text:
    The People of the State of New York, Respondent, v. Leonard Abruzzese, Appellant.
    Submitted June 3, 1938;
    decided July 7, 1938.

      Frank J. Pino for appellant.
    The People failed to prove a delivery within the meaning of either section. (People v. Goldberg, 146 App. Div. 950; 131 N. Y. Supp. 481; People v. Visconti, 234 N. Y. 165; People v. Kaminsky, 245 App. Div. 768; 280 N. Y. Supp. 900.)

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
    The appellant’s guilt was proved beyond a reasonable doubt. (People v. Goldberg, 146 App. Div. 950; People v. Visconti, 234 N. Y. 165.)
   Per Curiam.

The judgment should be affirmed. In this case there is proof, lacking in People v. Berman (278 N. Y. 408), decided herewith, of a delivery even though insufficient to pass title.

The judgment should be affirmed.

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

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Joseph Ring, Appellant.
    Submitted June 3, 1938;
    decided July 7, 1938.

      Frank P. Greenberg and Herman Gross for appellant.
    The judgment of conviction is contrary to law. (People v. Berman, 254 App. Div. 98; People v. Goldberg, 146 App. Div. 950; Stanley v. Dryer, 70 Misc. Rep. 561; People v. Kaminsky, 245 App. Div. 768.) There was no delivery and the conviction is against the weight of evidence. (People v. Goldberg, 146 App. Div. 950; People v. Kaminsky, 245 App. Div. 768.)

      William F. X. Geoghan, District Attorney {Henry J. Walsh of counsel), for respondent.
    Defendant’s guilt was proved beyond a reasonable doubt. (People v. Goldberg, 146 App. Div. 950; People v. Visconti, 234 N. Y. 165; Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458.)
   Per Curiam.

The judgment should be affirmed. In this case there is proof, lacking in People v. Berman (278 N. Y. 408), decided herewith, of a delivery even though insufficient to pass title.

The judgment should be affirmed.

Lehman, O’Bbien, Hubbs, Loughban and Finch, JJ., concur; Rippey, J., dissents; Crane, Ch. J., taking no part.

Judgment affirmed.


text:
    Morris Siegel, Respondent, v. Walter R. Gordon, as Trustee under the Will of Mary A. Gordon, Deceased, Defendant, and City Bank Farmers Trust Company, as Trustee under the Will of Mary A. Gordon, Deceased, Appellant.
    Argued May 26, 1938;
    decided July 7, 1938.

      H. H. Brown, J. O. Denniston and E. C. Sherwood for appellant.
    Any negligence herein was that of an employee of the cafeteria corporation and for the consequences of such negligence there is no legal theory on which the defendants may be held hable. (Tilem v. Alon Holding Corp., 276 N. Y. 531; Kirby v. Newman, 239 N. Y. 470; Trustees of Canandaiqua v. Foster, 156 N. Y. 354; Bardel v. Standard Oil Co., 218 App. Div. 145.)

      J. Irwin Shapiro for respondent.
    The defendant owner is hable in nuisance. (Congreve v. Smith, 18 N. Y. 79; Congreve v. Morgan, 18 N. Y. 84; Creed v. Hartmann, 29 N. Y. 591; Irvine v. Wood, 51 N. Y. 224; McFarlane v. City of Niagara Falls, 247 N. Y. 340.) The defendant owner is liable in negligence. (West v. Kingsway Realty Corp., 218 App. Div. 494; Pensa v. Raleigh Hall, 243 App. Div. 816; Appel v. Muller, 262 N. Y. 278; Rohlfs v. Weil, 271 N. Y. 444; Gildea v. Harris Fine R. & C. Co., 249 App. Div. 775; Rosenholz v. Shattuck Co., 112 Misc. Rep. 468.)
   Per Curiam.

The appellant was not guilty of any negligence in the maintenance of the cellar doors. The accident occurred solely through the negligence of a third party. (Kirby v. Newman, 239 N. Y. 470.)

The judgments should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


author: Lehman, J.

text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Appellant, v. Michael Weinsier, Respondent. Same, Appellant, v. Adolph Heinemann, Respondent. Same, Appellant, v. Henry Petry, Respondent. Same, Appellant, v. Conrad Platz, Respondent.

      Argued May 24, 1938;
    decided July 7, 1938.

      John A. Mullen and Harrison W. Gebhardt for appellant.
    The complaint states facts sufficient to constitute a cause of action. (Broderick v. Betco Corp., 149 Misc. Rep. 245; Broderick v. Adamson, 146 Misc. Rep. 456.) The stockholders of every corporation and joint-stock association for banking purposes shall be individually responsible to the amount of their respective share or shares of stock in any such corporation or association for all its debts and liabilities of every kind. (Matter of Hollister Bank, 27 N. Y. 393; Matter of Empire City Bank, 18 N. Y. 199; Broderick v. Betco Corp., 149 Misc. Rep. 245; Van Tuyl v. Schwab, 174 App. Div. 665; 220 N. Y. 661; Schalucky v. Field, 124 Ill. 617; People ex rel. Winchester v. Coleman, 133 N. Y. 279; Rogers v. Decker, 131 N. Y. 490; Corning v. McCullough, 1 N. Y. 47.) Section 7 of article 8 of the State Constitution is self-executing so far as it lays down the measure of the stockholders' liability. (People ex rel. McClelland v. Roberts, 148 N. Y. 360; Chittenden v. Wurster, 152 N. Y. 345; Broderick v. Adamson [Gordon], 270 N. Y. 228; Converse v. Hamilton, 224 U. S. 243; Bernheimer v. Converse, 206 U. S. 516; Dupee v. Swigert, 127 Ill. 494; Golden v. Cervenka, 278 Ill. 409; Western Pacific Ry. Co. v. Godfrey, 166 Cal. 346; Jones v. Jarman, 34 Ark. 323; Union Nat. Bank v. Halley, 19 S. D. 474; Eau Claire Nat. Bank v. Benson, 106 Wis. 624; Marshall v. Sherman, 148 N. Y. 9; Hancock Nat. Bank v. Farnum, 176 U. S. 640; Whitman v. Oxford Nat. Bank, 176 U. S. 559; People ex rel. Alpha P. C. Co. v. Knapp, 230 N. Y. 48; Story v. Furman, 25 N. Y. 214.) Section 80 of the Banking Law (Cons. Laws, ch. 2) gives the Superintendent of Banks the right to enforce the liability of stockholders imposed by section 7 of article 8 of the State Constitution. (People v. Ryan, 274 N. Y. 149; Wright v. Russell, 155 Misc. Rep. 877; 245 App. Div. 708; Isaac v. Marcus, 258 N. Y. 257.)

      Joseph Katz, William Roth, Henry D. Levy and Otto M. Gabler for respondents.
    The complaint fails to state facts sufficient to constitute a cause of action. (Adkins v. Thornton, 19 Ga. 325; Cheney v. Scharmann, 145 App. Div. 456; Van Tuyl v. Schwab, 172 App. Div. 670.) Stockholders of a bank in liquidation are hable equally and ratably each for himself and not one for another for the debts and engagements of the bank up to the par value of their stock and where the deficit is less than the par value of the outstanding stock each stockholder is fiable only for his proportionate share thereof in such ratio as the par value of his stock bears to the par value of the entire issue. (Matter of Hollister Bank, 27 N. Y. 393; United States v. Knox, 102 U. S. 422; Atwood v. R. I. Agricultural Bank, 1 R. I. 376; Adkins v. Thornton, 19 Ga. 325; Wiswell v. Starr, 48 Me. 401; Coyle v. Taunton Safe Deposit Trust Co., 216 Mass. 156; Howarth v. Angle,
      162 N. Y. 179; Broderick v. Adamson [Gordon], 270 N. Y. 228; Marshall v. Sherman, 148 N. Y. 9; Terry v. Little, 101 U. S. 216; Hood v. Guaranty Trust Co., 270 N. Y. 17; Ives v. South Buffalo Ry. Co., 201 N. Y. 271.)
   Lehman, J.

The Superintendent of Banks in 1931 took possession of the business and property of Globe Bank and Trust Company, pursuant to provisions of the Banking Law (Cons. Laws, ch. 2), and proceeded to liquidate it. The defendants are stockholders of the bank. The Superintendent of Banks has instituted a separate action against each defendant to recover the “amount ” of his shares in the bank. At the time that the Superintendent of Banks took possession of the bank and at the time he began these actions, article VIII, section 7, of the Constitution of the State provided that “ the stockholders of every corporation and joint-stock association for banking purposes, shall be individually responsible to the amount of their respective share or shares of stock in any such corporation or association, for all its debts and liabilities of every kind.” He asserts in these actions the right to enforce the stockholders’ responsibility, decreed by the Constitution.

Except for difference in the name of the defendant and the number of shares owned and held by him, the complaints in the three actions are identical. After each defendant had filed an answer, the plaintiff moved in each action for summary judgment under rules 113 and 114 of the Rules of Civil Practice. The motions were granted. The defendant Heinemann made a cross-motion to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. That motion was denied. All the defendants appealed to the Appellate Division from the summary judgments against them and the defendant Heinemann by appropriate notice of appeal brought up for review the intermediate order denying his motion to dismiss the complaint. The Appellate Division reversed the orders for summary judgment and the judgments entered thereon but held, upon the defendant Heinemann’s appeal, that the complaint was sufficient. It has granted leave to appeal, in each action, certifying for review the following questions of law:

“1. Does the complaint herein set forth facts sufficient to constitute a cause of action?
2. Upon the record on appeal herein, is the plaintiff entitled to summary judgment for the rehef demanded in the complaint? ”

The provision of the Constitution imposing upon the stockholders of a bank responsibility for its debts has been repealed by vote of the people of the State, but the repeal does not affect liability already accrued. Though the Constitution provided that the stockholders of a bank “ shall be individually responsible ” for the debts and liabilities of the bank, it is silent as to how and by whom the stockholders’ responsibility may be enforced, and as to “ when liability arises, upon whom it falls, and how long it continues.” (Broderick v. Aaron [Kornberg], 268 N. Y. 260, 264.) The Legislature had power to speak where the Constitution was silent. It might, by statute, provide appropriate procedure to carry out the mandate of the Constitution, though legislation which would defeat or even restrict a self-executing mandate of the Constitution would be beyond the power of the Legislature.

