser or a mere volunteer to whom the defendant owed no duty of care. (Kuhn v. City of New York, 274 N. Y. 118; Mandola v. Wells, 212 App. Div. 370; Raible v. Hygienic Ice & Refrigerating Co., 134 App. Div. 705; Morris v. Brown, 111 N. Y. 318; Riola v. N. Y. C. & H. R. R. R. Co., 97 App. Div. 252; 184 N. Y. 596; Encarnacion v. Jamison, 251 N. Y. 218; 281 U. S. 635; Ray v. Keene, 19 App. Div. 147; 160 N. Y. 706; Eaton v. Delaware, L. & W. R. R. Co., 57 N. Y. 382; Fay v. DeCamp, 257 N. Y. 407; Curry v. Addoms, 166 App. Div. 433; McConnell v. Morse I. W. & D. D. Co., 187 N. Y. 341; Crispin v. Babbitt, 81 N. Y. 516.) The plaintiff at the time of his injury was assisting an employee of the defendant for the employee’s own personal convenience. (Mandala v. Wells, 212 App. Div. 370; Bernhardt v. American Ry. Express Co., 218 App. Div. 195; Larmore v. Crown Point Iron Co., 101 N. Y. 391; Ryan v. Phipps, 146 App. Div. 642; Fabisiak v. Empire Steel Partition Co., 228 App. Div. 665; 255 N. Y. 593; Buchalski v. Kramer, 243 App. Div. 703; Wirth v. General Railway Signal Co., 136 App. Div. 536; Garthe v. Ruppert, 264 N. Y. 290; Fiesel v. New York Edison Co., 123 App. Div. 676; Mandola v. Wells, 212 App. Div. 370; Williams v. New York Tel. Co., 81 Misc. Rep. 310; 161 App. Div. 942.) No violation of duty to' plaintiff was shown. (Garthe v. Ruppert, 264 N. Y. 290; O’Connor v. Webber, 219 N. Y. 439; Longacre v. Yonkers R. R. Co., 236 N. Y. 119; Dougherty v. Pratt Institute, 244 N. Y. 111.)

      Manly Fleischmann, Alger A. Williams, Philip Halpern and Winton H. Church for respondent.
    The verdict of the jury conclusively establishes plaintiff’s status as an invited volunteer helper in performing defendant’s work. (Nalli v. Peters, 241 N. Y. 177; McLoughlin v. New York Edison Co., 252 N. Y. 202; Atwater v. Lober, 133 Misc. Rep. 652; Ferro v. Sinsheimer Estate, Inc., 256 N. Y. 398;
      Huston v. Dobson, 138 App. Div. 810; Althorf v. Wolfe, 22 N. Y. 355; Houck v. C. & A. Ry. Co., 92 S. W. Rep. 738; Fleischmann Malting Co. v. Mrkacek, 14 Fed. Rep. [2d] 602; Alfrey Heading Co. v. Nichols, 139 Ark. 462; DeHaven v. Hennessey Bros., 137 Fed. Rep. 472; Illinois Central Ry. Co. v. Grifin, 80 Fed. Rep. 278; Mitton v. Cargill Elevator Co., 152 N. W. Rep. 753; Purtell v. Philadelphia Co., 256 Ill. 110; Watteau v. Fenwick, [1893] 1 Q. B. 346; Piwowarski v. Cromwell, 273 N. Y. 226; Quinn v. Power, 87 N. Y. 535; Grimshaw v. Lake Shore & M. S. Ry. Co., 205 N. Y. 371.) Defendant’s violation of its duties to the plaintiff was clearly established. (People v. Pullman, 166 App. Div. 99; Shannahan v. Empire Engineering Corp., 204 N. Y. 543; Scott v. International Paper Co., 204 N. Y. 49; Fuller v. Mulcahy & Gibson, 164 App. Div. 829; Caspersen v. LaSala Bros., 253 N. Y. 491; Hess v. Bernheimer & Schwartz Brewing Co., 219 N. Y. 415; Schumer v. Caplin, 241 N. Y. 346; Robinson v. State, 242 App. Div. 94; Nasca v. St. Mary’s Church, 248 App. Div. 944; Racine v. Morris, 201 N. Y. 240; Pelow v. Oil Well Supply Co., 194 N. Y. 64; Barrett v. Brooklyn Heights R. R. Co., 188 App. Div. 109; Lipari v. Bush Terminal Co., 193 App. Div. 309; 233 N. Y. 546.)
   Lehman, J.

The defendant operates a chain of restaurants and it maintains a meat grinding plant ” in connection with its business. It employs there a foreman, Michael Learner, and three workmen. The plaintiff, a youth under twenty-one years of age, was a friend of one of these workmen, named Kalinowski. Some of the men worked on Sundays but were permitted to leave when they had finished the work assigned to them. On Sunday morning, July 19, 1935, Kalinowski accompanied by the plaintiff went to the meat-grinding plant at about eight o’clock or a little earlier. Learner, the foreman, had not yet arrived. While working there plaintiff’s hand was caught in the worm of a meat-grinding machine and his fingers were cut off. He has recovered a judgment against the defendant for the consequent damages.

The defendant is liable only if the accident was caused by neglect of some duty which it owed to the plaintiff. The evidence is sufficient to sustain the finding of the jury that the machine was improperly constructed and was not provided with suitable safeguards as required by the Labor Law (Cons. Laws, ch. 31, § 256). Doubtless the defendant would be liable for any damages caused by such a defect to a person using such a machine at the request or upon the invitation of the defendant. It would not be liable for injuries to a person who, without the permission of the defendant or its invitation, express or implied, uses a dangerous machine which the defendant furnishes for the use of its employees only. The serious question in this case is whether at the time of the accident the plaintiff was using the machine upon the invitation of the defendant.

The plaintiff was not employed by the defendant. He had not been promised any compensation from the defendant and he did not expect to receive any. He was performing work assigned to Kalinowski and for which Kalinowski was employed. His purpose was to help Kalinowski finish his work early so that they might go swimming together. Kalinowski asked him to help and told him that Learner had said it would be “ O. K.” Kalinowski was of course only a worker in a subordinate position. He had no imphed or apparent authority to hire or invite another to perform work which he was hired to do. The plaintiff relied upon Kalinowski’s invitation but Kalinowski could not by any invitation bind the defendant or place upon the defendant any additional responsibility or duty unless Kalinowski had received authority from the defendant to extend the invitation. The plaintiff maintains that in extending the invitation he was acting with the knowledge and permission of Learner and that Learner had implied and apparent authority to employ or invite others to work in the meat-grinding plant. If in truth Learner had such actual or apparent authority the plaintiff’s recovery can be sustained. (Ferro v. Sinsheimer Estate, Inc., 256 N. Y. 398.)

Kalinowski as a witness for the plaintiff testified that some days before the accident when he was informed that he would be required to work on Sunday morning he asked Learner whether he might bring the plaintiff along to help him. Learner said he didn’t care, but if the bosses come around we will be in a jam or a terrible jam or something like that.” Learner as foreman was in actual charge of the meat-grinding plant which was operated as a separate unit of the defendant’s business. We may assume without further analysis of the testimony that, except as restricted by express limitations imposed by the defendant, Learner had implied authority to act for the defendant in all matters connected with the work carried on in the shop, and had apparent general authority to represent the defendant, subject only to restrictions known to the person with whom Learner might have dealings. The difficulty in this case is that the uncontradicted evidence shows that Kalinowski was informed by Learner that his authority was restricted.

