author: Loughran, J.

text:
    In the Matter of John E. Dorsa, Appellant, against Russell Forbes, as Commissioner of Purchase of the City of New York, Respondent.

      (Argued March 2, 1936;
    decided April 14, 1936.)

      Samuel M. Ostroff and Charles L. Raskin for appellant.
    Section 1752 of the Charter of the City of New York (L. 1901, ch. 466), as amended by chapter 829 of the Laws of 1933, did not abolish appellant’s position, and reversible error was committed in holding that that amendment did abolish the position. (Matter of Rochester Water Commrs., 66 N. Y. 413; People ex rel. Killeen v. Angle, 109 N. Y. 564.) Appellant’s position not having been abolished by the amendment, his removal was in contravention of the provisions of section 22 of the Civil Service Law (Cons. Laws, ch. 7). (People ex rel. Fallon v. Wright, 150 N. Y. 144; Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Kiernan v. Ingersoll, 265 N. Y. 553.)

      Paul Windels, Corporation Counsel (Edmund L. Palmieri and Paxton Blair of counsel), for respondent.
    The termination of the appellant’s services by the respondent was effected in good faith on account of lack of work and such termination did not infringe upon any right of the petitioner as a veteran under section 22 of the Civil Service Law. (Laws of 1933, ch. 829; Helvering v. New York Trust Co., 292 U. S. 455; People ex rel. Chappel v. Lindenthal, 173 N. Y. 524; Matter of Devins v. Sayer, 233 N. Y. 690; People ex rel. De Vito v. Sayer, 233 N. Y. 615; People ex rel. Davison v. Williams, 213 N. Y. 130; Matter of Clancy v. Halleran, 263 N. Y. 258.)
   Loughran, J.

The relator is a veteran of the World war. On August 15, 1925, he was appointed to the position of inspector in the Department of Purchase of the City of New York and assigned to the work of inspecting meats delivered to the Department of Correction at Welfare island. He continued in that service until January 20, 1934, when he received from the defendant, the Commissioner of Purchase, a written notice as follows: This is to inform you that your name is being removed from the payroll of this department as of the close of business today, Saturday, January 20. As you know, responsibility for inspection of all deliveries is now vested in the Finance Department, in accordance with Chapter 829 of the Laws of 1933.”

The statute cited by the Commissioner amended the Greater New York Charter (Laws of 1901, ch. 466) so as to redistribute the authority to procure supplies, materials and equipment for the different units of the city government. The legislative purpose was to concentrate the purchasing power in a reorganized department of purchase. As a restraint on the exercise of that centralized duty, the statute provides that Inspection * * * of all deliveries of supplies, materials and equipment shall be made by the department of finance and the duty and jurisdiction therefor, now vested in the various departments, bureaus, boards, offices, officers, commissions and institutions is hereby transferred to the department of finance, any other provisions of law to the contrary notwithstanding.” (Greater New York Charter, § 1752, added by Laws of 1933, ch. 829, as amd. by Laws of 1934, ch. 761.) This provision, the Commissioner claims, abolished the position of the relator and so the courts below have ruled.

We agree that the position of the relator had become unnecessary in the Department of Purchase' and that there was no place for him in that department when he was dismissed. We do not assent to the conclusion that he was necessarily without any remedy.

An honorably discharged soldier is not to be removed “ except for incompetency or misconduct shown after a hearing upon due notice upon stated charges.” (Civil Service Law [Cons. Laws, ch. 7], § 22.) Though the work of the relator was no longer needed in the department to which he had been appointed, he was not to be discharged from the service of the city, but was to be transferred to any branch thereof for duty in such position as he was fitted to fill; and it was the duty of the Commissioner to make such transfer effective. (Id.) We think there may have been a failure in this proceeding to recognize the full measure of a privilege thus seemed by law to veterans.

Work that had been performed by the relator remained to be done by someone. (Cf. People ex rel. Chappel v. Lindenthal, 173 N. Y. 524.) The Commissioner concedes that “since January 13, 1934, the inspection of meats and foods, being the work theretofore performed by this petitioner at the storehouse on Welfare Island, was taken over and thereafter performed and continued to be performed down to the present time by the department of finance.” Who was substituted for the relator the record does not show. In that aspect, all that is disclosed is that in January, 1934, there were two inspectors of food on the staff of the Department of Finance and that thirteen such inspectors were thereafter transferred to that department from the Department of Hospitals. Whether thereby others were unlawfully preferred over the relator does not appear. On these facts, in om judgment, there should be a decision of the question whether the statutory rights of the relator have been denied to him.

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

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

Orders reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Rockefeller Purchasing Corporation, Appellant, v. Rockefeller Center, Inc., Respondent.
    (Submitted March 13, 1936;
    decided April 14, 1936.)

      Harry H. Oshrin and Nathan Stieglitz for appellant.
    The plaintiff comes into court with clean hands. The amended complaint states facts sufficient to constitute a cause of action, and the plaintiff has no adequate remedy at law. (Goldman v. Corn, 111 App. Div. 674; Greenblatt v. Zimmerman, 132 App. Div. 283; Podalsky v. Ireland, 137 App. Div. 257.)

      John A. Kelly and F. Trowbridge von Baur for respondant.
    The amended complaint shows that the plaintiff has an adequate remedy at law. (Schneider v. Miller, 132 App. Div. 852; Moller v. Lincoln Safe Deposit Co., 174 App. Div. 458; Koenig v. Eagle Waist Co., 176 App. Div. 726; City of New York v. Pike Realty Corp., 247 N. Y. 245; Podalsky v. Ireland, 137 App. Div. 257; Friedland v. Myers, 139 N. Y. 432; Dodds v. Hakes, 114 N. Y. 260; Lieberman v. Graf Realty Holding Co., 174 App. Div. 774; Schwartz v. Minsker Realty Co., 166 App. Div. 681.)
   Loughran, J.

We agree with the Appellate Division that this complaint states no cause of action.

The pleading alleges that on January 30, 1935, the defendant made a lease to one Isidore Mitchell who, in the manner thereby provided, assigned all his right, title and interest to the plaintiff, with the approval of the defendant. No provision of any instrument of lease is set forth. The premises said to have been let are described only as being of peculiar and particular benefit and advantage to the plaintiff in that said leasehold premises are located in a building which would give the plaintiff certain benefits * * * of a transient patronage of a large number of local people and patrons attracted to Rockefeller Center, by reason of its fame and reputation, which would in turn afford the plaintiff large opportunities for business or trading * * * which would not otherwise exist in any other location.” This averment follows: “ That the loss of business which plaintiff will suffer by reason of being denied possession of the premises * * * is not capable of computation and that plaintiff will suffer irreparable damage as a result of being denied the right of possession of the said premises.”

It is then alleged that “ the defendant will resist by force any and all efforts on the part of the plaintiff to enter into the possession of the demised premises referred to in the aforementioned lease * * * and will refuse to permit the plaintiff to list its name on the bulletin or directory board maintained in said building.” The relief demanded is “ judgment against the defendant that the latter be enjoined from interfering with the plaintiff in taking possession of the premises referred to in the aforementioned lease, * * * and be enjoined from discontinuing or withholding the listing of the plaintiff’s name on the bulletin board maintained in the building wherein the leased premises are located, and that the plaintiff otherwise be awarded damages, caused by the acts of the defendant and that the plaintiff have such other and further relief as to the court may seem just and proper in the premises.”

The precedents are quite uniformly against such an ejectment in equity. (See Koenig v. Eagle Waist Co., 176 App. Div. 726; Mead v. Camfield, 11 N. J. Eq. 38; Weiss v. Levy, 166 Mass. 290; Lewis v. Cocks, 90 U. S. 466; Story on Equity Pleadings [Redfield’s 8th ed.], § 476; 1 Pomeroy on Equity Jurisprudence [4th ed.], § 177. Cf. Longo v. Sparano, 119 Misc. Rep. 402.)

That an actionable default of the defendant has been pleaded is more than doubtful. (Whitney v. Allaire, 1 N. Y. 305, 311; Millie Iron Mining Co. v. Thalmann, 34 App. Div. 281; Bonfils v. Ledoux, 266 Fed. Rep. 507.)

Neither the rent reserved nor the value of the premises for any term is stated, nor does the actuality of loss to the plaintiff otherwise appear. (Cf. Trull v. Granger, 8 N. Y. 115; City of New York v. Pike Realty Corp., 247 N. Y. 245, 249; Williamson v. Stevens, 84 App. Div. 518; Goldman v. Gainey, 67 App. Div. 330.) Consequently the alternative prayer for damages can have no effect. (Civ. Pr. Act, § 479; Sadlier v. City of New York, 185 N. Y. 408, 414; Superstein v. Mechanics & Farmers Sav. Bank, 228 N. Y. 257.)

The judgment should be affirmed, with costs.

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

Judgment affirmed,


author: Finch, J. Crouch, J.

text:
    In the Matter of Joseph P. Moran, Appellant, against Fiorello H. La Guardia, as Mayor of the City of New York, et al., Respondents.
    (Argued March 2,1936;
    decided April 14, 1936.)

      A. Spencer Feld for appellant.
    The power to declare the temporary emergency ended did not require a legislative enactment but a mere joint resolution. (Koenig v. Flynn, 258 N. Y. 292; 285 U. S. 375; Smiley v. Holm, 285 U. S. 355; Hutchins v. Jackson, 23 Pac. Rep. [2d] 355.) The delegation in the emergency legislation of chapter 637 of the Laws of 1932, by the lawmaking body to the legislative chambers to determine the end of the emergency was a valid delegation of power. (Barto v. Himrod, 8 N. Y. 483; Dowling v. Lancashire Ins. Co., 92 Wis. 63: Winslow v. Fleishman, 112 Ore. 23; Lathrop v. Stedman, 42 Conn. 583.)

      Paul Windels, Corporation Counsel (Edmund L. Palmieri and Paxton Blair of counsel) for respondents.
    A concurrent resolution of the Legislature is not effective to repeal or modify a previous statutory enactment. (People ex rel. Argus v. Palmer, 12 Misc. Rep. 392; 146 N. Y. 406; Matter of Leach, 115 Misc. Rep. 660; 197 App. Div. 702; 232 N. Y. 600; People v. Bowen, 21 N. Y. 517; Matter of Doyle, 257 N. Y. 244; Matter of Koenig v. Flynn, 258 N. Y. 292; 285 U. S. 375.)
   Finch, J.

