text:
    In the Matter of the Claim of Frances Lipschitz, Respondent, against Hotel Charles, Respondent, and New York Indemnity Company, Appellant. State Industrial Board, Respondent.
    (Argued October 2, 1929;
    decided October 22, 1929.)

      Everett W. Bovard and Clarence E. Méllen for appellant.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, respondent.

      Nathan Probst, Jr., for Hotel Charles, respondent.
   Order affirmed, with costs; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Claim of Martin Finkelstein, Respondent, against New York Merchandise Company et al., Appellants. State Industrial Board, Respondent.
    (Argued October 2, 1929;
    decided October 22, 1929.)

      Everett F. Warrington, Herbert F. Hastings, Jr., and Robert H. Woody for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondents.
   Order reversed and claim dismissed, with costs against the State Industrial Board in this court and Appellate Division, on the authority of Sandberg v. Seymour Dress Co., Inc. (242 N. Y. 497); no opinion.

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


text:
    In the Matter of the Claim of Ellen C. Pierce, against Frederick Young et al., Appellants. State Industrial Board, Respondent.
    (Argued October 2, 1929;
    decided October 22, 1929.)

      Leo Waxman for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Harriet E. Smith, Respondent, against Northport Water Works Company et al., Appellants. State Industrial Board, Respondent.
    (Argued October 2, 1929;
    decided October 22, 1929.)

      William B. Davis and E. C. Sherwood for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondents.
   Order of the Appellate Division reversed and claim dismissed, with costs against the State Industrial Board in this court and Appellate Division, on the ground that the accident did not arise out of and in the course of the employment; no opinion.

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


text:
    In the Matter of the Claim of Rosalind Caruso, against General Electric Company, Appellant. State Industrial Board, Respondent.
    (Argued October 2, 1929;
    decided October 22, 1929.)

      Edward C. Jerome and Charles W. Brown for appellant.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Robert Kolodick, against General Electric Company, Appellant. State Industrial Board, Respondent.
    (Argued October 2, 1929;
    decided October 22, 1929.)

      Richmond D. Moot for appellant.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    City of Schenectady, Respondent, v. Charles D. Beckwith et al., Appellants.
    (Argued October 2, 1929;
    decided October 22, 1929.)

      Richmond, D. Moot for appellants.

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

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


text:
    In the Matter of Irving K. Fabricand, Respondent, against F. Eugene Nortz et al., Copartners under the Firm Name of Nortz & Co., Appellants.
    (Argued October 2, 1929;
    decided October 22, 1929.)

      R. T. Heilpern, Maxwell C. Katz and Otto C. Sommerich for appellants.

      Thomas Downs and M. Harvey Smedley for respondent^
   Order affirmed, with costs; no opinion.

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


text:
    Illum Incorporated, Appellant, v. American Machine and Foundry Company, Respondent.
    (Argued October 3, 1929;
    decided October 22, 1929.)

      Nathan L. Miller, J. Arthur Leve and H. Bartow Farr for appellant.

      Lloyd Paul Stryker and II. H. Ramsay for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of John J. Kilcoyne, Respondent, against Walter J. Lohr, as Mayor of the City of Lackawanna, et al., Appellants.
    (Argued October 3, 1929;
    decided October 22, 1929.)

      John W. O’Connor, Corporation Counsel, for appellants.

      David Diamond for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Wilmot L. Morehouse, Respondent, v. Jacob Rutstein, Appellant.
    (Submitted October 3, 1929;
    decided October 22, 1929.)

      Gerson C. Young for appellant.

      Aaron Bearman and Wilmot L. Morehouse for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Milton H. Ansorge et al., Appellants, v. Finance and Advancing Corporation, Respondent.
    (Argued October 3, 1929;
    decided October 22, 1929.)

      Hugo Hirsh and Leon Sacks for appellants.

      Irving Mariash and Samuel Meyers for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Mary E. Meddaugh, as Administratrix of the Estate of Jay W. Meddaugh, Deceased, Respondent, v. Town of Bethel, Appellant.
    (Submitted October 3, 1929;
    decided October 22, 1929.)

      John jD. Lyons and Nellie Childs Smith for appellant.

      John Bright for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nils H. Winther, by Christian Winther, His Guardian ad Litem, Respondent, v. International Railway Company, Appellant.
    (Argued October 4, 1929;
    decided October 22, 1929.)

      Noel S. Symons and Raymond C. Vaughan for appellant.

      Harold J. Adams and Percy R. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Tunis R. Thomas, Respondent, v. Saratoga Association for the Improvement of the Breed of Horses, Appellant.
    (Argued October 4, 1929;
    decided October 22, 1929.)

      John J. Scully for appellant.

      Charles M. Hughes and James W. Liddle for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anna Uravic, as Administratrix of the Estate of Anton Uravic, Deceased, Appellant, v. F. Jarka Company, Inc., Respondent, Impleaded with Another.
    (Submitted October 4, 1929;
    decided October 22, 1929.)

      Paul C. Matthews for appellant.

      Charles B. McLaughlin for respondent.
   Judgment affirmed, with costs, on the authority of Resigno v. Jarka Co., Inc. (246 N. Y. 537); no opinion.