We may reject all the testimony produced by the defendant intended to show that in fact Learner’s authority was narrowly restricted; though there is little substantial contradiction of that testimony. Even so, the inference most favorable to the plaintiff that can be drawn reasonably from Kalinowski’s testimony of his conversation with Learner is that Learner said he would personally raise no objections if plaintiff helped Kalinowski, though that would be a violation of his duty to the defendant which might create trouble for both. Learner did not in that conversation assume to act under authority granted to him by the defendant. On the contrary when he said that “ if the bosses come around we will be in a jam,” he disclosed that he had no such authority.

The defendant did not furnish to plaintiff the machine which caused the injury. If the plaintiff had received proper instructions as to the manner in which the machine should be used, the accident might not have occurred. The plaintiff in using the machine acted upon the invitation and under the instructions of KalinowsM and Kalinowski had no authority to extend the invitation or to give the instructions. For the injuries resulting from the unauthorized use by the plaintiff of a machine which was not furnished to him by the defendant, the defendant is not hable.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


text:
    In the Matter of William C. Dodge, as District Attorney of the County of New York, Appellant, against The Supreme Court of the State of New York et al., Respondents.

      Submitted November 19, 1937;
    decided January 11, 1938.

      William Copeland Dodge, District Attorney (Felix C. Benvenga, Lyon Boston and Bernard Botein of counsel), for appellant.
    The Supreme Court had no jurisdiction of the removal proceedings. (People ex rel. Denibinsky v. Fox, 182 App. Div. 642; People ex rel. Bailey v. McCann, 222 App. Div. 465; People v. Perrin, 170 App. Div. 375; People v. Butts, 121 App. Div. 226; People v. Title G. & T. Co., 180 App. Div. 648; People v. Levy, 24 Misc. Rep. 469; People v. Wade, 26 Misc. Rep. 585; People v. Gantz,
      41 Misc. Rep. 542; People v. Rosenberg, 59 Misc. Rep. 342; People v. Porter, 108 Misc. Rep. 100; People v. Morganstern, 134 Misc. Rep. 127; People v. Horowitz, 145 Misc. Rep. 860; Matter of Gardiner, 31 Misc. Rep. 364; People v. Naughton, 38 How. Pr. 430; People v. Sweeney, 213 N. Y. 37; People ex rel. Devery v. Jerome, 36 Misc. Rep. 256.) All applications and motions with respect to an ex parte order of approval must be made to the court for which the grand jury was drawn and to no other court. (People ex rel. Hirschberg v. Supreme Court, 269 N. Y. 392; People v. Salamone, 221 App. Div. 758; People ex rel. Newton v. Special Term, 193 App. Div. 463; People ex rel. McGowan v. Warden, 155 App. Div. 484.) The Supreme Court is without jurisdiction to vacate the order of approval. (Kamp v. Kamp, 59 N. Y. 212; Willard v. Willard, 194 App. Div. 123; Corbin v. Casina Land Co., 26 App. Div. 408; People v. National Trust Co., 31 Hun, 20; People v. McLaughlin, 150 N. Y. 365; People ex rel, Newton v. Special Term, 193 App. Div. 463; People v. Biddison, 136 App. Div. 525; 199 N. Y. 584; Matter of City of New York v. Every, 231 App. Div. 576; People v. Rao, 271 N. Y. 98; Jones v. Jones, 17 L. J. 170.)

      I. Maurice Wormser, George Gordon Battle and Irving Mariash, in person, and for Joseph Speiser et ah, respondents.
    The order of prohibition should not issue. The Supreme Court had power to entertain and grant the application for a jury trial. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463; People ex rel. Cooley v. Wilder, 234 App. Div. 256; People ex rel. Dembinsky v. Fox, 182 App. Div. 642; People v. Frooks, 190 App. Div. 378; People v. Perrin, 170 App. Div. 375; People v. Warden of Bronx County Jail, 150 Misc. Rep. 801; 239 App. Div. 891; People of City of New York v. Every, 231 App. Div. 576; People v. Dillon, 197 N. Y. 254.)

      John J. Bennett, Jr., Attorney-General, for the Supreme Court of the State of New York et al., respondents.
    The motion for an order of prohibition was properly-denied. (Thomson v. Tracy, 60 N. Y. 31; Matter of Culver Contracting Corp. v. Humphrey, 268 N. Y. 26.) The Supreme Court did not exceed its jurisdiction when it granted the certificate of removal. (Smith v. People, 47 N. Y. 330; Steinhardt v. Baker, 163 N. Y. 410; People v. Washor, 196 N. Y. 104; People v. Humphrey, 122 Misc. Rep. 303; People v. Thorn, 156 N. Y. 286; Martin v. Dry Dock, E. B. & B. R. R. Co., 92 N. Y. 70; Youngman v. New York Indemnity Co., 120 Misc. Rep. 687; Goodell v. Jackson, 20 Johns. 693; Matter of Brown, 21 Wend. 316; Henavie v. N. Y. C. & H. R. R. R. Co., 154 N. Y. 278; Taylor v. Mayor, 82 N. Y. 10; Seligman v. Frielander, 199 N. Y. 373; Matter of Lobbett v. Galpin, 228 App. Div. 65; People ex rel. Swann v. Court of General Sessions, 115 Misc. Rep. 454; People v. Morganstern, 134 Misc. Rep. 127; People v. James, 11 App. Div. 609; People v. Geisman, 149 Misc. Rep. 847; People ex rel. Farley v. Crane, 94 App. Div. 397; People v. Schumann, 146 Misc. Rep. 395; People v. Horowitz, 145 Misc. Rep. 860; People v. Rosenberg, 59 Misc. Rep. 342; People v. Levy, 24 Misc. Rep. 469; People v. Butts, 121 App. Div. 226; People v. Dunne, 140 Misc. Rep. 379.) Where it is clear that the proceedings in one court will not interfere with those in the other, prohibition will not lie. (State v. District Court, 129 Okla. 210; Sutter County v. Superior Court of California, 188 Cal. 292; People ex rel. Swann v. Court of General Sessions, 115 Misc. Rep. 454; People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463; People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Nassoit v. Young, 195 App. Div. 513.)
   Lehman, J.

In October, 1936, Joseph Speiser and Frank White, who had been named as defendants in two informations filed by the District Attorney in the Court of Special Sessions of the City of New York, served upon the District Attorney a notice of motion, returnable at Special Term, Part I, of the Supreme Court, New York county, for an order removing the trial of the two informations to the Court of General Sessions, “ to be tried before that Court and a jury, and vacating and modifying the order heretofore entered herein approving the direction of the Grand Jury that informations be filed and tried in the court of Special Sessions.” The District Attorney appeared on the return day and opposed the motion. Mr. Justice Steuer, who was presiding at Part I, indicated that he would grant the motion. The District Attorney challenged the jurisdiction of the judge to grant the motion and applied to the Appellate Division for an order of prohibition.

