author: Finch, J. Crane, Ch. J. Rippey, J.

text:
    Maron Delaney et al., Respondents, v. Philhern Realty Holding Corporation et al., Defendants, and Jacob Shapiro et al., Appellants.

      Argued April 5, 1939;
    decided June 2, 1939.

      H. H. Brown and E. C. Sherwood for Jacob Shapiro, appellant.
    The plaintiffs failed to establish negligence on the part of the defendant Shapiro. If there was any negligence in connection with the laying of the pipe and planks it was the negligence of I. B. Miller, Inc., and for that subcontractor’s negligence the defendant general contractor would not be responsible. (Moore v. Wills,

      Inc., 250 N. Y. 426; Ahbol v. Harden Contracting Co., 265 N. Y. 564; French v. Vix, 143 N. Y. 90; Hexamer v. Webb, 101 N. Y. 377; Whitehill v. Hartman Constr. Co., 87 Misc. Rep. 184; 168 App. Div. 928; Iacono v. Frank & Frank Contracting Co., 259 N. Y. 377; Kelly v. Mayor, 11 N. Y. 432; Uppington v. City of New York, 165 N. Y. 222; Herman v. City of Buffalo, 214 N. Y. 316; Joyce v. Convent Ave. Constr. Co., 155 App. Div. 586; Sartirana v. New York County Nat. Bank, 139 App. Div. 597; Hyman v. Barrett, 224 N. Y. 436.) The plaintiffs failed to establish Mrs. Delaney’s freedom from contributory negligence. (Weston v. City of Troy, 139 N. Y. 281.) The trial court erred in instructing the jury on the question of contributory negligence. (McFarlane v. City of Niagara Falls, 247 N. Y. 340.)

      William P. Cotter for I. B. Miller, Inc., appellant.
    The charge on contributory negligence was error. (McFarlane v. City of Niagara Falls, 247 N. Y. 340; Weston v. City of Troy, 139 N. Y. 281; Nolan v. King, 97 N. Y. 565; Whalen v. Citizens’ Gas Light Co., 151 N. Y. 70.) The plaintiff was guilty of contributory negligence as a matter of law. (Minick v. City of Troy, 83 N. Y. 514; Weston v. City of Troy, 139 N. Y. 281; McFarlane v. City of Niagara Falls, 247 N. Y. 340.)

      Thomas A. Shaw, Jay S. Jones, Edward J. Fanning and John Gold for respondents.
    The trial court properly instructed the jury on the question of contributory negligence. (Wahrman v. Board of Education, 187 N. Y. 331; Magid v. City of New York, 234 App. Div. 38; Racine v. Morris, 201 N. Y. 240; Ramme v. Long Island R. R. Co., 226 N. Y. 327; Clifford v. Dam, 81 N. Y. 52; Irvine v. Wood, 51 N. Y. 224; Callanan v. Gilman, 107 N. Y. 360; Cohen v. Mayor, 113 N. Y. 532; Linzey v. American Ice Co., 131 App. Div. 333; 197 N. Y. 605; Wells v. Interborough R. T. Co., 124 App. Div. 631.) The jury were warranted in finding the general contractor liable. (Rosenberg v. Schwartz, 260 N. Y. 162; Wright v. Tudor City Twelfth Unit, Inc., 276 N. Y. 303; Rohlfs v. Weil, 271 N. Y. 444; Boylhart v. Di

      Marco & Reimann, Inc., 270 N. Y. 217; Mullins v. SiegelCooper Co., 183 N. Y. 129; Deming v. Terminal Ry. Co., 169 N. Y. 1; McNulty v. Ludwig & Co., 153 App. Div. 206; Hanley v. Central Sav. Bank, 255 App. Div. 542; Halligan v. Fitzpatrick, 243 App. Div. 252; Uggla v. Brokaw, 117 App. Div. 586; Simmons v. Everson, 124 N. Y. 319; Irvine v. Wood, 51 N. Y. 224.)
   Finch, J.

This is an action for damages arising out ol personal injuries due to the alleged fault of the subcontractor and contractor.

The questions presented are the correctness of the charge of the court, whether the defendant subcontractor fairly-apprised the court that the charge was improper, and whether the general contractor, as distinguished from the subcontractor, may avail himself of the exception by the subcontractor and participate in the new trial.

The facts sufficiently set forth to show how the questions arise are as follows:

The defendant Shapiro, a general contractor for the construction of a theatre, sublet to an independent contractor, Miller, Inc., excavation work which necessitated the use of compressed air passing through a pipe running across the sidewalk to the excavation from a compressor machine in the roadway. This crossing required a permit. A permit for the purpose of crossing [the] sidewalk had been obtained but whether the wording of this permit comprised a crossing by way of pipes containing compressed air was a question properly submitted to the jury. The obstruction across the sidewalk consisted of a two-inch pipe flanked by boards two inches high and twelve inches wide each with a beveled edge on the approach side. One of the boards became tilted against the pipe. Plaintiff walking along the sidewalk stepped on the tilted board which slipped under her weight and thereby caused her to fall and sustain injuries. The case was submitted to the jury upon the theories of negligence and of nuisance.

The learned court correctly charged as to negligence but there was error in the charge as to nuisance. Nuisance in this case could arise in two ways: laying the pipe and boards across the sidewalk without a permit therefor, and laying the pipe and boards across the sidewalk with a permit but in a negligent manner, e. g., where the board is tilted against the pipe instead of lying flat on the sidewalk.-

If no license has been issued, then an obstruction in the public way is an absolute nuisance (McFarlane v. City of Niagara Falls, 247 N. Y. 340, 343; Clifford v. Dam, 81 N. Y. 52; Congreve v. Smith, 18 N. Y. 79), whereas if a permit has been issued but the privilege to obstruct the public way is exercised in an improper manner, then the resulting nuisance is of a kind which arises out of negligence.

As to the kind of misconduct on the part of a plaintiff which bars recovery in an action based on negligence and one based on nuisance, a jury should be charged as follows: When the charge is want of due care or negligence, obviously any want of due care on the part of the plaintiff' or negligence contributing to the happening, prevents recovery. When the complaint is nuisance, consideration must be given to the kind of nuisance, whether nuisance based on mere want" of due care and thus arising out of negligence, or nuisance based on an act which is unlawful even if performed with due care. When the gravamen of the complaint is nuisance which arises out of negligence, then a jury should be charged that contributory negligence on the part of the plaintiff bars recovery. (McFarlane v. City of Niagara Falls, supra.) feut-where the gravamen of the complaint is an absolute nuisance or a nuisance per se, that is a nuisance based on an act which is unlawful even if performed with due care, then a jury should be charged that something more than a mere want of ordinary care on the part of the plaintiff is required to prevent recovery. (Muller v. McKesson, 73 N. Y. 195; Lynch v. McNally, 73 N. Y. 347.) The act of the plaintiff to prevent recovery must amount to being informed of the dangers in his path and then being willing to encounter them. The principle is comprised within the old maxim, volenti non fit injuria, or one will not be heard to complain of- results one has invited.” (Zurich G. A. & L. Ins. Co. v. Childs Co., 253 N. Y. 324, 327; McFarlane v. City of Niagara Falls, supra; Smith v. Baker & Sons, L. R. [1891] A. C. 325, 360; Harper on the Law of Torts, §§ 153, 193; Bohlen, Studies in the Law of Torts, pp. 514-521.)

A person in the public way is usually entitled to expect that it will be free from obstruction. Thus, in the leading case of Clifford v. Dam (supra) where the plaintiff fell into an uncovered coal hole, it was held that the plaintiff need not have been alert for dangerous conditions. The jury should be charged that a person in walking along the sidewalk need not be expecting obstructions to safe passage; but if the plaintiff sees the obstruction and with foresight of the consequences unreasonably attempts to exercise the legal right of passage regardless of the risk, then there may be no recovery. The unreasonableness under all the circumstances would be measured by the extent of the risk foreseen and the value of the right to be secured.

In the light of the foregoing, we may consider the charge of the trial judge in the case at bar, which was as follows: “ From the point of view of the claim that it was a nuisance, as I said before, any obstruction like this which is allowed to become loose or otherwise so that it did. tilt up and become a subject of danger to a pedestrian, constitutes a nuisance, and then the question of contributory negligence would not enter like it does on the theory of negligence only.”

The portion of the charge quoted refers to the kind of nuisance which arises out of doing a lawful act but doing it negligently or without due care, and makes no distinction between plaintiff’s right to recover for such an act and where the defendant is liable for an absolute nuisance or a nuisance based on the doing of an act unlawful in itself as if the defendant subcontractor laid the pipe across the sidewalk in disregard of the requirement that a permit with safeguarding regulations must be obtained therefor.

The general contractor, appellant Shapiro, urges that he is not hable for the improper manner in which his subcontractor laid the pipe and boards, because that is a collateral act of negligence on the part of an independent contractor. The test as to whether an act is collateral has been stated as follows: Probably the rule as to collateral negligence means nothing more than that the negligence required to impose liability upon an employer of an independent contractor must be negligence committed in the doing of the act itself which he is employed to do, and that negligence in other operations which, though connected with that work, are not themselves of a kind to create vicarious liability, is not sufficient. Thus if a defendant employs a contractor to make an excavation in a street, the defendant will be responsible for the negligence of the contractor in failing to light or guard the excavation, but will not be responsible for his negligence in carting materials to or from the scene of the operations.” (Salmond on the Law of Torts [8th ed.], p. 124.)