We have said recently that The constitutional provision is not "self-executing, nor does it define the term stockholder.’ ” (Broderick v. Adamson [Gordon], 270 N. Y. 228, 231.) In section 120 of the Banking Law (now § 113-a) the Legislature defined the term stockholder and created a statutory cause of action for the enforcement of the individual liability of a stockholder. It provided, among other things, that "The stockholders of every bank shall be individually responsible, equally and ratably and not one for another, for all contracts, debts and engagements of the bank, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.” Concededly if the defendants as stockholders of the insolvent bank are responsible only equally and ratably and not one for another ” for the debts of the bank, the Superintendent of Banks is not entitled to summary judgment, for it appears from the affidavits submitted on the motion that the deficit in the bank’s assets which must be made good, if all the debts of the bank are to be paid in full, is much less than the amount of the capital stock of the bank at its par value. The Superintendent of Banks asserts, however, that, in addition to the cause of action created and defined by the statute, he has a cause of action to enforce a stockholder’s individual responsibility created by the Constitution, and that this responsibility is not subject to the limitations contained in the statute.

A provision for individual responsibility of the stockholders of a bank to the amount of their respective share or shares was contained in the Constitution of 1846, but, like the provision in the present Constitution, it is silent as to how and by whom that responsibility may be enforced. Within three years thereafter, the Legislature created a cause of action for the enforcement of such liability by chapter 226 of the Laws of 1849. The cause of action created by that statute, like the cause of action created by section 120 of the Banking Law, provided for enforcement of liability only “ equally and ratably.” In Matter of Hollister Bank (27 N. Y. 393) this court held that the Legislature might place limitations upon a statutory cause. of action which it created. The court at the same time pointed out that if the Constitution creates a liability upon which an action might have been maintained against any or all the stockholders of such an association, if the Legislature had passed no act to carry out that provision ” the Legislature would have no power to limit the liability created by the Constitution or to provide that the only action which might be maintained would be an action to enforce that liability in part. The court did not, however, find it necessary in that case to decide whether by self-executing provision the Constitution did create a liability which would be enforceable by action even though the Legislature passed no act to carry out the provision. The proceedings in that case were brought pursuant to the statute and were subject to the regulations or limitations imposed by the statute, even if, through some other form of action brought by a different plaintiff, a wider liability might have been enforced.

For more than eighty years all proceedings to enforce a stockholder’s liability were brought pursuant to the statute and subject to its limitations. There has been no assertion heretofore by the Superintendent of Banks or by the creditors of a bank that proceedings other than those authorized by statute might be brought to enforce a liability against stockholders not ratably, but one for the other. Argument may be made that it is unfair to place upon a stockholder of a bank responsibility for more than his proportional share of the debts of the bank. (Cf. Terry v. Little, 101 U. S. 216.) It is clear that when the Legislature by chapter 226 of the Laws of 1849, created a cause of action to enforce a stockholder’s responsibility ratably, it believed either that the provision of the Constitution created a stockholder’s responsibility which was ratable and not one for the other, or that the constitutional provision was not self-executing but left the Legislature free to define that responsibility and to provide such form of action for its enforcement as it deemed wise. We may not suppose that the Legislature intended to create a cause of action for enforcement of limited responsibility if it construed the Constitution as providing for a broader liability. .

The form of the statute at the time this action was brought shows beyond possibility of doubt that the Legislature intended that for definition and enforcement of a stockholder’s liability, we must look to the statute alone. No other construction is possible of the provision of section 120 of the Banking Law that the “ individual liability of such stockholders for the contracts, debts, and engagements of the bank * * * shall be governed exclusively by the provisions of this section and section 80 of this chapter.” Section 80 (now § 632) provided, so far as material to the question we are discussing, that whenever a liability of stockholders for the amount of their respective share of any such corporation exists * * * the superintendent * * * may enforce the individual liability of such stockholders in whole or in part.” Certainly the Legislature has not vested in the Superintendent any authority to bring any action other than the action provided by statute to enforce the liability defined by the statute.

The Appellate Division has so held, and has based its decision upon that ground. It has left open the question whether the provision of the Constitution is self-executing and creates a cause of action in favor of creditors to enforce responsibility of stockholders one for another ” for the amount of stock held by each. We have already said that the constitutional provision is not self-executing. The Legislature has so construed that provision since its adoption. An experience of eighty years has demonstrated that statutes were necessary to define what the Constitution has left undefined, and to create a new cause of action appropriate for enforcement of a stockholder’s responsibility. No other cause of action was created by the Constitution or may be maintained for enforcement of that responsibility.

We cannot pass upon the cross-motion of the defendant Heinemann to dismiss the complaint. No appeal has been taken to this court from the order denying it.

In each action the order should be affirmed, with costs. The first question certified is not answered and the second question is answered in the negative.

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

Orders affirmed, etc.


text:
    In the Matter of Charles H. Stowell, Appellant, against Battista Santoro et al., Constituting the Board of Trustees of the Village of Mamaroneck, et al., Respondents.
    Argued October 5,1938;
    decided October 11,1938.

      Benjamin Shedler, Meyer W. Greenwald and Herbert Peterfreund for appellant.
    The Appellate Division erred in refusing to consider the bribery charge. (People ex rel. Gilson v. Gibbons, 231 N. Y. 171; People ex rel. Leonard v. Cropsey, 149 App. Div. 730; People ex rel. Long v. Whitney, 143 App. Div. 17; People ex rel. Reardon v. Partridge, 86 App. Div. 310.)

      Frank A. Saporito and Mario D. Nicolais for respondents.
   Per Curiam.

The record shows that the village trustees voted that the petitioner was guilty of the acts alleged only by the first charge. This charge was not considered at the Appellate Division. It was there held that the evidence amply sustained the other charges. The record, however, does not show that any action was taken by the trustees on those charges.

The order of the Appellate Division should be reversed and the matter remitted to the Appellate Division for further consideration and disposition in accordance with this opinion, without costs.

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

Ordered accordingly.


text:
    In the Matter of the Estate of Joseph J. Malloy, Deceased. Allan P. McKain, as Executor of Joseph J. Malloy, Deceased, Appellant; Mary Carey, Respondent.
    Argued May 24, 1938;
    decided October 11, 1938.

      Joseph Bosch, Emil Peters and George H. Smith for appellant.
    The judgment of the Supreme Court is without jurisdiction. (McConnell v. Williams S. S. Co., 239 App. Div. 393; City of Oswego v. Montcalm Dock Co., 245 App. Div. 555; Cooper v. Davis, 231 App. Div. 527; Matter of Murphy, 79 App. Div. 541; Matter of Ginty,
      125 Misc. Rep. 158.) There was a delivery of the deeds. (Herrmann v. Jorgenson, 263 N. Y. 348; Stonehill v. Hastings, 202 N. Y. 115; Matter of Hathaway v. Payne, 34 N. Y. 92; Saltzsieder v. Saltzsieder, 219 N. Y. 523; Church v. Gilman, 15 Wend. 656; Gifford v. Corrigan, 105 N. Y. 223; Munoz v. Wilson, 111 N. Y. 295; The Lady Superior v. McNamara, 3 Barb. Ch. 378; Everett v. Everett, 48 N. Y. 218; Spencer v. Carr, 45 N. Y. 406.) There was no actual or constructive fraud. (Matter of Smith, 243 App. Div. 348; Allen v. La Vaud, 213 N. Y. 322; Matter of Smith, 95 N. Y. 516; Cowee v. Cornell, 75 N. Y. 91; Mitchell v. Mitchell, 75 N. Y. 589; Matter of Eno, 145 Misc. Rep. 605.)

      H. E. Blodgett and Howard Murrin for respondent.
    There are no jurisdictional defects in the proceedings. (Civ. Prac. Act, §§ 64,185, 426, 581.) There was no legal delivery of the deeds. (Vincent v. Rix, 248 N. Y. 76; Saltzsieder v. Saltzsieder, 219 N. Y. 523.) The agreement is invalid. (Barnard v. Gantz, 140 N. Y. 249.)
   Per Curiam.

While we do not feel that the executor was guilty of any intentional wrong, we are in accord with the conclusion reached by the Appellate Division in this case and would be content to affirm without opinion were it not for the fact that a question has been raised as to the jurisdiction of the Supreme Court to grant the judgment which was granted.

The Supreme Court is a court of general jurisdiction. It may take the account of a trustee, probate a will, and exercise jurisdiction in many other mattérs where the Surrogate’s Court also has jurisdiction. The Legislature cannot by statute deprive it of one particle of its jurisdiction, derived from the Constitution (Art. VI), although it may grant concurrent jurisdiction to some other court, as it has done to the Surrogate’s Court.

When the parties appeared in the Supreme Court they stipulated or acquiesced in the proceedings which took place in that court and they became bound by the judgment entered. The fact that other proceedings had taken place in the Surrogate’s Court and that the matter had been referred to the Supreme Court does not result in making everything done in the Supreme Court void and of no effect.

The parties, being of full age, could enter into a stipulation or bind themselves by acquiescence. They could waive a jury trial, consent to try the case at chambers, or in some other county. All those things they did. They also submitted proposed findings of fact and the attorney for the appellant here prepared the judgment and entered it. He also appeared and argued the case in the Appellate Division and never raised the question of jurisdiction. Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights.” (Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447, 453.) In Barone v. Ætna Life Ins. Co. (260 N. Y. 410) Chief Judge Pound wrote: Giving additional jurisdiction to other tribunals does not take general jurisdiction away from the Supreme Court ” (p. 414). In that case it was contended that the Industrial Board had exclusive jurisdiction to reform a workmen’s compensation policy; therefore, that an action to reform the policy could not be maintained in the Supreme Court as it did not have jurisdiction. In that case it was also said: To raise the point that the Board had first obtained jurisdiction, it should have pleaded another proceeding pending. This it failed to do and thus it waived the only point which was open to it to make (p. 414). In the case at bar no one raised the question that there was a proceeding pending in the Surrogate’s Court which prevented the Supreme Court from exercising its general jurisdiction.

From all that was done it appears just the same as though the parties had personally appeared in the Supreme Court and asked the court to proceed as it did. Such a proceeding would be informal and irregular and not to be approved. Nevertheless a judgment entered under such circumstances is binding.

The case of Robinson v. Oceanic Steam, Navigation Co. (112 N. Y. 315) is not in point. The court was there dealing with the statute regulating actions against foreign corporations. In respect of such actions the Supreme Court has only such power as is conferred by statute. (See Ladenburg v. Commercial Bank, 87 Hun, 269; Barker v. Cunard S. S. Co., 91 Hun, 495.)

The judgment should be affirmed, with costs payable out of the estate.

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

Judgment affirmed.


author: Rippey, J.

text:
    In the Matter of the Will of Irving I. Bloomingdale, Deceased. Geanne H. Bloomingdale, Appellant and Respondent; Rosalie B. Bloomingdale et al., Respondents and Appellants; Geanne H. Bloomingdale et al., as Executors of Irving I. Bloomingdale, Deceased, Respondents.
    (Appeals Nos. 1 and 2.)