The Inferior Criminal Courts Act of the City of New York (L. 1910, ch. 659, as amd. L. 1911, ch. 576, § 31) provides that

“ The court of special sessions shall have jurisdiction as follows:

“ 1. The court shall have in the first instance exclusive jurisdiction to hear and determine all charges of misdemeanor committed within the city of New York, except charges of libel. The court shall, however, be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor in either of the following cases: * * *

“ (c) If, before the commencement of any such trial, a justice of the supreme court in the judicial department where the trial would be had; or, if the charge be triable in the county of New York, a judge authorized to hold a court of general sessions of the peace in and for the county of New York; or, if the charge be triable in another county, a county judge thereof shall certify that it is reasonable that such charge shall be prosecuted by indictment. * * * ”

Section 742 of the Code of Criminal Procedure, as amended by chapter 721 of the Laws of 1926, provides:

All criminal actions in the courts of special sessions in the city of New York must be prosecuted by information made by the district attorney, on returns filed pursuant to section two hundred and twenty-one, or information filed by the district attorney in a misdemeanor case by direction of a grand jury approved, upon order, by the court for which the grand jury was drawn. * * * ”

That section supplements the provisions of section 31 of the Inferior Criminal Courts Act, and together these sections provide the procedure which must be followed in the prosecution of all charges of misdemeanor except charges of libel in the Court of Special Sessions. In all cases the District Attorney must make and sign an information and file it in the Court of Special Sessions. Then the Court of Special Sessions has exclusive jurisdiction to hear and determine the charge unless its jurisdiction is divested by order made in accordance with section 31 of the Inferior Criminal Courts Act. Only where the Court of Special Sessions is divested of the exclusive jurisdiction conferred upon it in the first instance by the statute, may a charge of misdemeanor be prosecuted by indictment and tried before a court and jury.

When section 31 of the Inferior Criminal Courts Act was enacted, the District Attorney could not make and file any information except “ on returns filed pursuant to section two hundred and twenty-one,” i. e., after the accused had been accorded the privilege of a preliminary hearing before a magistrate. The provision in section 742 of the Code of Criminal Procedure which authorizes a prosecution in the Court of Special Sessions by information filed by the district attorney in a misdemeanor case by direction of a grand jury approved, upon order, by the court for which the grand jury was drawn,” was inserted only in 1926. In this case the District Attorney presented the charges of misdemeanor to the grand jury drawn for the Court of General Sessions. The grand jury directed that the District Attorney should file an information in the Court of Special Sessions against the defendants. A judge of the Court of General Sessions approved the direction. The District Attorney now urges that the direction of the grand jury approved by the judge of the Court of General Sessions is a judicial determination that the charge of misdemeanor should be prosecuted by information in the Court of Special Sessions, and that in spite of the express provisions of section 31 of the Inferior Criminal Courts Act, no justice of the Supreme Court has power to divest the Court of Special Sessions of its jurisdiction. It is said that a certificate of a judge that it is reasonable that the charge be prosecuted by indictment would in effect reverse or vacate a judicial determination made in a court of coordinate jurisdiction.

Though a majority of the justices of the Appellate Division agreed that a justice of the Supreme Court had jurisdiction and power to direct that the charge should be prosecuted by indictment and the court, therefore, denied the application for an order of prohibition, the opinion states that the justice making such a certificate was in effect reviewing a judicial act of a judge of General Sessions performed pursuant to the statutory authority of that judge.” The opinion further states that the court is persuaded that we should suggest to the justice below that he direct defendants to apply to the judge of General Sessions, who approved the grand jury’s direction that the charge should be prosecuted by an information to be filed by the district attorney under section 742 so that the matter may be considered by the judge in whose court it arose and was pending, when the approval of that judge was granted.” (249 App. Div. 103, 107.)

If in truth a justice of the Supreme Court who grants a certificate that it is reasonable ” that a charge should be prosecuted by indictment is in effect reviewing a judicial act ” of a judge of another court, then there is much force in the contention of the District Attorney that the Legislature did not intend to give the justice such power. We do not find that the certificate divesting the Court of Special Sessions of jurisdiction to hear and determine a charge of misdemeanor has the effect of vacating or nullifying in whole or in part any judicial proceeding theretofore taken. The purpose of the amendment of section 742 was to permit in proper case the prosecution of a charge of misdemeanor in the Court of Special Sessions by information made without previous proceedings in the Magistrates’ Court. The direction of the grand jury and the order of the Court of General Sessions approving that direction is a determination that no preliminary hearing in the Magistrates’ Court need be had. The power of a grand jury under the statute is confined to giving direction to the District Attorney to file an information in the Court of Special Sessions. When that order is complied with, the Court of Special Sessions becomes vested with exclusive jurisdiction to hear and determine the charge of misdemeanor. The function of the direction of the grand jury approved upon order by the court is then exhausted. The jurisdiction of the Court of Special Sessions is then in all respects the same as if the information had been made on a return filed after a hearing in the Magistrates’ Court. In both cases that jurisdiction may be divested in manner provided in section 31 of the Inferior Criminal Courts Act. The scope of the provision in that section conferring in the first instance exclusive jurisdiction upon the Court of Special Sessions in terms includes all charges of misdemeanor, and the power conferred in the same section upon judges of other courts to divest the Court of Special Sessions of that jurisdiction has the same scope.

The direction of the grand jury to file an information cannot be given effect as a determination that after the information has been filed as directed in the Court of Special Sessions, the charge must be tried in that court and shall not be prosecuted by indictment. The statute gives the grand jury no power to make such determination. A justice of the Supreme Court who thereafter grants a certificate which divests the Court of Special Sessions of its jurisdiction does not vacate, nullify or review the direction of the grand jury previously given and approved. On the contrary, his power to grant such a certificate arises only after the Court of Special Sessions has acquired jurisdiction through the filing of the information, in accordance with the direction of the grand jury. The question which he passes upon is different from the question submitted to the judge of the Court of General Sessions and decided by that judge. Upon this appeal we do not consider whether the indicated decision of the justice of the Supreme Court will be a wise exercise of discretion; we decide only that the statute confers upon him jurisdiction to pass upon an application made by the defendant in accordance with section 31 of the Inferior Criminal Courts Act, and that he is bound to exercise that jurisdiction.

The order should be affirmed, without costs.

Crane, Ch. J., O’Brien, Hubbs, Loughran, Pinch and Rippey, JJ., concur.

Order affirmed.


text:
    Margaret Doyle et al., Plaintiffs, v. Union Railway Company of New York et al., Defendants; City of New York, Appellant, and Hyman Zaslow, Respondent.
    Argued December 1, 1937;
    decided January 11, 1938.