The general contractor here makes the same argument that was advanced in Wright v. Tudor City Twelfth Unit, Inc. (276 N. Y. 303). In that case, “ There was evidence to sustain a finding by the jury that the defendants were aware that the work, which they had delegated to another, was being done in a way from which danger to the public was reasonably forseeable ” (at p. 308). Here, too, the general contractor knew that the subcontractor had laid the pipe and boards on the sidewalk. (Rosenberg v. Schwartz, 260 N. Y. 162, 166.) With the limited exception above mentioned, one who authorizes work dangerous to those on a public way cannot delegate liability for the negligent performance of that work. (Wright v. Tudor City Twelfth Unit, Inc., supra; Rohlfs v. Weil, 271 N. Y. 444; Salmond, op. cit., supra, § 75.)

We deem that the appellant Miller, Inc., sufficiently excepted to that portion of the charge regarding contributory negligence as a defense to nuisance arising out of negligence. Although appellant Shapiro did not except thereto, he may take advantage thereof. His liability in any event is derived from Miller, Inc. The function of an exception is to give the court and the opposing party the opportunity to correct an error in the conduct of a trial. No greater opportunity would have been afforded, had the exception been chorused by both Shapiro and Miller, Inc., rather than made by the latter alone. The general contractor, therefore, should be allowed to participate in the new trial.

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

Crane, Ch. J.

(concurring in result). There has been so much written and said about the defense of negligence in an action of nuisance that the subject has become a mystery, smothered in verbiage.

The law in my judgment is, and should be, that except in rare cases of absolute nuisance of extreme danger, the negligence of the plaintiff contributing to the injury may be a bar to recovery. Whether it should be must be a question for the jury, and it is useless to attempt to define the degree of negligence which would thus be a defense. It must necessarily depend upon the circumstances. Where the plaintiff has exercised no care, or the care which the circumstances call for, and was thus injured by the nuisance, it must be that his own contributing negligence may prevent recovery. To try to distinguish between the different kinds of nuisance or the degree of nuisance, and the cases where the negligence of the plaintiff would or would not bar recovery, has led the courts into a maze.

I believe the rule to be as I have stated it, and, therefore, I cannot agree with the prevailing opinion, although I do concur in the result.

Rippey, J.

(dissenting). In my opinion no question of error in submission of the case is presented for the consideration of this court. Under those circumstances I vote for affirmance without considering the question as to whether there was or was not an error in the charge on the subject of nuisance.

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

Judgments reversed, etc. .


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Union Free School District No. 3, Town of Rye, Westchester County, Respondent, v. Town of Rye, Appellant.

      Argued April 5, 1939;
    decided June 2, 1939.

      John L. Coward for appellant.
    The Constitution of the State of New York bars the defendant from borrowing money for the purpose of raising the necessary funds to pay over to the plaintiff the uncollected taxes. (N. Y. Const. art. 8, § 1.)

      William A. Davidson for respondent.
    The town, in borrowing money to pay to the school districts the amount of the unpaid school tax, is not loaning its credit in violation of section 1 of article 8 of the Constitution. (Capes v. Burgess, 135 111; 61; Richard v. American Union Bank, 123 Misc. Rep. 92; Imperial Curtain Co. v. Strauss, 76 Misc. Rep. 533.) The provisions of the new Constitution do not controvert the provisions of the Westchester County Tax Law (L. 1916, ch, 105, as .amd.) so as to make unconstitutional section 31 of the Tax Law, which has been in effect for upwards of twenty years. (City of New York v. Davenport, 92 N. Y. 604; Matter of Oswego County v. Foster, 262 N. Y. 439; Town of Amherst v. County of Erie, 260 N. Y. 361.) The school district is a governmental agency of the State and, therefore, the raising of its school moneys is for a governmental and town purpose. (Village of Kenmore v. County of Erie, 252 N. Y. 437; Herman v. Board of Education, 234 N. Y. 196; Matter of McAneny v. Board of Estimate, 232 N. Y. 377.)
   Lehman, J.

The Westchester county tax law (Laws of 1916, ch. 105, with subsequent amendments) is intended to provide for the assessment of property and the collection of taxes and assessments in the several towns of Westchester county, and in the special tax and school districts in such towns.” In many respects the system devised for Westchester county is different from the system used in other counties. In other counties the tax machinery of the county is used to supplement the machinery of local units in levying and collecting taxes for local purposes. In Westchester county assessment rolls are prepared in each town by a single town board of assessors “ for the purpose of taxation within their respective towns, whether for state, county, town, special tax district or school district purpose or purposes.” (§ 7.) After the amount of a tax to be raised within the town or special tax district for any or all of such purposes has been fixed according to law and the amount certified to the supervisor of the town, the town is charged with the duty of extending, collecting and paying over to the proper officers of the county and school districts the amount of the tax so certified.

The tax law provides that The amount of the annual tax and special assessments of each school district shall be fixed and determined, as the law provides, by the trustees_or board of education of each school district, and shall be certified to the supervisor of the town before June first in each year.” (§ 16.) Upon receiving such certification the supervisor is under a duty to extend ” the tax and deliver to the receiver of taxes his warrant for the collection of the tax. (§ 17.) The receiver of taxes must deposit to the credit of the town all amounts collected and file on the first day of each month with the supervisor of the town a report showing, the amount of state, county, town, school district, and special district taxes collected and received by him. He must on the fifteenth day of September of each year file with the county treasurer of Westchester county a report showing the amount of State and county taxes and assessments uncollected by him since the first day of January, April and/or May as the case may be last preceding.” (§ 23.) He must upon written demand of the board of education of a school district file in addition a report which “ shall show the total amount of taxes and assessments of such school district uncollected by him during the current fiscal year.” (§ 28.)

The supervisor of the town must “on or before the fifth secular day of each month pay to the treasurer of Westchester county, the state and county tax or assessments so collected and deposited by said receiver and to the treasurer of each school district in said town the amount of school tax of said district so collected and deposited by said receiver.” (§ 24.) Whenever after the fifteenth day of September the supervisor of the town “ shall receive from the receiver of taxes, an account of unpaid state, county, town, town district, or special assessments, and after the first day of February in each year an account of unpaid school taxes, he shall, under the direction and authority of the town board or a majority of them, borrow upon the credit of the town a sum not exceeding the amount of the unpaid taxes so reported. * * * From the proceeds of such bonds or certificates of indebtedness, the supervisor shall pay to the county treasurer the amount of unpaid state ■ and county taxes included in such report ; and shall pay to the treasurer of each school district the amount of unpaid school taxes of such district included in such report.” (§ 31.) State, county, town, special district or school taxes collected thereafter belong to the town. (§ 24.)

The plaintiff is a school district within the village and town of Rye in Westchester county. The amount of the school tax to be raised by assessment of the tax upon property within the school district was fixed at $205,289.58 and the amount so fixed was certified to the supervisor of the town of Rye in June, 1938. The supervisor extended the tax and issued his warrant to the receiver of taxes. On the 1st day of February, 1939, $189,362.42 had been collected by the receiver of taxes and a balance of $15,927.16 remained due and owing. The plaintiff made a demand upon the supervisor of the town of Rye for the payment of such balance. The supervisor has refused to make such payment, claiming that he has not on hand sufficient money and that under the provisions of the Constitution of the State he may not borrow money for that purpose. There is no contention that the statute does not in terms place upon the town the duty to pay to the school district the uncollected balance of the school tax. When the statute was adoped, the Constitution of the State provided that no county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation * * * nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes.” (Art.VTII, § 10.) So long as the Constitution so provided, the validity of the statutory command that the town should pay to the school district uncollected taxes and the authority conferred by statute upon the town to borrow the required money was never challenged on the ground that a loan contracted by the town for such purpose would constitute a loan of its credit to a corporation in violation of that constitutional provision. The refusal of the town to borrow money and to pay it to the school district is based upon the contention that provisions of the statute have been rendered invalid by change in the Constitution which became effective on January 1, 1939. The controversy has been submitted to the Appellate Division upon an agreed statement of the facts.

The Constitution in present form provides: “ No county, city, town, village or school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking * * * nor shall any county, city, town, village or school district give or loan its credit to or in aid of any individual, or public or private corporation or association, or private undertaking, but this provision shall not prevent a county from contracting indebtedness for the purpose of advancing to a town or school district, pursuant to law, he amount of -unpaid taxes returned to it” (Italics of course are ours.) (Art. VIII, § 1.) No county, city, town, village or school district shall contract any indebtedness except for county, city, town, village or school district purposes, respectively.” (Art. VIII, § 2.)

