text:
    In the Matter of the Claim of Daniel Cameron, Respondent, against Ellis Construction Company et al., Appellants, and The United States Fidelity and Guaranty Company, Respondent. State Industrial Board, Respondent.
    (Argued May 27, 1929;
    decided June 4, 1929.)

      John H. Broderick, for motion.

      W. P. Brown opposed.
   Motion denied.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Louis Marks, Appellant, against Edward Gombert et al., as Fire Commissioners of the Roosevelt Fire District, Nassau County, Respondents.
    (Argued May 27, 1929;
    decided June 11, 1929.)

      George J. Schneller for appellant.

      Fred Strohsall for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of William D. Packard, Deceased. State Tax Commission et al., Appellants; Union Trust Company et al., Respondents.
    (Argued May 27, 1929;
    decided June 11, 1929.)

      Seth T. Cole for appellants.

      Marion H. Fisher, Benjamin S. Dean and Bollin A. Fancher for respondents.
   Appeal from order of Appellate Division in so far as it reverses the order of the Surrogate’s Court fixing the amount of the New York transfer tax dismissed.

Order of the Appellate Division in so far as it reverses order of the Surrogate’s Court revoking ancillary letters testamentary affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Richard Whitney et al., as Executors and Trustees under the Will of George R. Sheldon, Deceased, Respondents, v. M. Frank Loughman et al., Constituting the State Tax Commission, Appellants.
    (Argued May 27, 1929;
    decided June 11, 1929.)

      Hamilton Ward, Attorney-General (Henry S. Manley of counsel), for appellants.

      Frederick E. Mygatt, Jr., for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Archibald B. Gwathmey, Jr., et al., as Executors of James T. Gwathmey, Deceased, Respondents, v. State Tax Commission et al., Appellants.
    (Argued May 27, 1929;
    decided June 11, 1929.)

      Hamilton Ward, Attorney-General {Henry 8. Manley of counsel), for appellants.

      Bernard Knollenberg for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Mary G. Lanigan, Respondent, v. Margaret A. Delaney, Appellant, and John M. Delaney, Individually and as Administrator of the Estate of John J. Delaney, Deceased, Respondent, Impleaded with Another.
    (Submitted May 28, 1929;
    decided June 11, 1929.)

      Frederic G. Rita for appellant.

      Francis J. Kuerzi for plaintiff-respondent.

      Harry Edwards for defendant-respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Aladdin Securities Corporation, Appellant, v. Ryer Operating Co., Inc., Defendant, Clemente Liscio et al., Doing Business as Liscio & Co., Tile and Marble Works, Respondents, and James H. Martin, Inc., Appellant.
    (Argued May 28, 1929;
    decided June 11, 1929.)

      Joseph A. Fagnant and Mitchell W. Alexander for appellant.

      Arthur W. Lichtenstein and Emanuel Bedfield for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    James H. Murnan, Respondent, v. Wabash Railway Company, Appellant.
    (Submitted June 3, 1929;
    decided June 11, 1929.)

      Thomas J. O’ Neill for motion.

      Edward R. Brumley opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Syracuse, Binghamton and New York Railroad Company et al., Appellants, against Charles Van Amburgh, Jr., et al., Comprising the Town Board of the Town of Fenton, Respondents, Impleaded with Another.
    (Argued May 28, 1929;
    decided June 11, 1929.)

      Frederick Collin for appellants.

      C. L. Chamberlain for respondents.
   Order affirmed, with costs, on opinion of Davis, J., at the Appellate Division.

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


text:
    In the Matter of the Will of Adelaide L. Burroughs, Deceased. Mary McGuire et al., Appellants; Brooklyn Trust Company, as Executor, et al., Respondents.
    (Argued May 28, 1929;
    decided June 11, 1929.)

      Frank W. Holmes for Mary McGuire et al., appellants.

      Joseph A. Kennedy for Lorraine Laux et al., appellants.

      Ralph W. Cro ly for Brooklyn Trust Company, as executor, respondent.

      Frederick A. Keck for Marie Gewert et al., respondents.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of the National City Bank of New York, as Administrator de Bonis Non of the Estate of Catherine Noonan, Deceased. Mabel G. Truncellito, Appellant; Frances Scott et al., Respondents.
    (Submitted May 28, 1929;
    decided June 11, 1929.)

      Caesar B. F. Barra and Ralph J. Barra for appellant.

      William E. O’Grady for Frances Scott, respondent.

      Paul L. Ross for the estate of Patrick Noonan, deceased, respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of the Accounting of Francis P. Callahan, as Administrator of the Estate of Patrick E. Callahan, Deceased, Respondent. Alvin C. Cass et al., Appellants.
    (Submitted June 3, 1929;
    decided June 11, 1929.)

      Thomas F. Magner for motion.

      Alvin C. Cass opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


author: Per Curiam.

text:
    William J. Byrnes, Appellant, v. Chase National Bank et al., Respondents, Impleaded with Others.
    (Argued May 29, 1929;
    decided June 13, 1929.)

      L. Barton Case for appellant.

      George N. Hamlin for Chase National Bank et al., respondents.

      John L. Bigelow for Ernest L. Conant et al., appearing specially.
   Per Curiam.

No appeal having been taken to the Appellate Division from the judgment of the trial court dismissing the complaint as to the defendants Conant and Elliman, the question of the liability of said defendants is not before this court, and they have been erroneously designated as respondents on this appeal.

The judgment of the Appellate Division dismissing the complaint as to the defendants other than Conant and Elliman, should be affirmed with costs.

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

Judgment accordingly.


text:
    The People of the State of New York ex rel. Henry Lautner, Respondent, v. Joseph A. Warren, as Police Commissioner of the City of New York, Appellant.
    Argued May 28, 1929;
    decided June 13, 1929.)

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

      Albert Conway and John P. McGrath for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    J. & H. Garage, Inc., Appellant, v. H. Flow Corporation et al., Respondents, Impleaded with Others.
    (Argued May 29, 1929;
    decided June 13, 1929.)

      William S. Andrews for appellant.

      Ralph C. Taylor for H. Flow Corporation, respondent.

      A. Engel for One Hundred and Sixteenth Street Holding Corporation, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Franklin Webster et al., Appellants, v. Carl L. Gleizes, Jr., as Executor of Charles A. Webster, Deceased, et al., Respondents.
    (Argued May 29, 1929;
    decided June 13, 1929.)

      A. Walker Otis for appellants.

      Osmond K. Fraenkel for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Mamie Zatti, Defendant. Carmelo Lampasona, Appellant.
    (Submitted June 10, 1929;
    decided June 13, 1929.)

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs-of motion.


text:
    The People of the State of New York, Respondent, v. Joseph Friedman, Defendant. Carmelo Lampasona et al., Appellants.
    (Submitted June 10, 1929;
    decided June 13, 1929.)

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Respondent, v. Lewis Chapman, Defendant. Carmelo Lampasona, Appellant.
    (Submitted June 10, 1929;
    decided June 13, 1929.)

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York ex rel. Stanley Gellis, Appellant, v. The Sheriff of Westchester County et al., Respondents.
    (Submitted June 11, 1929;
    decided June 13, 1929.)
   Motion for reargument denied. (See 251 N. Y. 33.)


text:
    In the Matter of Revorg Realty Company, Inc., Appellant, v. William E. Walsh et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    (Submitted June 10, 1929;
    decided June 13, 1929.)
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 516.)


text:
    James G. Ewell et al., Individually and on Behalf of Other Stockholders, Respondents, v. Stoddard Realty Co., Inc., et al., Appellants. Richard S. Ewell, on Behalf of the Stoddard Realty Co., Inc., and Other Stockholders, Respondent, v. Annie P. Ewell et al., as Directors and Officers of Stoddard Realty Co., Inc., Appellants.
    (Argued June 12, 1929;
    decided July 11, 1929.)