      Paul Windels, Corporation Counsel (Leonard M. Wallstein, Jr., and Paxton Blair of counsel), for appellant.
    A condition upon which the permit was granted to respondent was that the pavement over the excavation would be replaced. Since that condition was breached respondent is liable to the city for the damages paid out by it because of the breach. (Irvine v. Wood, 51 N. Y. 224; Schumacher v. City of New York, 166 N. Y. 103; Mayor v. Troy & L. R. R. Co., 3 Lans. 270; 49 N. Y. 657; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358; City of Rochester v. Rochester Ry. Co., 98 App. Div. 521; Murray v. Cunard, S. S. Co., 235 N. Y. 162; Ell Dee Clothing Co. v. Marsh, 247 N. Y. 392; Argersinger v. Macnaughton, 114 N. Y. 535; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475; Giglio v. New York Tel. Co., 238 App. Div. 503.) By applying for and receiving the permit respondent placed himself under the liability imposed by section 4 of article 1 of chapter 23 of the New York Code of Ordinances. (Shuba v. Greendonner, 271 N. Y. 189; Draper v. Oswego County Fire Relief Assn., 190 N. Y. 12; Continental Nat. Bank v. National Bank, 50 N. Y. 575.)

      Robert H. Charlton for respondent.
    There was no justification in law for the judgment entered against respondent by direction of the trial judge upon the motion of the appellant under its cross-complaint against respondent. (West v. City of New York, 155 Misc. Rep. 688; City of New York v. Corn, 133 App. Div. 1.)
   Lehman, J.

The plaintiff, Margaret Doyle, was injured on March 6, 1932, by falling into a hole or depression in the roadway of Morris avenue in the city of New York. She and her husband, James Doyle, brought action against the city for the consequent damages. On February 17, 1932, the city of New York had opened the street to repair a leak at the place where Mrs. Doyle fell. After the city had made the opening in the street, it discovered that the leak was not in a main owned by it but in a service pipe leading to the premises of an abutting owner. It required the abutting owner to make the necessary repairs. The owner employed the defendants Marshack and Kosachiner, plumbers, who agreed to make the repairs and to replace the pavement. They filled in the hole but it is said that their work was negligently performed. They did not replace the pavement. The defendant city in its answer denied liability to the plaintiff and by cross-complaint it asked judgment over, for any damages it might be compelled to pay, against the plumbers to whose fault the accident wras primarily due, and also against the defendant Zaslow who had no part in making the excavation or in filling up the hole but who obtained in his own name a permit to do the work.

The plaintiffs at the trial produced evidence sufficient, it is conceded, to show negligence on the part of the plumbers in performing the work which they undertook at the request of the abutting owner. The jury brought in a verdict awarding damages to each of the plaintiffs against the city and against the plumbers Marshack and Kosachiner. The trial judge, with the consent of all the parties, reduced the verdicts. Then he passed upon the cross-claims of the city of New York and awarded judgment in favor of the city against the plumbers Marshack and Kosachiner, and also against the defendant Zaslow. None of the defendants appealed from the judgment in favor of the plaintiffs. It was not challenged in the Appellate Division and is not challenged here. The defendant Zaslow appealed to the Appellate Division from the judgment against him in favor of the city. Upon that appeal the Appellate Division reversed that judgment on the ground that since Zaslow had no part either in excavating the street or in filling up the excavation after it was made, he cannot be held responsible for damages caused by the fall of the plaintiff, Margaret Doyle, into the hole.

The only question presented to this court for review is whether the city of New York has made out a cause of action against Zaslow for indemnity against the liability which the plaintiffs have successfully asserted against it. To make out such a cause of action it must show that the damages were the result of a failure by Zaslow to perform some duty which he owed to the city. Upon that point the relevant facts are established either by stipulation of the parties and official documents, or by testimony which is not challenged.

After the city had discovered that the leak was in a service pipe leading to the premises of an abutting owner and had called upon the owner to make the repairs, it turned over the opening in the street to the defendants Marshack and Kosachiner, the plumbers selected by the owner. Marshack obtained from the Department of Water Supply, Gas and Electricity a temporary permit under which he agreed to take over and be responsible for the guarding and maintenance of the opening made by the Department of Water Supply, Gas and Electricity from the time of signing this agreement, and within 24 hours from the date hereof, apply to the President of the Borough for a permit to open the street and arrange for the replacing of the pavement.” The plumbers made the necessary repairs and then refilled the excavation made by them in the sidewalk, and also refilled the excavation which the city had made in the roadway, the same day, February 18, 1932.

In accordance with the agreement upon which the temporary permit had been issued, they were still required to apply for a permit to open the street and arrange for the replacing of the pavement.” Instead of applying for such a permit, Marshack requested the defendant Zaslow to take out the permit in his own name. Marshack testified that the reason was “ because * * * I wasn’t feeling good, and the time was getting short.” His partner, Kosachiner, was not a licensed plumber, and Marshack could obtain a permit, it appears, only by personal application and personal agreement to perform the work. The city suggests that the real reason why Marshack requested Zaslow to apply for the permit is that Zaslow was a bonded plumber, while Marshack though a licensed plumber was not bonded, and a permit might have been refused to Marshack unless he furnished a bond. Whatever may have been the reason, Zaslow, and not Marshack, obtained the permit, though Marshack paid the fee, and the permit was handed over to him by Zaslow.

An ordinance of the city of New York provides: “ In all cases where any person shall perform any of the work mentioned in the preceding section, either under contract ivith the city or by virtue of permission obtained from any department, board or officer of the city, such person shall be answerable for any damage which may be occasioned to persons, animals, or property by reason of carelessness in any manner connected with the work.” (New York Code of Ordinances, ch. 23, art. 1, § 4.)

The work “ mentioned in the preceding section ” includes opening a street. The permit issued to Zaslow grants to Zaslow permission to open the street or sidewalk. It is expressly made “ subject to the strict observance of all laws, ordinances, and regulations enacted for the protection of the city so far as they may apply, and particularly to those set forth on the reverse side of this instrument.” On the reverse side it appears that “this permit is granted on the following conditions: * * * That the pavement over the excavation be replaced immediately after the connection or repairs have been made, * * * ” and there follow extracts from ordinances of the city relating to the manner in which excavations must be made, and thereafter must be filled in and the pavement relaid.

While it is true that the defendant Zaslow did not do the work which, if performed negligently, would cast liability upon him for consequent damages, it is also true that the permit was granted to him upon the express condition that he would perform the work. The city requires a permit for the purpose of assuring that the work will be done by a competent and responsible plumber. The purpose of a permit is defeated if a plumber receiving such a permit may hand over the permit to another person and then may wash his hands of responsibility for negligent performance of the work or failure to comply with the conditions upon which the permit was issued. The defendant Zaslow in this case having obtained a permit on condition that he would replace the pavement over an excavation, assumed the burden of complying with that condition. The city relied upon his carrying out that condition, and as a result the city has incurred liability. Since the city was cast in damages by justified reliance upon performance by Zaslow of a duty which he voluntarily assumed, the city is entitled to indemnity.

Judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., O’Brien, Hubbs, Loughran and Finch, JJ., concur; Rippey, J., dissents.

Judgment accordingly.


text:
    Ellen Ledeber et al., as Trustees, Appellants, v. Wise Shoe Company, Inc., et al., Respondents.
    Argued December 7, 1937;
    decided January 11, 1938.