      Argued May 31,1938;
    decided October 18,1938.

      John J. Cuneen for Geanne H. Bloomingdale, appellant and respondent.
    The widow is entitled to preference because the dominant intention of the testator is indicated by the circumstances surrounding the maMng of the will, the provisions penalizing the divorced wife and son in favor of the widow, the testator’s expressly declared preference for his widow over Ms own son, a comparison of the residuary bequests, and the other provisions of the will and codicil. (Matter of McCafferty, 142 Misc. Rep. 371; 236 App. Div. 678; Matter of Gabler, 267 N. Y. 559; Matter of Waxman, 129 Misc. Rep. 829; Eidt v. Eidt, 203 N. Y. 325; Matter of Miller, 161 N. Y. 71; Matter of White, 125 N. Y. 544.) The Surrogate was in error as to the status of the son and the first wife of the decedent under the separation agreement and under the will and codicil. (Matter of Benson, 96 N. Y. 499; Caulfield v. Sullivan, 85 N. Y. 153; Matter of Westerbeke, 262 N. Y. 466; Matter of Rosenthal, 141 Misc. Rep. 404; Lee v. Tower, 124 N. Y. 370; Helvering v. Butterworth, 290 U. S. 365.) Trust C is not to be set up only out of what remains after satisfying Trusts A-l, A-2 and B. (Matter of Gabler, 267 N. Y. 559; Matter of Anderson, 143 Misc. Rep. 250; Matter of Rowland, 273 N. Y. 100.)

      Max D. Steuer and Sidney 0. Friedman for Rosalie B. Bloomingdale et al., respondents and appellants.
    Trusts A-l and A-2 for the benefit of the first wife are preferred to Trust C for the benefit of the widow. (Morris v. Sickly, 133 N. Y. 456; Lee v. Tower, 124 N. Y. 370; Matter of Russell, 168 N. Y. 169; Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86; Matter of Smallman, 138 Misc. Rep. 889; Wetmore v. St. Luke’s Hospital, 56 Hun, 313; Lewin v. Lewin, 2 Ves. Sr. 415; Page v. Rouss, 86 W. Va. 305; Matter of Rounds, 252 App. Div. 10; Matter of Clark, 251 N. Y. 458; Matter of Kohler, 231 N. Y. 353; Matter of Title G. & T. Co., 195 N. Y. 339; Buffalo Trust Co. v. Leonard, 154 N. Y. 141; Matter of Ridder, 79 Fed. Rep. [2d] 524; Cole v. Niles, 3 Hun, 326; 62 N. Y. 636.) Trusts A-l and A-2 should be set up with sufficient corpus to yield $66,600 per annum and $5,400 per annum respectively, plus expenses of administration and income taxes. (Matter of Kohler, 231 N. Y. 353; Matter of Vanderbilt, 134 Misc. Rep. 574; 229 App. Div. 574; Matter of Willets, 112 N. Y. 289; Griffen v. Keese, 187 N. Y. 454; New York Life Ins. & Trust Co. v. Sands, 24 Misc. Rep. 102; Matter of Lichtenberg, 171 N. Y. Supp. 570.)

      Richmond J. Reese and Alexander J. Lindsay for Richmond J. Reese, as executor, respondent.
   Rippey, J.

This proceeding arose on the petition of Rosalie Banner Bloomingdale and Donald Bloomingdale for a construction of the will of Irving Bloomingdale, deceased. They claim that the will should be so construed as to accord preferment and priority to them over the widow, Geanne Hughes Bloomingdale, in the manner in which the assets of the estate should be segregated and income and, if necessary, principal distributed. In her answer, the widow asserts that she is entitled to priority and preference over the petitioners. Two decrees of the Surrogate resulted. Appeals were taken by each to the Appellate Division from so much of the decrees as were, respectively, deemed unfavorable. The Appellate Division affirmed and the parties are here by permission of this court.

Bloomingdale died October 15, 1929, leaving a last will and testament, dated December 16, 1927, and a codicil thereto, dated May 12, 1928, and an estate worth upwards of nine million dollars, consisting almost entirely of the capital stock and bonds of Bloomingdale Bros., Inc., which operated a department store in New York city, and of a realty company which owned the property in and upon which the store was operated. His first wife, Rosalie Banner Bloomingdale, whom he married February 5, 1907, procured a decree of divorce from him in Paris, France, on December 15, 1926, and was living in Paris at the time of his death, as was Donald Bloomingdale, sole issue of that marriage, bom September 12, 1913. The second wife of deceased, Geanne Hughes Bloomingdale, whom he married shortly after his first wife divorced him, was living with him at the time of his death. There was no issue of that marriage. The will and codicil were probated on January 6, 1930, and letters testamentary were issued to his widow, Geanne Hughes Bloomingdale, and to Richmond J. Reese, and subsequently the same persons were appointed tmstees of the trusts which he directed to be set up. Nine years have passed since his death but the estate has not been segregated into the several trusts for which the testator made provision.

On May 26, 1926, Bloomingdale and his first wife, then being separated and living apart, entered into an agreement of separation which continued in force to the time of his death. In this instrument he agreed “ to pay to Rosalie B. Bloomingdale, during the term of her natural life, the sum of Seventy-two thousand ($72,000) dollars per annum, in equal monthly installments, the first installment to be paid on and as of the first day of June, 1926.” It was agreed that she should at no time be required to receive a lesser sum or permitted to demand a greater sum regardless of any change in his financial condition. In consideration of his promise to make such payments, his wife returned to him, with power to cancel and destroy, his various promissory notes aggregating in value six hundred fifty thousand dollars which she then held, and released and discharged him from all liability thereon, transferred and set over to him absolutely certain preferred stock of Bloomingdale Bros., Inc., then owned by her, and conveyed and released to him all right of dower or other interest in his then existing or subsequently acquired estate and all interest which she had or might thereafter have in respect to any policies of insurance upon his life. Bloomingdale deposited stocks and bonds in escrow, over two million dollars in value, as security for its performance. From the time of the execution and delivery of the agreement to the time of Bloomingdale’s death, his former wife had received seventy-two thousand dollars per year in equal monthly installments of six thousand dollars each, free from all taxes of any kind. He also provided that, in the event the first wife predeceased him, he would pay to her mother, Philipine Banner, $5,400 per year in equal monthly installments during her life. He also agreed that he would, upon his death, by will and other legal instrument, bequeath and give to Donald Bloomingdale, the son, either cash, stocks, bonds or securities having a minimum value of two million dollars, of which the son should receive all income for life and five hundred thousand dollars of principal at or before he should arrive at the age of thirty-five years, with the balance of principal to be disposed of as the father might subsequently provide. It was provided that, in the event of his failure to make such a provision for the benefit of his son, the latter should be “ considered and deemed to be a creditor ” of his estate and should be entitled to file a claim against the estate of Irving I. Bloomingdale accordingly.”

In the “ First ” clause of his will, the testator provided for the payment of his debts, funeral expenses and costs of administration, which latter, he directed, should include all transfer and inheritance taxes. In the “ Second ” clause, he bequeathed his household furniture and certain personal effects to his wife. In the “ Third ” clause, bequests of $5,000 were made to each of two nephews.

In the “ Fourth ” provision of the will, he gave, devised and bequeathed “ all the rest, residue and remainder ” of his estate to his executors and trustees in trust. The trusts designated in this clause which are left in the management of the executors and trustees are designated as Trusts “ A,” B ” and C,” each set out in a single and separate paragraph. It is manifest that the testator, in preparing his will, had first and primarily in mind the satisfaction of his obligations to his first wife and son arising out of the provisions of the separation agreement. He distinctly recognized those obligations. He knew that the son could enforce the provisions of that agreement for his benefit as a creditor if he did not expressly provide for him in his will in the terms of the antecedent agreement. He knew that his first wife was entitled to $72,000 per year out of his estate if he should not make such provisions for her in his will as she might be willing to take. He knew that both might enforce such obligations in preference to any provision he could make for his widow. He had no misapprehension or lack of knowledge as to their preferred status. Furthermore, he distinctly recognized the priority of those obligations in the wording of the will. The provisions of Trust A,” he said, are made in compliance with and performance of the terms of the said agreement between Rosalie B. Bloomingdale and me and not in addition thereto.” He provided that, should his former wife or her mother attempt to enforce the provisions of the separation agreement, to the extent either should be successful, the trust should abate. He required her to elect to take under the will or to enforce her claims under the agreement and to release to the executors and trustees all the securities then held in escrow for the performance of the agreement if she should elect to take under the will. In the paragraph providing for Trust B ” he said, The provisions contained in this paragraph are in performance of my obligation as to my said son as contained in a certain agreement between one Rosalie B. Bloomingdale and me, dated the 26th day of May, 1926, and in performance of all other obligations, if any, to him, and the provisions contained in this paragraph are not supplemental or in addition to the said agreement.” Thereupon, he directed his executors and trustees to first <c set aside in a separate trust fund, which I herein designate as Trust ‘ A/ securities which my trustee or trustees shall deem best suited to the purpose and which will yield a minimum of Seventy-two thousand ($72,000) dollars per annum, and to pay to my former wife Rosalie Banner Bloomingdale out of the income thereof, and out of the principal if the income in any year or years shall not be sufficient, the sum of Seventy-two thousand ($72,000) dollars per year payable in equal monthly installments in advance as long as she shall five, payments to be made at such places as said Rosalie Banner Bloomingdale may designate in writing, commencing from the date that the next payment shall have been due and unpaid pursuant to the terms of the agreement dated the 26th day of May, 1926, and made between said Rosalie B. Bloomingdale and me. Upon the death of said Rosalie Banner Bloomingdale, then my trustee or trustees are directed to pay out of the income, or principal if necessary, the sum of Fifty-four hundred ($5,400) dollars per year to Philipine Banner, the mother of said Rosalie Banner Bloomingdale, as long as she shall live, in equal monthly installments, the first installment to be paid on and as of the first day of the month following the death of said Rosalie Banner Bloomingdale.” And, secondly, directed them to set aside securities having a market valuation of approximately Two Million ($2,000,000) dollars but not less than Two Million ($2,000,000) dollars, in a separate fund which I designate as Trust ‘ B,’ and to pay over the income of the same to my son Donald Bloomingdale (or to his legal guardian while he is a minor) for his maintenance and support as long as he shall live; to pay to said Donald Bloomingdale Five Hundred Thousand ($500,000) Dollars of the principal of said trust before he shall attain the age of thirty-five years, at such times and in such amounts as to my trustee shall seem advisable. Upon the death of my said son Donald Bloomingdale, then such portion of the principal of this trust as shall not have been paid to him shall be paid to the children of my son Donald Bloomingdale, and if he shall die without children, then said principal or such portion of said principal as shall not have been paid to him, shall be put into and become a part of Trust C ’ hereinafter described.” He further provided in paragraph “ A ” for disposition of the income from the trust in excess of that required to be paid to his first wife and for disposal of the corpus of the trust upon the death of the first wife and her mother and, in paragraph B ” for disposition of remaining principal of the trust upon the death of Donald. Paragraph C ” of the fourth provision of the will provides for “ all of the rest, residue and remainder ” of the estate which the trustees of the gross residuary estate are directed “ to assemble into a third trust which I designate as Trust C,’ and to pay Six Thousand ($6,000) Dollars per month net free from all transfer and/or inheritance taxes and yearly personal federal income taxes and state income taxes in as nearly equal monthly payments as may be practicable commencing from the date of my death, to my wife Geanne Hughes Bloomingdale from the income if that be sufficient, and from the principal if the income be insufficient, as long as she shall live, to pay any and all income in excess of Six Thousand ($6,000) Dollars per month net as aforesaid to any and all issue, posthumous or otherwise, of mine by my wife Geanne Hughes Bloomingdale, but if there be no such issue then she is to receive the entire income of this Trust ‘ C.’