This is an appeal from an order denying a peremptory mandamus order directed to the authorities of the city of New York commanding them in effect to restore salaries to the pre-emergency level.

The Appellate Division affirmed the denial and gave leave to appeal to this court.

The question arises through the application of a patrolman to compel restoration of his salary to $3,000 per annum, less bis pension deductions, whereas at the present time he is receiving $2,810, less the pension deductions.

The patrolman contends that the salary paid him should be the mandatory amount imposed upon the city in accordance with an act of the Legislature (Laws of 1929, ch. 202) following a referendum. The city contends, on the other hand, that the Legislature, by law duly enacted (Laws of 1932, ch. 637) permitted the city to reduce these salaries and that this later law is still in force. Section 1 of this so-called economy act declared that a temporary emergency existed requiring its enactment and that its provisions are to apply until the legislature shall find their further operation unnecessary.”

At first the Legislature passed a bill to repeal this law which was vetoed by the Governor. Next the Legislature sought to accomplish the same result by means of a joint resolution.

The sole question thus presented by this proceeding is whether the Legislature can terminate this economy legislation by concurrent resolution or whether for such termination there is required a legislative enactment. The answer to that question depends upon the construction to be given to the words until the legislature shall find their further operation unnecessary.”

A concurrent resolution of the Legislature is not effective to modify or repeal a statutory enactment. (Matter of Leach, 115 Misc. Rep. 660; affd., 197 App. Div. 702; affd,, 232 N. Y. 600.) To repeal or modify a statute requires a legislative act of equal dignity and import. Nothing less than another statute will suffice. A concurrent resolution of the two houses is not a statute. (People ex rel. Argus Co. v. Palmer, 12 Misc. Rep. 392; affd., 146 N. Y. 406.) A concurrent resolution, unlike a statute, is binding only on the members and officers of the legislative body. It resembles a statute neither in its mode of passage nor in its consequences. The form of a bill is lacking and readings are not required. It does not have to he on the desks of members of the Legislature for three legislative days. (N. Y. Const., art. III, § 15.) But more important, its adoption is complete without the concurrent action of the Governor, or lacking this, passage by a two-thirds vote of each house of the Legislature over his veto. Thus a joint resolution may be adopted by a mere majority of the Legislature without action by the Governor or notice to the public, whereas the enactment of a statute requires action by three distinct bodies and at least three days’ notice to the public. As has been well said: In the exercise of this vast power, [of the Legislature] according to the fundamental idea and constitution of parliament, the concurrence of the three distinct bodies of which it is composed, each acting by itself, and independent of the others, is necessary. No two of them acting together, much less one alone, can make a law.” (Cushing on Elements of the Law and Practice of Legislative Assemblies in the United States, § 707; People v. Bowen, 21 N. Y. 517.)

In addition to the objection that in general a concurrent resolution may not repeal a statute duly enacted we have here also as a part of this economy law precise language which negatives the contention of petitioner. As noted, the economy bill itself provided for its continued operation until the Legislature should find it unnecessary. Ordinarily when we contemplate action by the Legislature we have in mind a statutory enactment. Before we hold that a statute may be terminated or repealed by some act other than a repealing statute we must at least find a clearly expressed provision to that effect embodied in the law thus to be terminated.

In Matter of Koenig v. Flynn (258 N. Y. 292; affd., 285 U. S. 375) it was held that action by the Legislature meant action by both houses and the Governor. The language involved was shall be prescribed in each State by the Legislature thereof.” (U. S. Const, art. 1, § 4.) There is striking similarity between the terms prescribed * * * by the Legislature ” and the terms of the statute in the case at bar “ * * * until the legislature shall find * *

The conclusion at which we have arrived is strengthened also by noting that when the Legislature wished to provide for the termination of an emergency by joint resolution it has so expressly stated. In the legislation concerning the Insurance and Banking Laws of 1933 the provisions were as follows: The period of the emergency herein provided for shall be from the date of the taking effect of this act until such date as the legislature may, by joint resolution, designate to be the termination thereof, or, if the legislature be not in session, the date so designated by a proclamation of the governor.” (Chs. 40, 41.)

The divergence in the language used in the above statute as compared with the language used in the statute in the case at bar refutes the contention of the petitioner. The. express language providing for the termination of that statute by joint resolution negatives a finding that the same result should be reached in the case at bar by implication after disregarding the ordinary meaning of the language used.

Not only reason but authority demonstrate that the joint resolution upon which is based the application of petitioner does not constitute action by the Legislature and cannot result in the repeal of the so-called economy bill.

It follows that the order appealed from should be affirmed, with costs.

Crouch, J.

(dissenting). Gathering wisdom or at least technique from an abundance of experience in emergency legislation, the Legislature in enacting chapters 40 and 41 of the Laws of 1933, relating to the powers of the Superintendent of Insurance and of the Banking Board, provided that the period of emergency with which it was then concerned should continue until such date as the legislature may, by joint resolution, designate to be the termination thereof.” There can be no question that those statutes would be put an end to by the passage of a joint or concurrent resolution.

When the economy act was passed'in 1932 (Laws of 1932, ch. 637), the Legislature realized that it was making a law which could be constitutionally justified only by the continued existence of a certain state of facts. (Cf. N. Y. Const., art. XII, § 2; Chastleton Corp. v. Sinclair, 264 U. S. 543; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 442.) It deemed that such a state of facts then existed. It could not foresee how long it would continue to exist. It, therefore, provided at the very outset of the statute as follows:

“ Section 1. It is hereby declared that a temporary emergency exists requiring-the enactment of the following provisions, and their application until the legislature shall find their further operation unnecessary.”

The question here is a very simple one. Read in the light of the circumstances under which the statute was enacted, did the language used disclose a legislative intent that its provisions should continue to apply until the law was repealed by another law, or until the Legislature, in its fact-finding capacity, should “ find ” that they were no longer necessary? If termination by a repealing law was intended, the words used are singularly inappropriate and the provision itself is superfluous. The Legislature in its law-making capacity had the power, without any reservation, to pass a repealing statute at any time. The only possible purpose of the provision was to enable the Legislature, by a fact-finding embodied in a joint resolution, to put an end to the act when, in its judgment, the justifying emergency had passed. If the language used here is less sophisticated, it is no less clear in meaning than the language used to the same end in later statutes.

The order appealed from should be reversed.

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

Order affirmed.


author: Crouch, J.

text:
    Ethel K. Bennett et al., Respondents, v. Crescent Athletic-Hamilton Club, Appellant.
    (Argued March 4,1936;
    decided April 14, 1936.)

      Benjamin C. Loder for appellant.

      Thomas J. O’ Neill and Joseph G. Saile for respondents.
    No ruling of the trial court against appellant was erroneous; but, assuming that there was an erroneous ruling, it did not affect any substantial right of the appellant, and, therefore, must be disregarded. (Civ. Prac. Act, § 106; Post v. Brooklyn Heights R. R. Co., 195 N. Y. 62; Goodman v. Central C. & A. Co., 219 App. Div. 723; Hyde v. N. Y. C. & H. R. R. R. Co., 225 N. Y. 680; Hodas v. Davis, 203 App. Div. 297; Fidelity & Deposit Co. v. Courtney, 186 U. S. 342; Walbrun v. Babbitt, 16 Wall. 577.)
   Crouch, J.

The plaintiff wife was injured on the evening of December 12, 1931, on the dining porch of the defendant’s club house. In an action to recover damages for the injuries and for loss of services, the plaintiffs had judgment which was unanimously affirmed. A fibre rug which was curled up on the ends and edges to the extent of three or four inches, was negligently maintained on the floor of the porch. The wife caught her foot against the curled-up rug.

The questions of negligence and contributory negligence were for the jury on disputed evidence. We are here concerned with an error of law so prejudicial to the defendant as, in our judgment, to warrant reversal. Whether or not the alleged defect in the rug actually existed at the time of the accident and, if so, whether or not the defendant had long known of its propensity to curl up, were vital points in the case on which there was a sharp conflict in the evidence. The floor of the dining porch was of brick tile on which were placed a number of fibre rugs. Among plaintiffs’ witnesses were three who had formerly been waiters serving in the dining porch. The substance of their testimony was that for two or three months before the accident the rugs, when dry, would curl up as described and that it was the common practice to take out the curl and flatten the edges by pouring on hot water and pressing them down with the foot.

The defendant on its part called two employees. One of them, who had been absent from his employment when the accident happened, gave little material testimony on his direct examination, merely characterizing the rugs shown on a photographic exhibit as looking like the type and size of rugs that were on the porch. He was also asked whether he had signed a statement for the plaintiffs’ lawyer and he said he had signed no statement. Thereupon, under the guise of cross-examination, he was questioned by plaintiffs’ counsel, at length and repetitiously, with reference to statements claimed to have been made by .him six months after the accident in the course of an interview with a law clerk in the presence of the plaintiff husband and of another man named Vanzetta. Objection was promptly made that as cross-examination the questions were improper and that counsel was making the witness his own. The court so ruled, and the examination was permitted to continue on that basis. The witness denied that in the course of the interview he had taken a pitcher of hot water and shown how the waiters used to water-down the rugs. He denied that he had told Vanzetta to get the water or that Vanzetta did so. He denied that the rugs had ever curled up before the accident or that the waiters had been instructed to treat them with hot water. He denied that he had told his interviewers that they should keep quiet what he had told them. In rebuttal, the court, notwithstanding the ruling which had recognized the witness as being plaintiffs’ own, permitted the plaintiffs, over specific objection and exception, to call the law clerk, the plaintiff husband and Vanzetta to testify to contradictory statements made during the interview. The ruling was plain error. On the entire subject-matter of the interview, plaintiffs had made the witness their own. They were bound by the answers they had elicited. They could not impeach him. Whatever one may think about the desirability of the rule or of the logic by which it is explained (Cf. 24 Columbia Law Review, p. 715), it is too firmly seated (People v. DeMartini, 213 N. Y. 203, 212) to be changed by the courts (Cf. Laws of 1936, ch. 191) or disregarded in' an instance where substantial damage may very well have resulted from its breach.

Here it is clear that the impeaching testimony of the three witnesses not only served to discredit the witness, but in reality added a powerful element of affirmative proof to the plaintiffs’ case, to which they were not entitled.

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

Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crane, Ch. J., taking no part.