      Harold R. Medina, William F. McNulty and Arthur M. Loeb for appellants.
    The Special Term lacked jurisdiction to entertain the defendants’ motion for summary judgment. (Felberose Holding Corp. v. New York Rapid Transit Corp., 244 App. Div. 427; Tracy v. Danzinger, 249 App. Div. 46; Bethlehem Knitting Mills, Inc., v. Karpen & Bros., 249 App. Div. 855; People v. Long Island R. R. Co., 194 N. Y. 130; People ex rel. Mason v. McClave, 99 N. Y. 83.) The order entered in the United States District Court was not res adjudicóla. (Cumberland Glass Co. v. DeWitt, 237 U. S. 447; Matter of Hollins, 229 Fed. Rep. 349.) The defendants’ contention that there was an accord and satisfaction of the claim presently sought to be enforced presents an issue of fact to be determined at the trial and not on a motion for summary judgment. (Rector v. Hartford Deposit Co., 190 Ill. 380; Kelly v. Lehman, 297 Ill. 33; Estate-Washington Stores Co. v. Walgreen, 272 Ill. App. 383; McIlvaine v. Foreman, 292 Ill. 224; Schuttinger v. Woodruff, 259 N. Y. 212; Post v. Thomas, 212 N. Y. 264; Manee v. Hossington, 205 N. Y. 33; Nassoiy v. Tomlinson, 148 N. Y. 326; Schnell v. Perlmon, 238 N. Y. 362; Hills v. Sommer, 53 Hun, 392; Post v. Thomas, 212 N. Y. 264; Fire Ins. Assn. v. Wickham, 141 U. S. 564; Hudson v. Yonkers Fruit Co., 258 N. Y. 168; Equitable Holding Corp. v. Woody, 63 Fed. Rep. [2d] 751.)

      Samuel Seabury, David W. Kahn and Nathan Friedman for respondents.
    Upon the undisputed facts there was an accord and satisfaction. (Jackson v. Volkening, 81 App. Div. 36; 178 N. Y. 562; Post v. Thomas, 212 N. Y. 264; Le Page v. Lalance & Grosjean Mfg. Co., 98 App. Div. 179; Nassoiy v. Tomlinson, 148 N. Y. 326; Brassel v. Electric Welding Co., 239 N. Y. 78; Fuller v. Kemp, 138 N. Y. 231; Gould v. Cayuga County Nat. Bank, 86 N. Y. 75; Me Naught v. Equitable Life Assur. Society, 136 App. Div. 774; Urtz v. N. Y. C. & H. R. R. R. Co., 137 App. Div. 404; Allison v. Abendroth, 108 N. Y. 470; Shaw v. D., L. & W. R. R. Co., 126 App. Div. 210; Schuttinger v. Woodruff, 259 N. Y. 212; Matter of Byrne v. Padden, 248 N. Y. 243; Hotaling v. Canton Art Metal Co., 95 Misc. Rep. 525.) The admitted facts establish the defense of res adjudicóla and preclude plaintiff from questioning, in this action, the propriety of the transfer of the remaining assets of the bankrupt. (Æina Casulty & Surety Co. v. Tramley, Inc., 260 N. Y. 280.) Where the facts alleged as a defense are established by documentary evidence or official record, and such facts constitute a valid defense in law, the defendant is entitled to a summary dismissal of the complaint. (Pross v. Foundation Properties, Inc., 158 Misc. Rep. 304; Mantell v. Borenstein, 246 App. Div. 602.)
   Lehman, J.

The plaintiff challenges the bona fides of the transfer of the assets of the defendant Wise Shoes, Inc., to the defendant Wise Shoe Company, Inc., and has brought an action to set aside the transfer. The defendants pleaded in their answer a general denial and affirmative defenses including a defense of accord and satisfaction and a defense that the transfer of the assets of the defendant, Wise Shoes, Inc., to the defendant, Wise Shoe Company, Inc., which is the subject matter of the complaint herein, was made as an integral part of the composition offered in the aforementioned bankruptcy proceeding and was made under and pursuant to the express provisions of the decree of the said United States District Court for the Southern District of New York of July 7, 1932,” and that under and pursuant to the decree of the bankruptcy court the plaintiff can assert no claim against the assets so transferred. Then the defendants moved for summary judgment dismissing the complaint in accordance with the provisions of rule 113 of the Rules of Civil Practice.

Upon that motion the defendant annexed to the affidavits submitted to the court documentary evidence and copies of official records intended to establish the defenses pleaded. To analyze the evidence and to consider in detail the challenge of the plaintiffs to its sufficiency would require a lengthy opinion which would serve little purpose in establishing or clarifying any rules of law of general application. We have examined all the contentions of the appellants and we have concluded that the courts below have correctly decided that documentary evidence and official records of the bankruptcy court conclusively establish the defenses pleaded and that there is no issue with respect to the verity and conclusiveness of such documentary evidence and official records. The question remains, however, whether, in an action in equity to set aside a transfer on the ground of fraud, a defendant is entitled to summary judgment without a trial in open court in any case — even where a defense can be conclusively established by documentary evidence or official records.

Under common law practice the truth of allegations contained in a complaint, or of denials contained in an answer, could be determined only after a trial. The denials might be sham, the allegations of the complaint might be pleaded recklessly or with knowledge of their falsity, none the less, if they conformed to the technical requirements of common law or equity pleading the truth could be established only by evidence produced and weighed at a trial. Formalism resting upon ancient tradition was the sole recognized test of the sufficiency of a complaint or answer and, also, of the sufficiency of the evidence required to sustain or defeat a cause of action alleged in a pleading which could withstand the formal test.

In the Civil Practice Act and the Rules of Civil Practice we are attempting to simplify our practice and to eliminate technicalities and formalism which serve no useful purpose. In 1921 rule 113 introduced into the practice of this State summary judgment granted “ on motion, and the affidavit of a party, an innovation which had been found to work successfully in England. The English Practice Act authorized such motions within a broad field; in this State the experiment was at first confined to a very narrow field. The rule as originally adopted provided that in an action to recover a debt or liquidated demand, arising on a contract or in an action to recover a debt or liquidated demand, arising on a judgment for a stated sum, “ the answer may be struck out and judgment entered thereon on motion * * The new remedy was not available to a defendant and was available to a plaintiff only in the two classes of action specified. In 1932 the rule was amended. Under the terms of the amended rule summary judgments in favor of a plaintiff might be granted on motion in six additional classes of actions, including some actions where damages are not liquidated and some actions for equitable relief. An action in equity to set aside a transfer of property is, however, not included in these additional classes of actions.

In 1933 the rule was again amended to make the remedy available also to a defendant. The question in this case is whether the rule as then amended makes the remedy available to a defendant not only in the actions specified in the rule, but in any action.

Upon that question there has been diversity of opinion in the Appellate Division of this State. Undoubtedly the right of a plaintiff to move upon affidavits for summary judgment, striking out an answer, is confined to the actions specified in the eight enumerated subdivisions of the rule, and the correlative right granted to a defendant, to move upon affidavits for judgment dismissing a complaint, is similarly limited. That correlative right is conferred by amendment to the paragraphs of the rule which provided and defined the right of the plaintiff, but the rule as amended contains an additional paragraph which, in terms, seems to confer upon a defendant an additional right to move for summary judgment in any action. It is that paragraph which we must construe.