There is here a clear distinction in the scope of the restriction, placed by the Constitution upon a unit of local government in the administration of its finances, between a gift or loan of the money or property of such a unit and a gift or loan of its credit. Public moneys should be used for public purposes; therefore, gifts or loans of public money or property may not be made to an individual or private corporation or association or private undertaking, but there is no prohibition against gifts of moneys to a public corporation for a public purpose, at least where the local unit does not borrow the money so given or loaned. Unwise use of local public moneys even for a public purpose may cause hardship to the taxpayer but correction of error there is left by the Constitution to the people whose money is used and who select the local officials. The entire machinery of local government may, however, break down if the credit of the units of local government required to carry out their governmental functions is impaired, and there may be danger of such impairment if a local unit is permitted to give or loan its credit or to borrow money in aid of undertakings outside of its own field. To safeguard that credit the Constitution permits the use of its credit by a local unit only for the purposes of that unit, and prohibits it from giving or loaning its credit to or in aid of any “ public or private corporation.” "

We are told that a school district is not a public corporation ” within the meaning of the constitutional restriction; that the restriction in present form, like the restriction contained in the Constitution in effect when the statute was enacted, does not apply to the gift or loan of credit to or in aid of a governmental agency or municipal corporation, but was intended to apply only to corporations which are public ” in the limited sense that railroad, steamboat, telephone, telegraph and similar corporations are public corporations. The constitutional provision may not be so read. Thé reports of the Committees on State Finances and Revenues; Cities; Counties and Towns; and Villages, introducing this amendment in the Constitutional Convention show beyond possible question that the Convention intended that the restriction should apply to every corporation, public or private, including a governmental agency, like a school district. Without regard to such reports, however, it appears from the language of the section itself that any narrower construction would thwart the plain intention of the Legislature. “ Public ” corporations within the meaning of the constitutional provision include municipal corporations.”

The question remains, however, whether in this case the town by borrowing money to pay to the school district the uncollected school tax is giving or lending its credit to or in aid of the school district. As we pointed out at the beginning of this opinion, under the provisions of the Westchester tax law, the town is charged with the duty of levying, collecting and paying over to the treasurer of the school district the amount of the school tax previously certified to the supervisor. It must pay that amount in full even though, it fails to collect the tax in full. The uncollected taxes then belong to the town. So long as the town pays over to the school district the full amount of the tax which was levied, whether the payment is made by the town out of moneys in -the treasury of the town or out of moneys borrowed for. that purpose by the town and whether or not the town subsequently succeeds in collecting the unpaid taxes, are matters which in no wise affect the school district. The statute is intended to place upon the town an unconditional obligation to pay the amount of the tax to the school district and the school district is under nb obligation to repay the town, and, in final analysis, the question is whether borrowing money.by the town to meet such an unconditional obligation of the town constitutes a gift or loan of the credit of the town “ to or in aid of ” the school district........

Counties, towns and school districts are all “ municipal corporations ” or governmental subdivisions of the State. We have said in Village of Kenmore v. County of Erie (252 N. Y. 437, 442), that the Legislature in the exercise of its power and the performance of its duty to arrange the territory of the state into civil divisions and to so apportion among them governmental duties ” may use the county and its officers for the performance of such governmental functions or duties as it sees fit. School districts are, like counties, governmental subdivisions of the state, though their governmental function is confined to education. The state uses the machinery of county government to supplement the machinery of the school districts where the latter proves inefficient in the collection of school taxes (Education Law, §§ 434, 439; Cons. Laws, ch. 16).” “ A town is a municipal corporation comprising the inhabitants within its boundaries, and formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been, or, may be conferred or imposed upon it by law.” (Town Law; Cons. Laws, ch. 62, § 2.) There is similar definition of a county in the County Law (Cons. Laws, ch. 11), section 3. In the Education Law the Legislature provided for the use of the machinery of the county to supplement the machinery of the school district in the collection of school taxes. In the Westchester tax law the Legislature has gone further. It has apportioned to the towns the full duty of'assessing, levying and collecting taxes within its boundaries whether for state, county, town, special tax district or school district purpose or purposes,” and of paying to the State, county or district the amount of such taxes. The Legislature might apportion that duty to the town as it might apportion that duty to the county. It might place upon the town or county the duty of paying each governmental unit the tax levied to meet the governmental expenses of that unit, placing upon the tax-collecting unit the risk that it might not be able to collect the full amount. (Mayor v. Davenport, 92 N. Y. 604; Town of Amherst v. County of Erie, 260 N. Y. 361.)

The town does not question that under the new Constitution, as under the. old, the Legislature has the power to place that risk and duty upon the town and to command the town to use for such purpose the money in its treasury. It contends only that the Legislature may not command or authorize it to use its credit to borrow money to be paid to the school district in performance of the function or duty imposed upon the town. That, it says, constitutes an indirect gift or loan of its credit to or in aid of the school district, prohibited by the Constitution. The town does not question that since education is a governmental function the Legislature might, if it chose, apportion the function of education to town or county instead of school district (Cf. Village of Kenmore v. County of Erie, supra; Town of Amherst v. County of Erie, supra); nor does the town question that if the Legislature had provided that schools within the town should be maintained and conducted by the town there would be no prohibition in the Constitution against borrowing by the town to pay the school expenses. It argues, however, that what would be permitted to the town if the statute had placed upon the town the duty of maintaining the schools is forbidden by the new Constitution when the town’s function is confined to raising or supplying the moneys required for that purpose and the function of administering the moneys supplied is apportioned to another unit.

The task of the Constitutional Convention was to restate the fundamental law of the State so that adequate governmental powers might be vested in appropriate governmental agencies and to subject those powers to such restrictions as wisdom, gained by experience, might dictate. The problem was to be viewed in relation to existing institutions and established policies and to conditions either now existing or which might be anticipated. In the.interpretation of the Constitution formulated by the Convention as its solution of the problem the same matters must be given due weight for the words of the Constitution should be read as they naturally would be read and understood by persons who know the conditions now existing which might be affected by changes in the fundamental law.

The representatives of the People in convention assembled, doubtless viewed with concern the possibility that, if a local unit, unable to raise by taxation or by use of its credit all the moneys it desired to expend for its local governmental purposes, were permitted to rush to another local unit with better credit or to the State and to induce the loan, of sound credit to bolster up its own failing credit, the entire financial structure of the State might be weakened. To safeguard the public credit against such a threat, section 1 of article VIII was formulated for the protection of the finance of local units, and similar provision made in article VII to protect the finances of the State. In the original form it contained no saving clause. The declared intention of draftsmen of these provisions, manifested in notes appended to their proposals, was to prevent, perhaps with exceptions thereafter to be inserted, the use of the credit of one unit to supplement the credit of another unit. Only in the saving clause thereafter added can suggestion be found that provision devised for so sound a purpose might without that clause be construed in manner which would disrupt our system of taxation under which the risk of failure to collect all taxes for governmental purposes may be placed upon a single governmental unit.

The saving clause was not contained in the report of the Committees on ' State Finances and Revenues; Cities; Counties and Towns; and Villages, which drafted and introduced the article on Local Finances of which this provision is the first section, but, it appears from the proceedings of the Convention, the saving clause was thereafter proposed by a delegate on the floor of the Convention. Whether its introduction and adoption was due to excess of caution or because some of those responsible for its drafting believed that without the saving clause the tax system prevailing generally throughout the State would be destroyed, does not appear from the records of the Convention and is not, perhaps, of serious consequence now. Certainly not all those who originally joined in presenting section 1, article VIII, thought that a saving clause would be necessary to preserve the system previously in effect; for one of them, in reply to a request for a statement indicating that the provisions of section 1 did not “ prohibit the continuance of the present system ” stated that I have been asked two or three questions which I would like to answer for the purpose of the record. One is whether the provisions of Section 1 preclude a county from advancing the amount of school taxes returned as uncollected by the school districts, either from funds on hand or money borrowed for that purpose. The answer to that is no, the provisions of the first paragraph do not prohibit the continuance of the present system. The second question is, do the provisions of this section adversely affect the present system of collecting taxes in towns primarily referring to the Amherst decision, and the answer is likewise no.” (Record of the Convention, pp. 2520 and 2521.) To that statement there was no dissent from the floor of the convention.

Even so, the adoption of the saving clause thereafter shows, at least, that some of the members of the Convention believed that the proposed provision of the Constitution might otherwise be construed differently. Perhaps where one local unit is required to borrow money for the purpose of “ advancing ” the amount of taxes imposed by another governmental unit argument might be made that indirectly such borrowing is a loan of credit by the local unit making the advances ” in aid of the unit which received the advances. That would be so at least where the unit making the advances ” was entitled to claim reimbursement from the unit receiving them. In counties other than Westchester the towns and the school districts have, as already pointed out, power to levy and collect their own taxes though ultimate duty to pay to towns or school districts, taxes which they fail to collect, rests upon the counties. Perhaps in such case payment by the counties might be regarded as an advance,” and without the saving clause there might be question whether the established system might be continued. In Westchester, as we have pointed out, the town is the sole unit which may levy or collect any taxes. It does not, in any sense, “ advance ” to the county or to the school districts the amount of unpaid taxes returned to it.” It pays over the amount which it collects up to a fixed date upon taxes which it levies and after that date it pays the uncollected balance and receives in return title to the taxes. We cannot reasonably read into the constitutional provision an intent to prohibit the continuance of such a system because a saving clause has been added intended to preserve a similar taxing system in effect in the other fifty-six counties of the State outside of New York city, especially where argument, not completely devoid of force, might be made that without such saving clause the prohibition would apply to these fifty-six counties even though it might not apply to Westchester county.

If the Legislature in the exercise of its discretion chooses to make the town in Westchester county the sole taxing unit responsible for the ultimate payment to school districts and to county of school and county taxes, it would be unreasonable, in the absence of clearest language, to apply to the system in effect in Westchester county a prohibition specifically made inapplicable to the other fifty-six counties, though no claim is made that the danger against which the constitutional provision is intended to protect is more inherent or imminent in the Westchester system than in the system used in the other counties.