Judgments reversed, etc.


author: Per Curiam.

text:
    W. A. Brockhurst Company, Inc., Respondent, v. The City of Yonkers et al., Appellants, and Thomas McVicar et al., Respondents, Impleaded with Another.
    (Argued March 9, 1936;
    decided April 14, 1936.)

      Leonard G. McAneny, Corporation Counsel (John J. Broderick of counsel), for appellants.
    The liens of the respondents Clinton N. Hernandez, Inc., Thomas Johnston, the Dextone Company, Thomas McVicar, Edward Campbell, American Asphalt Tile Corporation and Joseph C. Ryan & Sons, Inc. are invalid. (Toop v. Smith, 181 N. Y. 283; Berger Mfg. Co. v. City of New York, 206 N. Y. 24; Gray Marble & Slate Co. v. Schaefer, 206 App. Div. 167; Milliken Brothers, Inc., v. City of New York, 201 N. Y. 65; Danziger v. Simonson, 116 N. Y. 329; Bradley v. Huber, 146 App. Div. 630; 210 N. Y. 627.

      Francis J. Duffy for plaintiff, respondent.

      William B. Hogan for Clinton N. Hernandez, Inc., and Thomas Johnston, defendants, respondents.
    The liens of the respondents Clinton N. Hernandez, Inc., and Thomas Johnston are good and valid. (De Pace & Luster, Inc., v. Eleven Hundred Park Ave., Inc., 237 App. Div. 875; 262 N. Y. 584; Arrow Iron Works v. Greene, 139 Misc. Rep. 265; 235 App. Div. 712.)

      Herman D. Furman for Joseph C. Ryan & Sons, Inc., defendant, respondent.
    Liens filed by defendant-respondent Joseph C. Ryan & Sons, Inc., were filed in accordance with the- statutory requirements. (Cons. Laws, ch. 33, § 12; Berger Mfg. Co. v. City of New York, 206 N. Y. 24.) Liens filed after the commencement of an action require no order of extension. (Arrow Iron Works, Inc., v. Greene, 247 N. Y. Supp. 4; 255 N. Y. Supp, 931; Lincoln Nat. Bank v. Pierce Co., 228 N. Y. 359.)

      Robert T. Crane, Jr., for the Dextone Company, defendant, respondent.
    The Dextone lien has not lapsed, but has been continued by virtue of the provisions of section 18 of the Lien Law. (Cons. Laws, ch. 33; Arrow Iron Works, Inc., v. Greene, 139 Misc. Rep. 265; 235 App. Div. 712; 260 N. Y. 330, 698; Lincoln Nat. Bank v. Pierce Co., 98 Misc. Rep. 325; 228 N. Y. 359; Lackawanna Steel Constr. Co. v. Longacre E. & C. Co., 151 Misc. Rep. 17; Newman Lumber Co. v. Wemple, 56 Misc. Rep. 168.)

      Edward A. Fay for Thomas McVicar, defendant, respondent.
    Both liens, and in particular the second lien, were filed in accordance with the statutory requirements. (Bradley v. Huber, 146 App. Div. 630: 210 N. Y. 627.) The second lien is valid. (Berger Mfg. Co. v. City of New York, 206 N. Y. 24.) Liens filed after the commencement of an action require no order of extension. (Arrow Iron Works, Inc., v. Greene, 139 Misc. Rep. 265; 235 App. Div. 712; 260 N. Y. 330.)

      John Ewen and Clifford S. Bostwick for American Asphalt Tile Corporation, defendant, respondent.
    The appellants having failed to reply to the counterclaim in respondent’s answer, asking that the lien be adjudged valid, and having made no objection to it on the trial, are not in a position to object to it on this appeal. (Cons. Laws, ch. 33, §§ 42, 43; Duffy v. McManus, 3 E. D. Smith, 657; Mellen v. Athens Hotel Co., 149 App. Div. 534; Civ. Pr. Act, § 243; Dwelle-Kaiser Co. v. Frid, 233 App. Div. 427; 259 N. Y. 546; Arrow Iron Works, Inc., v. Greene, 139 Misc. Rep. 265 ; 235 App. Div. 712; 260 N. Y. 330; Romeo v. City of Yonkers, 126 App. Div. 402; 196 N. Y. 546.) The respondent’s lien was duly filed and was valid in all respects. (Cons. Laws, ch. 33, § 12; Milliken Bros., Inc., v. City of New York, 201 N. Y. 65; Colon & Co. v. Smith, 226 N. Y. 101; Bader v. City of New York, 51 Misc. Rep. 358; Arrow Iron Works, Inc., v. Greene, 139 Misc. Rep. 265; 235 App. Div. 712; 260 N. Y. 330; Maas
      v. Olmstead, 127 Misc. Rep. 158; Bluff Point S. Co. v. U. S. F. & G. Co., 180 App. Div. 832; Dwelle- Kaiser Co. v. Frid, 233 App. Div. 427; 259 N. Y. 546; Davis Lumber Co. v. Blanchard, 175 App. Div. 256.)

      J. G. Fink for Fred L. Hewes, Inc., et al., defendants, respondents.

      I. J. Beaudrias for Yonkers Builders’ Supply Company, defendant, respondent.

      Maurice B. Rich for Oscar Ottoson & Co., Inc., et al., defendants, respondents.

      Walter B. J. Mitchell for Edward Campbell, defendant, respondent.
   Per Curiam.

The judgments should be modified by disallowing the liens of Hernandez, Inc., and of Thomas Johnston, and as so modified affirmed, with costs to the successful lienors who have filed briefs against the city of Yonkers.

Section 62 of the Lien Law (Cons. Laws, ch. 33, as amd. by L. 1929, ch. 515) applies in terms only to a “ lienor.” When Hernandez and Johnston came into the pending action as parties defendant, they were not lienors, nor were they lienors at any subsequent point of time. We find no distinction between liens filed before and liens filed after the commencement of an action so far as the application of the Lien Law, section 21, subdivision 2, is concerned. Some degree of diligence is still exacted from a party claiming the benefits of the Lien Law. He cannot rely wholly upon the solicitude of the courts to protect laborers and materialmen.

As to Ryan, Campbell, McVicar and Dextone liens, we think invalidation would be carrying technicality to an extreme. When they were made original parties defendant, it may be that their original liens had lapsed. Nevertheless, it cannot be said they were improperly joined. The plaintiff was not bound to determine the point at his peril. The status of each of those defendants was made sufficiently firm by the filing of new notices after the action was begun. Being already in the action, it would have been futile to make application under section 62.

The other lien requires no discussion.

The judgments should be modified in accordance with this opinion and „as so modified affirmed, with costs to the successful lienors who have filed briefs against the city of Yonkers.

Crane, Ch. J., Lehman, Hubbs, Crouch, Loughran and Finch, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


author: Lehman, J.

text:
    In the Matter of Louis Durr et al., Respondents, against Paragon Trading Corporation, Appellant.

      (Argued March 5, 1936;
    decided April 14, 1936.)

      I. Maurice Wormser and Samuel Mezansky for appellant.
    A peremptory mandamus may not issue where the answer of the corporation traverses the petition as to material averments. (Matter of Poucher v. Berry, 249 N. Y. 16; People v. Rome, W. & 0. R. R. Co., 103 N. Y. 95; People ex rel. Port Chester Sav. Bank v. Cromwell, 102 N. Y. 477; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390; Matter of Hitchcock, 149 App. Div. 824; Matter of Rehe, 136 Misc. Rep. 136; Matter of Gaines, 180 N. Y. Supp. 191; Civ. Prac. Act., § 1319.) A peremptory order of mandamus can only be granted where the right depends on a clear-cut question of law. (Civ. Prac. Act, § 1319.) Reply affidavits are not to be considered, upon an application for a peremptory mandamus, for the purpose of overcoming denials or defenses in the answer and answering affidavits. (Matter of Poucher v. Berry, 249 N. Y. 16; Matter of Haebler v. N. Y. Produce Exchange, 149 N. Y. 414; Matter of Griffin v. Williams, 168 App. Div. 63; People ex rel. Del Mar v. St. Louis & S. F. R. Co., 47 Hun, 543.) Where material allegations of the petition are denied the court should grant an alternative writ. (Matter of O’Connell v. Clark, 200 App. Div. 606.)

      Andrew J. Dritsas and Meyer J. Cantor for respondents.
    The courts below correctly decided the application. (Public Serv. Comm. v. Brooklyn Heights R. R. Co., 105 Misc. Rep. 254; Matter of Longacre Electric Light & Power Co. v. Consolidated T. & E. S. Co., 117 App. Div. 80; 188 N. Y. 361; Everitt v. Teachers’ Retirement Board, 240 N. Y. Supp. 335; 229 App. Div. 857; Huylow v. Craigin Cattle Co., 40 N. J. Eq. 392; Matter of Steinway, 159 N. Y. 250.) The reply affidavits were properly considered. (People ex rel. Del Mar v. St. Louis & S. F. R. Co., 47 Hun, 543; People ex rel. Ryan v. Bingham, 114 App. Div. 170; Matter of Flaherty v. Craig, 184 App. Div. 428.)
   Lehman, J.

The Appellate Division has affirmed a peremptory order of mandamus compelling a corporation and its officers, who have the custody of its stock books, books of account and other records and papers of the corporation, to permit the petitioners and their attorney and accountants to inspect and examine the same and to take extracts therefrom.. The petition alleges that the petitioners are stockholders of the corporation, and that the directors and officers of the corporation have refused to permit them to examine the books of account of the corporation. These allegations are not denied by the corporation. The petition contains other allegations intended to show that the refusal was due to a desire by the officers and directors of the corporation to conceal their mismanagement of the corporate affairs and waste of its assets, and that the application was made for the purpose of protecting the legitimate interests of the petitioners as stockholders of the corporation. In its answer the corporation denied these allegations and affirmatively alleged that the application is not made in good faith, but for an ulterior purpose; and the answer is supported by affidavits which also affirmatively allege facts which, if true, would show that the directors had in fact been faithful to their trust and had managed the affairs of the corporation with prudence. The petitioners filed reply affidavits, and upon these papers moved for a peremptory order of mandamus. The motion was granted. Upon this appeal the defendant corporation does not challenge the right of the plaintiff to an alternative order but maintains that since the answering affidavits denied material allegations of the petition, no peremptory order could be granted by the court until the truth of these allegations was established by trial.