      R. Randolph Hicks, Evelyn P. Luquer and Thomas F. Compton for appellants.

      James Madison Blackwell and Arthur G. Syran for respondents.
   Per Curiam.

Paragraphs numbered six, nine and ten of the judgment are stricken out, and the judgment modified in this particular: the officers of the corporation are not to be enjoined in this action from legally acting as such; neither are they to be enjoined from properly voting the stock which they hold as executrices; neither can they be directed in this proceeding to distribute the assets of the estate to the legatees. The judgment should be modified in accordance with this memorandum and, as modified, affirmed, with costs to the respondents.

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

Judgment accordingly.


text:
    A. B. Murray Co., Inc., Respondent, v. Lidgerwood Manufacturing Company, Appellant.
    (Argued June 11, 1929;
    decided July 11, 1929.)

      Thomas J. Blake and Samuel Williston for appellant.

      William E. Carnochan, Walter Wilcox, Theodore C. Richards and Tompkins McIlvaine for respondent.
   Per Curiam.

The judgment should be affirmed with costs on the ground that the agreement whereby the vendor and vendee were to endeavor to dispose of the goods during the pendency of the litigation had the effect of charging the defendant with liability for storage of any goods not sold, even if such liability might otherwise have been disclaimed.

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

Judgment affirmed.


text:
    Henry W. C. Michelsen, Respondent, v. Vincent De Martini, Appellant.
    (Argued April 26, 1929;
    decided July 11, 1929.)

      Samuel Gottlieb and Samuel Shereff for appellant.

      Clarence Alexander for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Standard Oil Company of New York, Respondent, v. Michael De Stefan, Appellant.
    (Argued May 29, 1929;
    decided July 11, 1929.)

      Philip Bongiorno for appellant.

      John K. Hartley, J. Lewis Furman and Courtland Palmer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ernest L. Caflisch, Appellant, v. Curtis Aeroplane and Motor Corporation, Respondent.
    (Argued May 31, 1929;
    decided July 11, 1929.)

      William S. Stearns for appellant.

      Selby G. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Postal Telegraph-Cable Company, Respondent, v. Depew and Lancaster Light, Power and Conduit Company, Appellant.
    (Argued May 31, 1929;
    decided July 11, 1929.)

      Philip A. Laing and Warren Tubbs for appellant.

      James O. Moore and William C. Fitts for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ida Rosenberg, Respondent, v. Ocean Accident and Guarantee Corporation, Ltd., of London, England, Appellant. Isadore Rosenberg, Respondent, v. Ocean Accident and Guarantee Corporation, Ltd., of London, England, Appellant. Bertha Minowitz, Respondent, v. Ocean Accident and Guarantee Corporation, Ltd., of London, England, Appellant. Jacob Minowitz, Respondent, v. Ocean Accident and Guarantee Corporation, Ltd., of London, England, Appellant.
    (Argued May 31, 1929;
    decided July 11, 1929.)

      Arthur V. D. Chamberlain for appellant.

      Gilbert A. Nusbaum for respondents.
   In each action the judgment of the Appellate Division and that of the Trial Term reversed and new trial ordered, with costs to abide the event, on authority of Coleman v. New Amsterdam Casualty Co. (247 N. Y. 271); no opinion.

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


text:
    The People of the State of New York, Respondent, v. Milton E. Harris, Appellant.
    (Argued June 3, 1929;
    decided July 11, 1929.)

      Thomas L. Newton and William E. Barrett for appellant.

      Guy B. Moore, District Attorney (Walter F. Hofheins of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Edward A. Jandorf et al., Respondents, v. Wiman H. Smith et al., as Executors and Trustees under the Will of John H. Smith, Deceased, Appellants.
    (Argued June 3, 1929;
    decided July 11, 1929.)

      Louis L. Babcock and C. DeForest Cummings for appellants.

      B. Frank Dake and Edward L. Jellinek for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    R. J. Caldwell Company, Inc., Appellant, v. Connecticut Mills Company, Respondent.
    (Argued June 3, 1929;
    decided July 11, 1929.)

      Terence J. McManus and Hugo I. Epstein for appellant.

      Ralph S. Harris, Harold L. Smith and Alanson. W. Willcox for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel M. Melkon, Appellant, v. American Exchange Irving Trust Company, Respondent.
    (Argued June 3, 1929;
    decided July 11, 1929.)

      Thomas E. Shea for appellant.

      Stuart H. Benton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Domenico Marconi, Appellant, v. Domenica D. Becci, Respondent, Impleaded with Another.
    (Submitted June 3, 1929;
    decided July 11, 1929.)

      Stewart Maurice, Henry C. Burnstine, Emanuel J. Freiberg and Solomon Goodman for appellant.

      George J. Stacy and James J. Mahoney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. New York Rapid Transit Corporation, Respondent, v. Michael F. Loughman et al., Constituting the State Tax Commission, Appellants.
    (Argued June 5, 1929;
    decided July 11, 1929.)

      Hamilton Ward, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for appellants.
    D. A. Marsh and George D. Yeomans for respondent. Alfred T. Davison and Addison B. Scoville for Third Avenue Railway Company, amicus curiae.

   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Brooklyn Trust Company, as Committee of the Estate of Charles M. Pratt, Respondent, v. Thomas M. Lynch et al., Constituting the State Tax Commission, Appellants.
    (Argued June 5, 1929;
    decided July 11, 1929.)

      Hamilton Ward, Attorney-General (Henry S. Manley of counsel), for appellants.

      Francis L. Durk for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Charles E. Chalmers, as Receiver of the Second Avenue Railroad Company of the City of New York, Appellant. Second Avenue Railroad Company, Appellant; Interborough Rapid Transit Company, Respondent.
    (Argued June 6, 1929;
    decided July 11, 1929.)

      Martin A. Schenck, Charles E. Hotchkiss and H. C. McCollom for appellants.

      Charles F. Kingsley, Arthur G. Peacock and James L. Quackenbush for Interborough Rapid Transit Company, respondent.

      Henry J. Smith for New York Railways Corporation, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Benjamin Raphael, Appellant, v. James Kutsukian et al., Respondents.
    (Argued June 6, 1929;
    decided July 11, 1929.)

      Henry Waldman for appellant.

      Andrew Foulds, Jr., for respondents.
   Order affirmed and judgment absolute ordered against appellant upon the stipulation, with costs in all courts; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Fabri, Appellant.
    (Argued June 6, 1929;
    decided July 11, 1929.)

      R. J. Shanahan for appellant.

      Clarence Unckless, District Attorney (William C. Martin of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Congress Radio, Incorporated, and Isaac Green-berg, Respondents.
    (Argued June 7, 1929;
    decided July 11, 1929.)

      Joab H. Banton, District Attorney (John C. McDermott of counsel), for appellant.

      Joseph A. Gavagan for respondents.

      Leon Lauterstein, Milton Winn and Emanuel Dankowitz for National Retail Dry Goods Association, amicus curiae.

   Judgment affirmed; no opinion.

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


text:
    C. Woodford Deming, Appellant, v. Philip S. Hill et al., Respondents, Impleaded with Another.
    (Argued June 7, 1929;
    decided July 11, 1929.)