Within its defined limits the constitutional restriction must be rigidly enforced according to its letter and its spirit. Every obligation of a governmental unit must rest, upon its own credit and no governmental unit may give or loan its credit except for the purpose of meeting its own obligations incurred in the performance of a governmental function or duty which the State may entrust to it. The constitutional provision here invoked does not restrict the legislative power to apportion governmental duties. The Legislature may now, as formerly, apportion to the trustees or board of education of school districts, the duty to administer the schools within the districts and apportion to the town the duty to supply the moneys required by such trustees or board. The Legislature has done so by its command to the town to levy and collect a tax for such purpose and to pay over to the treasurer of the school district the tax so collected and, in addition, the amount not collected at a fixed date. To meet its own obligations in aid of a governmental duty and only to meet such obligations the town may borrow money where necessary. That is not a loan or gift of its credit to the school district in anticipation of reimbursement either directly by the school district or by the collection of taxes which belonged to the school district, for the school district never owned the taxes — they belong to the town — and the school district was never directed or authorized to raise the moneys by taxation or by use of its credit.

The judgment should be affirmed, without costs.

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

Judgment affirmed.


author: Lehman, J. Rippey, J.

text:
    Boro Park Sanitary Live Poultry Market, Inc., Appellant, Impleaded with Others, v. Max Heller, as President of International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 167, et al., Respondents.

      Argued May 15, 1939;
    decided June 2, 1939.

      Stanley M. Dorman and Eugene Frederick Roth for appellant.
    The court at Special Term properly found that no labor dispute existed, and, therefore, had jurisdiction to grant a complete injunction without compliance with section 876-a of the Civil Practice Act. (Thompson v. Boekhout, 273 N. Y. 390; Yablonowitz v. Korn, 205 App. Div. 440; Luft v. Flove, 270 N. Y. 640; Matter of Bowne v. Bowne Co., 221 N. Y. 28; Home Fire Ins. Co. v. Barker, 67 Neb. 644; Anthony v. American Glucose Co., 146 N. Y. 407.) The order of the Appellate Division reversing the order of Special Term which granted the temporary injunction, and denying it, having been made expressly on the law and not in the exercise of its discretion, is reviewable by the Court of Appeals. (Matter of Baltimore Mail S. S. Co. v. Fawcett, 269 N. Y. 379.) The Special Term was justified in issuing the injunction as provided in the order. (Luft v. Flove, 270 N. Y. 640; Fitter v. Kaminsky 7 N. Y. Supp. [2d] 101; Wishny v. “John Jones,” 169 Misc. Rep. 459.)

      Leon Herzfeld, Arthur C. Mandel, Lester B. Lipkind and Irving Herzfeld for respondents.
    A labor dispute exists between the plaintiff corporation and the defendant union within the meaning of section 876-a of the Civil Practice Act. The relationship of employer and employee exists. The procedural requirements of section 876-a must be complied with before any relief can be granted. (Krip Holding Corp. v. Canavan, 159 Misc. Rep. 3.) A corporation is a legal entity separate and apart from its stockholders, officers and members. When a corporate relationship exists, a partnership relationship cannot exist at the same time between the parties involving the identical business and subject-matter to the detriment of others. (Rapid Transit Subway Constr. Co. v. City of New York, 259 N. Y. 472; Brock v. Poor, 216 N. Y. 387; American Union Line, Inc., v. Oriental Nav. Corp., 239 N. Y. 207; Matter of Mt. Sinai Hospital [Goldman], 250 N. Y. 103; Claude Neon Lights, Inc., v. Federal Electric Co., 135 Misc. Rep. 113; Drucklieb v. Harris, Inc., 209 N. Y. 211; Boag v. Thompson, 208 App. Div. 132; Berger v. Eichler, 211 App. Div. 479; Cohen v. Mahoney, 160 Misc. Rep. 196; Thomashefsky v. Edelstein, 192 App. Div. 368.) Officers and directors of a corporation who perform manual labor in addition to their executive duties are deemed employees of the corporation. (Fitchett v. Murphy, 26 Misc. Rep. 544; Outterson v. Fonda Lake Paper Co., 20 N. Y. Supp. 983.) The Special Term below was not justified in issuing an injunction pendente lite as sweeping as the one granted. (Stillwell Theatres, Inc., v. Kaplan, 259 N. Y. 405; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260.)
   Lehman, J.

Boro Park Sanitary Live Poultry Market, Inc., is a domestic corporation conducting a wholesale and retail market for the sale of live and slaughtered poultry. Four brothers and their mother are the sole stockholders, directors and officers of the corporation. Prior to December 31, 1938, the corporation employed members of the defendant union in its business under a written contract with the union. On that date the contract with the union expired. It has never been renewed. The stockholders of the corporation desire to do the work themselves. The union has taken the position that the plaintiffs were employers and therefore not eligible to membership in the union. Then the corporation refused to renew the union contract and since that time its stockholders have performed substantially all the manual work formerly done by members of the union. The four brothers are paid regular weekly wages; their mother receives no salary but, instead, support and contribution.” A functionary, denominated a “ shochet,” is employed to certify that the corporation complies with Jewish dietary laws; otherwise the corporation has no employees except its stockholders. By picketing and other methods the defendant union is seeking to induce or compel the corporation to employ union members and to enter into a contract with the union on terms dictated by the union.

The plaintiff corporation in this action seeks to enjoin the union from all interference with it's business and an injunction pendente lite was issued restraining the defendant union from picketing and even from stating “ that the plaintiff corporation is engaged in any labor controversy or dispute, or that a strike exists on their premises, or that it is unfair to labor.” Upon appeal the Appellate Division reversed the order granting the injunction pendente lite and upon the defendants’ motion dismissed the complaint on the ground that it failed to allege facts sufficient to constitute a cause of action.

The Legislature, in section 876-a of the Civil Practice Act, has regulated the exercise of the equitable power of the Supreme Court to issue any restraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute, as hereinafter defined.” The section (subd. 10) defines a labor dispute as follows:

(c) The term ‘ labor dispute ’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee.”

The plaintiff concededly has failed to plead or prove matters which under the provisions of section 876-a must be pleaded and proven in order to obtain injunctive relief in “ labor disputes.”- The judgment of the Appellate Division dismissing the complaint cannot be successfully challenged if the case involves or grows out of a “ labor dispute ” as defined in the statute.

We have said that the Legislature intended only to subject injunctions issued in disputes involving or growing out of the relations of employer and employee to special regulations,” and we have therefore excluded from the application of the statute cases where the “ owner of a small business seeks to avoid * labor disputes ’ as defined in the statute, by running his business without any employees.” (Thompson v. Boekhout, 273 N. Y. 390, at 393.) Where an owner of a business does the work himself without employees the relation of employer and employee ” does not exist and there can be no controversy concerning terms or conditions of employment ” or concerning employment relations ” or arising out of the respective interests of employer and employee ” as provided in the statutory definition. The problem here is whether in this case the corporate employer and its stockholders who labor for wages in its business stand in the relation of employer and employee.

Four men perform manual labor for the corporation, formerly performed by members of the union. They receive wages for their work. The fact that they are stockholders or even officers of the corporation would not deprive them as employees of compensation for accidental injuries under the Workmen’s Compensation Law (Cons. Laws, ch. 67).. (Matter of Skouitchi v. Chic Cloak & Suit Co., 230 N. Y. 296.) It would not bar them from the preference granted by statute for “ the wages of the employees, operatives and laborers ” of insolvent corporations conferred under the provision of chapter 376 of the Laws of 1885. (Palmer v. Van Santvoord, 153 N. Y. 612.) (Cf. Federal Social Security Act; U. S. Code, tit. 42, § 1301; Federal Railroad Unemployment Insurance Act, enacted June 25, 1938, 52 U. S. Stat. p. 1094; U. S. Code, tit. 45, § 351.) It is said, however, that the corporate entity of the plaintiff may be ignored because the corporation conducts only a small family business and if ignored these stockholders are seen to be working for themselves without any employer. The corporate entity is, however, in this case not a fiction. It is the form chosen by the stockholders for the conduct of the business. It hires the stockholders to work for it. They are paid by it. They are subject to discharge by it. No court would, I think, listen to a claim that the corporate entity should be ignored if these “ employees ” claimed the benefit of the Workmen’s Compensation Law, the Labor Law (Cons. Laws, ch. 31) or any other statute protecting employees. It should not be ignored in this case.

It is said too that the union may not refuse to admit stockholders of a corporation because the union regards them as bosses ” and then insist that the relationship of employer and employee exists between corporation and a' stockholder working for the corporation in return for wages paid by the corporation. The union, with perhaps some exceptions not material here, is free to choose its own members and then to endeavor to obtain employment for its chosen members. It may reject these stockholders because they share indirectly in the profits of the business and their interests may not coincide with the interest of other workers. Controversy as to whether the stockholders or the members of the union should be employed to do the work of the corporation remains, none-the-less, a “ labor dispute ” within the letter and spirit of the statute.

The judgment of the Appellate Division should be affirmed, without costs. The appeal, by permission, from the order of the Appellate Division should be dismissed, without costs. The certified question is not answered.

Rippey, J.

(dissenting). This action was brought by the plaintiff, a domestic business corporation, in equity to restrain the defendants from unlawfully interfering with it and its business. The plaintiff has failed to allege compliance with the provisions of section 876-a of the Civil Practice Act on the asserted ground that there is no “ labor dispute” "within the meaning and scope of the provisions of that section. At Special Term, it moved for an injunction pendente lite, which motion was granted. A cross-motion by the defendants to dismiss the complaint against the corporate plaintiff was denied. Upon appeal, the Appellate Division reversed the Special Term and dismissed the complaint. The Appellate Division allowed an appeal and certified to us the question as to whether the motion for the injunction pendente lite should have been granted upon the record presented. The answer to the question depends upon a determination as to whether or not the facts set up in the complaint establish that there was a “ labor dispute ” within the meaning of section 876-a of the Civil Practice Act.