This court has repeatedly said that a peremptory mandamus may not issue until the truth of material allegations of the petition which are traversed by the answer have been established upon a trial and that replying affidavits are not to be considered, upon an application for a peremptory mandamus, for the purpose of overcoming denials or defenses in the answer.” (Matter of Poucher v. Berry, 249 N. Y. 16,19.) The rule so stated finds its source in the language of the statute: A peremptory mandamus order may be granted in the first instance where the applicant’s right to the mandamus order depends only upon questions of law.” (Civ. Pr. Act, § 1319, derived from Code Civ. Proc. § 2070.) The remedy of mandamus, like every other judicial remedy, may be granted only after the suitor has established a right to the remedy. His petition must allege facts which if true would establish that right; otherwise the sufficiency of the petition may be challenged by motion. If the petition does contain allegations sufficient to constitute a right to'such relief, the answer of the defendant-may deny these allegations or may allege new matter which would, if sustained by proof, be sufficient to defeat the application. Then an issue of fact arises, which, like issues properly raised in an action, can be determined only after the truth or falsity óf the allegations have been established at. a trial. (Civ. Pr. Act, §§ 1331 and 1332.)

In such case the sufficiency of the petition, answering affidavits and replying affidavits must be tested substantially as the court would test the sufficiency of pleadings and give effect to them accordingly. So this court has said in similar case: “As no alternative writ was issued and the relator proceeded to argument upon his petition and the opposing affidavits, his right to a peremptory writ depends upon the conceded facts, the same as if he had demurred to the allegations of the defendants.” (Matter of Steinway, 159 N. Y. 250, 254, 263.) We apply the same test here.

In the same case it was said: “ We think that, according to the decided weight of authority, a stockholder has the right at common law to inspect the books of his corporation at a proper time and place, and for a proper purpose, and that if this right is refused by the officers in charge a writ of mandamus may issue, in the sound discretion of the court, with suitable safeguards to protect the interests of all concerned.” It is conceded in this case that the petitioners are stockholders and have a right to inspect the books of the corporation for a proper purpose! The only issue between the parties is whether the petitioners are seeking an inspection “for a proper purpose ” and whether the court in the exercise of a sound discretion should issue an order of mandamus. Since a peremptory mandamus order may not be granted in the first instance unless “ the applicant’s right to the mandamus order depends only upon questions of law,” the problem presented in this case is whether upon the conceded facts, in spite of denial of other facts alleged in the petition, the petitioner’s “ right ” to the order issued by the court “ depends only upon questions of law ” within the meaning of the statute. There can be no doubt that the court might in the exercise of a sound discretion refuse to issue such a mandamus order if the defendants sustained the denials and allegations contained in the answering affidavits. The question is whether the court may grant a peremptory order without affording the defendant an opportunity to sustain these denials and allegations.

A mandamus order may issue only for the enforcement of a clear legal right; and even after such right has been established, the court must determine whether, in the exercise of a sound discretion, it should grant or withhold the order. Denial of an application for the order constitutes an abuse of discretion, as matter of law, in those rare cases, only, where the circumstances leave no possible scope for the reasonable exercise of discretion in such manner; and it is only in such rare case that, in strict sense, an applicant’s right to the mandamus order depends only upon questions of law.” An analysis of the provisions of article 79 of the Civil Practice Act, entitled Mandamus Proceeding,” shows that the language of the statute may not, reasonably, be construed as limiting to such cases the power of the court to issue a peremptory mandamus order in the first instance.

That article is not intended to restrict the discretion of the court in granting or withholding an order of mandamus when an applicant has shown a right which the court has power to enforce by mandamus order; but is intended to regulate the proceeding to invoke that discretionary power. When, in such proceedings, a dispute exists as to a fact which must be established before the court can or will exercise its discretion, an issue of fact arises which must be tried by a jury, unless a jury trial is waived or a reference is directed by consent of the parties.” (Civ. Pr. Act, § 1333.) The jury or referee may not even then make a final order. Upon the trial of the issue of fact, the verdict, report or decision must be returned to, and the final order thereupon must be made by, the appellate division or the special term, as the case requires.” (§ 1334.) The facts established by the verdict, report or decision may still leave scope for the exercise of the court’s discretion whether to grant or withhold its order of mandamus, and the jury or referee may not intrude within that field. The court’s discretion is not less when the facts which establish the applicant’s right to invoke the discretion are undisputed. It would be a futile proceeding to order a trial before a jury of issues raised by denials of allegations of the petition or by affirmative allegations contained in the answering affidavits where in spite of such denials and upon the conceded facts the court might exercise a wise discretion in granting a peremptory order.

The statute may not be construed as requiring an applicant to do a futile act and one which on occasion might defeat his rights, or as depriving the courts of a power approved by experience. The applicant for a peremptory mandamus order is required to establish only facts sufficient to put in motion a discretionary power of the court. His right to such an order of mandamus “ depends only upon questions of law ” within the meaning. of the statute when the conceded facts, in spite of denials of other facts, are as matter of law sufficient for that purpose. Then the court may in its discretion grant the peremptory order in the first instance, or may in its discretion refuse such order until other facts contained in the petition, 'but not admitted, are established by finding of a jury or the report of a referee after a trial. The plain purpose of the statute is to preclude the court from passing upon disputed questions of fact without formal trial. It does not preclude the court from exercising its power to grant a peremptory order of mandamus without awaiting the determination of every issue of fact where sufficient is admitted to justify the peremptory order.

The petitioners as stockholders have a right to examine the corporate books to determine whether the officers of the corporation are properly managing its affairs, even though upon an examination of the books it should appear that in fact there was no mismanagement. In this case the petitioners allege that there has been actual mismanagement by the corporate officers, and this allegation is denied. An examination of the books might be necessary to establish the truth of the petitioners’ allegations, and a stockholder’s right to examine the corporate books to determine whether there had been corporate mismanagement would often be illusory if a denial of mismanagement by the corporate officers were sufficient to defeat a demand for inspection until mismanagement is conclusively established. So far as such denial leaves unimpaired the force of conceded facts sufficient to show that the examination is sought in good faith for a proper purpose, the allegations which are denied may be disregarded as immaterial. That is true here. In spite .of denials and affirmative allegations that the petitioners were seeking an inspection of the books for an ulterior purpose, the conceded facts were sufficient as matter of law to establish a right by the petitioners to invoke the power of the court to grant the mandamus order here under review. In Matter of Steinway (supra) this court affirmed a peremptory order granted under similar circumstances, and the rule applied in that case has not been modified by other cases cited by the appellant.

The order should be affirmed, with costs.

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

Order affirmed.


text:
    Joseph Sager, Respondent, v. Henry Friedman et al., Appellants, and Kaufwein Realty Co., Inc., Respondent.

      (Argued March 10, 1936;
    decided April 14, 1936.)

      Frederick E. Weinberg and I. Vernon Werbin for appellants.
    The action is one to recover damages for fraud and deceit. (Ketcham v. Wilbur, 218 App. Div. 350; Hahl v. Sugo, 169 N. Y. 109; Jones v. Gould, 123 App. Div. 236; Perlman v. East Annadale Beach Corp., 233 App. Div. 599; McVey v. Security Mutual Life Ins. Co., 118 App. Div. 466; Port v. Holzinger, 212 App. Div. 124; Hayes v. Durham, 194 App. Div. 848; Winter v. American Aniline Products, Inc., 236 N. Y. 199; Hurowitz, Inc., v. Selkin, 241 App. Div. 269; Deyo v. Hudson, 226 N. Y. 685; Gaylord v. Brown, 128 App. Div. 340; Bomeisler v. Forster, 10 App. Div. 43; Peck v. Goodberlett, 109 N. Y. 180; Meyers v. City of New York, 58 App. Div. 534; Weigel v. Cook, 237 N. Y. 136; Reno v. Bull, 226 N. Y. 546; People v. Stephens, 71 N. Y. 527; Ultramares Corp. v. Touche, 255 N. Y. 170; Urtz v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 170; Adams v. Clark, 239 N. Y. 403; City of Syracuse v. Hogan, 234 N. Y. 457.) The plaintiff has failed to prove facts sufficient to constitute a cause of action to recover damages for fraud and deceit. (Urtz v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 170; Reno v. Bull, 226 N. Y. 546; Parmenter v. Fitzpatrick, 135 N. Y. 190; Hotaling v. Leach & Co., 247 N. Y. 84; Matter of Colt, 125 Misc. Eep. 373; 215 App. Div. 804; Matter of Laidlaw, 176 N. Y. Supp. 885; President & Directors of Manhattan Co. v. Williams, 152 Misc. Rep. 901; People ex rel. Szerlip v. Goldfogle, 118 Misc. Rep. 8; Newell v. Chapman, 74 Hun, 111; Commercial Credit Corp. v. Wells, 228 App. Div. 402; McDowell v. Volk, 164 App. Div. 311.) The plaintiff has an adequate remedy at law. (Duffy Co. v. Todebush, 173 App. Div. 205; Dennin v. Finecune, 96 Misc. Rep. 247; 176 App. Div. 946; 227 N. Y. 607; Brown v. Werblin, 138 Misc. Rep. 29; Schank v. Schuchman, 212 N. Y. 352; Blank v. La Montagne, Chapman Co., 123 Misc. Rep. 238.)