      Andrew S. Derby for appellant.

      Edwin N. Moore for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rose Scioldoni et al., by Anthony Scioldoni, Guardian ad Litem, Appellants, v. Republic Light, Heat and Power Company, Respondent.
    (Argued June 7, 1929;
    decided July 11, 1929.)

      Clayton M. Smith and Hubert C. Collins for appellants.

      Edmund S. Brown and Harold J. Adams for respondent.
   Order affirmed, with costs. Second question certified answered in the affirmative. First question not answered; no opinion.

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


text:
    Cecelia B. Lacock, as Administratrix of the Estate of John R. Lacock, Deceased, Appellant, v. City of Schenectady, Respondent.
    (Argued June 7, 1929;
    decided July 11, 1929.)

      Chatfield T. Bates for appellant.

      Carleton H. Lewis, Corporation Counsel (Charles G. Fryer of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Thomas F. Magner et al., Appellants and Respondents, v. Marion S. Honeyman, Respondent and Appellant.
    (Argued June 10, 1929;
    decided July 11, 1929.)

      Charles H. Kelby and Thomas F. Magner for plaintiffs, appellants and respondents.

      Abel E. Blackmar and Robert B. Honeyman for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    James B. Alley et al., Appellants, v. The Positype Corporation of America et al., Respondents, Impleaded with Others. Photomaton, Inc., Appellant. (Actions 1 and 2.)
    (Argued June 10, 1929;
    decided July 11, 1929.)

      Enos Throop Geer, James B. Alley and William J. Kent, Jr., for plaintiffs-appellants.

      Alfred Jaretzki, Jr., for defendant-appellant.

      R. Randolph Hicks and Thomas F. Compton for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Warren F. Johnston, Inc., Appellant, v. Katie W. Grenzbach et al., Respondents
    (Argued June 10, 1929;
    decided July 11, 1929.)

      Martin Lippman and William M. Smith for appellant.

      George W. Alger and Albert W. Ransom for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary Shapiro, Respondent, v. Barney’s Omnibus Service Corporation, Appellant. Sam Shapiro, Respondent, v. Barney’s Omnibus Service Corporation, Appellant.
    (Argued June 11, 1929;
    decided July 11, 1929.)

      Max Herschaft and Samuel I. Poskanzer for appellant.

      Arthur Hutter and David Batt for respondents.
   In each case judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Dennis E. Conners, Respondent. William L. Clay, Appellant.
    (Submitted June 11, 1929;
    decided July 11, 1929.)

      William L. Olay, appellant, in person.

      Murray L. Oilman for respondent.
   Appeal dismissed, without costs, on the ground that the order appealed from is not a final order; no opinion.

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


text:
    Joseph, Inc., Respondent, v. Alberti, Carleton & Co., Inc., et al., Appellants.
    (Argued June 11,1929;
    decided July 11, 1929.)

      Frederick M. Thompson for appellants.

      David L. Podell and Benjamin Algase for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Mary J. F. S. Sweeney, Deceased. Bernard J. Sweeney, as Executor, Appellant; John P. Bowman, as Executor, et al., Respondents.

      (Argued June 12, 1929;

    decided July 11, 1929.)

      Harold P. Barker for appellant.

      George S. Van Schaick for John P. Bowman, as executor, respondent.

      Richard R. Martin and Louis Evans for Charles M. Fitz Simons, respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    Mary Burke, Appellant, v. May L. Kirkman et al., Respondents.
    (Argued June 12, 1929;
    decided July 11, 1929.)

      Bennett E. Aron and Dewey D. Blicksilber for appellant.

      R. Randolph Hicks, Richard V. Carpenter and Barent Ten Eyck for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The City of New York, Respondent, v. Dry Dock, East Broadway and Battery Railroad Company Appellant.
    (Argued June 12, 1929;
    decided July 11, 1929.)

      Alfred T. Damson and Addison B. Scoville for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Elliot S. Benedict, Charles W. Miller and J. Joseph Lilly of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Kathleen A. Mabson, Appellant, v. Hendon B. Mabson, Respondent.
    (Argued June 12, 1929;
    decided July 11, 1929.)

      Ben Herzberg and Max D. Steuer for appellant.

      Alva Collins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alma Venable, Respondent, v. Consolidated Dry Goods Company, Appellant.
    (Argued June 12, 1929;
    decided July 11, 1929.)

      John E. Mack for appellant.

      Edward K. Haas for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    John M. Ricca et al., Appellants, v. Levin and Glass-man Building Corporation, Respondent.
    (Argued June 13, 1929;
    decided July 11, 1929.)

      Clarence E. Mellen for appellant.

      Hyman Grill for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Clayton T. A. French et al., Doing Business under the Firm Name of French and French, Respondents, v. Robert S. Abbott Publishing Company, Inc., et al., Appellants.
    (Argued June 13, 1929;
    decided July 11, 1929.)

      Pope B. Billups for appellants.

      Cornelius W. McDougald for respondents.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts; no opinion..

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


text:
    General Securities Corporation, Appellant and Respondent, v. M. D. Mirsky & Co., Inc., et al., Respondents and Appellants.
    (Submitted June 13, 1929;
    decided July 11, 1929.)

      Philip Novick for plaintiff, appellant and respondent.

      David W. Kahn for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

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


text:
    The City of Buffalo, Respondent, v. Amanda Hawks et al., Defendants, and the County of Erie, Appellant.
    (Argued July 11, 1929;
    decided July 11, 1929.)

      Jacob Tick and M. Edwin Merwin for appellant.

      Gregory U. Harmon, Corporation Counsel (Andrew P. Ronan of counsel), for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    The Brooklyn Public Library, Appellant, v. The City of New York, Respondent.
    (Submitted May 27, 1929;
    decided July 11, 1929.)
   Motion for reargument or to amend remittitur. (See 250 N. Y. 495.)

Per Curiam.

The opinion should be limited as applicable to the facts appearing in the record. It was not the intention of this court to indicate its opinion as to the liability of the plaintiff to pay taxes upon the property in question or other maintenance charges. This court decided only that upon the facts disclosed in the record the plaintiff could not recover from the defendant the sums which it had paid for insurance and interest on the mortgages.

The motion for reargument or to amend the remittitur should be denied.


text:
    Ethel Madfes, Respondent, v. Beverly Development Corporation et al., Defendants, and The Coalecon Company, Inc., Appellant.
    (Submitted July 11,1929;
    decided July 11, 1929.)
   Motion to amend remittitur. (See 251 N. Y. 12.)

Motion granted. Recall of remittitur requested and remittitur when recalled will be amended by granting a new trial in lieu of the award of judgment absolute.


text:
    Valentin Encarnacion, Appellant, v. William A. Jamison et al., Doing Business under the Firm Name of Arbuckle Brothers, Defendant. William A. Jamison, Respondent.
    (Submitted July 11, 1929;
    decided July 11, 1929.)
   Motion that the executrix and executors be substituted as parties defendant-respondent in this action in place and stead of William A. Jamison, deceased, for the continuance of the action against them, for the amendment of all papers and proceedings accordingly and the reinstatement and reargument of the appeal granted. (See 251 N. Y. 218,


text:
    Mildred M. Bentley, Respondent, v. Washington B. Reed, Appellant.
    (Submitted July 11, 1929;
    decided July 11, 1929.)
   Motion to amend remittitur. (See 251 N. Y. 524.)