The plaintiff is engaged in the business of selling, at ' wholesale and retail, kosher live and slaughtered poultry. It is alleged that the business is strictly a family enterprise and composed of four brothers and their mother, conducted at the same time in the name of Kershnar Brothers and also in the name of the corporation. The brothers and the mother are the officers and directors of, the corporation and the only persons interested therein and it is alleged that no one person alone has any supervisory capacity but that all of them work together in agreement as partners using the corporate form only for convenience and that all of them participate in the labor both manual and clerical involved in conducting the business. Two of the brothers receive from the proceeds of the business thirty-five dollars each per week and two of them twenty dollars each per week but the mother receives no money. The father voluntarily and without pay helps the family out on Saturdays when not engaged in his regular employment elsewhere. A Hebrew functionary known as a shochet perfprms services in connection with the slaughtering of the poultry but it is conceded that he is not to be considered as an employee. No others are connected with or perform any work or services in the business.

It also appears that for several years the plaintiff corporation had written contracts with the defendant union which provided, among other things, the number of employees the plaintiff was required to engage, the wages to be paid to them and the hours to be complied with, and that under those contracts the plaintiff employed one or two union members as required by the union and paid them the scale wages and in other respects complied with the contract. The time came for the renewal of the contract in December, 1938. It is alleged the plaintiff was willing to renew but not upon the terms that it was required to employ outside help who were members of the union, their business having become such that they could not continue to operate their business if they were required to employ and pay such help. It is alleged that their business was such that the four brothers with the mother could handle all of the work required to be done. The union refused to enter into such a contract or to admit the brothers to membership in the union on the ground that an employee relationship between the brothers and the corporation did not exist but that they were in fact themselves employers and therefore ineligible for membership in the union. It is alleged that illegal picketing and acts of violence were thereupon engaged in by members of the union for the purpose of compelling the plaintiff to enter into the contract upon the union terms, the result of which, if allowed to continue, would ruin plaintiff’s business.

In Luft v. Flove (270 N. Y. 640), commenced prior to the enactment of section 876-a of the Civil Practice Act, where “ plaintiff had only employed in the operation of his business his wife and two adult sons who were not members of the defendant unions and who desired to continue in such employ unmolested by such unions or by the members thereof,” this court held that an action such as the one here brought might be maintained and the defendants restrained from picketing his place of business on his refusal to employ members of the union. A similar holding was made in Yablonowitz v. Korn (205 App. Div. 440). It is settled that relief might be had in the present action, without the necessity of alleging compliance with the provisions of section 876-a of the Civil Practice Act, if the business were operated by an individual who personally did all the work without third-party-employee relationship existing (Thompson v. Boekhout, 273 N. Y. 390), since in such a case there could be no “ labor dispute ” within the intent, scope and meaning of that act. Upon the authority and reasoning of the Thompson case, the learned justice at Special Term held that the plaintiff was “ a close family corporation,” operated exclusively by the members of the family without third party employees; that the existence of the corporation did not alter the factual situation and that the case did not fall within the class of cases governed by the act. I am of the opinion that he based his decision upon solid ground and that his conclusion was correct.

It is still, however, here strenuously asserted that the mere fact that the four brothers and the mother were operating under a corporate form in the case at bar prevents such a result. While at law a corporation is an entity, a “ personality,” separate and distinct from its shareholders, members or officers, nevertheless, where the interests of justice require and under some circumstances the corporate form may be disregarded (Fletcher Cyc. Corp. [Perm, ed.] vol. 1, ch. 2, § 41 et seq., with cases indicating the substantially universal application of the rule). That rule is not limited to any specific class of cases or to any particular subject-matter or to the relative position of the parties in the litigation. Its foundation is broad enough to warrant its application wherever the peculiar facts in the particular case -under consideration in the interests of justice demand, even where the rights and interests of third parties are involved. The rule has been well stated in United States v. Milwaukee Refrigerator Transit Co. (142 Fed. Rep. 247), at page 255, where it is said: “ If any general rule can be laid down, in the present state of authority, it is that a corporation will be looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears; but, when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons. This much may be expressed without approving the theory that the legal entity is a fiction, or a mere mental creation; or that the idea of invisibility or intangibility is a sophism.”

It seems to me that the defendant union correctly diagnosed the relation between the stockholders, officers and directors and the corporate entity when it refused to recognize the existence of the employee relation when application was made for membership to the union. Mere verbiage, nomenclature or form cannot change the facts. Theoretically, the members of the family may be designated as employees of the corporation. Practically, under the peculiar facts in this particular case, the four brothers and the mother were the corporation and were not servants of the corporation in any sense except by legal fiction (Matter of Bowne v. Bowne Co., 221 N. Y. 28, 34). The defendants cannot “ justify wrong ” by asserting the contrary. The facts do not compel the application of any principle of estoppel which can prevent plaintiff to so assert. Under the facts here presented it must be so held in order to promote justice and to avoid the perpetration of wrong (1 Morawetz on Private Corporations [2d ed.], § 227, p. 222; Fletcher Cyc. Corp., supra; Wormser, Piercing the Veil of Corporate Entity, 12 Col. L. Rev. p. 496; cf. Farmers’ Loan & Trust Co. v. Pierson, 130 Misc. Rep. 110, 115, 119). Under such circumstances the principle of the Luft and Thompson cases (supra) controls.

The judgment and order of the Appellate Division should be reversed, the order of the Special Term reinstated and the question certified answered in the affirmative, with costs to appellant in the Appellate Division and in this court.

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

Judgment accordingly.


author: Per Curiam.

text:
    In the Matter of Henry L. Crittenden, an Attorney at Law, Appellant Rochester Bar Association, Respondent.
    Argued May 19, 1939;
    decided June 2, 1939.

      Victor Levine and Eugene J. Dwyer for appellant.
    The Appellate Division erred in basing its determination on information received outside the record. (Central Hanover Bank & Trust Co. v. Eisner, 276 N. Y. 121; Matter of Eldridge, 82 N. Y. 161.)

      Leland R. Yost for respondent.
   Per Curiam.

This cause comes here upon a certificate from the Appellate Division that a question of law is involved. Appellant urges that if afforded an opportunity he could refute some of the conclusions drawn from a consideration of the agreement between Malley and himself which was not introduced in evidence in the proceeding and which appellant, therefore, did not have an opportunity to meet or to explain. This may also have a bearing upon the extent of the punishment to be inflicted.

The order of the Appellate Division should be reversed and the matter remitted to the Appellate Division for further proceedings in accordance with this opinion.

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

Ordered accordingly.

k


text:
    In the Matter of the Elimination of Crossings at Grade of The Pennsylvania Railroad Company et al., Appellants, over the Farnham-Irving State Highway in Town of Brant; Public Service Commission of the State of New York, Respondent. In the Matter of Crossing of the Farnham-Irving State Highway over the Right of Way of the New York Central Railroad, Appellant; Public Service Commission of the State of New York, Respondent.
    (Case No. 5389.)
    (Case No. 5651.)
    Argued October 5, 1938;
    decided February 21, 1939.

      Evan Hollister, Percy R. Smith, Frank Rumsey and Harold J. Adams for Pennsylvania Railroad Company and New York, Chicago and St. Louis Railroad Company, appellants.

      Howard R. Sturtevant and John E. Leach for New York Central Railroad Company, appellant.

      Sherman C. Ward and Gay H. Brown for respondent.
   Orders affirmed, with costs; no opinion.

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


text:
    In the Matter of Alice V. Conklin et al., Appellants, against The Board of Child Welfare of the City of New York et al., Appellants, and Ida J. Amann et al., Interveners, Respondents.
    Argued November 30, 1938;
    decided February 21, 1939.

      H. Eliot Kaplan for petitioners-appellants.

      Joseph D. Allen for respondents.

      William C. Chanler, Corporation Counsel (Jeremiah M. Evarts and Paxton Blair of counsel), for defendants, appellants.
   Order affirmed, with costs; no opinion.

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


text:
    Benjamin Solomon, as Trustee in Bankruptcy for I. Shainin & Company, Incorporated, Appellant, v. Daniel E. Finn, Respondent.
    Argued January 5, 1939;
    decided February 21, 1939.

      Arthur Hutter and George Weiss for appellant.

      David Segal for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Real Property Required for Opening and Extending Tri-Borough Bridge Plaza from 31st Street (2nd Avenue) to 47th Street (17th Avenue) and the Grand Central Parkway Extension from 47th Street to Northern Boulevard in the Borough of Queens; Degnon Realty and Terminal Improvement Company, Appellant.
    Argued January 5, 1939;
    decided February 21, 1939.

      Bernard L. Bermant, Isaac E. Bermant and Henry Herz for appellant.

      William C. Chanler, Corporation Counsel (Lewis Orgel, Julius Isaacs and Daniel M. Cohen of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Dan S. O’Leary, Respondent, v. Hearst Magazines, Inc., Appellant.
    Argued January 5, 1939;
    decided February 21, 1939.

      Robert T. Dwyer and David H. Shearer for appellant.

      Everette H. Hunt for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Probate of the Will of David E. Lamborn, Deceased. Charles G. Meehan et al., Appellants; Artemas E. Ward, as Administrator of the Estate of David E. Lamborn, Deceased, et al., Respondents.
    Argued January 5, 1939;
    decided February 21, 1939.