      Charles Warner for plaintiff, respondent.
    Plaintiff has no adequate remedy at law. (Owen v. Mandeville, 95 N. Y. 237; Abramson v. Leo, 240 App. Div. 343; Rice v. Van Vranken, 132 Misc. Rep. 82; 225 App. Div. 179; Merrihew v. Parrott, 168 App. Div. 704; Bergelt v. Roberts,
      144 Misc. Rep. 832; Millspaugh v. Cassedy, 191 App. Div. 221; American Sugar Refining Co. v. Fancher, 145 N. Y. 552; Ohio Match Sales Co. v. Everhard, 126 Misc. Rep. 23; 216 App. Div. 800; Saltus v. Bedford Co., 133 N. Y. 499; Center v. Weed, 63 Hun, 560; Petrolia Mfg. Co. v. Jenkins, 29 App. Div. 403; Prescott & Son, Inc., v. Nye, 223 App. Div. 356; Johnson v. Brooks, 93 N. Y. 337; Duffy Co. v. Todebush, 173 App. Div. 205; Lang’s Creamery, Inc., v. City of Niagara Falls, 224 App. Div. 483; Longo v. Sparano, 119 Misc. Rep. 402; Hawley v. Cramer, 4 Cow. 717.) Equity must respond to the facts in this case. (Wiswall v. Hall, 3 Paige Ch. 313; Valentine v. Richardt, 126 N. Y. 272; Harrison v. Obermeyer & Liebmann Brewing Co., 64 App. Div. 499; Hutcheson v. Crandall, 206 App. Div. 718; Cushman v. Thayer Mfg. Jewelry Co., 76 N. Y. 365; Corkhill v. Landers, 44 Barb. 218; Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Storrs v. Barker, 6 Johns. Ch. 166; Thompson v. Blanchard, 4 N. Y. 303; Brown v. Bowen, 30 N. Y. 519; Tefft v. Munson, 57 N. Y. 97; Longo v. Sparano, 119 Misc. Rep. 402; Doscher v. Wyckoff, 113 N. Y. Supp. 655; 132 App. Div. 139; DePeyster v. Hasbrouck, 11 N. Y. 582; Center v. Weed, 63 Hun, 560; Lattin v. McCarty, 41 N. Y. 107; People v. Schmidt, 216 N. Y. 324; Fur & Wool Trading Co. v. Fox, Inc., 245 N. Y. 215; Johnson v. Brooks, 93 N. Y. 337; Falk v. Hoffman, 233 N. Y. 199; Newton v. Porter, 69 N. Y. 133; Holmes v. Gilman, 138 N. Y. 369; American Sugar Refining Co. v. Fancher, 145 N. Y. 552.)
   Lehman, J.

By contract in writing, dated October 17, 1930, the plaintiff agreed to loan to Jessall Construction Co., Inc., $43,000. Jessall Construction Co., Inc., agreed to repay the loan as follows: “ an installment of One thousand dollars on the 1st day of November, 1930, and a like installment of One thousand dollars on the 1st day of each month thereafter until the 1st day of October, 1931, when the unpaid balance shall be due and payable; with interest thereon at the rate of six per cent per annum, payable with each installment of principal, with the privilege to the party of the second part of paying said principal sum, or the unpaid balance thereof, at any time prior thereto on ten days written notice to the party of the first part, as evidenced by the promissory note- of the party of the second part.”

The defendant Henry Friedman was president of Jessall Construction Co., Inc., and individually guaranteed the loan and agreed to deposit, as collateral security, certificates for 187½ shares, constituting twenty-five per cent of the capital stock of Kaufwein Realty Co., Inc., and a certificate for fifty per cent of the capital stock of 1265 Gerard Avenue Corporation. The contract provided that upon default in repayment of the loan the plaintiff might at his option sell the said shares at public sale and shall apply the proceeds of such sale to the amount unpaid on said principal sum and interest thereon * * * and pay the surplus, if any, to the party of the second part.” By a separate indenture, executed simultaneously with the contract for the loan, and for the purpose of inducing the plaintiff to enter into that contract, one Charles J. Cohen guaranteed repayment of the loan “ and the performance by the said Jessall Construction Co., Inc., and said Henry Friedman of all the terms of the said agreement on their part to be performed.”

The defendant Friedman deposited as collateral the certificates of stock described in the contract. Six installment payments of $1,000 were made upon the loan; then payments ceased. In January, 1933, the plaintiff sold at public auction the shares of capital stock deposited as collateral. He was the only bidder at the sale and purchased the stock for the sum of $500. The price paid at a forced public sale for stock in a closely owned corporation may have little if any relation to the fair value of the stock; yet upon such a sale made in accordance with the terms of the contract of loan, the lender had "undoubted right to purchase the stock and to apply upon the unpaid balance of the loan only the proceeds of the sale. Then, like any other purchaser, the plaintiff might profit or lose by his purchase. His right to hold either guarantor upon his contract still remained.

■ The plaintiff has not sought to hold Charles J. Cohen upon his guaranty. Instead he has chosen to bring this action against the other guarantor and his wife. He alleges in his complaint, and at the trial of the action established by competent evidence, that to induce him to make the loan and to accept as collateral the deposit of twenty-five per cent of the capital stock of Kaufwein Realty Co., Inc., these defendants represented that the company had no debts, and had no liabilities, except a first mortgage of $385,000 upon the said real property, * * * taxes and other usual small bills for running expenses of the said real property,” and that, in reliance upon these representations, he was induced to make the loan and accepted the pledge or deposit of stock in the Kaufwein Realty Co., Inc. The plaintiff further alleged in his complaint and established at the trial that at the time when these representations were made, the books of Kaufwein Realty Co., Inc., contained entries showing an indebtedness of that corporation owing to Henry Friedman and other officers and directors of that company, in excess of $95,000, and that twenty-five per cent of that indebtedness was owed to Henry Friedman. Thereafter the defendant Bella Friedman in an action brought in the City Court against Kaufwein Realty Co., Inc., alleged that the claim of Henry Friedman for moneys loaned to that corporation was assigned to her prior to December 18, 1925.

The second amended complaint which alleges these facts contains two causes of action. The first cause of action contains allegations of fact sufficient to constitute a cause of action at law for fraud and further allegations intended to invoke the equitable powers of the court to grant relief where a plaintiff has no adequate remedy at law. The second cause of action contained in that complaint alleges that the assignment from Henry Friedman to his wife was fraudulent and that cause of action is, concededly, for relief under the Debtor and Creditor Law (Cons. Laws, ch. 12). The relief asked in the complaint is that the defendants-appellants be directed to assign to the plaintiffs their share of the corporation indebtedness which existed at the time when they falsely represented that no such indebtedness had been incurred.

The case was tried upon these pleadings. The plaintiff produced evidence to sustain the allegations of the first cause of action. After a motion to dismiss the complaint was denied, the defendants rested, renewed the motion to dismiss the complaint, and moved for judgment in their favor. The motion to dismiss the first cause of action was denied and judgment in favor of the plaintiff was granted which directs the assignment to the plaintiff of Henry Friedman’s one-fourth interest in an indebtedness of $95,410 owing by Kaufwein Realty Co., Inc., to Friedman and others and dismisses the second cause of action. Upon this appeal we are not concerned with the correctness of an injunction granted pendente lite to the plaintiff. That injunction was granted under pleadings which have been superseded and is not here for review. We are also not concerned with the second cause of action under the Debtor and Creditor Law for the plaintiff has not appealed from that part of the judgment which dismisses that cause of action, and does not contend that he established it at the trial. There can be no doubt that all the findings of fact intended to establish the first cause of action are sustained by the evidence. The only question presented upon this appeal is whether upon the facts so established a court of equity could direct the assignment by the defendants to the plaintiff of an indebtedness due to one of them because they had falsely represented that no such indebtedness existed.

A false representation does not, without more, give rise to a right of action, either at law or in equity, in favor of the person to whom it is addressed. To give rise, under any circumstances, to a cause of action, either in law or equity, reliance on the false representation must result in injury. The essential constituents of the action are tersely and adequately stated as representation, falsity, scienter, deception and injury.” (Ochs v. Woods, 221 N. Y. 335, 338.) The findings here establish, beyond possible challenge upon this appeal, representation, falsity, scienter and deception. They also establish, beyond challenge upon this appeal, that the plaintiff, in reliance upon the false representations, was induced to agree to advance the sum of $43,000. All the “ essential constituents ” of a cause of action for fraudulent misrepresentations are then present. When, through the false representation of the defendants, the plaintiff was induced to enter into an agreement and to assume a relation which, otherwise, he would have rejected, the defendants’ wrong resulted in an invasion of the plaintiff’s rights which constitutes an injury. The question remains whether the relief which has been granted to the plaintiff is an appropriate remedy which the courts of this State have power to grant.

A person who has parted with consideration upon a contract induced by fraud has three remedies open to him.. He may rescind the contract absolutely andTsue in an action at law to recover the consideration parted with upon the fraudulent contract. * * * He may bring an action in equity to rescind the contract and in that action have full relief. * * * Lastly, he may retain what he has received and bring an action at law to recover-the damages sustained.” (Vail v. Reynolds, 118 N. Y. 297, 302; Weigel v. Cook, 237 N. Y. 136.) The plaintiff has rejected all three remedies as inadequate and has sought in a court of equity relief for which no precedent has been found. Absence of precedent might not, alone, be a sufficient answer to his prayer for relief. Where the equitable powers of the court are properly invoked the court may mould its decree to meet the conditions which call for remedy. The difficulty in this case is that the plaintiff has failed to show upon his first cause of action any ground for the invocation of the equitable powers of the court and has been granted relief to which he is not entitled upon any principle of law or equity.

A remedy based upon rescission of a fraudulent contract is inconsistent with a claim to benefits under the contract. The plaintiff here would gain nothing by rescission. Upon rescission he could recover only the consideration parted with upon the fraudulent contract ” and a recovery in an action to enforce repayment of the loan in accordance with the terms of the contract would result in a judgment for the same amount. In case of rescission, a judgment could be obtained only against those who are under a duty to restore the consideration received; and even they would be under a duty to return the consideration parted with by the plaintiff only upon his surrender, or, at least, offer to surrender, any benefits he has obtained from the contract. On the other hand, by standing upon the contract the plaintiff may retain the stock, deposited as collateral, which he purchased at public sale for $500, and hold not only the borrower but also the guarantors for repayment of the unpaid balance of the loan. The plaintiff has made the election which seems to offer the greatest advantage to him. He chooses to stand upon the agreement he has been induced to make. He is entitled then to retain the benefits of that agreement and to enforce every stipulation of the agreement. He is entitled, too, to damages for the loss caused to him through the defendant’s fraud in inducing him to make the bargain. He is entitled to nothing else. If the fraud causes no loss, then the plaintiff has suffered no damages.

The fraudulent misrepresentations did not constitute a part of the contract; they were merely an inducement to the making of the contract. There is a vital distinction between damages arising from a breach of warranty which is part of a contract or bargain and damages arising from a fraudulent misrepresentation. The measure of damages which flows from a breach of contract is the difference between the value of what has been received under the contract and the value of what would have been received if the contract had been performed according to its terms. Damages there are not limited to indemnity for loss suffered through the making of the contract. The injured party is entitled to the benefit of his bargain as written and is entitled to damages for the loss caused by failure to perform the stipulated bargain. That loss may include the profits which he would have derived from performance of the contract. The measure of damages is different for fraudulent misrepresentation. There, as we have said, the injury is the inducement to make a contract which otherwise would not have been made, and the measure of damages is indemnity for loss suffered through that inducement. From such damages all elements of profit are excluded. The true measure of damage is indemnity for the actual pecuniary loss sustained as a direct result of the wrong,” i. e., the difference between the value of the bargain which a plaintiff was induced by fraud to make and the amount or value of the consideration exacted as the price of the bargain. (Reno v. Bull, 226 N. Y. 546, 553.)