Recall of remittitur requested and the remittitur when recalled will be amended to the extent of providing that the judgment of this court is without prejudice to an application to be made to the Supreme Court at the foot of the decree for the adjustment of any equities that may have developed by reason of the use of the property in suit since the decision of the Appellate Division.


text:
    Alvah Armstrong, Appellant, v. Michael Boomasour, Respondent.
    (Submitted September 30, 1929;
    decided October 1, 1929.)

      Floyd W. Annabel for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Benjamin F. Hendricks, Appellant, v. New York, New Haven and Hartford Railroad Company, Respondent.
    (Submitted September 30, 1929;
    decided October 8, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 297.)


text:
    William J. Thayer, Respondent, v. Allie McManus et al., Appellants.
    (Argued September 30, 1929;
    decided October 8, 1929.)

      Orange L. Van Horne for motion.

      James J. Byard, Jr., opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Mart Shapiro, Respondent, v. Barney’s Omnibus Service Corporation, Appellant. Sam Shapiro, Respondent, v. Barney’s Omnibus Service Corporation, Appellant.
    (Submitted September 30, 1929;
    decided October 8, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 578.)


text:
    Hewson, Wolfe & Co., Inc., Respondent, v. Seward W. Ehrich et al., Appellants.
    (Submitted September 30, 1929;
    decided October 8, 1929.)

      Edward T. Corcoran for motion.

      Harry T. Zucker opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Robert Colin et al., Copartners under the Name of Colin Bros., Respondents, v. Hamilton Fire Insurance Company of the City of New York, Appellant.
    (Submitted September 30, 1929;
    decided October 8, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 312.)


text:
    Josephine Dreyer, Respondent, v. George H. Hyde et al., as Executors of Henry H. Dreyer, Deceased, et al., Appellants.
    (Submitted September 30, 1929;
    decided October 8, 1929.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 450.)


text:
    Cornelia P. Ackerman, Appellant, v. Marie L. Ackerman et al., Appellants, and William Milne et al., as Executors and Trustees under the Will of Cornelia D. Becker, Deceased, et al., Respondents, Impleaded with Others.
    (Submitted September 30, 1929;
    decided October 8, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 533.)


text:
    Commissioner of Public Welfare of the City of New York, Respondent, v. Herman Nasta, Appellant.
    (Submitted September 30, 1929;
    decided October 8, 1929.)

      David Goldstein for motion.
    No one opposed.
   Motion granted.


text:
    Chemical National Bank of New York, as Executor and Trustee under the Will of Roger R. Hill, Deceased, Respondent, v. Susie R. Hill et al., Respondents; Barbara Hill et al., Respondents and Appellants, and American National Red Cross, Appellant and Respondent.
    (Argued September 30, 1929;
    decided October 8, 1929.)

      George W. Hinckley for motion.

      Murray Hurlburt, guardian ad litem.

      Frank H. Hiscock, Joseph M. Hartfield and Kenneth C. Johnson opposed.
   Motion to dismiss appeal by American National Red Cross denied, with ten dollars costs. Motion to dismiss appeal by Murray Hurlburt, individually and as guardian, etc., granted in so far as appeal is taken from order denying motion for reargument, and in other respects denied, without costs.


text:
    Louis H. Schleider, Respondent, v. Maryland Casualty Company, Respondent, and Bertha Horowitz, Appellant.
    (Argued September 30, 1929;
    decided October 8, 1929.)

      James J. Mahoney and Robert B. Livingston for motion.

      Harris Jay Griston opposed.
   Motion denied, with ten dollars costs.


text:
    A. B. Murray Co., Inc., Respondent, v. Lidgerwood Manufacturing Company, Appellant.
    (Submitted September 30, 1929;
    decided October 8, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 558.)


text:
    Nassau Supply Co., Inc., Appellant, v. Ice Service Co., Inc., Respondent.
    (Submitted October 7, 1929;
    decided October 8, 1929.)

      Walter Jeffreys Carlin and Paul C. Werner for motion.

      I. Gainsburg and Seymour B. Liebman opposed.
   Motion denied.


author: Pound, J.

text:
    In the Matter of the Claim of Orsen Decker, Respondent, against Pouvailsmith Corporation et al., Appellants. State Industrial Board, Respondent.

      (Argued October 1, 1929;
    decided October 15, 1929.)

      Harry E. Wareham, for appellants.
    The claimant having failed to file a claim for compensation within one year from the date of accident, any claim which he might have had was barred. (Matter of Doey v. Howland Co., 224 N. Y. 30; The Harrisburg, 119 U. S. 214; O’Esau v. Bliss Company, 188 App. Div. 385; Schenck v. State Line Telephone Co., 238 N. Y. 308; County of Erie v. Lowenstein, 235 N. Y. 458; Hopkins v. Lincoln Trust Co.,
      233 N. Y. 213; Jacobus v. Colgate, 217 N. Y. 235; Matter of Warner, 39 App. Div. 91; Matter of Cheesman, 236 N. Y. 47.) Chapter 709 of the Laws of 1927, purporting to give the claimant additional time within which to file a claim in this case, is unconstitutional and void. (U. S. Const, art. 14, § 1; N. Y. Const, art. 3, § 18; Fox v. Mohawk & H. R. Humane Society, 165 N. Y. 517; Slingerland v. International Contracting Co., 169 N. Y. 60; Knickerbocker Ice Co. v. Schultz, 116 N. Y. 382; Smith v. Harden, 80 Ky. 608; Bearce v. Fairview Tp., 9 Pa. Co. Ct. Rep. 342; Cooley’s Const. Lim. [8th ed.] 806-825; Holden v. James, 11 Mass. 396; Dividson v. Johonnot, 7 Met. 388; Bull v. Conroe, 13 Wis. 233; Teft v. Teft, 3 Mich. 67; Simonds v. Simonds, 103 Mass. 572.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
    Chapter 709 of the Laws of 1927, authorizing Orsen Decker to serve a notice of injury and file a claim for compensation under such law within three months after the act takes effect for injuries sustained by him on August 5, 1919, was legal and constitutional inasmuch as there was a-moral obligation on the part of the insurance company to respond either in damages or compensation for the injuries sustained by the claimant. (Farrington v. State, 248 N. Y. 112; Munro v. State, 223 N. Y. 208; O’Hara v. State, 112 N. Y. 148; Sherlock v. State, 235 N. Y. 515; Williamsburg Savings Bank v. State, 243 N. Y. 231; Cole v. State, 112 N. Y. 146; Cayuga County v. State, 153 N. Y. 279; Babcock v. State, 231 N. Y. 560.)
   Pound, J.

On August 3, 1919, claimant, then under the age of fifteen years, was injured during the course of his employment by the Pouvailsmith Corporation. Notice of injury was promptly given in his behalf. It was the formal notice of injury which could not by any possibility be construed as a claim for compensation under our decision in Kaplan v. Kaplan Knitting Mills, Inc. (248 N. Y. 10). No claim for compensation was filed within a year after the accident and the right to claim compensation is barred unless some exception is found in the law which takes the case out of the general provisions of Workmen’s Compensation Law (Cons. Laws, ch. 67), section 28.

A guardian ad liiem was appointed who brought an action for the infant against the employer to recover damages under the provisions of section 93, now section 146, of the Labor Law (Cons. Laws, ch. 31), which it was claimed gave a right of action for breach of statutory duty in employing a child under sixteen years of age. Judgment recovered in the action was reversed on the authority of Noreen v. Vogel & Bros., Inc. (231 N. Y. 317), which held that the Workmen’s Compensation Law provided an exclusive remedy. Within a year after the reversal, but nearly five years after the injury, the father of the infant presented a formal claim for compensation in behalf of claimant. No general guardian of the infant has ever been appointed. No question arises as to the sufficiency of the claim. The only question is whether the claim is barred by the Statute of Limitations.