That paragraph provides: Where an answer is served in any action setting forth a defense which is sufficient as a matter of law, where the defense is founded upon facts establishéd prima facie by documentary evidence or official record, the complaint may be dismissed on motion unless the plaintiff by affidavit, or other proof, shall show such facts as may be deemed by the judge hearing the motion, sufficient to raise an issue with respect to the verity and conclusiveness of such documentary evidence or official record.”

In Felberose Holding Corp. v. New York Rapid Transit Corp. (244 App. Div. 427), second department, the court held that the rule in all its parts was intended to apply only to the classes of actions specified in its opening subdivisions and paragraph, and that this limitation must be read into the new paragraph. (Cf. Tracy v. Danzinger, 249 App. Div. 46, third department.) In the first department it has been held that the additional paragraph has a broader scope. In Pross v. Foundation Properties, Inc. (158 Misc. Rep. 304), Mr. Justice Shientag exhaustively considered the question and so decided. We agree with that construction.

The new paragraph authorizes a summary judgment only where the motion is made by a defendant; where the “ defense * * * is sufficient as a matter of law;” where it is 1 founded upon facts established prima facie by documentary evidence or official record;” and where the plaintiff fails to show facts * * * sufficient to raise an issue with respect to the verity and conclusiveness of such documentary evidence or official record.” Where proof is dependent upon affidavits made by persons not subject to cross-examination, sound reason may be found for limiting summary judgment to classes of action deemed appropriate. It is difficult to find any reason for imposing such a limitation where a legal defense is established by documentary evidence or official record and there is no issue about the verity or conclusiveness of the proof.

The new paragraph was intended, it is clear, to confer upon a defendant some right to summary judgment not conferred by the paragraphs which go before. A limitation, either express or implied, of the scope of that paragraph to the classes of action in which summary judgment might be granted under the earlier paragraph would render the additional paragraph meaningless. We do not by implication read into a clause of a rule or statute a limitation for which we find no sound reason and which would render the clause futile.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Per Curiam.

text:
    South Shore Thrift Corporation, Appellant and Respondent, v. National Bank of Far Rockaway, Respondent and Appellant.

      Argued December 8, 1937;
    decided January 11, 1938.

      Joseph F. Finkelstein for defendant, respondent and appellant.
    The judgment in the prior action is res adjudicata. (Barber v. Kendall, 158 N. Y. 401; National Fire Ins. Co. v. Hughes, 189 N. Y. 84; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304.) A pledgorpledgee relationship is one of trust; an action for an equitable accounting did lie, and leave to proceed with a law action was error. (Barber v. Hathaway, 47 App. Div. 165; 169 N. Y. 575; Wheeler v. Newbould, 16 N. Y. 392; Morris v. Windsor Trust Co., 213 N. Y. 27; Simpson v. Jersey City Contracting Co., 165 N. Y. 193; Warner v. Fourth Nat. Bank, 115 N. Y. 251.)

      Donald L. Newborg for plaintiff, appellant and respondent.
    The issues in this action are not res adjudicata. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Sielcken-Schwarz v. American Factors, Ltd., 265 N. Y. 239; Reynolds v. Ætna Life Ins. Co., 160 N. Y. 635; Rudd v. Cornell, 171 N. Y. 114; Griffen v. Keese, 187 N. Y. 454; Ney v. Zimmerman, 207 App. Div. 195; Becherer v. Keefe, 259 N. Y. 298; Stowell v. Chamberlain, 60 N. Y. 272; Belden v. State, 103 N. Y. 1; Bedford Ice Palace, Inc., v. Brooklyn Trust Co., 246 App. Div. 734; Marine Transit

      Corp. v. Switzerland General Ins. Co., 263 N. Y. 139; People ex rel. Vil. of Chateaugay v. Pub. Serv. Comm., 255 N. Y. 232; Jasper v. Rozinski, 228 N. Y. 349.) The Appellate Division erred in dismissing the complaint since this action lies in equity. (Earle v. N. Y. Life Ins. Co., 7 Daly, 303; 74 N. Y. 618; Toplitz v. Bauer, 161 N. Y. 325; Wheeler v. Newbould, 16 N. Y. 392; Gillet v. Bank of America, 160 N. Y. 549; Stern & Co. v. Pizitz, 240 App. Div. 509; Kono v. Roeth, 237 App. Div. 252; First Trust & Deposit Co. v. Potter, 155 Misc. Rep. 106; Dibert v. D’Arcy, 248 Mo. 617; Fur & Wool Trading Co. v. Fox, Inc., 245 N. Y. 215; Marvin v. Brooks, 94 N. Y. 71; Schantz v. Oakman, 163 N. Y. 148; Symmers v. Carroll, 207 N. Y. 632; Rhodes v. Little Falls Dairy Co., 230 App. Div. 571; 256 N. Y. 559; Dalton v. Smith, 86 N. Y. 176; Buder v. N. Y. Trust Co., 82 Fed. Rep. [2d] 168.)
   Per Curiam.

In the prior action the plaintiff contended that the transfer of the collateral by the bank was invalid, and asserted a right to the return of the collateral. The person to whom the transfer was made was a defendant in that action, and upon his motion summary judgment in his favor was entered “ dismissing the complaint in its entirety.” The defendant bank did not join in that motion, and no judgment in its favor was entered. Then the plaintiff began this action asking an accounting from the bank of the proceeds of the transfer, which it has received. The defendant bank has moved for summary judgment dismissing the complaint.

The defendant urges that the plaintiff pleaded, or attempted to plead, in the prior action not only a cause of action for the return of the collateral but also a cause of action for an accounting. By meticulous analysis and broad construction of the complaint in the prior action, perhaps a cause of action against the bank for an accounting might be spelled out, though such a cause of action would be inconsistent with the cause of action against the codefendant of the bank for the return of the collateral. In this case no such analysis would be appropriate. Upon this appeal, as upon the appeal to the Appellate Division, the parties ask the court to treat the prior judgment, entered upon the motion of the codefendant, dismissing the complaint on the merits, “ in its entirety ” as a judgment in favor of and conclusive of the defendant bank, also. The court, upon that motion, was bound to grant judgment dismissing the complaint if it failed to allege a cause of action against the moving party. It could not consider whether an inconsistent cause of action against the bank could be spelled out. The judgment of dismissal cannot be construed to cover such a cause of action.

We hold with the Appellate Division that the judgment in the prior action was not res judicata. We are of the . opinion, however, that the complaint states a cause of action in equity by plaintiff as pledgor against the defendant as pledgee to recover the balance received upon the sale of the mortgage pledged over and above the amount owing by the plaintiff to the defendant. The complaint alleges that the defendant wrongfully applied such balance (the amount of which is unknown to the plaintiff) to reduce or satisfy the debt of a third party to the defendant, for the payment of which debt the plaintiff was not liable. It also alleges that the defendant has refused to give plaintiff a statement of the account after demand therefor. The complaint states a cause of action in equity. (Fur & Wool Trading Co. v. Fox, Inc., 245 N. Y. 215.)

The judgment of the Appellate Division and that of the Special Term should be reversed and the motion denied, with costs in all courts.