The value of the shares of stock of Kaufwein Realty Co., Inc., which were deposited as collateral for the loan might have been greater if the defendants’ representatians as to the liabilities of the company had been true, and it is said that since the defendants, or one of them, own a one-fourth sharé of the indebtedness of the company in excess of the liability so represented and the plaintiff received as security for his loan, and subsequently purchased upon a public sale, twenty-five per cent of the stock of the company, the decree compelling the assignment to the plaintiff of the defendants’ share in the excess liabilities of the company will place the plaintiff in the same position in which he would have been if the representation had been true. It does not follow that the plaintiff is entitled to be placed in that position. In an action at law for damages caused by the false representation the plaintiff’s recovery would have been limited to indemnity for the loss sustained in making the loan, i. e., the difference between the amount advanced and the amount which the plaintiff could recover from a solvent guarantor or from the sale of the collateral deposited as security for the loan. Proof of deficiency in the value of the collateral would not show that the plaintiff suffered a loss through the fraudulent inducement to make the contract for a loan, unless it is accompanied by proof that the loan could not be collected by suit against a solvent guarantor, and in this record there is no suggestion that the guarantor Cohen is not solvent. Then the difference between the value of the stock of Kaufwein Realty Co., Inc., deposited as collateral for the loan and the value it would have had if the defendants’ representations as to the financial condition of that company had been true furnishes no measure of any loss suffered by the plaintiff through wrongful inducement to make the loan.

It is said that where a person has been induced to enter into a contract by fraudulent misrepresentation, a court of equity has power, even without proof of loss or damage resulting from the wrong, to compel the wrongdoer to forego, or even to transfer to the injured party, a personal benefit which diminishes the value of the contract and which is inconsistent with the truth of the representation. That may, perhaps, be true where the element of unjust enrichment of the wrongdoer at the expense of the defrauded party is present. It is not true where the result would be that the injured party is put in a better position than he would have occupied, if he had not made the contract, and the wrongdoer is deprived of property which is not the fruit of his fraud. If the representation had been a warranty, and part of the contract, a court of equity might, perhaps, in appropriate circumstances decree specific performance of the contract, and in that way give to the plaintiff the benefit of the contract. If the defendants’ share of the indebtedness owed by Kaufwein had been the fruit of their fraud consummated at the expense of the plaintiff, there might again be power in a court of equity to compel restitution to the plaintiff of moneys or property of which the plaintiff was deprived through their wrong. In truth, however, the defendants’ share of the indebtedness belonged to them before their fraudulent transaction with the plaintiff. It was not the fruit of their fraud, and the decree compelling its assignment to the plaintiff does not restore to the plaintiff any property or money of which the plaintiff has been deprived by the fraudulent contract. The plaintiff’s rights here are confined to enforcement of the contract and indemnity for loss caused to him by the defendants’ wrong in inducing him to make the contract. He cannot obtain more in any court of law or equity. The decree in this case gives him more.

The proceeds of the sale of the stock deposited as security for the loan must, under the terms of the contract, be applied upon the loan. If the proceeds of the sale of the stock in this case were less than they would have been if the defendants’ representations had been true, the difference would be reflected in the unpaid balance of the loan, and unless the guarantor was insolvent the plaintiff would suffer no loss. The real grievance of the plaintiff is that upon the sale of the stock he purchased the stock, and the stock so purchased would be more valuable if the defendants’ representations had been true. As owner of the stock he seeks a profit by the assignment to him of a proportionate share of the company’s indebtedness. Another purchaser would certainly not be entitled to such profit, nor may the plaintiff claim from the defendants profits which he might have derived under his contract if the representations of the defendants had been true. Indeed, the decree awards him benefits which he might not have received if the representations had been true, and imposes upon the defendants an obligation which they did not assume and liability for damages occasioned by the wrong without proof that their wrong caused such damages.

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

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

Judgments reversed, etc.


text:
    Evelyn Bannon, Appellant, v. Joseph D. Bannon, Respondent.

      (Argued March 3, 1936;
    decided April 14, 1936.)

      Abraham L. Bienstock, Sidney O. Friedman and Max D. Steuer for appellant.
    An order interlocutory in nature does not have the force and effect of a final adjudication between the parties. (Conrad v. Conrad, 123 App. Div. 384; Dye v. Dye, 140 App. Div. 309; Werner v. Werner, 204 App. Div. 791; Cassese v. Cassese, 223 App. Div. 843; Brinkley v. Brinkley, 50 N. Y. 184; Collins v. Collins, 71 N. Y. 269; Vincent v. Vincent, 16 Daly, 534; Woodward v. Musgrave, 14 App. Div. 291; Marshall v. Meech, 51 N. Y. 140; Herforth v. Herforth, 2 Abb. Pr. [N. S.] 483; Ward v. Ward, 29 Abb. [N. C.] 256; Tarnower v. Tarnower, 224 App. Div. 13; Everett v. Everett, 180 N. Y. 452.) The finding that no marital relation exists between plaintiff and defendant was unessential to the determination of the motion and, therefore, such a finding cannot be res adjudicata. (Donahue v. New York Life Ins. Co., 259 N. Y. 98; Matter of Wickwire Spencer Steel Co., 12 Fed. Supp. 528; People ex rel. McCanliss v. McCanliss, 255 N. Y. 456.)

      Louis D. Frohlich, Herman Finkelstein and Nathan Burkan for respondent.
    The report of the referee, as confirmed by the order of the court below, was a final adjudication between the parties hereto on the question of the existence of a marital relationship, and is res adjudicata. (Matter of Barkley, 42 App. Div. 597; Williams v. Barkley, 165 N. Y. 48; Dwight v. St. John, 25 N. Y. 203; Matter of Whaley v. Perkins, 231 App. Div. 502; N. Y. & N. J. Tel. Co. v. Metropolitan Tel. Co., 81 Hun, 453; Demarest v. Darg, 32 N. Y. 281; Culross v. Gibbons, 130 N. Y. 447; Brown v. Mayor, 66 N. Y. 385; Smith v. Zalinski, 94 N. Y. 519; Fischer v. Fischer, 254 N. Y. 463; Baldwin v. Iowa State Traveling Men’s Assn., 283 U. S. 522.)
   Lehman, J.

The plaintiff, alleging in her complaint that the plaintiff and the defendant were married on the 10th day of June, 1931, at Jersey City, New Jersey,” brought this action for separation from the defendant. The defendant challenges the competency of the plaintiff to enter into that marriage on the ground that the plaintiff then had and still has a husband living and that a decree of divorce which the plaintiff obtained in the State of Florida against her earlier husband is void and of no legal effect.

The plaintiff applied to the court for alimony pendente lite. The court appointed a referee to take testimony and report on the question whether a relationship of husband and wife exists between the parties hereto, and upon the question of the financial ability of defendant.” The referee held hearings and examined many witnesses. Then he filed a report in which he stated among other things that public policy of the State of New York as adjudicated by our courts, requires a finding that no jurisdiction of the defendant was ever acquired by the Florida court. (Fischer v. Fischer, 254 N. Y. 463.) It follows that no marital relation exists between the plaintiff and defendant.” Upon motion of the defendant the report of the referee was confirmed and the plaintiff’s motion for alimony denied.

Then the defendant served a supplemental answer to the complaint in which, as a separate and complete defense to the cause of action alleged in the complaint, he alleges these facts and “ that the issue between the parties herein as to whether or not they are husband and wife, has been determined adversely to the plaintiff, and that the report of said referee and the confirmation thereof, are a final determination of that issue and are res adjudicata herein.” An order denying the plaintiff’s motion to strike out the defense “ as insufficient in law on the face thereof ” has been affirmed by the Appellate Division. In granting leave to appeal, the Appellate Division has certified the question: “ Is the second separate and complete defense in the amended supplemental answer sufficient in law upon the face thereof?”

A wife is entitled to support from her husband and to an allowance for reasonable counsel fee, if an action is necessary to enforce her marital rights. A husband cannot by denial of the existence of the marital relation reheve himself even temporarily of its obligations. On the other hand, a woman cannot compel a man to support her even temporarily by mere assertion that a marriage exists. The existence of the marriage relation is an essential element in a cause of action for separation or divorce and for alimony. It must be alleged in the complaint and proven at the trial, and where such allegation is challenged, final decision upon such issue must await a final judgment on the merits. In order that a wife should not be left without means of support during the pendency of the action the court has, nevertheless, power to grant temporary alimony pending final decision, where the application is supported by substantial proof of the existence of the marriage relation. “ For the purposes of an application for temporary alimony there will not need that the fact of marriage be so conclusively established as for the purpose of permanent alimony, or any other ultimate purpose of the action. It is for the interest of society and in aid of public policy that where the married relation has been in fact assumed, it should not easily and capriciously be laid aside; and where it is averred by the putative wife and denied by the alleged husband, if she makes a reasonably plain case of its existence, she should be furnished with means of temporary support and of conducting the suit until the truth or falsehood of her allegations can be ascertained by the proofs formally taken in the case.” (Brinkley v. Brinkley, 50 N. Y. 184, 193; Collins v. Collins, 71 N. Y. 269; S. C., 80 N. Y. 1.)

The issues in an action can be determined only by a final judgment. Applications for temporary, provisional or incidental relief may present some of the questions which are at issue in the action. Though the court may be compelled to pass upon such questions for the purpose of determining whether the applicant is entitled to the relief asked, yet so far as that relief is confined to the pendency of the action and must fall with its termination, whether by final judgment on the merits, by voluntary discontinuance or for failure of proof, the decision, upon the motion, of any issue in the action is provisional only as long as the action is not determined. The same tribunal which has rendered the decision may in proper case permit a renewal of the application for temporary or incidental relief, if the application has been denied; it may, in proper case, vacate or modify its decision, granting such relief.