It will be observed that under the provisions of Trust A,” the testator intended to give to the first wife a net income for life of $72,000 under any and all contingencies as he was bound to do by the separation agreement, but he authorized an invasion of the principal in the event a deficit of income should arise. Conceivably a situation might result where the principal should be exhausted and attempted compliance with his obligation and purpose would fail. Thereupon, to avoid any possibility of the happening of such a contingency, the deceased executed the codicil to his will wherein he directed that the securities directed to be segregated under Trust A be divided into two parts to be known as Trust A-l and Trust A-2. Trust A-l shall produce an income of Sixty-six Thousand and Six Hundred Dollars ($66,600) per annum, and Trust A-2 shall produce an "income of Five Thousand and Four Hundred Dollars ($5,400) per annum; and in the event that at any time or times such income shall fall short of either or both of said sums, then the deficit shall be made up from the income (or from the principal if the income is not sufficient) of Trust C.” The income of both trusts in the amounts as provided he directed should be paid to the first wife for life. Upon her death, the income of Trust A-l was directed to be paid to his widow, if living, and of Trust A-2 to Philipine Banner for life. Upon the death of the last surviving life tenant of each trust, it was provided that the corpus of the trust should be turned over to Donald.

The provisions of the will and codicil thus clearly indicate that the testator intended to and did provide that the payments to be made to the first wife should ensue under any and all contingencies in preference and priority to any payments for the widow.

The first wife has elected to take under the will. Before making such election, she instituted a proceeding for construction of the will and codicil to determine whether she might receive the income of $72,000 per year net, free and clear of income and inheritance taxes. In that proceeding it was determined that, in the event that she should elect to take under the will and codicil, the executors and trustees were required to pay to her during her lifetime, the sum of $72,000 per annum, in equal monthly installments, net and free from all income taxes, both New' York State and Federal, which taxes, if any, upon said income, are to be borne and paid by the executors and trustees of the estate of Irving I. Bloomingdale, so that said Rosalie B. Bloomingdale at all times receives a net of $72,000 per annum.” Upon such decree of construction, which has become final, the first wife made her election.

It is claimed by the widow that by such an election the first wife lost any priority in the distribution of testator’s estate which she might have received under the separation agreement as a creditor had such election not been made. We think that such was not the intent of the testator nor does it conform to the law. We are engaged in the construction of the will but the agreement furnishes the key for its construction. The separation agreement was for her maintenance and support. The debt of testator was not dischargeable in bankruptcy (Matter of Ridder, 79 Fed. Rep. [2d] 524). As such creditor she was preferred over general legatees or annuitants. Although the testamentary annuity might be held, generally, to be the price paid for her claim (Cole v. Niles, 62 N. Y. 636), the testator saw to it that she should not receive less by taking under the will than she would have received under the agreement; there was no provision that she should receive exactly the same. Nor did the will provide that election to take the testamentary annuity should effect a satisfaction of the debt. Whether it amounted to more than the claim is immaterial (Matter of Smallman, 138 Misc. Rep. 889). The will and codicil indicate a determination on the part of the testator that, under no contingency, should she receive less than $6,000 per month net and that if the income from the two trusts should be insufficient at any time, the deficit should be made up from income or from principal, if necessary, of Trust C — the residuary estate. To that extent, at least, he subordinated his second wife in participation in income or principal of his estate. We thus conclude that Trusts A-l and A-2, for the benefit of the former wife, are preferred to Trust C for the benefit of the widow both as to income and principal. Under the circumstances in this case there is no presumption arising from equitable considerations, sometimes indulged, that the election of the first wife to take under the will (See 40 Cyc. p. 1885 et seq. and Caulfield v. Sullivan, 85 N. Y. 153) completely wiped out her preferred status.

It is asserted that circumstances have arisen which would require a practical construction contrary to the one which we deem imperative. Such a claim overlooks the settled law that the courts are not concerned with the writing of a new will for the deceased but rather with bringing about the result intended by the testator (Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 92), whatever may be the consequences resulting from conditions arising after his death (Morris v. Sickly, 133 N. Y. 456, 460). A construction of the will requires the holding that the widow was by intention of the testator and in legal effect a residuary legatee, and as such she must be subordinated, so far as may be necessary, to the general legacies as provided for out of the gross residuary estate (Buffalo L., T. & S. D. Co. v. Leonard, 154 N. Y. 141, 146; Page v. Rouss, 86 W. Va. 305, 312).

No inequity results from the construction made. At the respective dates on which the will and codicil were made and the testator died, the property of the deceased was of sufficient size and earning capacity to produce easily in excess of the amounts required to set up the trust for the son and additionally provide $72,000 net per year for each of the two women. It appears on the accounting proceedings and is a matter of record in this case that the net worth of the estate at the date of the will was $9,286,070.15; at the date of the codicil, $8,355,297.67, and at the date of the death of the deceased, $8,835,866.47. We may impute to the deceased from all the facts and circumstances an expectation on his part that such a status would continue after his death. It will thus appear that after satisfying the general and specific legacies, including the trusts provided for the benefit of the first wife and son, the net residuary estate falling into Trust C consists of nearly two-thirds of the entire estate. The testator, therefore, found no difficulty in providing, first, for a net income of $6,000 per month for his former wife and, secondly, a like sum for his widow.

The trust for the son (Trust B) is to be set up and administered as a separate and distinct trust, clearly severable from all the other trusts provided by the testator. By the express terms of the will, securities sufficient to provide a net annuity of $72,000 for the benefit of the first wife are directed to be set aside in a separate trust fund.” Its separability from the residuary estate (Trust C) is affected by the codicil only to the extent that income and corpus of Trust C must first be used to make up deficits of income in Trusts A-l and A-2. We think the will, coupled with the construction first placed on the will by the Surrogate affecting the payment of the taxes upon the annuity to the former wife, requires that the executors and trustees set up separate trusts sufficiently large to provide for payment of the annuity, taxes thereon and costs of their administration, resort being left to Trust C for deficits of income to meet those requirements. We do not share with the executors the fear they have expressed that insurmountable difficulties of administration or unjust enrichment to the son must result.

The mandate of the testator to set up the trusts provided for in the will and codicil should have been long since complied with. Giving effect to the construction by the Surrogate with reference to payment of taxes on the income to the first wife and to the facts that there has been no issue of deceased by his second wife, that neither the son nor the first wife have contested the will, that the first wife has elected to take under the will and not to enforce the agreement between her and the testator, that the son and the two women were living at the death of deceased and are still living, and to the intent and legal effect of the provisions of the will and codicil, we summarize and conclude that Bloomingdale has directed the segregation of the assets of his estate and the disposition of his gross residuary estate as follows:

(1) Into Trust B, assets having a market value of not less than two million dollars. The net income thereof is to be paid to Donald during his lifetime. Five hundred thousand dollars of the corpus of this trust fund is to be paid to Donald on or before he shall reach the age of thirty-five years. The remainder of the corpus is to be paid to the children (not adopted) of Donald at his death but, if he should leave no such surviving children, then such remainder shall fall into Trust C.

(2) Into Trusts A-l and A-2, assets separately which will produce annual incomes sufficient to pay to the first wife for life the sums of $66,600 and $5,400 per year in equal monthly installments plus income taxes thereon and to provide for each the expense of administering the trust, and will, additionally, meet all reasonable contingencies. In the event there shall be deficit in income from either trust to meet its income requirements, resort is to be had to income or, if necessary, to principal of Trust C, in preference to participation therein by the second wife, but if there should be a surplus of income from Trusts A-l and A-2, such surplus is to be paid to the second wife. Upon the death of the first wife, the net income of Trust A-l is to be paid to the second wife for life and of Trust A-2 to Philipine Banner for life. The corpus of each trust, to the extent required to produce the income requirement only, upon the death of the last life beneficiary, is to be paid to Donald, if living; if not living, to his issue; if there be none, to the last contingent residuaries named in the fifth clause of the will of deceased. Corpus not required to produce income falls into the residuary estate (Trust C).

(3) The residue of the estate into Trust C. After the payment from the income thereof or from principal, if necessary, to meet deficits of income to meet the requirements of Trusts A-l and A-2, there is to be paid all remaining income therefrom to the second wife for life; if such remaining income is less than $72,000 per annum, any deficit is to be made up from principal. Upon the death of the second wife, such remaining income is to be paid to Donald for life. Upon the death of the surviving life beneficiary, the corpus is to be paid to the issue of Donald; if there should be no such issue, to those to whom the second wife bequeaths it in her will, but if she makes no such bequests, then it passes under the fifth clause of his will to his last contingent residuary legatees, viz., to Trustees of the Cathedral of St. John the Divine in the City of New York and the Federation for the Support of Jewish Philanthropic Societies in the City of New York.

The order of the Appellate Division and the decrees of the Surrogate’s Court should be modified in accordance with this opinion and, as so modified, affirmed, with costs to all parties appearing payable out of the net residuary estate.

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

Ordered accordingly.


author: Rippey, J. Finch, J.

text:
    In the Matter of Edward F. Tormey et al., Appellants, against Fiorello H. LaGuardia et al., Respondents.
    Argued October 4,1938;
    decided October 18,1938.

      Irving Rivkin for appellants.

      William C. Chanter, Corporation Counsel (Samuel J, Silverman and Henry J. Shields of counsel), for respondents.
    Local Law No. 26 of 1937 does not entitle petitioners to be paid their former annual salaries, (Matter of Clancy v. Halleran, 263 N. Y. 258.)
   Rippey, J.