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

Judgments reversed, etc.


text:
    In the Matter of Thomas P. Archbold, Individually and as President of Fire Lieutenant Eligibles Association of Greater New York, et al., Appellants, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents; and Thomas F. Lee, Intervener, Respondent.
    Argued September 27, 1937;
    decided November 16, 1937.

      Albert De Roode for appellants.

      Reginald Field for intervener, respondent.

      Paul Windels, Corporation Counsel (Arthur Bainbridge Hoff, Paxton Blair and Thomas W. A. Crowe of counsel), for defendants, respondents.

      Francis L. Field and Roy P. Monahan for Disabled American Veterans of the World War, Department of New York, amicus curiæ.

   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Robert Y. Clark et al., Copartners under the Name of Clark & Davis, Respondents, against Reed W. Smith, as Comptroller of the Town of Harrison, Appellant.
    Submitted October 4, 1937;
    decided November 16, 1937.

      Conrad H. Sullivan, Town Attorney, for appellant.

      William D. Cunningham and Frank M. Gagliardi for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Silinonte, Appellant.
    Argued October 6, 1937;
    decided November 16, 1937.

      Joseph E. North for appellant.

      George A. King, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Helen Morton et al., Respondents, v. American Security and Trust Company, as Trustee under the Will of Anna L. Morton, Deceased, et al., Respondents, and Lewis P. Morton et al., Appellants.
    Argued October 7, 1937;
    decided November 16, 1937.

      Ralph Royall and Clinton D. Van Valkenburgh for William H. Minor, Jr., appellant.

      Francis R. Appleton, Jr., C. C. Turner, Jr., T. F. Davies Haines and Gerhard R. Gerhard for Lewis P. Morton et al., appellants.

      Walter D. Fletcher, Wm. M. Hobson and Atwood H. Miller for plaintiffs, respondents.

      Joseph W. Goodwin for Guy G. Rutherfurd, defendant, respondent.

      John Caldwell Myers and John M. Whelan for Helen L. C. Eustis, defendant, respondent.
   Judgment affirmed, with costs; no opinion. (See 276 N. Y. 601.)

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


text:
    Frances B. Doell, as Administratrix of the Estate of Andrew Doell, Deceased, Appellant, v. Lena Bull et al., Respondents. A. D. Realty Corporation, Respondent, v. Frances B. Doell, as Administratrix of the Estate of Andrew Doell, Deceased, Appellant.
    Submitted October 8, 1937;
    decided November 16, 1937.

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

      Meyer Kirschenbaum for defendants, respondents and plaintiff, respondent.
   In each action: Appeal dismissed, with costs, because no final judgment has been entered. The court has granted leave to appeal which will permit an appeal to be taken after the entry of final judgment. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Salvatore Ossido, Appellant.
    Argued October 8, 1937;
    decided November 16, 1937.

      James F. Ryan and Victor L. Anfuso for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. John J. Dooley, Appellant.
    Argued October 11, 1937;
    decided November 16, 1937.

      Jacob W. Friedman and Fred D. Kaplan for appellant.

      William Copeland Dodge, District Attorney (Edwin J. Talley of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Mary Lehrman, Respondent.
    Argued October 11, 1937;
    decided November 16, 1937.

      John J. Bennett, Jr., Attorney-General (Sol Ullman of counsel), for appellant.

      Harold R. Medina, Irving Payson Zinbarg and William F. McNulty for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Peter P. Danzilo, Appellant.
    Submitted October 11, 1937;
    decided November 16, 1937.

      John L. Danzilo and James C. Danzilo for appellant.

      William F. X. Geoghan, District Attorney (Harry S. Sullivan of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frances Sowinski et al., Defendants, and Joseph Serrianni, Appellant.
    Argued October 11, 1937;
    decided November 16, 1937.

      Samuel M. Fleischman for appellant.

      Raymond A. Knowles, District Attorney, for respondent.
   Judgments reversed and new trial ordered. The testimony of the witness Richelli fails to connect the appellant with the commission of the crime. No opinion.

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


text:
    Pennsylvania Oil Products Refining Company, Respondent, v. Willrock Producing Company, Inc., et al., Defendants, and First National Bank of Olean, Appellant.
    Argued October 11, 1937;
    decided November 16, 1937.

      Earl C. Vedder for appellant.

      Austin W. Erwin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John W Kenna, Appellant, v. Daily Mirror, Inc., et al., Respondents. Anna Kenna, Appellant, v. Daily Mirror, Inc., et al., Respondents.
    Argued October 12, 1937;
    decided November 16, 1937.

      Richard J. Mackey for appellants.

      Charles Henry and Manheim Rosenzweig for respondent.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Francis Carroll, Respondent.
    Submitted October 12, 1937;
    decided November 16, 1937.

      L. Barron Hill, District Attorney (Lindsay R. Henry and Harry C. Brenner of counsel), for appellant.

      Philip Kodner for respondent.
   Order affirmed; no opinion.

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


text:
    Howard Drennen, Appellant, v. Dansville and Mount Morris Railroad Company, Respondent.
    Argued October 12, 1937;
    decided November 16, 1937.

      Austin W. Erwin and Angelo P. Spezzno for appellant.

      George D. Newton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Violet E. H. Hess, Respondent, v. Nathaniel J. Hess, Appellant.
    Argued October 12, 1937;
    decided November 16, 1937.

      Howard Myers and Saul S. Myers for appellant.

      Sol A. Rosenblatt, William B. Jaffe and Julian B. Rosenthal for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nathan N. Stark, Respondent, v. Title Guarantee and Trust Company, Appellant.
    Submitted October 12, 1937;
    decided November 16, 1937.

      Richard S. Holmes, Flynn L. Andrew, Wilber Stammler and Eugene Z. DuBose for appellant.

      Harold P. Seligson, Morton E. Yohalem, J. N. Wasserman and R. J. Schosberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nancy Sessa, Appellant, v. Brooklyn and Queens Transit Corporation, Respondent.
    Submitted October 12, 1937;
    decided November 16, 1937.

      Joseph Logomasini for appellant.

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

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


text:
    Joseph Lewis, Appellant, v. Board of Education of City of New York, Respondent.
    Argued October 13, 1937;
    decided November 16, 1937.

      Joseph Wheless for appellant.

      Paul Windels, Corporation Counsel (Nicholas Bucci and Paxton Blair of counsel), for respondent.
   Appeal dismissed, without costs, as no constitutional question is involved which entitles the appellant to come directly to this court from Special Term. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph A. Codd, Appellant.
    Argued October 14, 1937;
    decided November 16, 1937.

      M. Edward Kaye for appellant.

      Walter C. Newcomb, District Attorney (W. J. Wetherbee of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Patrick J. Farrell, Appellant, v. Jacob Waldman et al., Doing Business under the Name of Concourse Baking Company et al., Respondents.
    Argued October 14, 1937;
    decided November 16, 1937.

      Charles P. Robinson and Frederick C. Bangs for appellant.

      Jacob Raphael and Julius D. Tobias for Louis Krulick et al., respondents.
   Judgment affirmed, without costs; no opinion. (See 276 N. Y. 610.)

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


text:
    Mildred E. Powley, Respondent, v. State Mutual Life Assurance Company of Worcester, Appellant.
    Argued October 14, 1937;
    decided November 16, 1937.