This court has said that it is “ only a final judgment upon the merits, which prevents further contest upon the same issue, and becomes evidence in another action between the same parties or their privies. Until final judgment is reached the proceedings are subject to change and modification; are imperfect, and inchoate, and can avail nothing as a bar, or as evidence, until the judgment, with its verity as a record, settles finally and conclusively the questions at issue. An interlocutory order is not such a judgment. It is not a judgment at all.” (Webb v. Buckelew, 82 N. Y. 555, 560. Cf. Rudd v. Cornell, 171 N. Y. 114; Brown v. Cleveland Trust Co., 233 N. Y. 399; 2 Black on The Law of Judgments [2d ed.], § 509.) A decision upon a motion for interlocutory relief should, assuredly, be given no greater effect than a formal interlocutory judgment.

The scope of the words final judgment,” it is true, should not be confined to a .final judgment in an action. They may include any judicial decision upon a question of fact or law which is not provisional and subject to change and modification in the future by the same tribunal. Thus a final order in a special proceeding may conclusively determine every question at issue therein. (Williams v. Barkley, 165 N. Y. 48.) The same result follows, at times, from an order entered upon a motion in an action, at least where the motion is made for relief which from its nature cannot be provisional or interlocutory. (Dwight v. St. John, 25 N. Y. 203.) Even so, the rules applicable to judgments as estoppels are, it has often been said, not applicable to their full extent ” or with the same strictness ” to orders made on motions. (Riggs v. Pursell, 74 N. Y. 370, 378; Steuben County Bank v. Alberger, 83 N. Y. 274, 278.) The question of whether such rules should be applied to a particular decision is from its nature a question of law and does not rest in the discretion of the court. “ The rule of res adjudicata applies to all judicial determinations, whether made in actions, or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination.” (Culross v. Gibbons, 130 N. Y. 447, 454.)

The essential element of a conclusive adjudication is finality of the proceedings. A judicial decision can constitute a conclusive adjudication of question of fact or law only when rendered in a proceeding in which a court had jurisdiction to render an irrevocable and final decision upon such question. The effect of an adjudication * * * must always depend upon the nature of the proceeding.” (Everett v. Everett, 180 N. Y. 452, 461.) Though an interlocutory judgment may require the immediate performance of acts which irremediably affect the rights of the parties, and in that sense may be final, yet in so far as it purports to decide the issues litigated in the action, the decision is subject to alteration and revision. All judicial and academic. authority supports the rule that the issues which are litigated or may be litigated in an action can be finally adjudicated only by final judgment on the merits. Discontinuance or abatement of the action before final judgment leaves the issues open to contest in other litigation, even though they had been decided provisionally by order entered upon a motion made in the action or by interlocutory judgment.

The' test then is not the form of the decision but the nature of the proceedings in which the adjudication is made. If in such proceedings the jurisdiction of the court is limited in scope so that particular questions may be decided only provisionally or for a limited purpose, a decision in any form can be given effect only within the same limits. Thus a motion to open a default for any reason is generally addressed to the discretion of the court, and is in its nature interlocutory. Such a motion can never result in a decision of the issues involved in the controversy, since it is always predicated upon the fact that the defaulting party has lost the opportunity to present the issue to the court, and the question always is whether the party applying should be permitted to plead.” (Everett v. Everett, supra, p. 461.) On the other hand, an order entered upon the report of a referee on a motion to cancel a judgment is conclusive adjudication “ so far as it covers what was actually and necessarily tried on that reference.” (Dwight v. St. John, supra, p. 206.) In both cases the proceedings were in form motions in an action, and in both cases the court was required to decide all questions of law or fact presented. The distinction is that in the first case the only relief which was asked, or which the court could grant, upon the motion was provisional in its nature, and even if granted would leave open for subsequent conclusive adjudication in the same action every issue of fact raised by the pleadings, while in the second case, if the application were granted, the questions necessarily decided upon the application could not be litigated anew in any litigation pending in the same tribunal. Thus the nature of the. first proceeding precluded a final decision of the questions there raised, while the nature of the second proceeding required such decision.

We apply the same test here. Concededly, ordinarily an application for temporary alimony and counsel fee requires determination only of the question whether the applicant has made out a reasonably plain case for provisional relief. If the application is granted, the alleged husband may still contest every issue upon the formal trial of the action, and if the application is denied, the putative wife still has the opportunity to show that her allegations are true. It is said, however, that, in some way, the nature of the proceeding was changed when the court declined to decide the matter upon affidavits, but referred it to a referee “ to take testimony, and report with all convenient speed, on the question whether a relationship of husband and wife exists between the parties hereto, and upon the question of the financial ability of defendant.”

The reference was merely to inform the conscience of the court. The court could adopt and act upon the finding of the referee or could disregard it. (Marshall v. Meech, 51 N. Y. 140.) The hearings before the referee may have afforded full opportunity to ascertain the truth or falsity of the plaintiff’s allegation that a marriage existed, but, regardless of the nature of the hearings had, the application was only for relief pending upon a final judgment, and the court could not at that stage of the action grant a final judgment upon the truth or falsity of the allegations of the complaint. The discretionary power of the court to grant alimony and counsel fees dining the pendency of an action to a putative wife, though the marriage relationship be denied by the alleged husband, may find its source, as suggested in Brinkley v. Brinkley (supra, p. 193), in the fact that in “ the interest of society and in aid of public policy ” such temporary relief should not be delayed until the truth or falsehood of her allegations can be ascertained by the proofs formally taken ” in the case. The court may in part defeat that public policy by withholding the temporary relief until it has received formal proofs which might be sufficient to permit of a conclusive adjudication, but, even then, the court’s exercise of its discretionary power to grant temporary relief cannot constitute a conclusive adjudication of the issues of the action, for that must still await final judgment, and there whatever may have been decided as an incident of an interlocutory adjudication remains subject to revision by final judgment.

That would be true even if we should construe the order of reference as a tender to the parties of the same opportunity as a trial would afford, to present their formal proof upon the issue of the existence of a marriage. It would be true even if, as the prevailing opinion in the Appellate Division states, the plaintiff “ elected * * * to have this question determined on the motion.” (245 App. Div. 521, 522.) The purpose of the reference was to inform the conscience of the court. Only to the extent that the court chose to act upon it, would the report of the referee have effect. The court, after confirmation of the referee’s report, denied the motion for temporary alimony. The report of the referee may have dictated that decision; but so long as the action was not concluded by final judgment, that decision was subject to modification or change. The issues of the action can be determined only by a judgment rendered by the court. That is true even where the parties consent to a reference of these issues to a referee other than an official referee. (Civ. Prac. Act, § 1174.) The court has not rendered any judgment. Until final judgment, no decision rendered upon a motion made in the action can conclude further contest of the issues in the action. Such decision must from the nature of the proceeding. be interlocutory only.

The orders should be reversed and the motion to strike out the defense granted, with costs in all courts. The question certified should be answered in the negative.

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

Orders reversed, etc.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Opening and Extending of One Hundred and Twenty-fifth and One Hundred and Twenty-sixth Streets from Twenty-third Avenue to Twenty-fifth Avenue in the Borough of Queens. Susannah Kraemer, Appellant.
    (Argued January 6, 1936;
    decided January 21, 1936.)

      George Bergen and Henry Herz for appellant.

      Paul Windels, Corporation Counsel (Phillip W. Haberman, Jr., and Paxton Blair of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of The Trustees of Calvary Presbyterian Church, Respondent, against The State Liquor Authority et al., Appellants.
    (Argued January 6, 1936;
    decided January 21, 1936.)

      Samuel E. Chasin and Benjamin Franklin for Philip Amigone, appellant.

      Nelson Ruttenberg for The State Liquor Authority et al., appellants.

      Richard H. Templeton for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Elmer L. Rice, Appellant, against Mark Graves et al., as Tax Commissioners of the State of New York, Respondents.
    (Argued January 6, 1936;
    decided January 21, 1936.)

      Howard E. Reinheimer for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of John Cirrito, Appellant, against The Board of Standards and Appeals of the City of New York et al., Respondents.
    (Argued January 6, 1936;
    decided January 21, 1936.)

      Reginald S. Hardy and Gardiner Conroy for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Herman J. McCarthy of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of George Gordon et al., as Administrators of the Estate of David Gordon, Deceased, Respondents. Philip L. Dunne, as Substituted Receiver, Appellant; Solomon Novogrodsky, Respondent.
    (Argued January 6, 1936;
    decided January 21, 1936.)

      James F. Twohy for appellant.

      Chester B. McLaughlin and Jacob Getter for Solomon Novogrodsky, respondent.

      Leonard Levinsohn for George Gordon et al., as administrators, respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Joseph W. Moore et al., Constituting the Board of Parole of the State of New York, Respondent, against Frank B. Thorn, as Special County Judge of Erie County, Appellant.
    (Argued January 6, 1936;
    decided January 21, 1936.)

      James O. Moore and John S. Knibloe for appellant.

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

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


text:
    In the Matter of the Application of The People of the State of New York, by Thomas F. Behan, as Acting Superintendent of Insurance of the State of New York, for the Liquidation of the Equitable Casualty and Surety Company. The Pennsylvania Exchange Bank, Appellant; Superintendent of Insurance, Respondent.
    (Argued January 7, 1936;
    decided January 21, 1936.)

      Louis Greenblatt, Max Dorff and I. Alfred Levy for appellant.

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

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


text:
    First National Bank of Glens Falls, Respondent, v. Grace M. Parks et al., Defendants, and Harriet P. Duport et al., Appellants.
    (Argued January 7, 1936;
    decided January 21, 1936.)

      John A. Slade and Irving I. Goldsmith for appellants.

      Henry W. Williams for respondent.
   Appeal dismissed, with costs, on the ground that the order is not a final order in a special proceeding. No opinion.

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


text:
    In the Matter of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property and to Conserve the Assets of the International Reinsurance Corporation, Dover, Delaware, and Independence Indemnity Company; Hoyt Avenue Gardens, Inc., Appellant.
    (Argued January 7, 1936;
    decided January 21, 1936.)

      Harry Hoffman and Mitchell Salem Fisher for appellant.

      Irvin Waldman and Alfred C. Bennett for respondent.
   Order affirmed, with costs; no opinion. (See 270 N. Y. 613.)

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


text:
    In the Matter of the Rehabilitation of Lawyers Mortgage Company. Kimball C. Atwood, Jr., as Executor of Kimball C. Atwood, Deceased, Respondent; Louis F. Pink, as Successor to George S. Van Schaick, as Superintendent of Insurance of the State of New York and as Rehabilitator of Lawyers Mortgage Company, Appellant.
    (Argued January 7, 1936;
    decided January 21, 1936.)