Local Law No. 26 to amend section 1543 of the Greater New York Charter (L. 1901, ch, 466) in relation to reinstatement of employees from preferred lists, the validity of which is not questioned in this proceeding, went into effect June 28, 1937, and reads as follows: “ Re-employment of persons on preferred civil service lists. Any persons in the service of the city, re-employed or reinstated since January first, nineteen hundred thirty-three, to the same or similar position he formerly held in the same or any other department of the city from a preferred civil service list established pursuant to section thirty-one of the civil service law, shall on and after July first, nineteen hundred thirty-seven, receive at least the same salary such person received at the time his name wag placed on such preferred list.” (See Administrative Code, New York City, p. 1170, §B 40-6,1.)

We cannot be interested in the policy of the legislation nor is its propriety open for consideration here. Its wording is plain and unambiguous. We cannot go back of the language used or, in the guise of construction, rewrite the law to make it something different than its wording plainly indicates.

On the 1st day of May, 1934, each of the petitioners was employed as inspector of regulating, grading and paving, grade 3, Bureau of Engineering, in the office of the President of the borough of Richmond, on an annual salary. Each was then laid off for lack of funds, effective as of that date. Pursuant to the requirements of the Civil Service Law (Cons, Laws, ch. 7) each was placed on the preferred eligible list for re-employment. On August 8,1934, each was reappointed to the same position with the same duties at a per diem rate of $8.00 per day under a provision that total employment for a year should not exceed 250 days. Such employment has continued. The proceeding here is for an order directing the defendants to pay them at least the same salary as they received before they were placed upon the preferred list from and after the date on which the Local Law went into effect. The facts are not in dispute. The Special Term dismissed the petition on the ground that petitioners were reappointed on a different basis and did not bring themselves within the purview of the Local Law above referred to. The order thereupon entered was affirmed by the Appellate Division by a divided court.

The petitioners were not per diem employees at the time they were relieved from duty and placed on the preferred list.

On May 1, 1934, the petitioner Tormey was employed at an annual salary of $2,820 per year and each of the other two petitioners at $2,580 annual salary. These amounts were reduced by virtue of the so-called Economy Act (Laws of 1932, ch. 637) to $2,640 and $2,415, respectively, and the latter were the annual salaries they would have been receiving had they not been on leave of absence at the time their names were placed on the preferred list.” The Economy Act was repealed by chapter 12 of the Laws of 1937, in effect June 30, 1937. By chapter 13 of the Laws of 1937 the Board of Estimate and Apportionment and the Board of Aldermen of the city of New York were authorized to reopen, reconsider and increase the budget for the year 1937 to provide for the complete restoration of salaries of employees whose compensation had been reduced under the authority of the Economy Act. The record does not disclose whether the budget was reopened and reconsidered or the salaries of petitioners increased.

My opinion was that petitioners have not shown themselves to be within the provisions of the Local Law. However, the majority view, to which I must defer, is that the petitioners were re-employed or reinstated after January 1, 1933, to the same or similar positions which they formerly held in the same department of the city of New York and that re-employment was made from a preferred civil service list upon which their names then appeared and which had been established pursuant to section 31 of the Civil Service Law and that they were entitled to receive at least the same salary per diem that they received at the time their names were placed upon the preferred list.

The order of the Appellate Division and that of the Special Term should be reversed and the matter remitted to the Special Term with directions to enter an order in accordance with this opinion, with costs in all courts.

Finch, J.

(dissenting). In my opinion Local Law No. 26 has no application to the case at bar.

Employment as an inspector of regulating, grading and paving, grade 3, Bureau of Engineering, in the office of the President of the borough of Richmond on a per diem basis, total employment for the year not to exceed 250 days” at eight dollars per day, is not reinstatement to a position or re-employment in a position similar to a position for which an annual salary is paid for the work of a year. The mere fact that the work is the same or similar is not enough to make Local Law No. 26 applicable. All of the attributes of the position must be the same or similar and in the case at bar there is a substantial difference between the positions.

The order appealed from should be affirmed, with costs.

Crane, Ch. J., O’Brien, Hubbs and Loughran, JJ., concur with Rippey, J.; Finch, J., dissents in opinion; Lehman, J., taking no part.

Orders reversed, etc.


author: Par Curiam.

text:
    Belva Van de Walker, Appellant, v. State of New York, Respondent. Willard Scammell, Appellant, v. State of New York, Respondent. George A. Earl, Jr., Appellant, v. State of New York, Respondent.
    (Claim No. 24193.)
    (Claim No. 24195.)
    (Claim No. 24196.)
    Argued October 5,1938;
    decided October 18,1938.

      A. Lee Olmsted for appellants.
    The new findings made by the Appellate Division are contrary to and against the weight of evidence, and should be reversed and the original findings of the Court of Claims reinstated. (Miller v. State, 137 Misc. Rep. 768; 231 App. Div. 363; Johnson v. State, 104 Misc. Rep. 395; 186 App. Div. 389; 227 N. Y. 610; Sporborg v. State, 226 App. Div. 113; Floss v. State, 240 App. Div. 944; Isaac v. Town of Queensbury, 244 App. Div. 14; 247 App. Div. 263; Roberts v. Town of Eaton, 238 N. Y. 420; Best v. State, 203 App. Div. 339; 236 N. Y. 662; Ross v. State, 265 N. Y. 632.)

      John J. Bennett, Jr., Attorney-General (Leon M. Layden and Joseph I. Butler of counsel), for respondent.
    The negligent and careless manner in which the claimant Earl operated his car was the proximate cause of the accident and the new findings of fact and conclusions of law made by the Appellate Division are supported by the facts and according to the weight of evidence. (Best v. State, 203 App. Div. 339; Roberts v. Town of Eaton, 238 N. Y. 420; Wade v. Town of Worcester, 134 App. Div. 51; Worden v. State, 134 Misc. Rep. 848; 228 App. Div. 739; Elansky v. State, 133 Misc. Rep. 331; 226 App. Div. 713; Herbert v. Smith Paper Corp., 243 App. Div. 260; Shaft v. State, 264 N. Y. 625; Barges v. State, 245 App. Div. 792.)
   Par Curiam.

The evidence supports the finding that the highway was extraordinarily dangerous at the place of the accident and that it was negligence to fail to re-erect a sign which had been maintained and obliterated prior to the accident in suit.

In each case the judgment of the Appellate Division should be reversed and that of the Court of Claims affirmed, with costs in this court and in the Appellate Division.

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

Judgment accordingly.


text:
    In the Matter of Aaron A. Mott, Respondent, against Philip N. Krug et al., Constituting the Board of Elections of Nassau County, Appellants. Edward M. Beirne et al., Respondents.
    Argued October 17,1938;
    decided October 18, 1938.

      James L. Dowsey, County Attorney (Marcus G. Christ of counsel), for appellants.
    The order appealed from should be reversed since no election is to be held 'in November, 1938, at which town officers can be elected. (Town Law, § 80; People ex rel. Hyde v. Potter, 88 App. Div. 239; Matter of Ellis v. Geddes, 236 App. Div. 522.) The order appealed from should be reversed for the reason that no vacancy in office now exists or will on December 31, 1938, exist. (Town Law, § 64; Matter of Wilson v. Cheshire, 254 N. Y. 640; Matter of Ellis v. Geddes, 236 App. Div. 522.)

      Ferdinand I. Haber for Aaron A. Mott, respondent.
    So much of subdivision 5 of section 64 of the Town Law (Cons. Laws, ch. 62) as provides that vacancies should be filled by appointment for a period beyond the commencement of the next political year, and so much of section 80 of that law as permits election of town officers only in an odd-numbered year, are unconstitutional. (Matter of MacAdams v. Cohen, 260 N. Y. 559; Matter of O’Connell v. Corscadden, 243 N. Y. 86; Matter of Burke v. Cohen, 265 N. Y. 210; Matter of Wing v. Ryan, 255 App. Div. 163; Matter of Mitchell, v. Prendergast, 178 App. Div. 690.)

      Herman Block for Edward M. Beirne, respondent.
    The appointment to fill the vacancy in the office of Supervisor could not be for a period longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy. (New York State Constitution, art. X, § 5; People ex rel. Weller v. Townsend, 102 N. Y. 430; Matter of Schwab v. Boyle, 174 App. Div. 442; 219 N. Y. 561; Matter of Mitchell v. Boyle, 219 N. Y. 242; Matter of Burke v. Cohen, 265 N. Y. 210; Matter of Wing v. Ryan, 255 App. Div. 163.)

      James N. Gehrig for George R. Brennan, as chairman of the Republican County Committee of Nassau County, respondent.
    No distinction can be urged between town offices and city offices. (Matter of Burke v. Cohen, 265 N. Y. 210.)
   Per Curiam.

In Matter of Burke v. Cohen (265 N. Y. 210) the distinction between constitutional officers and others was abandoned. The opinion in that case referred to city offices, but the principle upon which that case was decided applies to town officers, so that article X, section 5, of the State Constitution applies to an election to fill a vacancy in a town office. Since subdivision 5 of section 64 of the Town Law (Cons. Laws, ch. 62) conflicts with this constitutional provision, it must be held, to be invalid. We pass on no other question.

The order should be affirmed, without costs.

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

Order affirmed.


text:
    In the Matter of the Claim of Stanley R. Dann, Respondent, against Town of Veteran et al., Appellants. State Industrial Board, Respondent.
    Argued October 6,jl938;
    decided October 18, 1938.

      F. A. W. Ireland and Leo Waxman for Globe Indemnity Company, appellant.
    There is no provision in the Workmen’s Compensation Law (Cons. Laws, ch. 67) authorizing a municipality to secure compensation to its officers. (Matter of Youngman v. Town of Oneonta, 204 App. Div. 96; 236 N. Y. 521; People v. Dibble, 189 N. Y. Supp. 29; 196 App. Div. 913; 231 N. Y. 593; Matter of Stoerzer v. City of New York, 267 N. Y. 339.)

      Sheldon P. Roe for claimant, respondent.
    Claimant was made an employee by contract. (Matter of Sabatalli v. DeRobertis, 192 App. Div. 873; Gates v. Prudential Ins. Co., 240 App. Div. 444; Campbell v. State, 240 App. Div. 309; Harper v. Albany Mut. Ins. Co., 17 N. Y. 194; Chadsey v. Gurion, 97 N. Y. 333; Palatine Ins. Co. v. Ewing, 92 Fed. Rep. 111; Matter of Aioss v. Sardo, 223 App. Div. 201; 249 N. Y. 270.) The carrier is estopped by contract from claiming that the claimant was not an employee. (Mayor v. N. Y. & M. R. R. Co., 143 N. Y. 1; Sentenis v. Ladew, 140 N. Y. 463; Employers’ Liability Assur. Corp. v. Henderson, 139 S. E. Rep. 688; Maryland Casualty Co. v. Wells, 134 S. E. Rep. 788; Frankfort General Ins. Co. v. Conduit, 127 N. E. Rep. 212; Kittle v. Town of Kinderhook, 214 App.Div. 345.)
   Per Curiam.