      Louis P. Galli and William J. Moran for appellant.

      Theodore J. Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dave Abrams, Inc., et al., Respondents, v. City of Buffalo et al., Appellants.
    Argued October 14, 1937;
    decided November 16, 1937.

      Gregory U. Harmon, Corporation Counsel (Charles S. McDonough of counsel), for appellants.

      Milton H. Friedman, Philip Halpern and Emil L. Cohen for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph F. Crowley, Appellant, v. Fifth Avenue Coach Company, Respondent. William E. Phillips, Appellant, v. Fifth Avenue Coach Company, Respondent.
    Argued October 14, 1937;
    decided November 16, 1937.

      Fred P. Harrington, Louis P. Brown and John F. Mulvey for appellants.

      Henry J. Smith and Joseph L. Zelaskow for respondent.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of Alexander Burke, Deceased. Katherine Burke, as Executrix of Alexander Burke, Deceased, Respondent; Miriam Emmerich et al., Appellants.
    Argued October 14, 1937;
    decided November 16, 1937.

      William E. Kennedy, James Adikes and Elias H. Avram for appellants.

      Arthur Morris and Morris Okoshken for respondent.
   Order affirmed, with costs payable out of the estate. No opinion.

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


text:
    Michael P. Kosolapoff, Appellant, v. Petrogradsky Mejdunarodny Kommerchesky Bank, Respondent.
    Argued October 14, 1937;
    decided November 16, 1937.

      Franklin F. Russell for appellant.

      Paul C. Whipp for respondent
   Judgment affirmed, with costs; no opinion

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


text:
    Jane Rechtweg, an Infant, by Dorothy C. Rechtweg, Her Guardian ad Litem, et al., Respondents, v. Kenelmn H. Eden et al., Constituting the Board of Water Commissioners of the Manhasset-Lakeville Water District, et al., Defendants, and Manhasset-Lakeville Water District et al., Appellants.
    Argued October 14, 1937;
    decided November 16, 1937.

      Daniel Mungall and E. C. Markell for John Morgan, Inc., appellant.

      H. H. Brown and James E. Turner for Manhasset-Lakeville Water and Eire Districts, appellants.

      Richard C. Cotter for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    George Gise et al., Infants, by Hannah Kenny, Their Guardian ad Litem, Appellants, v. Brooklyn Society for the Prevention of Cruelty to Children, Respondent.
    Argued October 15, 1937;
    decided November 16, 1937.

      George F. Curtis for appellants.

      Harry G. Hill and Dimitri G. S. Eristoff for respondent.
   Judgment affirmed, without costs. Motion dismissed, without costs. No opinion.

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


text:
    Joseph C. Gessner et al., Appellants, v. City of New York, Respondent.
    Submitted October 15, 1937;
    decided November 16, 1937.

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

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


text:
    John Walzer, as Assignee of Irving Trust Company, Trustee in Bankruptcy of Olivit Bros., Inc., Respondent, v. Manufacturers Trust Company, Appellant.
    Submitted October 15, 1937;
    decided November 16, 1937.

      Leonard G. Bisco, Henry Landau and Jacob Wahrhaftig for appellant.

      Bernard Gordon, Howard W. Fensterstock and Harry J. Beethoven for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alwin Pauli, as Administrator of the Estate of Esther M. Pauli, Deceased, Respondent, v. Kenneth Carncross, Appellant, Impleaded with Others. Alwin Pauli, as Administrator of the Estate of Esther M. Pauli (2nd), Deceased, Respondent, v. Kenneth Carncross, Appellant, Impleaded with Others. Margaret Pauli, an Infant, by Alwin Pauli, Her Guardian ad Litem, Respondent, v. Kenneth Carncross, Appellant, Impleaded with Others. Alwin Pauli, Respondent, v. Kenneth Carncross, Appellant, Impleaded with Others.
    Argued October 15, 1937;
    decided November 16, 1937.

      Alfred M. Saperston for appellant.

      Harold J. Tillou for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Leslie A. Huntington, as Trustee in Bankruptcy of South Shore Co-operative Association, Inc., Appellant, v. John Davidson, Respondent.
    Argued October 18, 1937;
    decided November 16, 1937.

      Robert N. Palmer for appellant.

      J. Carlisle Swaim for Virginia-Carolina Chemical Corporation, amicus curise.

      Glenn W. Woodin for respondent.
   Judgment affirmed, with costs. The affirmance is on the ground that the Statute of Limitations has run against the claim. The court does not pass on any other question. No opinion.

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


text:
    Mart V. Love, as Administratrix of the Estate of Timothy A. Love, Deceased, Respondent, v. Baltimore and Ohio Railroad Company, Appellant.
    Argued October 18, 1937;
    decided November 16, 1937.

      William C. Combs for appellant.

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

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


text:
    John T. Castle, Appellant, v. Fire Island Holding Corporation, Respondent.
    Argued October 18, 1937;
    decided November 16, 1937.

      Richard Krause and Thomas F. Peterson for appellant.

      Russel H. Kittel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., O’Brien, Hubbs, Lotjghran, Finch and Rippey, JJ. Not voting: Lehman, J.


text:
    Josephine Fencl, Individually and as Guardian ad Litem of Antonia Fencl, an Infant, Respondents, v. Nelson Bros. Coal Company, et al., Appellants.
    Submitted October 18, 1937;
    decided November 16, 1937.

      William B. Davis, William J. Magee and James E. Turner for appellants.

      Arthur N. Seiff and Elliott Lasher for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Abraham Gross, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.
    Argued October 19, 1937;
    decided November 16, 1937.

      James D. Ewing, Robert E. McCormick and Christian H. Genghof for appellant.

      David Goldstein and Thomas Gold Frost for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bernard Rowley, as Public Welfare Officer of the Town of Fabius, Appellant, v. J. Garfield Fuller et al., as Executors of Jennie L. Fuller, Deceased, Respondents.
    Argued October 19, 1937;
    decided November 16, 1937.

      Gustav P. Blaustein for appellant.

      Cleveland J. Kenyon for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Leon R. Cooper, Appellant, v. Village of Brockport, Respondent. Mary E. Cooper, Appellant, v. Village of Brockport, Respondent. William F. Cooper, Appellant, v. Village of Brockport, Respondent.
    Argued October 19, 1937;
    decided November 16, 1937.

      Arthur B. Curran for appellants.

      Charles W. Green, James Mann, Clarence L. Burton and Eugene F. Lester for respondent.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    Regal Shoe Company, Appellant, v. General Outdoor Advertising Co., Inc., Respondent.
    Argued October 19, 1937;
    decided November 16, 1937.

      John E. Stone, Adolph Bloch and Henry Bloch for appellant.

      Edward E. Weadock, Emerson F. Davis and Daniel S. Murphy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jane V. West, Plaintiff, v. City of New York, Respondent, and Starrett Bros., Inc., Appellant, Impleaded with Others.
    Argued October 18, 1937;
    decided November 16, 1937.

      Walter L. Glenney for appellant.

      Paul Windels, Corporation Counsel (James Hall Prothero and Paxton Blair of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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