At the time of the accident, section 116 of the Workmen’s Compensation Law provided: No limitation of time provided in this chapter shall run as against any person who is mentally incompetent or a minor dependent so long as he has no committee, guardian or next friend.”

As the law then read, it was held by this court in Matter of Cheesman (236 N. Y. 47) (a) that the rights of an injured infant were not saved by the provisions for a minor dependent, and (b) that Code of Civil Procedure, section 396, now Civil Practice Act, section 60, did not save the infant’s rights for the reason that section 28 of the Workmen’s Compensation Law was the controlling Statute of Limitations. It was also held in Matter of Grillo v. Sherman-Stalter Co. (195 App. Div. 362; affd., without opinion, 231 N. Y. 621), a death case, that the juxtaposition of the words “ guardian or next friend ” in the section as it then read compelled the conclusion that the parent of the child as guardian of the person (Domestic Relations Law [Cons. Laws, ch. 14], § 81) was a proper person to file the claim for compensation and that the bar of the statute prevailed when such parent had neglected to act in behalf of the infant. The decision must have been the same whether the guardian was a natural guardian or one appointed by the court since each was in default.

In Chase v. Ulster & Delaware R. R. Co. (215 App. Div. 581) it was held that the marriage of an infant woman terminated the natural guardianship of the mother and that section 116 prevented the statute from running as against her.

Under the language of section 116 as it read at the time of the accident, the default of the claimant was not excused. Section 116 was renumbered section 115 and materially amended, after the Statute of Limitations had run against claimant, by Laws of 1922, chapter 615, to read as follows: <l No limitation of time provided in this chapter shall run as against any person who is mentally incompetent or a minor so long as he has no committee or guardian.” The purpose of the Legislature seems clear. All minors, whether dependents or otherwise, were brought within the protection of the statute. ‘‘ Guardian,” as here used, may reasonably be construed as meaning a guardian appointed by the court and charged with the duty of protecting the property interests of his ward. Such is the meaning of the word as used in Workmen’s Compensation Law, section 16, subdivision 2, providing that the board may in its discretion require the appointment of a guardian for the purpose of receiving the compensation of a minor child.

Such a statute might be made retroactive without impairing any constitutional rights of the employee. When no property rights have become vested by lapse of time, the Legislature may remove the statutory bar when it confers an immunity which is contrary to all prevailing ideas of justice.” (Robinson v. Robins D. D. & R. Co., 238 N. Y. 271, 279.) It was not until our decision in the Noreen Case (supra) in 1921 that claimant learned that he had mistaken bis remedy. The Legislature might properly grant relief in such cases. The rights of minors under the Workmen’s Compensation Law might well be the object of legislative solicitude. But the Legislature must make clear its purpose to make the statute retroactive and applicable to the case at bar. (Robinson v. Robins D. D. & R. Co., supra.) It has failed to indicate that the amended section should apply to cases where the statute _ has already run. To say that such was its purpose is to indulge in speculation. The court may not give a retroactive effect to a statute to revive claims already barred under the old section unless the legislative purpose is defined by express language or by necessary inference.

Other provisions of law are relied on by claimant. Civil Practice Act, section 23 (Code of Civil Procedure, § 405, unchanged), provides: If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if he dies and the cause of action survives, his representative, may commence a new action for the same cause after the expiration of the time so limited and within one year after such a reversal or termination.”

A special proceeding is regarded as an action under the statute. (Civ. Prac. Act, § 10.) But the proceeding under the Workmen’s Compensation Law is not a special proceeding under the Civil Practice Act but a statutory proceeding having its own rules' as to the running of the statute. (Matter of Cheesman, supra.)

Chapter 709, Laws of 1927, is a special or private act for the relief of claimant, intended to revive his claim. It denies to the employer the equal protection of the laws by singling out one of a class for special burdens and obligations. One person should not be subjected to liability from which all others in like circumstances are exempted.

The order appealed from should be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the State Industrial Board.

Cardozo, Ch. J., Crane, Lehman, Kellogg, O'Brien and Hubbs, JJ., concur.

Order reversed, etc.


author: Crane, J.

text:
    Martin Schnibbe et al., Respondents, v. Fred Glenz et al., Appellants.
    (Argued October 4, 1929;
    decided October 15, 1929.)

      Max Ehrlich for appellants.
    The order of the Appellate Division does not state the particular questions of fact upon which the reversal was made as required by section 602 of the Civil Practice Act and the reversal, therefore, must be conclusively presumed to have been made upon the law only. (Cannon v. Fargo, 222 N. Y. 321; Goodman v. Marx, 234 N. Y. 172; Partola Mfg. Co. v. General Chemical Co., 234 N. Y. 320; N. Y. Dock Co. v. Flinn-O’Rourke Co., Inc., 234 N. Y. 126; McGibbon v. Tarbox, 205 N. Y. 271; Seneca Distributing Co. v. Fulton, 227 N. Y. 48; Moore v. Vulcanite- Portland Cement Co., 220 N. Y. 320;Levy v. Louvre Realty Co., 222 N. Y. 14; Hearst v. N. Y. C. & H. R. R. R. Co., 215 N. Y. 268; Caldwell v. Lucas, 233 N. Y. 248.)

      Andrew F. Van Thún, Jr., and James P. Collins for respondents.
    The reversal by the Appellate Division should not be considered or conclusively presumed by this court to be a reversal on the law only. (Caldwell v. Nicholson, 235 N. Y. 209; Raphael v. Kutsukian, 251 N. Y. 571.)
   Crane, J.

This case has been here before (245 N. Y. 388). It came up on the pleadings. The Special Term had granted the plaintiffs’ motion for judgment on the pleadings, and this ruling had been affirmed by the Appellate Division. We decided that there was an issue of fact presented by the answer, and reversed the judgment.

The case coming on for trial, the Special Term, after hearing both sides, granted judgment for the defendant, maldng full and complete findings of fact and conclusions of law. On appeal, the Appellate Division reversed the judgment upon the law and the facts and granted a new trial. It failed, however, to state what findings of fact made by the trial judge were reversed. Thereupon, the appellant, the successful party, moved the Appellate Division to resettle its order so as to state the findings of fact which that court had disapproved. The motion was denied (226 App. Div. 809). Knowing the care which is usually taken by the Appellate Division to make its orders conform to the required practice, we realize that there must be some misunderstanding of the provisions of the Civil Practice Act relating to procedure in that court.

We held in Goodman v. Marx (234 N. Y. 172) that where a judgment was reversed upon the facts and a new trial granted, the Appellate Division was required to state the facts which it disapproved. If this were not done, the reversal was upon the law only. We also held that because of the amendment to section 602, this rule did not apply to the general verdict of a jury. We there said: “ The statement that the reversal is upon the facts as well as upon the law is now sufficient in case of a general verdict to show that the Appellate Division has reviewed the facts and has reversed and granted a new trial upon the ground that the verdict is contrary to or against the weight of evidence.” The practice, however, has not been changed as to trials before the court without a jury, where findings of fact have been made. The case before the court is an equity action to enforce a covenant and restrain the defendants from violating it. The judge made findings of fact. Pursuant to section 602 of the Civil Practice Act, therefore, it must be conclusively presumed that the judgment was not reversed or the new trial granted upon questions of fact, as the particular question or questions of fact upon which the reversal was made and the new trial granted are not specified or referred to in any way.