The policy in question provides that the company is directly and primarily liable to injured employees. Having by indorsement of its policy expressly covered the claimant by name as an employee, in consideration of a premium agreed to be paid therefor, it cannot after an accident be relieved of liability upon the ground that as to him the policy is void because in fact he was not an employee.

The order should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Htjbbs, Lottghran, Finch and Rippey, JJ., concur.

Order affirmed.


text:
    In the Matter of the Claim of Frances Bollard, Respondent, against Louis Engel, Jr., Appellant, Impleaded with Another. State Industrial Board, Respondent.
    Argued October 6, 1938;
    decided October 18, 1938.

      James O. Moore and R. K. Humphrey for appellant.
    The accident, causing death, did not arise “ out of and in the course of ” any service decedent was employed to render. (Matter of Clark v. Voorhees, 231 N. Y. 14; Matter of Lampert v. Siemons, 235 N. Y. 311; Matter of DeVoe v. New York State Railways, 218 N. Y. 318; Matter of Davidson v. Pansy Waist Co., 240 N. Y. 584; Matter of Priestly v. Hentz & Co., 258 N. Y. 618; Matter of McInerney v. Buffalo & Susquehanna R. R. Co., 225 N. Y. 130; Matter of Cunningham v. Hunterspoint Lumber & Supply Co., 256 N. Y. 574; Matter of Carroll v. Verway Printing Co., 254 N. Y. 598; Rosenberg v. Syracuse Newspapers, Inc., 248 App. Div. 294; Matter of Turner v. Cathedral Pub. Co., 268 N. Y. 656; Matter of Jakeway v. Bauer Co., 218 App. Div. 302; Matter of Johnson v. Smith, 263 N. Y. 10; Matter of Goldman v. John Hancock Mut. Life Ins. Co., 276 N. Y. 582; Matter of Rayfield v. Ford Motor Sales Co., 266 N. Y. 556; Matter of Grathwohl v. Nassau Point Club Properties, Inc., 243 N. Y. 567; Matter of Marks v. Gray, 251 N. Y. 90.) The so-called admission in the first report has been explained and is contrary to the fact. (Gangi v. Fradus, 227 N. Y. 452; Wachtel v. Equitable Life Assur. Society, 266 N. Y. 345.)

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
    The injuries resulting in the death of decedent arose out of and in the course of the employment. (Matter of Younger v. Motor Car Transportation Co., 260 N. Y. 396; Matter of Bergman v. Buffalo Dry Dock, 269 N. Y. 150; Matter of Schwimmer v. Kammerman & Kaminsky, 262 N. Y. 104; Matter of Frank v. Economy Sales Co., 274 N. Y. 515; Matter of Mowen v. Chase Nat. Bank, 277 N. Y. 135; Matter of Domres v. Syracuse Safe Co., 240 N. Y. 611; Matter of Commissioner of Taxation & Finance v. Oceanic Service Corp., 275 N. Y. 562; Matter of Faulkner v.

      Stratton-Amsterdam Corp., 245 N. Y, 542; Matter of Atkins v. Joelson Enterprise, 232 App, Div. 856; 258 N. Y. 538.)

      Noel S. Symons for claimant, respondent.
    The evidence establishes that the risk to which the deceased wag exposed was the direct result of his employment-(Matter of Marks v, Gray, 251 N. Y. 90; Dennis v. White & Co., A. C. 479; Matter of Schwimmer v. Kammerman & Kaminsky, 262 N. Y. 104; Matter of Domres v. Syracuse Safe Co., 240 N. Y. 611; Matter of Harby v. Marwell Bros., 235 N. Y. 504; Matter of Tannebaum. v. Perfect Tailoring Co., 243 N. Y. 577; Rosenthal v. Prudential Ins. Co., 242 App. Div. 741; Treiber v. Charity Organization Society, 241 App. Div. 779; Lehrbaum v. United Cigar Stores Co., 238 App. Div. 751; Prince v. Rutland-Sutt Garage Corp., 239 App. Div. 871.)
   Per Curiam.

We think the evidence warranted tfie finding that the employment was not interrupted while the deceased was returning from supper on the occasion in question, (Cf. Matter of Johnson v. Smith, 263 N. Y. 10; Matter of Goldman v. John Hancock Mut. Life Ins. Co., 276 N. Y. 582.) The employer’s first report of injury was not without probative force merely because it was not made upon personal knowledge (Gangi v. Fradus, 227 N. Y. 452, 456, 457).

The order should be affirmed, with costs.

Crane, Ch, J., Lehman, O’Brien, Hubrs, Loeghran, Finch and Rjkpey, JJ., concur.

Order affirmed.


text:
    Robert B. Honeyman, Appellant, v. Alma C. Clark, Individually and as Executrix of Annie E. Poth, Deceased et al., Defendants, and David B. Jacobs et al., Respondents.
    Argued October 6, 1938;
    decided October 18, 1938.

      Robert B. Honeyman, in person, and David R. J. Arnold for appellant.
    Sections 1083 and 1083-a of the Civil Practice Act impair plaintiff’s contract. (Worthen Co. v. Kavanaugh, 295 U. S. 56; Rutherfurd Realty Co. v. Cook, 198 N. Y. 29; N. Y. Life Ins. Co. v. Guttag Corp., 265 N. Y. 292; Feiber Realty Corp. v. Abel, 265 N. Y. 94; McCracken v. Hayward, 2 How. 608; Barnitz v. Beverly, 163 U. S. 118; Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398; Worthen Co. v. Thomas, 292 U. S. 426; Beaver County Bldg. & Loan Assn. v. Winowich, 187 Atl. Rep. 431; Sayre v. Duffy, 13 N. J. Misc. 458; Vanderbilt v. Brunton Piano Co., 111 N. J. L. 596.)

      M’Cready Sykes, W. A. W. Stewart and George L. Shearer for United States Trust Company of New York, amicus curiae. Section 1083-a of the Civil Practice Act impairs the obligation of contracts in violation of section 10 of article 1 of the Federal Constitution. (Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; Ogden v. Saunders, 12 Wheat. 213; Beaver County Building & Loan Assn. v. Winowich, 323 Penn. St. 483; Worthen Co. v. Kavanaugh, 295 U. S. 56; Adams v. Spillyards, 187 Ark. 64; Bennett v. Superior Court, 42 Pac. Rep. [2d] 80.)
    No appearance for respondents.
   Per Curiam.

The plaintiff has brought an action for the foreclosure of a mortgage upon real property in Queens county, executed and delivered by the defendants David B. Jacobs and Mary V. Jacobs on the 4th day of February, 1928, to secure the payment of their bond in the sum of $15,000. The plaintiff asks for a judgment of foreclosure and sale of the mortgaged premises and for judgment for any deficiency which may arise upon such sale. Judgment of foreclosure and sale was entered in April, 1938, and the mortgaged premises were sold in May, 1938, to the plaintiff for the sum of $7,500. The referee reported that after payment of taxes and expenses there is due to the plaintiff a deficiency of Nine thousand five hundred ninety and 20/100 ($9,590.00) Dollars, with interest from the date of this report.” Under the statute as it existed at the time the bond and mortgage were executed, the plaintiff would have been entitled to a judgment for that deficiency.

Sections 1083-a and 1083-b of the Civil Practice Act, enacted thereafter, purport to limit the right of the plaintiff to enter a deficiency judgment. The plaintiff, alleging that such legislative acts constitute an unreasonable interference of the plaintiff’s contract rights with the defendants, David B. Jacobs and Mary V. Jacobs, and are wholly unconstitutional and in violation of article I, section 10, of the constitution of the United States,” has applied to the court for an order confirming the referee’s report of sale and directing the clerk to enter in his favor judgment against the said defendants in the sum of $9,500. The plaintiff appeals to this court from an order of Special Term which provides that the application for a deficiency judgment “ is in all respects denied on the grounds that the value of the property is equal to the debt of the plaintiff, and pursuant to section 1083-a of the Civil Practice Act of the State of New York, limiting deficiency judgments, the plaintiff is deemed paid as a matter of law, which section is hereby held to be constitutional.” The appeal is taken direct to this court pursuant to the provisions of section 588, subdivision 3, of the Civil Practice Act, and the only question which may be considered on this appeal is the validity of section 1083-a under the Constitution of the United States. We have, in other cases, sustained its validity. (Honeyman v. Hanan, 275 N. Y. 382; Klinke v. Samuels, 264 N. Y. 144; City Bank Farmers Trust Co. v. Ardlea Corp., 267 N. Y. 224.)

The order should be affirmed, without costs.

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

Order affirmed.

MEMORANDA OF Decisions Rendered During tse Period Embraced in, this Volume.


text:
    C. H. Leach Company, Appellant, v. American Locomotive Company et al., Respondents.
    Argued March 10,1938;
    decided April 13, 1938.

      William 0, Robertson for appellant.

      C. Dickerman Williams for respondents.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    Gescheidt & Company, Inc., Appellant and Respondent, v. Bowery Savings Bank, Respondent and Appellant, Impleaded with Others.
    Argued March 17, 1938;
    decided April 13, 1938.

      Albert Foreman and M. Carl Levine for plaintiff, appellant and respondent.

      Jacquelin A. Swords and R. Keith Kane for defendant, respondent and appellant.
   Judgment affirmed, without costs to any party; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Herbs, Loeghran, Finch and Rippey, JJ.


text:
    John Gaston et al., as Executors of William A. Gaston, Deceased, Appellants, v. City of New York, Respondent, Impleaded with Another.
    Argued March 17, 1938;
    decided April 13, 1938.

      Joseph, H. Choate, Jr., John J. Gurtin, Wesley S. Sawyer and Winfield S. Palmef for appellants.

      William C. Chanler, Corporation Counsel (Orefi Clive Herwitz and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Gh. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, Jj.


text:
    Grace H. Murray et al., as Executors of Elizabeth H. Stanton, Deceased, Appellants, v. City of New York, Respondent, and Frank H. Appleton, as Successor Trustee, et al., Appellants.
    Argued March 17, 1938;
    decided April 13, 1938.

      George Gordon Battle, A. Gordon Murray, John B. Doyle and Albert G. Avery for appellants.

      William C. Chanler, Corporation Counsel (Herman Horowitz, Arthur A. Segall and Davidson Sommers of counsel), for respondent.

      Julius Hemy Cohen, Leander I. Shelley and Mortimer S. Edelstein for Port of New York Authority, amicus curisc-

   Judgment affirmed, with costs; no opinion.