      Charles Caldwell and William R. Perkins for Charles G. Meehan et al., appellants.

      Todd Wool and William Burdell Banister for Mary Flanagan et al., appellants.

      Elmer E. Wigg, Brent W. Blythe and Edward J. Hogarty for Artemas E. Ward, as administrator, et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Title Guarantee and Trust Company, as Trustee under the Will of Frank L. Nugent, Deceased, Respondent; Frank L. Nugent et al., Appellants.
    Argued January 5, 1939;
    decided February 21, 1939.

      Carl John Herbert for appellants.

      Joseph V. McKee, William T. Griffin and Gilbert Lazerus for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    Jacob S. Schneider, as Administrator of the Estate of Helene E. Schneider, Deceased, Respondent, v. Village of Lake George, Appellant, Impleaded with Others.
    Argued January 6, 1939;
    decided February 21, 1939.

      Walter A. Chambers and William W. Bullis for appellant.

      C. E. Fitzgerald and James McPhillips for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Berger and Gabriel Klar, Appellants.
    Argued January 9, 1939;
    decided February 21, 1939.

      Robert Daru, Maurice Hellman and Gerald A. Barrett for appellants.

      Thomas E. Dewey, District Attorney (Herman J. McCarthy and Harris B. Steinberg of counsel), for respondent.
   As to each defendant: Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George R. Reilly, Appellant.
    Argued January 9, 1939;
    decided February 21, 1939.

      Samuel M. Fleischman for appellant.

      Frank G. Raichle, Special Assistant District Attorney (James O. Moore, Jr., of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Anna R. Bolling, Respondent, v. Northern Insurance Company of New York, Appellant.
    Argued January 9, 1939;
    decided February 21, 1939.

      Abraham J. Goldberg for appellant.

      Robert M. McCormick and Andrew Eckel for respondent.
   Judgment affirmed, with costs; no opinión.

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


text:
    Harold D. Percival, Appellant, v. John Hirzler et al., Respondents.
    Argued January 9, 1939;
    decided February 21, 1939.

      George W. Pratt and Floyd W. Annabel for appellant.

      W. Earle Costello for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Howard T. Heald, Respondent, v. Jewel Tea Co., Inc., Appellant.
    Argued January 9, 1939;
    decided February 21, 1939.

      C. Addison Keeler for appellant.

      Ray T. Hackett 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 Liquidation of National Surety Company. Henry K. Burns et al., Constituting the Protective Committee for Unsecured Creditors of National Surety Company, et al., Appellants; Superintendent of Insurance of State of New York, as Liquidator of National Surety Company, et al., Respondents. (Two Appeals.) In the Matter of the Liquidation of National Surety Company. Irene Milinkovitch, Appellant; Superintendent of Insurance of State of New York, as Liquidator of National Surety Company, et al., Respondents.
    Argued January 10, 1939;
    decided February 21, 1939.

      J. Seymour Montgomery, Jr., John S. Montgomery and Frederic H. Poor, Jr., for Henry K. Burns et al., appellants.

      Louis Boehm and Samuel Zeiger for Irene Milinkovitch, appellant.

      Edward F. Keenan and Samuel Bohsenbom for Superintendent of Insurance, respondent.

      Edwin D. Hays, Ralph Wolf and James. M. Grossman for National Bondholders Corporation et al., respondents.
   Order affirmed, with costs; no opinion. (See 280 N. Y. 688, 812.)

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


text:
    Ethel Zeiger et al., Appellants, v. Interborough Rapid Transit Company et al., Respondents.
    Argued January 10, 1939;
    decided February 21, 1939.

      Elizabeth Stern for appellants.

      William C. Chanler, Corporation Counsel (Alan M. Stroock, Charles Blandy and Guernsey Price of counsel), for City of New York, respondent.

      James L. Quackenbush and J. Osgood Nichols for Interborough Rapid Transit Company, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. John Klinger, Respondent.
    Argued January 10, 1939;
    decided February 21, 1939.

      William, C. Chanler, Corporation Counsel (Paxton Blair and James Hall Prothero of counsel), for appellant.

      Charles L. Fleece for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Adolph Buchler Caterer, Inc. City of New York, Appellant; William Lamkay, Respondent.
    Argued January 10, 1939;
    decided February 21, 1939.

      William C. Chanler, Corporation Counsel (Paxton Blair, Sol Charles Levine and Bernard H. Sherris of counsel), for appellant.

      Saul S. Brin 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, Respondent, v. Robert B. Stiller, Appellant.
    Argued January 10, 1939;
    decided February 21, 1939.

      C. Dickerman Williams and Roy Guthman for appellant.

      Thomas E. Dewey, District Attorney (Charles C. Tillinghast, Jr., and William P. Rogers of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Bank of New York and Trust Company, as Trustee under the Will of Jonathan T. Gardiner, Deceased, Appellant, v. Ida L. Gardiner et al., as Executors of Lion Gardiner, Deceased, Respondents.
    Argued January 11, 1939;
    decided February 21, 1939.

      George W. Martin and Robert N. Errington for appellant.

      John S. V. Kilmartin and Harry G. Stephens for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Adolph Osborg, Appellant, v. Leslie Hoffman, Respondent.
    Submitted January 11, 1939;
    decided February 21, 1939.

      C. Joseph Danahy and Benjamin B. Leinhardt for appellant.

      William B. Davis, Theodore L. Karpf and James E. Turner 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 Claim of Andrew Dienske, Respondent, against F. Bianchi Tompkins et al., Appellants. State Industrial Board, Respondent.
    Argued January 11, 1939;
    decided February 21, 1939.

      J. Vanderbilt Straub and Edward L. Johnson for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Rose Keenan, as Administratrix of the Estate of Howard Keenan, Deceased, Appellant, v. Lawyers Mortgage Company, in Rehabilitation, et al., Respondents, Impleaded with Another.
    Argued January 11, 1939;
    decided February 21, 1939.

      Gabriel Rubino, Samuel L. Sargent amd Lawrence W. Silverman for appellant.

      Harold V. Angevine, Hobart R. Marvin amd James A. Hughes for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elizabeth Crandall, Respondent, v. City of Amsterdam, Appellant.
    Argued January 11, 1939;
    decided February 21, 1939.

      Harry V. Borst, Corporation Counsel (Timothy F. Cohan of counsel), for appellant.

      Charles E. Hardies and Floyd J. Reinhart for respondent.
   Judgment affirmed, with costs. (See Cosgrove v. City of Newburgh, 273 N. Y. 542.) No opinion.

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


text:
    American Surety Company of New York, Appellant, v. Wells Water District, Town of Wells, et al., Respondents. Charles B. Hanley et al., Plaintiffs, v. John P. Dugan & Co., Inc., et al., Respondents, and American Surety Company of New York, Appellant.
    Argued January 11, 1939;
    decided February 21, 1939.

      P. C. Dugan for appellant.

      Edward S. Wood for Morrell Vrooman, Inc., respondent. Charles E. Hardies for Amsterdam City National Bank et al., respondents.

      Alfred D. Dennison, George N. Ostrander, Allen H. Pulsifer, Donald F. Boyle and Sydney G. Rosenthal for Wells Water District et al.

      Douglas S. Rider and Nelson W. Dunham for Thomas F. Monoghan & Son and William H. Fry, Inc., respondents.
   Judgment affirmed, with one bill of costs; no opinion. (See 280 N. Y. 673.)

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


text:
    John J. Bennett, Jr., as Attorney-General of the State of New York, Appellant, v. H. Ely Goldsmith, Respondent.
    Argued January 12, 1939;
    decided February 21, 1939.

      John J. Bennett, Jr., Attorney-General (Colin McLennan and John F. X. McGohey of counsel), appellant.

      Edward U. Both, Henry W. Proffitt and Chester Mayer for Association of the Bar of the City of New York, amicus curiæ.

      Frank Serri amd Henry W. Beer for Federal Bar Association of New York, New Jersey and Connecticut, amicus curiæ.

      Horace G. Marks for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    City of Rochester, Appellant, v. Union Free School District Number Four of Town of Livonia et al., Respondents.
    Argued January 12, 1939;
    decided February 21, 1939.

      William H. Emerson, Corporation Counsel, for appellant.

      Marvin B. Dye for Union Free School District Number Four of Town of Livonia, respondent.

      Denton D. Robinson, County Attorney, for county of Livingston, respondent.

      Edward M. Ogden for town of Rush, respondent.

      Scott W. Crane and Edwards P. Ward for town of Livonia, respondent.

      F. Allen de Graw, County Attorney (Earle S. Warner of counsel), for county of Ontario, amicus curiæ.

      Hampton H. Halsey for town of Henrietta, amicus curiæ.

   Judgment affirmed, without costs; no opinion.

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


text:
    Richard O’Connor, Respondent, v. New York Central Railroad Company, Appellant. Florence O’Connor, Respondent, v. New York Central Railroad Company, Appellant. Edward Kennedy, Respondent, v. New York Central Railroad Company, Appellant. Merton Cotton, Respondent, v. New York Central Railroad Company, Appellant.
    Argued January 12, 1939;
    decided February 21, 1939.

      Charles S. Wilcox for appellant.