Section 584 of the Civil Practice Act gives power to the appellate courts to reverse or affirm wholly or in part, but does not specify how the determination shall be expressed. This has been left to section 602 of the Civil Practice Act. Rule 239 of the Civil Practice Rules cannot modify any provision of the Civil Practice Act, and does not attempt to do so. Where there is a reversal or a modification of a judgment entered on the decision of a court without granting a new trial, the Appellate Division according to this rule may reverse any finding and make such new finding as may be necessary to sustain its decision. Here a new .trial was granted and no finding reversed or new finding made. The rule merely carries out the practice to be followed under the requirements of section 584, section 602 and section 620 of the Civil Practice Act. (See, also, to the same effect Partola Mfg. Co. v. General Chemical Co., 234 N. Y. 320; Caldwell v. Nicolson, 235 N. Y. 209.)

The respondent in his brief calls our attention to the recent case, Raphael v. Kulsukian, decided by this court on July 11, 1929 (251 N. Y. 571). While the note prepared by the Reporter states that the Appellate Division granted a new trial as against the weight of evidence, the records on file in this court show that the order of the Appellate Division was amended (July 2, 1929) before this court made its decision, so as to show the findings of fact which were reversed.

We, therefore, are bound to presume that the findings of fact made by the Special Term in this case have been affirmed, and the judgment reversed solely on the law. The findings, as made, sustain the judgment. We have previously held that an issue of fact was presented by the pleadings. The trial justice found the facts as alleged by the defendants in their answer. These facts are sufficiently set forth in our previous decision (245 N. Y. 388). To them is added the 22d'finding of fact — > “ that the several plaintiffs herein have not suffered any damage by reason of the fact that the defendant, Fred Glenz, has the aforesaid signs [real estate and insurance] on the Rogers avenue side of his said building and uses one room in the basement thereof as his office.” The court also finds that Rogers avenue has been and still is a business street.

These findings stand and justify the conclusion of the trial justice that the plaintiffs, whose property faces on Rutland road, some distance away from Rogers avenue, are not entitled to an injunction.

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

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

Ordered accordingly.


text:
    In the Matter of the Claim of Charles J. Wickham, Respondent, v. Glenside Woolen Mills et al., Appellants. State Industrial Board, Respondent.
    (Argued October 2, 1929;
    decided October 15, 1929.)

      Raymond F. Nichols for appellants.
    The injuries sustained did not arise “ out of and in the course of the employment.” (Matter of DiSalvio v. Menihan Co., 225 N. Y. 123; Yodakis v. Smith & Sons Carpet Co., 193 App. Div. 150; Strand v. Harris Structural Steel Co., 209 App. Div. 310; Lauterbach v. Jarett, 189 App. Div. 303; Matter of Saenger v. Locke, 220 N. Y. 556; Culhane v. Economical Garage Co., 188 App. Div. 1; McCarter v. LaRock, 240 N. Y. 288; Kowalek v. N. Y. Cons. R. R. Co., 229 N. Y. 489; Kane v. Barbe, 210 App. Div. 558.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Per Curiam.

The facts in the case are as follows: The employer manufactured broadcloth and shirtings. The claimant was a boy employed as helper in the spinning department. Among other duties, he carried spools from the spinning room to the card room. On the day of the accident he had carried spools and left them in their proper place. On the way back to his starting point, he stopped to ask a fellow-employee for a chew of tobacco. This errand took him a few feet out of his direct course. After he had spoken to the man, he started to go on and slipped on a greasy floor. As a result df the fall his right hand was caught in a machine. The hand was amputated. He received an award for the loss of a hand. The appellants contend that the injury did not arise out of and during the course of his employment.

u An accident befalls a man in the course of ’ his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.” (Moore v. Manchester Liners, Ltd., [1910] A. C. 498, 500.)

The incidental actions of a workman in getting a drink of water or going to the washroom during the hours of his employment do not ordinarily remove him from the scope of his employment and from the protection of the Workmen’s Compensation Law (Cons. Laws, ch. 67). Workmen situated as claimant was may reasonably be expected to chew tobacco and to ask their fellow-workmen for tobacco for that purpose. The practice is nothing to which the employer would ordinarily object. In M’Lauchlan v. Anderson (4 Butterworth’s W. C. C. 376; 48 Sc. L. R. 349) a teamster dropped his pipe and was injured while getting down from his wagon to pick it up. In Springer v. North (205 App. Div. 754) a driver stopped at a store to purchase tobacco for himself. When he was reaching for the tobacco as it was being handed to him, the horses started, throwing him to the ground. In both cases it was held that the accident arose out of the employment. Claimant’s employment did not cease when he went out of his way a few feet to ask for a chew. In a sense, the act was done for “ his own purpose ” but it was none the less something which he was free to do in the course of his employment, at least in a shop where, as in this case, no objection was made to the practice.

The decision in Matter of DiSalvio v. Menihan Co. (225 N. Y. 123) went upon the ground that the personal errand which took the claimant from a place of safety to one of danger was not a natural or reasonable incident to the work. Whether the principle invoked in that case was properly applied, we do not need to consider. Enough for present purposes that the claimant now before us did nothing that might not reasonably be expected of one in his position. The ruling in the DiSalvio case will not be extended to the situation here disclosed.

The order should be affirmed, with costs.

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

Order affirmed.


text:
    In the Matter of Stephen Callaghan, Respondent, against John R. Voorhis et al., Constituting the Board of Elections of the City of New York, Appellants.
    (Argued October 18, 1929;
    decided October 22, 1929.)

      Arthur J. W. Hilly, Corporation Counsel (Joseph P. Reilly of counsel), for appellant.
    The order appealed from violates the provisions of the Election Law. (Matter of Haskell v. Voorhis, 246 N. Y. 256; Biddle v. Enright, 239 N. Y. 354; Matter of Gaylord v. Board of Elections of

      Rensselaer Co., 123 Misc. Rep. 817; Matter of Hopper v. Britt, 203 N. Y. 144.)

      Albert Conway and Edward McLoughlin for Democratic County Committee of Kings County, intervening.

      Meier Steinbrink, George Z. Medalie, William B. Her-lands and Harold M. Kennedy for respondent.
    To the extent that section 249 of the Election Law provides for the name of a candidate appearing only in the line or column of a party, where he has also been nominated by an independent body, it is unconstitutional. (Matter of Robinton, 128 Misc. Rep. 163; Matter of Hopper v. Britt, 203 N. Y. 144; Matter of Callahan, 200 N. Y. 59.)
   Crane, J.

We held in Matter of Haskell v. Voorhis (246 N. Y. 256), that where a nominee of the Republican party for County Court Judge was also the sole nominee of an independent body, designated the Anti-Dry League, he was not entitled to have his name appear upon a separate line provided for that independent body; that section 249 of the Election Law [Cons. Laws, ch. 17], was not unconstitutional in its application to such an instance. There was nothing unfair, prejudicial or unreasonable in having the name and emblem of the Anti-Dry League appear in connection with the candidate’s name on the Republican party line. The voter who desired to vote for Mr. Haskell could do so in one place upon the machine as well as another, as in voting the Anti-Dry League ticket, he could and would vote solely for County Judge.

We specifically reserved the question of the effect of other nominations made by an independent body, when the line provided for that body would then have a fairly full and complete ticket for the offices to be filled at the election.

Section 249 reads: When a person has been nominated for an office by one political party and has also been nominated for that office by one or more independent bodies, his name shall appear only in the row or column containing generally the names of candidates for other offices nominated by such party, and the name and emblem of such party and of each of such independent bodies shall appear in connection with his name.”