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


text:
    Cauldwell-Wingate Company, Appellant, v. City of New York, Respondent.
    Argued March 18, 1938;
    decided April 13, 1938.

      Copal Mintz for appellant.

      William C. Charier, Corporation Counsel (Oren Clive Herwitz, Paxton Blair and Alvin McKinley Sylvester of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. William Slaughter, Appellant.
    Submitted March 18, 1938;
    decided April 13, 1938.

      K. Karl Klein, Max Meyer and Sidney Frank for appellant.

      Thomas E. Dewey, District Attorney (Felix C. Benvenga and Karl Grebow of counsel), for respondent.
   Judgments reversed and the information dismissed on the ground that there is not sufficient evidence to find the defendant guilty beyond a reasonable doubt. No opinion.

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


text:
    Harry S. Giles, as Administrator of the Estate of Stuart D. Giles, Deceased, Respondent, v. Commercial Casualty Insurance Company, Appellant.
    Argued March. 18, 1938;
    decided April 13, 1938.

      James Conboy and J. Stanley Carter for appellant.

      Raymond F. Loucks and Charles M. Hughes for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lena Soma, Appellant, v. George Handrulis, Defendant, and Sarah Alkoff et al., Respondents.
    Submitted April 11, 1938;
    decided April 19, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 277 N. Y. 223.)


text:
    William V. Cullen, Appellant, v. State of New York, Respondent.
    (Claim No. 23428,)
    Submitted April 11, 1938;
    decided April 19, 1938.
   Motion to amend remittitur granted. Return of remittitur requested, and when returned it will be amended by striking therefrom the words “ with costs.” (See 277 N. Y. 541.)


text:
    Anna T. Haverstick, Appellant, v. Clarence Hansen & Sons, Inc., Respondent.
    Submitted April 11, 1938;
    decided April 19, 1938,
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 277 N, Y. 158.)


text:
    Manufacturers Trust Company, as Trustee, Respondent, V. Peck-Schwartz Realty Corporation et al., Defendants, and Piedmont Holding Corporation, Appellant.
    Submitted April 11, 1938;
    decided April 19, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements, (See 277 N. Y. 283.)


text:
    Curtis Chalk, an Infant, by Ruth Chalk, His Guardian ad Litem, et al., Appellants, v. Marcus Contracting Company, Inc., Respondent.
    Submitted April 11, 1938;
    decided April 19, 1938.
   Motion for leave to withdraw an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department', entered December 24, 1937, which reversed, on the law and the facts, judgments in favor of plaintiffs entered upon a verdict and granted a new trial.

Gustave Schwartz for motion.

No one opposed.

Motion granted.


text:
    Robert L. Redfield et al., as Trustees under the Will of Montgomery B. Cowperthwait, Deceased, et al., Appellants, v. Walter Critchley et al., as Executors of Herbert M. Cowperthwait, Deceased, et al., Appellants, and Louise C. Lawrence, Respondent.
    Submitted April 11, 1938;
    decided April 19, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 277 N. Y. 336.)


text:
    Mary Isaac, as Administratrix of the Estate of Nelson Isaac, Deceased, Appellant, v. Town of Queensbury, Respondent. Leonard H. Gunning, Appellant, v. Same, Respondent. Francis H. DeRosia, Appellant, v. Same, Respondent. Desmond B. La Point, Appellant, v. Same, Respondent.
    Submitted April 11, 1938;
    decided April 19, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 277 N. Y. 37.)


text:
    In the Matter of the Will of James O. Trybom, Deceased. Dorothy M. Hannigan, Appellant; Henrietta J. Trybom, as Executrix of James O. Trybom, Deceased, Respondent.
    Submitted April 11, 1938;
    decided April 19, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 277 N. Y. 106.)


text:
    Jennie Kelly, an Incompetent Person, by John Kelly, Her Guardian ad Litem, et al., Appellants, v. Manhattan and Queens Traction Corporation, Respondent.
    Submitted April 18, 1938;
    decided April 22, 1938.

      Joseph M. Sullivan for motion.
    No one opposed. "
   Motion granted and appeals dismissed, with costs, and ten dollars costs of motion.


text:
    Marba Sea Bay Corporation, Appellant, v. Clinton Street Realty Corporation et al., Defendants, and The City of New York, Respondent. Arverne-By-The-Sea Company, Appellant, v. Helen M. Amerman et al., Defendants, and The City of New York, Respondent. Boardwalk Development Co., Inc., Appellant, v. July Development Co., Inc., et al., Defendants, and The City of New York, Respondent.
    Submitted. April 18, 1938;
    decided April 22, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 292.)


text:
    Elizabeth C. Reisinger et al., Appellants, v. The Pullman Company, Respondent.
    Submitted April 18, 1938;
    decided April 22, 1938.,
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 277 N. Y. 679.)


text:
    In the Matter of the Liquidation of New York Title and Mortgage Company. Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of New York Title and Mortgage Company, Appellant; Frank L. Weil et al., as Trustees of Series C-2, First Mortgage Participation Certificates, et al., Respondents.
    Argued April 11, 1938;
    decided May 17, 1938.

      J. Donald Whelehan, Irving H. Jurow and William A. Shea for appellant.

      Abraham J. Halprin and Sherman S. Rogers for Frank L. Weil et al., as trustees, respondents.

      Michael F. Dee, Louis Glickhouse, Arthur Rosenberg, Rose Lader and Maurice Fihkelstein for Mortgage Commission, respondent.

      Robert F. Wagner, Francis J. Quülinan, Simon H. Rifkind, Alfred H. Hetkin, Henry Hetkin, Alexander Rubin, Thomas Keogh, Samuel Kramer and Philip M. Kleinfeld for trustees of Series F-l, et al„ amici curise.

   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Liquidation of New York Title and Mortgage Company. Frank L. Weil et al., as Trustees of Series C-2, First Mortgage Participation Certificates, et al., Appellants; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator, Respondent.
    Argued April 11,1938;
    decided May 17,1938.

      Abraham J. Halprin and Sherman S. Rogers for Frank L. Weil et al., as trustees, appellants.

      Michael F. Dee, Louis Glickhouse, Arthur Rosenberg and Maurice Finkelstein for Mortgage Commission, appellant.

      J. Donald Whelehan, Joseph Lapidus and William A. Shea for respondent.
   Order affirmed, with costs; no opinion. (See 278 N. Y. 718.)

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


text:
    Margaret A. Kane, Appellant, v. Ricoro Estates, Inc., et al., Defendants, and Aaron B. Salant, Respondent.
    Argued April 11, 1938;
    decided May 17, 1938.

      Spotswood D. Bowers, Harold E. Brennan and Stewart W. Bowers for appellant.

      Louis Salani and Joseph J. Cunningham for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of Judson G. Wing, Deceased. E. Ray Hardenbrook et al., Appellants; Helen Sherer et al., Respondents.
    Argued April 11, 1938;
    decided May 17, 1938.

      Domenick L. Gabrielli for appellants.

      Earl F. Case for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Application of The Board of Transportation of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for Rapid Transit Purposes in the Borough of Manhattan. Joseph N. Early et al., Appellants.
    Argued April 11,1938;
    decided May 17,1938.

      James F. Donnelly and Walter J. Me Nichols for appellants.

      William C. Chanler, Corporation Counsel (Alan M. Stroock and Paxton Blair of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Oswego Falls Corporation et al., Respondents, v. John M. Foster et al., Composing the Common Council of the City of Fulton, Appellants.
    Argued April 11, 1938;
    decided May 17, 1938.

      William S. Hillick for appellants.

      George M. Fannin and James C. Fannin for respondents.

      William M. Gallagher, County Attorney (Dwight L. Murphy of counsel), for county of Oswego, amicus curise.

   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Charles H. Stoll et al., as Successor Executors of and Successor Trustees under the Will of Antonin Chapal, Deceased. Charles H. Stoll, as Successor Trustee, etc., Appellant; Claudia Chapal et al., Respondents.
    Argued April 12, 1938;
    decided May 17, 1938.

      Morris Rochman for appellant.

      Edward B. Schulkind for respondents.
   Appeal dismissed, with costs payable out of the estate, on the ground that appellant is not a party aggrieved; no opinion.

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


text:
    In the Matter of New York State Employees’ Retirement System et al., Respondents, against Board of Supervisors of County of Tioga, Appellant.
    Argued April 12, 1938;
    decided May 17, 1938.

      A. W. Feinberg and Stephen M. Lounsbeny for appellant.

      John J. Bennett, Jr., Attorney-General (John F. Tucker and Hugh Reilly of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Foy Productions, Ltd., et al., Appellants, against Frank P. Graves, as Commissioner of Education of the State of New York, Respondent.
    Submitted April 12, 1938;
    decided May 17, 1938.

      Jonah J. Goldstein and Lawrence Kovalsky for appellants.

      Charles A. Brind, Jr., and Ernest E. Cole for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Gifts By Wire, Inc., Appellant, against Henry E. Bruckman et al., Constituting the New York State Liquor Authority, Respondents.
    Submitted April 12, 1938;
    decided May 17, 1938.

      Stanley Osserman and Theodore F. Tonkonogy for appellant.

      William H. Ticho and Monroe I. Katcher, II, for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Gifts By Wire, Inc., Appellant, against Henry E. Bruckman et al., Constituting the New York State Liquor Authority, Respondents.
    Submitted April 12, 1938;
    decided May 17, 1938.

      Stanley Osserman and Theodore T. Tonkonogy for appellant.

      William H. Ticho and Monroe I. Katcher, II, for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Stephen Hamilla, Respondent, against Nelson Gade, Appellant. State Industrial Board, Respondent.
    Argued April 12, 1938;
    decided May 17, 1938.

      Newton J. Herrick for appellant.

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

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


text:
    In the Matter of Agnes Brenner, as Administratrix of the Estate of William Brenner, Deceased, Respondent, against Henry E. Bruckman, as Chairman of the State Liquor Authority, et al., Appellants.
    Argued April 12, 1938;
    decided May 17, 1938.

      William H. Ticho and Monroe I. Katcher, II, for appellants.

      David Edwards for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Lehman, O'Bbien, Hubbs, Lotjghban, Finch and Rippey, JJ. Taking no part: Cbane, Ch. J.


text:
    Anna Frechette, Respondent, v. Stephen H. Jackson, Defendant, and Estate of Peter A. H. Jackson, Inc., Appellant.
    Submittéd April 13, 1938;
    decided May 17, 1938.

      Benjamin Jaffe for appellant.

      Bernard A. Kelly, Arthur B. Kelly and Luke J. Le Rolle for respondent. ■.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret Laun et al., Appellants, v. Cecilia J. Karl, Respondent, Impleaded with Another.
    Submitted April 12, 1938;
    decided May 17, 1938.