      W. F. Martineau and D. V. Carr for respondents.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    Richard Robey, by Edward I. Robey, His Guardian ad Litem, et al., Respondents, v. Jewish Hospital of Brooklyn, Appellant. Burton Sekuler, by George Sekuler, His Guardian ad Litem, et al., Respondents, v. Jewish Hospital of Brooklyn, Appellant.
    Argued January 12, 1939;
    decided February 21, 1939.

      Thomas H. Clearwater and Lorenz J. Brosnan for appellant.

      Armende Lesser for respondents.
   In each action: Order of Appellate Division reversed and judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division. The record fails to disclose any evidence of actionable negligence on the part of the defendant. No opinion. (See 280 N. Y. 807.)

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


text:
    Esther Altman, Respondent, v. Brown, Wheelock, Harris & Co., Inc., Appellant.
    Submitted January 13, 1939;
    decited February 21, 1939.

      Isaac Gluckman, Stanley S. Casden and Deborah Hanft for appellant.

      Benjamin H. Siff and David D. Reibstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Callanan Road Improvement Company, Respondent, v. Arthur McMullen Company et al., Respondents, and Ulster Davis, Inc., et al., Appellants.
    Argued January 13, 1939;
    decided February 21, 1939.

      Ernest B. Morris, William E. Woollard, Homer E. Peters and Edwin L. Fowler for appellants.

      Francis Kelliher for Arthur McMullen Company, respondent.

      Thomas W. Cantwell for plaintiff, respondent.

      Frederick W. Newton for Charles O. Nichols et al., respondents.

      Stanton Ablett for Peter McCabe, respondent.

      C. Emory Lochner for New York State National Bank, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Matter of Trustees of Sailors’ Snug Harbor in the City of New York, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued January 13, 1939;
    decided February 21, 1939.

      William C. Chanler, Corporation Counsel (Sol Charles Levine, Arthur A. Segall and Morris L. Heath of counsel), for appellant.

      Barent L. Visseher, C. O. Donahue and Joseph G. Kelly 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, Respondent, v. Benjamin Reiss, Appellant.
    Submitted January 16, 1939;
    decided February 21, 1939.

      Samuel Segal for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Lawrence E. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Bertram H. Mock, as Executor of James H. Caan, Deceased, Appellant, v. Joseph Steir et al, Respondents.
    Argued January 16, 1939;
    decided February 21, 1939.

      Alex B. Greenberg for appellant.

      David E. Hudson, Mitchel Fruitstone and Arthur J. Marangelo for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Holman Harvey, Appellant, v. Bell Syndicate, Inc., Respondent.
    Argued January 16, 1939;
    decided February 21, 1939.

      Lowell M. Birrell and Charles A. Van Patten for appellant.

      Arthur Moynihan and William R. Covington for respondent.
   Judgment affirmed, with costs; no opinion. (See 280 N. Y. 689.)

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


text:
    In the Matter of Robert J. Mullins, Appellant, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents. In the Matter of Emmanuels W. Mongello, Appellant, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued January 16, 1939;
    decided February 21, 1939.

      Joseph F. Ryan and Abraham Bernard King for appellants.

      William C. Chanler, Corporation Counsel (Jeremiah M. Evarts and Paxton Blair of counsel), for respondents.
   Orders affirmed, with costs; no opinion.

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


text:
    Stone Liberty Realty Corporation, Respondent, v. Binghamton Savings Bank, Appellant.
    Argued January 16, 1939;
    decided February 21, 1939.

      Sol A. Klein and Walter Lubarsky for appellant.

      Noah Feldman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Novio Santoro, Appellant.
    Argued January 16, 1939;
    decided February 21, 1939.

      Wolfango E. Cribari and George W. Scapolito for appellant.

      Walter A. Ferris, District Attorney (William F. Horan of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Manufacturers Trust Company, Appellant, v. State Mutual Life Assurance Company of Worcester, Massachusetts, Respondent.
    Submitted January 17, 1939;
    decided February 21, 1939.

      ' Nathan Waxman, Leonard G. Bisco and N. Wolfe Morgan for appellant.

      Bruce Bromley, Albert B. Connelly and Alexander Hehmeyer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rene Labre et al., Plaintiffs, v. Chris H. Nanz, Respondent, and New Rochelle Trust Company, Appellant, Impleaded with Others.
    Argued January 17, 1939;
    decided February 21, 1939.

      Albert Ritchie for appellant.

      Gerald FitzGerald and Lawrence T. Gross, Jr., for respondent.
   Judgment affirmed, with costs; no opinion

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


text:
    Williamsburgh Power Plant Corporation, Appellant, v. City of New York et al., Respondents.
    Argued January 17, 1939;
    decided February 21, 1939.

      Harold L. Warner and George D. Yeomans for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair, Sol Charles Levine and Meyer Bernstein of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Continental Bank & Trust Company of New York, as Successor Trustee, Respondent, v. Majestic Hotel Corporation et al., Defendants; Louis F. Schultze, as Receiver of S. W. Straus & Co., Incorporated, Appellant; and Real Estate Bondholders’ Committee et al., Respondents.
    Argued January 17, 1939;
    decided February 21, 1939.

      Abraham J. Halprin and Nathaniel L. Goldstein for appellant.

      John W. Kelly, Frank J. Podesta and Benjamin Rockmore for plaintiff, respondent.

      Eric B. Nelson and Cloyd Laporte for Real Estate Bondholders Protective Committee, 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 Nathaniel C. Smith, Plaintiff, against Meader Pen Corporation, Defendant. State Tax Commission, Respondent; Meyer Kraushaar, as Receiver of Meader Pen Corporation, Appellant.
    Argued January 17, 1939;
    decided February 21, 1939.

      Meyer Kraushaar for appellant.

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

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


text:
    Mark J. Hellinger et al., Individually and as Executors of Paul Hellinger, Deceased, Respondents, v. M. Jacob Cohen, Appellant.
    Argued January 17, 1939;
    decided February 21, 1939.

      Louis Reiss for appellant.

      Harold M. Goldblatt and Harry H. Oshrin for respondents.
   Judgment affirmed, with costs. No opinion.

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


text:
    Orange County Theatres, Inc., Appellant, v. City of Newburgh et al., Respondents.
    Argued January 17, 1939;
    decided February 21, 1939.

      Isaac Miller and Stuart M. Miller for appellant.

      Raphael A. Egan for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Hickey, Appellant.
    Submitted January 17, 1939;
    decided February 21, 1939.

      Walter L. Post for appellant.

      John J. Bennett, Jr., Attorney-General (Sol Ullman of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the Accounting of Mechanics & Farmers Bank, Albany, as Trustee under the Will of Henrietta L. Knickerbocker, Deceased, Respondent. Frances Christman, as Administratrix of the Estate of Annie Knickerbocker, Deceased, Appellant; Winifred C. Knickerbocker, Respondent.
    Argued January 17, 1939;
    decided February 21, 1939.

      Herman P. Greene for appellant.

      Stephen R. J. Roach for Winifred C. Knickerbocker, respondent.

      Robert E. Whalen for Mechanics & Farmers Bank, Albany, respondent.
   Order affirmed, with costs payable out of the trust fund; no opinion. (See 280 N. Y. 598.)

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


text:
    The People of the State of New York, Respondent, v. Jerome A. Jacobs, Appellant.
    Submitted January 18, 1939;
    decided February 21, 1939.

      Jerome A. Jacobs, in person, appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Arnold Bauman of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Leon Pierce, Respondent, v. Treivale Pierce et al., Appellants.
    Argued January 18, 1939;
    decided February 21, 1939.

      Enos S. Booth and Harris Jay Griston for appellants.

      Sidney S. Bobbé and Harold S. Budner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William P. Zwinge et al., Appellants, v. City of New York et al., Respondents, Impleaded with Others.
    Argued January 18, 1939;
    decided February 21, 1939.

      T. Bernard Eisenstein and Samuel Hershenstein for appellants.

      Edwin R. Wolff and Daniel A. Shirk for Thomas Darling-ton et al., defendants.

      William C. Chanler, Corporation Counsel (William S. Gaud Jr., and Davidson Sommers of counsel), for respondents..
   Judgment affirmed, without costs; no opinion.

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


text:
    Amdyco Corporation, Respondent, v. National Foam System, Inc., Appellant.
    Argued January 18, 1939;
    decided February 21, 1939.

      Roy H. Callahan for appellant.

      Gerhard R. Gerhard and T. F. Davies Haines 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 Will of Frederick G. Feldhus, Deceased. Francesca E. D. H. Schaefer, Appellant; Amalia D. Feldhus, Respondent.
    Argued January 18, 1939;
    decided February 21, 1939.

      Leon Lang and F. Paul Engels, Jr., for appellant.

      E. V. B. Getty, George H. Zator and Otto M. Gabler for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Mercantile Properties, Inc., Appellant, against State Tax Commission, Respondent.
    Submitted November 21, 1938;
    decided February 21, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. The remittitur, however, is hereby amended to restate the tax at $5,820.46. (See 278 N. Y. 325.)


text:
    James C. Van Siclen et al., Respondents, v. Irving T. Bush, Appellant.
    Submitted January 16, 1939;
    decided February 21, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 753.)


text:
    In the Matter of Vallie G. Kinney et al., Appellants. G. R. Kinney Co., Inc., Respondent.
    Submitted January 16, 1939;
    decided February 21, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 423.)


text:
    In the Matter of Sears, Roebuck & Co., Appellant, against Joseph D. McGoldrick, as Comptroller of the City of New York, Respondent.
    Submitted January 16, 1939;
    decided February 21, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 184.)


text:
    In the Matter of the Estate of Abraham Ratchick, Deceased. Sarah Ratchick, Individually and as an Executor and Trustee under the Will of Abraham Ratchick, Deceased, et al., Appellants; Patchogue Citizens Bank and Trust Company, as an Executor and Trustee under the Will of Abraham Ratchick, Deceased, et al., Respondents.
    Submitted February 20, 1939;
    decided February 21, 1939.