A political party is one which polled twenty-five thousand (25,000) votes for Governor at the preceding election.

This appeal presents to us this reserved question, Mr. Justice Callaghan has been nominated for the Supreme Court in the Second Judicial District by the Republican party. He has also been nominated by an independent body, known as the Square Deal party, which has nominated a full and complete ticket for nearly all, if not all, the offices to be filled at the coming election in the counties embraced within the city of New York. This includes nominees for the respective offices of Mayor, Comptroller, President of the Board of Aldermen throughout these counties and for Surrogates, Sheriffs, District Attorney and City Court Judges and others in the appropriate counties. So far as we can tell from the record, it appears that these nominees are nearly all, if not all, independent nominees in that their names do not and will not appear as candidates of the party organizations recognized as such under the Election Law; to be specific, the Democratic and Republican parties.

The Square Deal party, by appropriate petitions, has nominated or indorsed Mr. Justice Callaghan for the Supreme Court and on the line which will be assigned to this independent body or organization, the Board of Elections has signified its intention of leaving a blank, stating that this is the requirement of section 249 of the Election Law, which the Board must follow until ordered otherwise. The voter, therefore, who intends to vote the Square Deal ticket, and for the nominees of that body, will find on this line which will be assigned to this party irrespective of Callaghan’s nomination, a full list of names for the respective offices. When he comes to the Justice of the Supreme Court, however, there will be a blank.

The point of the unfairness or prejudice to the voter in such a case lies in the fact that if there be a rather full and complete ticket of independent nominees by an independent body and a separate line is assigned for these candidates, the voter is very apt to be deceived, misled or confused in voting along the line by finding a blank for a particular office, the name of the nominee for that office having been placed on another party line or column. He might be led to think that the independent body, whose ticket he was voting had failed to make a nomination for that office or become confused in looking for the name. Such is the reasoning in Matter of Hopper v. Britt (203 N. Y. 144; 204 N. Y. 524); Matter of Gilfillan v. Beyer (124 Misc. Rep. 628; 212 App. Div. 855; 240 N. Y. 579).

The application in this case is to compel the Board of Elections to place Mr. Justice Callaghan’s name on the line with the other nominees of the Square Deal party. The Special Term, in granting the application, acted within the spirit of the previous rulings of this court, based upon article I, section 1, of the State Constitution, which provides: No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.” As already intimated, a voter, voting the ticket of the Square Deal party, is unduly and unreasonably obstructed, hampered and prejudiced in contrast with other voters voting other tickets, when it comes to the office of Justice of the Supreme Court.

The whole purpose of the Election Law and of the Constitution under which it is enacted, is that, within reasonable bounds and regulations, all voters shall, so far as the law provides, have equal, easy and unrestricted opportunities to declare their choice for each office. Section 249 of the Election Law is constitutional except in those instances when, to apply it would be unfair and prejudicial to a particular class of voters. Many inequalities of course exist by nature and perhaps by education in the electorate, but before the law, all, so far as possible, must be considered equal. The clever man has no difficulty in knowing just what to do. The law, however, recognizes that many voters unfamiliar with the machinery of politics become perplexed and confused by the size' of the ballot and the number of offices to be voted for in our modern elections. Regulations and restrictions are necessary as we have found from experience to insure honest elections; but they become unconstitutional when they unnecessarily and unfairly restrict or prejudice one class of voters and not others.

The petitioner has asked to be placed upon the ticket and line of the Square Deal party. His application is granted, but the Special Term order granting it is entirely too broad. It includes not only the ticket of the Square Deal party but each independent body which may designate him for the office, unless that body nominates no other candidate. This part of the order wé eliminate and restrict it solely to the Square Deal party.

The answering affidavit of Mr. Voorhis, President of the Board of Elections, states that Stephen Callaghan has • been nominated by the Republican, Independent and Square Deal parties. The nominating petitions of the Independent body, or organization, if it be one, are' not before us. They are not in the record. We are, therefore, restricted to the facts as they appear, and confine our ruling to the ticket of the Square Deal party in accordance with the above reasoning.

The order should be modified by providing that the name of the petitioner shall appear in the row or column of the Square Deal party as well as in the row or column assigned to the Republican party and by striking out the provisions for any other changes in the voting machines to be used at the general election, November 5, 1929, and as thus modified affirmed, without costs.

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

Ordered accordingly.


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    The People of the State of New York ex rel. The Texas Company, Appellant, v. John F. Gilchrist et al., Constituting the State Tax Commission, Respondents.

      (Argued October 3, 1929;
    decided October 15, 1929.)

      T. K. Schmuck for appellant.
    Unless assets are used instrumentally in New York business, viz., to maintain or aid corporate enterprise or activity in this State, they are not “ employed ” by a corporation <l in its business in this State ” within the meaning of the statute. (People ex rel. Union Ferry Co. v. Roberts, 66 App. Div. 157; People ex rel. Buffalo Union Furnace Co. v. Gilchrist, 215 App. Div. 51; 243 N. Y. 571; People ex rel. Manila, etc., Co. v. Knapp, 229 N. Y. 502; Cochen v. Methodist Protestant Church, etc., of Williamsburg, 32 App. Div. 239; Spreckles Sugar Refining Co. v. McClain, 192 U. S. 397; People ex rel. Singer Manufacturing Co. v. Wemple, 150 N. Y. 46; People ex rel. Wall & Hanover Street Realty Co. v. Miller, 181 N. Y. 336; Von Baumback v. Sargent Land Co., 242 U. S. 515; Trustees of Columbia College v. Lynch, 47 How. Pr. 275.) Appellant’s bank and cash balances in excess of $35,362.85 were not “ employed by it in its business in this State ” within the meaning of the statute. (Lau Ow Bew v. U. S., 144 U. S. 59; Fields v. U. S., 27 App. Cas. [D. C.] 443.)

      Hamilton Ward, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for respondents.
    The average monthly bank and cash balances held in New York were properly segregated to this State. (People ex rel. Brooklyn Rapid Transit Co. v. Miller, 85 App- Div. 178; 181 N. Y. 582; People ex rel. North American Company v. Miller, 90 App. Div. 560; 182 N. Y. 521; American Contracting & Dredging Co. v. Wemple, 129 N. Y. 558; People ex rel. Thomas Clock Co. v. Wemple, 133 N. Y. 323; People ex rel. Blackinlon Co. v. Roberts, 4 App. Div. 388; 151 N. Y. 652; People ex rel. New England Loan & Trust Co. v. Roberts, 25 App. Div. 16.)
   Pound, J.

Appellant was a Texas corporation, whose main office was at Houston, Tex. It also had a principal office in the city of New York. Its business was producing, refining, manufacturing and selling petroleum and its products. This business was carried on in various States and foreign countries, including the State of New York.

Under the law then in force appellant was taxable on such part of its issued capital stock, at its face value, as the amount of its gross assets employed by it in its business in this slate bears to its gross assets wherever employed by it in its business.” (L. 1921, ch. 705, § 4, amdg. Tax Law [Cons. Laws, ch. 60], § 214.)

During the year 1921 appellant maintained cash and bank balances in New York averaging $14,375,781.59. The Tax Commission computed appellant’s franchise tax on the theory that all such moneys were employed ” by appellant in its business in this state ” without regard to how, where or whether, if at all, they were actually used.