      Benjamin Schaffer and Murray Zazeela for appellants.

      William B. Davis, Theodore L. Karpf and E. C. Sherwood for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Brooklyn Trust Company, as Temporary Administrator of the Estate of Claude C. Pinney, Deceased, and of Brooklyn Trust Company et al., as Executors of Claude C. Pinney, Deceased, Respondents; Katherine C. Pinney, Appellant.
    Argued April 13, 1938;
    decided May 17, 1938.

      Nathan L. Miller, Edward J. Bennett and Selig Edelman for appellant.

      Walter R. Herrick for Charles H. George, respondent.

      John G. Saxe, Francis L. Burk and John H. Johnson for Brooklyn Trust Company, respondent.
   Order affirmed, with costs payable out of the estate; no opinion. (See 278 N. Y. 704.)

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


text:
    Mary Shannon, an Infant, by Patrick Shannon, Her Guardian ad Litem, et al., Respondents, v. Frank L. Samuels, Appellant, Impleaded with Another.
    Argued April 14, 1938;
    decided May 17, 1938. '

      William, B. Davis and E. C. Sherwood for appellant.

      William Seligson and Leo E. FalJcin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Kass, as Administrator of the Estate of Edel Kass, Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Submitted April 14, 1938;
    decided May 17, 1938.

      Arthur D. Brennan, Chester A. Slocum, and Henry R. Barrett for appellant.'

      Myron J. Shon for respondent.
   Order affirmed and judgment absolute ordered against appellant oh the stipulation, with costs in all courts; no opinion.

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


text:
    Anne J. Heller et al., as Successor Trustees for Holders of Mortgage Investments Issued and Guaranteed by Westchester Title & Trust Company, Respondents, v. Amawalk Nursery, Inc., et al., Defendants, and J. Clifford McChristie, as Trustee in Bankruptcy of Amawalk Nursery, Inc., et al., Appellants. Anne J. Heller et al., as Successor Trustees for Holders of Mortgage Investments Issued and Guaranteed by Lawyers Westchester Mortgage & Title Company, Respondents, v. Amawalk Nursery, Inc., et al., Defendants, and J. Clifford McChristie, as Trustee in Bankruptcy of Amawalk Nursery, Inc., et al., Appellants.
    Argued April 14, 1938;
    decided May 17, 1938.

      Arthur F. Driscoll, Benjamin P&pper and Lewis H. Saper for appellants.

      Alfred M. Bailey, Frank M. Gagliardi and William T. Gallagher for respondents.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    Alvin Hager, Respondent, v. Jesse F. Paddleford et al., Appellants. (Action No. 1.) M. Moran Transportation Lines, Inc., Respondent, v. Jesse F. Paddleford et al., Appellants. (Action No. 2.)
    Argued April 14,1938;
    decided May 17,1938.

      Robert E. Dineen, H. C. Stratton and V. D. Stratton for appellants.

      Joseph B. Murphy, Donald M. Mawhinney and Phillip T. Yeung for respondents.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    Sarah Lewis et al., Appellants, v. City of New York, Respondent.
    Argued April 14, 1938;
    decided May 17, 1938.

      Saul Sperling and Harry A. Spiegelman for appellants.

      William C. Chanler, Corporation Counsel (Leonard M. Wallstein, Jr., and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. John Kehoe, Respondent.
    Submitted April 15, 1938;
    decided May 17, 1938.

      William F. X. Geoghan, District Attorney (Edward H. Levine of counsel), for appellant.

      Mordecai Konowitz for respondent.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. John G. O’Brien, Respondent, v. Caldwell Manufacturing Company, Appellant.
    Argued April 15, 1938;
    decided May 17, 1938.

      William T. Plumb for appellant.

      Charles B. Bechtold for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Marie Z. Hornkohl, Appellant, v. Board of Education of the City of New York et al., Respondents.
    Argued April 18, 1938;
    decided May 17, 1938.

      Arthur C. Mandel for appellant.

      William C. Chanler, Corporation Counsel (Nicholas Bucci, Paxton Blair and Arthur Bainbridge Hoff of counsel), for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of the Application of The City of New York Relative to Acquiring Title to Lands for the Purpose of Establishing a Public Beach in the Borough of Brooklyn. Frederick Rabbe, as Trustee, et al., Respondents; Robert J. Stephenson, as Executor of Agnes M. Stephenson, Deceased, Appellant.
    Argued April 18, 1938;
    decided May 17, 1938.

      William F. Weber for appellant.

      Hartley G. Pelletier, Frank Hancock Hennessy and Joseph I. Boylan for Frederick Rabbe, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Frederick A. Cook, Appellant, v. Jeannette Mirsky et al., Defendants, and Encyclopedia Brittanica, Inc., Respondent.
    Argued April 18, 1938;
    decided May 17, 1938.

      Stanley Boriss for appellant.

      Sol M. Strook, Peter I. B. Lavan and Milton Socolof for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Mary T. McAuliffe, as Executrix of William A. Walsh, Deceased, Appellant; James E. Walsh, Respondent.
    Argued April 19, 1938;
    decided May 17, 1938.

      Hugo Wininer, Robert P. Schur and John E. Gruning for appellant.

      Miles F. McDonald and Joseph F. Kelly for respondent.
   Order affirmed, without costs; no opinion.-

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


text:
    Commissioner of Public Welfare of The City of New York, Respondent, v. C. Fred Merkle, Appellant.
    Argued April 19, 1938;
    decided May 17, 1938.

      John C. Donovan for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair and Sol Cooperman of counsel), for respondent.
   Appeal dismissed; no opinion.

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


text:
    In the Matter of the Grade Crossing of The New York Central Railroad over Pines Bridge-Yorktown Heights County Highway in Westchester County. New York Central Railroad Company, Appellant; Public Service Commission et al., Respondents.
    Argued May 16, 1938;
    decided May 18, 1938.

      Harry M. Chamberlain, Gay H. Brown and Milton E. Canter for motion.

      William B. Stevens opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    The People of the State of New York ex rel. Rocco La Fortuna, Appellant, against Joseph H. Brophy, as Warden of Auburn Prison, Respondent.
    Submitted May 16, 1938;
    decided May 18, 1938.

      John J. Bennett, Jr., Attorney-General (Everett T). Mereness of counsel), for motion.

      Rocco La Fortuna, in person, opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    In the Matter of Irving L. Cohen, Appellant, against Board of Education of the City of New York et al., Respondents.
    Argued May 16, 1938;
    decided May 18, 1938.

      William, G. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.

      A. Spencer Feld opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Claim of John M. Bednar, Appellant, against Ingersoll-Rand Company, Respondent.
    Submitted May 16, 1938;
    decided May 18, 1938.

      Thomas A. Clarke for motion.

      Edwin J. Carpenter opposed.
   Motion denied, without costs.


text:
    In the Matter of the Probate of the Will of George D. Henderson, Deceased. Ida Wilson, Appellant; Nellie Hackett, Individually and as Executrix, et al., Respondents.
    Submitted May 16, 1938;
    decided May 18, 1938.

      Charles B. Bechtold for motion.
   No one opposed.

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


text:
    The People of the State of New York, Respondent, v. Joseph Rivera, Appellant.
    Submitted May 16, 1938;
    decided May 18, 1938.

      Thomas E. Dewey, District Attorney (Felix C. Benvenga of counsel), for motion.

      Max Bollt, Bertram J. Adams and Benjamin Wohl opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of the Claim of Frank C. Lissow, Respondent, against Mabbett Motors, Inc., Employer, and State Insurance Fund, Appellant. State Industrial Board, Respondent.
    Submitted May 16, 1938;
    decided May 18, 1938.

      Henry Redman Dutcher for motion.

      George J. Hayes opposed.
   Motion denied.


text:
    Pauline Latzke et al., Respondents, v. Oliver Williams et al., Appellants.
    Submitted May 16, 1938;
    decided May 18, 1938.

      Abraham Porter and Jacob J. Podell for motion.

      Joseph Henry Cohen and Leo B. Mittelman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Accounting of Mary H. Potter et al., as Executors of Edward W. Potter, Deceased, Appellants and Respondents. Charlotte P. Whitcher, Individually and as an Executrix of Harriet E. Potter, Deceased, et al., Respondents and Appellants.
    Argued March 17, 1938;
    decided May 24, 1938.

      Joseph Swart, Edward L. Jellinek and B. Frank Dake for Mary H. Potter et al., appellants and respondents.

      Joseph H. Morey and Joseph H. Morey, Jr., for Charlotte P. Whitcher, respondent and appellant.

      Helen Z. M. Rodgers and Welles V. Moot for Russell H. Potter, Jr., et al., respondents and appellants.
   Order affirmed, with costs to each party appearing by separate attorney and filing a brief payable out of the estate. No opinion.

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


text:
    City of Buffalo, Respondent, v. Jennie W. Cottle et al., as Executors of Octavius O. Cottle, Deceased, et al., Appellants, Impleaded with Others.
    Argued April 12, 1938;
    decided May 24, 1938.

      jEdmund P. Cottle for appellants.

      David Diamond, Corporation Counsel (.Bertha J. Strootman of counsel), for respondent.
   Judgment affirmed, with costs, on the authority of Rubin v. Cottle (273 N. Y. 544). Motion to dismiss appeal denied. No opinion. (See 278 N. Y. 712.)

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


text:
    Dorothy A. Redmond, Respondent, v. Alan Fox, Appellant, Impleaded with Another.
    Argued April 13, 1938;
    decided May 24, 1938.

      John E. F. Wood and I. Bernard Halpern for appellant.

      Mathias L. Connes and Harold Tullman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of James Hennessy, Deceased. Ethel H. Williams, as Administratrix, Appellant; Margaret Coffey, Respondent.
    Argued April 18, 1938;
    decided May 24, 1938.

      John Holley Clark, Jr. and Eleanor F. Hamilton for appellant.

      James D. C. Murray, George J. Gruenberg and John J. Sammon for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Marion G. Barber, Respondent, v. Jewel Tea Co., Inc., et al., Appellants. Jennie M. Barber, Respondent, v. Jewel Tea Co., Inc., et al., Appellants.
    Argued April 18, 1938;
    decided May 24, 1938.

      John A. Slade for Jewel Tea Co., Inc., appellant.

      John J. O’Malley for Gerald Bennett, appellant.

      Charles L. Hoey and Clarence B. Kilmer for respondents.
   In each action: judgment affirmed, with costs; no opinion.

Concur: Hobbs, Loughran, Finch and Rippet, JJ. Dissenting as to Jewel Tea Co., Inc.: Lehman and O’Brien, JJ. TaMng no part: Crane, Ch. J.