      Josepd T. Loses for motion.

      Alexander G. Blue opposed.
   Motion denied.


text:
    Los Angeles Investment Securities Corporation, Respondent, v. Alice W. Joslyn et al., Appellants.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 734.)


text:
    Simon R. Kaplan, Respondent, v. City of Poughkeepsie, Appellant.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion for reargument and to amend the remittitur granted as follows: Return of remittitur requested and when returned it will be amended by providing that the judgment of the Trial Term is modified so as to state it is not upon the merits, and as so modified affirmed, with costs in this court and in the Appellate Division. (See 279 N. Y. 153.)


text:
    Byron D. Shultz et al., Appellants, v. Manufacturers and Traders Trust Company, Respondent.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 781.)


text:
    Harold Simmons, Respondent, v. Radio Printing Corporation et al., Defendants, and Ferro Realty Corporation, Appellant.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 783.)


text:
    Ethyl F. Murphy et al., Respondents, v. Bruno-New York, Inc., et al., Appellants, Impleaded with Others.
    Submitted February 20, 1939;
    decided February 28, 1939.

      Rudolph J. Safarik and Raymond J. Grote for motion.

      S. E. Martinson opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements. No final determination.


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 February 20, 1939;
    decided February 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 585.)


text:
    Arthur M. Forte, as Administrator of the Estate of Robert Forte, Deceased, Appellant, v. City of Albany et al., Defendants, and New York Central Railroad Company et al., Respondents. Joseph Kuttler, as Administrator of the Estate of John Kuttler, Deceased, Appellant, v. Same, Defendants, and Same, Respondents. Henry Swanker, Appellant, v. Same, Defendants, and Same, Respondents. Charles A. Keefe, Appellant, v. Same, Defendants, and Same, Respondents.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary disbursements. (See 279 N. Y. 416.)


text:
    William J. Wolfson, Appellant, v. Syracuse Newspapers, Inc., Respondent.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 716.)


text:
    George Busch et al., Respondents, v. Louis F. Light, Appellant.
    Submitted February 20, 1939;
    decided February 28, 1939.

      Milton Pinkus for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion.


text:
    William Spoar, Appellant, v. Peter B. McCaghey, Respondent.
    Submitted February 20, 1939;
    decided February 28, 1939.

      James P. O’Donnell for motion.

      Francis J. Stewart and David E. Snyder opposed.
   Motion for leave to file stipulation granted.

Motion to dismiss appeal granted and appeal dismissed, with costs, and ten dollars costs of motion, unless appellant files the stipulation for judgment absolute within ten days, in which event the motion is denied. (See 280 N. Y. 759.)


text:
    In the Matter of the Claim of John Daly, Respondent, against Board of Elections of City of New York, Respondent, and State Insurance Fund, Appellant. State Industrial Board, Respondent.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 743.)


text:
    Nicholas J. Karl, Appellant, v. State of New York, Respondent. Emma F. Karl, Appellant, v. State of New York, Respondent.
    (Claim No. 24751.)
    (Claim No. 24752.)
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by striking therefrom the words one bill of.” (See 279 N. Y. 555.)


text:
    Henry McCusker et al., Respondents, v. Jamaica Buses, Inc., Appellant.
    Submitted February 20, 1939;
    decided February 28, 1939.

      Robert J. Dixson for motion.

      Harold J. Levy opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground appeal lies as of right. (See 280 N. Y. 718.)


text:
    Vernon W. Balzer, Appellant, v. City of New York, Respondent.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 742.)


text:
    In the Matter of the Probate of the Will of Anthony Hermanowski, Deceased. Boleslaus Hermanowski et al., Appellants; Vincenta Godlewski, Respondent.
    Submitted February 20, 1939;
    decided February 28, 1939.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 727.)


text:
    Clarence E. Townley, Appellant, against Henry E. Bruckman et al., Constituting the State Liquor Authority, et al., Respondents.
    Submitted February 20, 1939;
    decided February 28, 1939.

      Francis V. McHugh for motion.

      Nicholas G. Powers opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Herman Haussmann et al., Appellants, v. Colonial Trust Company, Respondent, Impleaded with Others.
    Argued January 3, 1939;
    decided March 7, 1939.

      Samuel Gottlieb and I. Gainsburg for appellants.

      David E. Hudson and Arthur J. Marangelo for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Union Trust Company of Rochester, Respondent, v. Prudential Insurance Company of America et al., Appellants.
    Argued January 11, 1939;
    decided March 7, 1939.

      Nicholas J. Weldgen for Prudential Insurance Company of America, appellant.

      Lewis Clinton for Austin J. Morris et al., appellants.

      Kenneth B. Keating, Charles S. Wilcox and Nicholas E. Brown for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Moody’s Investors Service, Appellant, against Joseph D. McGoldrick, as Comptroller of the City of New York, Respondent.
    Argued January 13, 1939;
    decided March 7, 1939.

      Richard T. Greene, James L. Dohr and Daniel S. Murphy for appellant.

      William C. Chanler, Corporation Counsel (Arthur A. Segall, Sol Charles Levine and Edmund B. Hennefeld of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Loughran and Finch, JJ. Hubbs and Rikpey, JJ., dissent on the authority of Dun & Bradstreet, Inc., v. City of New York (276 N. Y. 198).


text:
    Mongaup Valley Company, Inc., Appellant, v. Orange Rod and Gun Club, Inc., Respondent.
    Submitted January 17, 1939;

    decided March 7, 1939.

      A. C. Taylor, James H. Brady and Morris M. Oppenheim for appellant.

      Nellie Childs Smith, Blake Washington and John D. Lyons for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Edward W. Browning, Deceased. Marjorie Browning, Appellant; Title Guarantee and Trust Company, as Executor of Edward W. Browning, Deceased, et al., Respondents.
    Argued February 21, 1939;
    decided March 7, 1939.

      N. Henry Josephs, Leslie J. Tompkins and Donald O. Lincoln for appellant.

      William T. Griffin and Joseph V. McKee for Title Guarantee and Trust Company., as executor, respondent.

      Daniel A. Shirk and Milton A. Goldiner for Dorothy B. Hood et al., respondents.

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer of counsel), for People of State of New York, respondent.
   Order affirmed, with costs payable out of the estate; 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. Frank J. Aliventi and Arnold Mancinelli, Appellants.
    Submitted February 21, 1939;
    decided March 7, 1939.

      Fred M. Ahern for Frank J. Aliventi, appellant.

      Henry V. Scardapane for Arnold Mancinelli, appellant.

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

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


text:
    In the Matter of the Accounting of Henry F. Wilson, as Executor of Mary R. Chisholm, Deceased. Henry F. Wilson, Jr., as Executor of Henry F. Wilson, Deceased, Appellant; Herbert B. Smith et al., as Executors of Louis S. Smith, Deceased, et al., Respondents.
    Submitted February 21, 1939;
    decided March 7, 1939.

      Benedict S. Rosenfeld and Frank T. Warburton for appellant.

      Francis Dean for respondents.
   Appeal dismissed, with costs payable out of the estate, on the ground the stipulation for judgment absolute does not permit the appeal. (Matter of Schoenewerg, 277 N. Y. 424.) No opinion.

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


text:
    In the Matter of Gramott Corporation, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued February 21, 1939;
    decided March 7, 1939.

      Francis B. Delehanty, Jr., Harold H. Corbin and S. Weldon O’Brien for appellant.

      John J. Bennett, Jr., Attorney-General (Edward J. Gretchen and Henry Epstein of counsel), for respondent.
   Order 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 Melvin J. Denison, Deceased. Mary L. Denison, Appellant; Mary D. Fiebiger, Respondent.
    Argued February 21, 1939;
    decided March 7, 1939.

      Laurence V. Benedict for appellant.

      Thomas T. Heney and Ellis J. Staley for respondent.
   Order affirmed, "with costs against the appellant; no opinion.

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


text:
    Camelia Rourange, as Administratrix of the Estate of Julio A. Rourange, Deceased, Appellant, v. Colombian Steamship Company, Inc., Respondent.
    Argued February 21, 1939;
    decided March 7, 1939.

      Silas B. Axtell and Dominick Blasi for appellant.

      Ray Rood Allen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Charles W. Ballard, Appellant, against John L. Rice, as Commissioner of Health of the City of New York, et al., Respondents.
    Argued February 21, 1939;
    decided March 7, 1939.

      Albert De Boode for appellant.

      William C. Chanler, Corporation Counsel (William S. Gaud, Jr., and Stanley Buchsbaum 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. Charles C. Spencer, Respondent, against Blakely R. Webster, as Superintendent of Dannemora State Hospital, Defendant. The People of the State of New York et al., Appellants.
    Argued February 23, 1939;
    decided March 7, 1939.

      John J. Bennett, Jr., Attorney-General (Victor F. Boire of counsel), for appellants.

      Hayden H. Dadd for respondent.
   Order of the Appellate Division reversed and that of the Trial and Special Term affirmed on the ground that the determination of the Appellate Division is against the weight of the evidence and relator remanded to custody. No opinion.

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