      Harry Rodwin and Jess H. Rosenberg for appellant.

      Eugene A. Sherpick and James J. Regan for respondent
   Order affirmed, with costs; no opinion.

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


text:
    John B. McPherson, IV, Respondent, v. Alexander Klemin, Appellant.
    (Argued January 7, 1936;
    decided January 21, 1936.)

      Martin A. Meyer, Jr., and Ralph G. Albrecht for appellant.

      Herbert E. Kaufman and Arthur L. Newman, II, for respondent.
   Order affirmed, with costs, and questions certified answered in the negative. No opinion.

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


text:
    In the Matter of the Application of the City of New York Relative to Acquiring Title to the Lands Required for the Opening of Walton Avenue from East One Hundred and Sixty-seventh Street to Tremont Avenue in the Borough of The Bronx. Howard B. Snell, as Administrator of the Estate of Ann E. Hughes, Deceased, Appellant; Anna R. Crossin, Respondent.
    (Argued January 7, 1936;
    decided January 21, 1936.)

      Charles Schneikraut for appellant.

      Harold Swain for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of James E. Keefe, as Executor of Philomena E. McGarry, Deceased, Appellant; Charles E. Hawkins, as Committee of John McGarry, Respondent.
    (Argued January 7, 1936;
    decided January 21, 1936.)

      Joseph E. Keenan for appellant.

      Mordecai S. Jacobsen and Harry Silver for respondent.
   Order affirmed, with costs payable out of the estaté, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Accounting of The Fifth Avenue Bank et al., as Executors of Katherine B. Judd, Deceased, Appellants; The Attorney-General of the State of New York, Respondent.
    (Submitted January 7, 1936;
    decided January 21, 1936.)

      Thomas L. Walsh for appellants.

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer of counsel), for respondent.
   Order affirmed, with costs payable out of the fund; no opinion.

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


text:
    Marie S. Livingston, Respondent, v. Cecil Barret et al., Individually and as Partners under the Firm Name of Spencer Trask & Company, Appellants.
    (Argued October 24, 1935;
    decided January 28, 1936.)

      A. Donald MacKinnon and Egbert W. Doughty for appellants.

      Lloyd Paul Stryker and Harold Shapero for respondent.
   Judgment affirmed, with costs; no opinion.

• Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs and Loughran, JJ. Not sitting: Crouch and Finch, JJ.


text:
    In the Matter of the Claim of Susan Rhoades et al., Appellants, against Miller Brothers Construction Company, Inc., et al., Respondents. State Industrial Board, Respondent.
    (Argued January 8, 1936;
    decided January 28, 1936.)

      Walter A. Fullerton, John J. Finn and Gelsie Monti for appellants.

      John J. Conners, Jr., for Miller Brothers Construction Company, Inc., et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of The Delaware and Hudson Railroad Corporation, Respondent, against Public Service Commission, Appellant.
    (Argued January 9, 1936;
    decided January 28, 1936.)

      Charles C. Blakeslee for appellant.

      Joseph Rosch, Alfred D. Kelly and Carleton W. Meyer for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Walter O’Neil, Appellant, against Walter N. Thayer, Jr., as Commissioner of Correction, et al., Respondents.
    (Argued January 9, 1936;
    decided January 28, 1936.)

      James P. Casey and Robert J. Fitzsimmons for appellant.

      John J. Bennett, Jr., Attorney-General (Caleb Candee Brown, Jr., of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Probate of the Will of Isaac Meltzer, Deceased. Joseph Meltzer, Appellant; Ida Meltzer, Respondent.
    (Argued January 9, 1936;
    decided January 28, 1936.)

      Michael Halperin and Robert Morris for appellant.

      John D. Lyons and Nellie Childs Smith for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of the Accounting of Ralph Pulitzer et al., Trustees under the Will of Joseph Pulitzer, Deceased, et al., Respondents. Susan Pulitzer et al., Infants, by Thomas I. Sheridan, as Special Guardian, Appellants.
    (Submitted January 9, 1936;
    decided January 28, 1936.)

      Thomas I. Sheridan for appellants.

      Rogers H. Bacon for Ralph Pulitzer et al., as trustees, respondents.

      Stephen P. Nash and John G. Jackson for Ralph Pulitzer et al., individually, respondents.

      Vincent L. Leibell, as special guardian, for testator’s infant grandsons, respondents.
   Order affirmed, with costs to each party filing separate brief payable out of the estate. No opinion.

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


text:
    In the Matter of Adelaide S. Reitz, Appellant, against Village of Allegany, Respondent. In the Matter of Margaret A. Atherton, Appellant, against Village of Allegany, Respondent.
    (Argued January 9, 1936;
    decided January 28, 1936.)

      Harold J. Tillou and George W. Davis for appellants.

      Cornelius J. McCarthy for respondent.
   In each proceeding, order affirmed, with costs; no opinion.

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


text:
    In the Matter of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, for an Order to Take Possession of the Property of the Bond and Mortgage Guarantee Company. City Bank Farmers Trust Company, as Trustee under the Will of Frank Little, Deceased, Appellant; George S. Van Schaick, as Superintendent of Insurance, Rehabilitator of Bond and Mortgage Guarantee Company et al., Respondents.
    (Argued January 9, 1936;
    decided January 28, 1936.)

      Edwin W. Cooney and Edward L. Hunt, Jr., for appellant.

      Carroll H. Brewster and Edwin E. Peterson for Guaranty Trust Company of New York, amicus curiæ.

      John F. Caskey and James B. McDonough, Jr., for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Isidore Cohen, Appellant.
    (Submitted January 10, 1936;
    decided January 28, 1936.)

      Meyer C. Solomon for appellant.

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

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


text:
    Leonard Pruchnowski, as Executor of Frank Szulhan, Deceased, Appellant, v. The Prudential Insurance Company of America, Respondent.
    (Argued January 10, 1936;
    decided January 28, 1936.)

      Francis J. Riordan and James B. McKenna for appellant.

      Alger A. Williams and Charles H. Kendall for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rita F. Kalinowski, an Infant, by John Kalinowski, Her Guardian ad Litem, Appellant, v. Joseph T. Ryerson & Son, Inc., Respondent, Impleaded with Others. John Kalinowski, Appellant, v. Joseph T. Ryerson & Son, Inc., Respondent, Impleaded with Others.
    (Argued January 10, 1936;
    decided January 28, 1936.)

      Philip Halpern, Milton H. Friedman, Emil L. Cohen and William J. Brock for appellants.

      Thomas R. Wheeler, William P. Stewart and Ernest J. Brown for respondent.
   In each case, judgment affirmed, with costs; no opinion.

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


text:
    Eastern Rock Products, Inc., Appellant, v. Riteway Construction Corporation, Respondent, Impleaded with Others.
    (Argued January 13, 1936;
    decided January 28, 1936.)

      Charles R. Stewart for appellant.

      George H. Rothlauf for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George A. Werner, as Administrator of the Estate of Andrew Werner, Deceased, Respondent, v. Dean G. Crippen et al., Appellants.
    (Argued January 13, 1936;
    decided January 28, 1936.)

      Paul Folger, Harlan F. Calkins, Archibald E. Webster, Joseph E. Corcoran, Louis B. Shay and Paul B. Hanks for appellants.

      George J. Skivington for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Walter Johnston, as Administrator of the Estate of James W. Johnston, Deceased, Respondent, v. Myrtie W. Welch, Appellant.
    (Argued January 13, 1936;
    decided January 28, 1936.)

      Nelson J. Palmer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emma Landwehr, Appellant, v. Florence Barbas, Respondent, Impleaded with Another.
    (Argued January 14, 1936;
    decided January 28, 1936.)

      Aaron Frank and L. J. Harvey for appellant.

      Herbert Barry and Leo M. Brimmer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Earl Daffer et al., as Executors of Mary Leonard, Deceased, Respondents, v. Brooklyn Savings Bank, Defendant, and Jane Larkin, Appellant.
    (Argued January 14, 1936;
    decided January 28, 1936.)

      Aaron William Levy for appellant.

      Honour B. Gelson and Junius Pendleton Wilson, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Economy Holding Corporation, Appellant and Respondent, v. City of New York, Respondent and Appellant.
    (Argued January 14, 1936;
    decided January 28, 1936.)

      Avel B. Silverman and Jay A. Gilman for plaintiff, appellant and respondent.

      Paul Windels, Corporation Counsel (Seymour B. Quel, Paxton Blair and Alfred D. Jahr of counsel), for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    Florence Golden, Appellant, v. Horn & Hardart Company, Inc., Respondent.
    (Argued January 14, 1936;
    decided January 28, 1936.)

      David F. Cohen, Edward M. Brandriss and Harold Cohn for appellant.

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

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


text:
    Frances Herron, Appellant, v. The Columbus Trust Company, Respondent.
    (Argued January 6, 1936;
    decided January 28, 1936.)

      A. H.F. Seeger for motion.

      Henry Hirschberg opposed.
   Motion granted and appeal dismissed, without costs.


text:
    H. E. & S. Transportation Corporation, Respondent, v. Checker Cab Sales Corporation, Appellant.
    (Submitted January 20, 1936;
    decided January 28, 1936.)

      Isidore Rose for motion.

      Emil Weitzner, Samuel H. Kaufman and David G. Haskins opposed.
   Motion denied, with ten dollars costs.


text:
    The Guardian Life Insurance Company of America, Respondent, v. Isidore Katz, Appellant.
    (Submitted January 20, 1936;
    decided January 28, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 625.)


text:
    Commissioner of Public Welfare, Respondent, v. Peter Gavin, Appellant.
    (Submitted January 20, 1936;
    decided January 28, 1936.)

      Paul Windels, Corporation Counsel (Seymour B. Quel of counsel), for motion.
   No one opposed.

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


text:
    In the Matter of John L. Armstrong, as Executor of John Armstrong, Deceased, Appellant, against Corporation Counsel of the City of New York, Respondent.
    (Submitted January 20, 1936;
    decided January 28, 1936.)

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for motion.

      Frederick W. Hottenroth opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of Gloria M. Vanderbilt. George W. Wickersham et al., as General Guardians of the Property of Gloria L. M. Vanderbilt, an Infant, Appearing Specially, Appellants; Gertrude V. Whitney, Respondent.
    (Submitted January 20, 1936;
    decided January 28, 1936.)

      Frank L. Crocker for motion.

      Henry W. Taft opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.