Appellant declares that a monthly average of $35,362.85 and no more was used by appellant in its New York business and that a trifle more than half the rest of appellant’s cash and bank balances was used in extra-state business; a trifle less than half was not used but was kept as a reserve.

Appellant contends that only so much of its cash and bank balances was employed ” in its New York business as maintained or aided its activity and enterprise within the State and that its tax should be reduced from $10,017.83 to $1,933.60.

Appellant’s New York cash and bank balances were devoted to the following uses: $35,362.85 used to conduct its New York business; $6,917,549.91 not in active use but kept as a reserve fund; $1,428,785.10 used in appellant’s producing department operations without the State; $800,266.44 used in appellant’s refining department operations without the State; $1,573,644.27 used outside the State to buy oil; $868,189.12 used to pay the expenses of appellant’s main office in Houston, Tex.; $48,382.13 used to pay interest on appellant’s outstanding note issue; $2,703,583.75 used to pay debts contracted by appellant’s New York city office—.debts not including intrastate purchases.

It is incumbent on appellant not only to establish error but also to establish the exact amount of error.The proceeding will not be remitted to the Commission for a new hearing on the merits. (People ex rel. Kohlman & Co. v. Law, 239 N.. Y. 346.) Appellant was doing business in this State and the Commission had jurisdiction to levy a tax. The question is whether appellant has satisfactorily separated the items of bank deposits in New York employed by it in its business in this State from those not so employed. If appellant merely had an office in this State and money on deposit in New York banks subject to check in payment of extra-state business not otherwise employed in the pursuit of profit and gain in this State, it would not be employing its capital in its business in this State. (People ex rel. Manila El. R. R. & L. Co. v. Knapp, 229 N. Y. 502; Von Baumbach v. Sargent Land Co., 242 U. S. 503.)

To the extent that appellant clearly establishes that certain items of bank deposits are wholly for use outside the State it is entitled to relief. Capital is not employed in business in this State when it is wholly set apart for use in appellant’s business without the State. Applying this test to the several items, it appears that the Tax Commission has given too broad a meaning to the words “ employed ” in “ business in this state.” The item of $35,362.85 is admittedly so employed. The item of $6,917,549.91 was on deposit for purpose of transfer to other banks when balances there became too low and for such other purposes as they might have been needed from time to time in the general operations of the company.” As no separation is made between the balance available for business in this State and the balance not so available, the entire item must be included for the purpose of assessing the tax. The item of $2,703,583.75 was used to pay debts contracted by appellant’s New York office for the purchase of oil located outside the State. It seems that the oil was purchased and paid for in New York. The locus of the thing purchased is immaterial if the capital was employed in the business of purchasing within the State. The item of $48,382.13 used to pay interest on appellant’s outstanding note issue does not appear to have been disconnected with the operations of the company in New York. It does not appear where the notes were issued nor in connection with what business. The remaining items appear to be disconnected with the New York business and should not be included as the basis of computing the tax.

The order should be reversed, without costs, the determination annulled and the proceeding- remitted to the State Tax Commission to reassess tax in accordance with this opinion.

Cardozo, Ch. J., Crane, Kellogg, O’Brien and Htjbbs, JJ., concur; Lehman, J., not sitting.

Ordered accordingly.


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    Bula E. Croker, Respondent, v. Richard Croker, Appellant.
    (Argued October 9, 1929;
    decided October 22, 1929)

      Frederick B. By an and Samuel A. Adamson for appellant.
    The court below erred in granting summary judgment. The affidavit submitted by defendant is a complete bar to a summary judgment under rule 113.. Sufficient proof was-submitted by defendant entitling him to defend the action and to try the issues. (Curry v MacKenzie, 239 N. Y. 267; Mogul, Inc., v. Lavine, Inc., 247 N. Y. 20; Gravenhorst v. Zimmerman, 236 N. Y. 22; General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133; Weinberg v. Goldstein, 226 App. Div. 479; Chelsea Bank v. Munoz, 202 App. Div. 702; Bernstein v. Kritzler, 224 App. Div. 387; Scanlon v. Kuehn, 225 App. Div. 256; Miner v. Reinhardt, 225 App. Div. 530; Sudarsky v. Woodmar Reatty Co., Inc., 224 App. Div. 38; Genet v. D. & H. Canal Co., 163 N. Y. 177; Spies v. National City Bank, 174 N. Y. 227.)

      Edmund L. Mooney and Wilber W. Chambers for respondent.
    Defendant's answer and affidavit present no triable issue of fact. (Guggenheim v. Wahl, 203 N. Y. 390; Matter of Swales, 60 App. Div. 599; 172 N. Y. 651; Hewitt v. Northrup, 75 N. Y. 506; Kaufman v. Kaufman, 177 App. Div. 162; Hughes v. Cuming, 165 N. Y. 91; Matter of Stilwell, 139 N. Y. 337; Dunstan v. Higgins, 138 N. Y. 70; Lazier v. Westcott, 26 N. Y. 146; Konitzky v. Meyer, 49 N. Y. 571; Johnston v. Comp. Generale Transatlantique, 242 N. Y. 381.)
   Pound, J.

This is an action on a judgment of the High Court of Justice, King’s Bench Division of Saorstat Eireann, Irish Free State, given and rendered June 22, 1923. The complaint alleges the recovery of a judgment for costs in favor of the plaintiff herein against the defendant herein. By the judgment it was ordered and adjudged that this defendant pay to this plaintiff her costs of said action, when taxed and ascertained, save in so far as said costs had been increased by the intervention of ” the intervenient Ethel White.

The complaint contains further allegations to the effect that the costs were taxed on November 13, 1923, at the equivalent in American currency of $15,801.08, which sums as taxed are and constitute a part of said judgment,” and demands judgment therefor, with interest and costs.

The answer puts in issue, among other allegations, the allegation that the costs as taxed are and constitute a part of said judgment.” On motion for judgment an affidavit was read in support of the motion made by a former solicitor of the High Court of Justice in Ireland, now a member of the New York bar, to the effect that the costs need not be written into the judgment to form a part thereof and that nothing further was required to be done to make the judgment enforceable. An affidavit made by another Irish solicitor was read in opposition to the motion to the effect that such costs when taxed did not become a part of. the judgment until the amount thereof was entered in or upon the judgment. The Special Term struck out defendant’s answer and directed judgment on the complaint.

The question is whether defendant has shown such facts as entitle him to defend. (Rules Civil Practice, rule 113.) Has he presented conflicting evidence upon a material issue which might be submitted to a court or jury? If he has, the court cannot pass upon the issue thus created on a motion for summary judgment. (General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133,139.) We do not know the law of the Irish Free State judicially. Foreign law must be proved like any factum probandum. If we should indulge in the presumption that the Irish law is like that of the forum, we would conclude that costs as taxed form no part of the judgment until the amount thereof is inserted therein. (Civ. Prac. Act, § 1532.) If we should look to the English practice, it would seem that it is necessary to enter up the costs on the judgment before proceeding. to enforce it. (Ex parte Crump, 64 L. T. 799.) The- affidavit of the Irish solicitor who swears that this is the rule in the Irish Free State cannot be disregarded as suggesting an irregularity only. It indicates a material defect in the judgment sued on and sustains the defense that puts in issue the allegation of the complaint that costs as taxed “ are and constitute a part of said judgment,” without being further connected with the judgment than by the taxing certificates. The action is on the judgment and if the judgment itself is not enforceable for a fixed sum the action must fail.

The judgment should be reversed, with costs in all courts, and the motion for summary judgment denied, with ten dollars costs.

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

Judgment accordingly.