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


text:
    Howard P. Roberts, Jr., an Infant, by Howard P. Roberts, His Guardian ad Litem, Appellant, v. Paul Petrie, Defendant, and Jamestown-Dunkirk Transit Co., Inc., Respondent. Howard P. Roberts, Appellant, v. Paul Petrie, Defendant, and Jamestown-Dunkirk Transit Co., Inc., Respondent.
    (Argued October 7, 1929;
    decided October 22, 1929.)

      Clarence W. Roberts for appellants.

      J. Russell Rogerson for respondent.
   In each action judgment affirmed, with costs; no opinion.

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


text:
    Susanna Hughes, an Infant, by Mary Hughes, Her Guardian ad Litem, Appellant, v. Borden’s Farm Products Company, Inc., Respondent.
    (Argued October 7, 1929;
    decided October 22, 1929.)

      William, J. Hogan, Leonard F. Fish and Thomas J. O’Neill for appellant.

      John A. Kelly for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and the Appellate Division, on the ground that there was evidence of negligence sufficient to present a question of fact for the jury; no opinion.

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


text:
    Cross, Austin & Ireland Lumber Company, Respondent, v. Erie Railroad Company, Appellant.
    (Argued October 7, 1929;
    decided October 22, 1929.)

      Russel S. Contará, William C. Cannon, Theodore Kiendl and Francis W. Phillips for appellant.

      Robert P. Patterson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Abby Hyde, Respondent, v. Maison Hortense, Inc., et al., Appellants. George Hyde, Respondent, v. Maison Hortense, Inc., et al., Appellants.
    (Argued October 8, 1929;
    decided October 22, 1929.)

      Bernard J. Vincent for Maison Hortense, Inc., appellant.

      George J. Stacy, James J. Mahoney and Robert B. Livingston for Edna Turpin, appellant.

      Moses Feltenstein and Sidney J. Feltenstein for respondent.
   In each action judgment affirmed, with costs; no opinion.

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


text:
    Henry Schuldt, Jr., et al., Respondents, v. Benjamin Chuckrow et al., Appellants.
    (Argued October 8, 1929;
    decided October 22, 1929.)

      John T. Norton and Abraham C. Goldstein for appellants.

      Owen D. Connolly for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Konstantin E. Sunygin, as Surviving Partner of the Firm of K. E. Sunygin and W. N. Wtoroff, Respondent, v. Eagle Lock Company, Appellant.
    (Argued October 8, 1929;
    decided October 22, 1929.)

      Carroll Blakely Low and Walter Carroll Low for appellant.

      Borris M. Komar and Louis P. Eisner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James L. Joughin, as Administrator of the Estate of Eva M. Joughin, Deceased, Respondent, a. Mabel H. Banks, Appellant. James L. Joughin, Respondent, v. Mabel H. Banks, Appellant.
    (Argued October 8, 1929;
    decided October 22, 1929.)

      George J. Stacy, James J. Mahoney and Robert B. Livingston for appellant.

      Karl T. Frederick and John Schubert for respondent.
   In each action judgment affirmed, with costs; no opinion.

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


text:
    Ellen Peterson, Appellant, v. Fordham Cornice Works, Inc., Respondent.
    (Submitted October 21, 1929;
    decided October 22, 1929.)

      Samuel Robert Weltz for motion.

      William A. Schacht opposed.
   Motion to dismiss appeal from order affirming order granting new trial denied, and stay vacated. Motion to dismiss appeal from order affirming order denying motion to dispense with printing papers on appeal to the Appellate Division granted.


text:
    Alvah Armstrong, Appellant, v. Michael Boomansour, Respondent.
    (Submitted October 21, 1929;
    decided October 22, 1929.)
   Motion to vacate order dismissing appeal granted. (See 251 N. Y.


text:
    The People of the State of New York, Respondent, v. Fred W. Edel, Appellant.
    (Argued October 7, 1929;
    decided October 25, 1929.)

      Alexander I. Rorke, Ira Holley, Noah L. Braunstein, J oseph W. O’Donnell and Frederick L. Kane for appellant.

      Joab H. Banton, District Attorney (Robert C. Taylor of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ.; Kellogg, J., dissents upon the ground that the evidence fails to show that the defendant committed the homicide while engaged in the commission of a felony.


text:
    Picadilly Laundry Service, Inc., Respondent, v. Julius Broader et al., Defendants, and Isaac Ziskin et al., Appellants.
    (Argued October 8, 1929;
    decided October 25, 1929.)

      Lucille Bierman and Israel Spielberg for appellants.

      Abraham H. Kesselman and Harry Elegant for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of Mart M. Manning, Deceased. Pascal P. Fryer et al., Appellants; National Commercial Bank and Trust Company of Albany, as Executor, et al., Respondents.
    (Argued October 9, 1929;
    decided October 25, 1929.)

      Edward J. Garono and Philip J. Wickser for appellants.

      Arthur L. Andrews for executor-respondent.

      Martin T. Nachtmann for Edith L. F. Test et a!., respondents.

      John T. DeGraff for Alexander L. Fryer et al, respondents.
   Orde affirmed, with costs payable out of the estate; no opinion.

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


text:
    John Ellich, Respondent, v. Hamburg-Amerikanische Packetfahrt Actien Gesellschaft, Doing Business under the Trade Name of Hamburg-American Line, Appellant.
    (Argued October 9, 1929;
    decided October 25, 1929.)

      Robert H. Charlton and John T. Loughran for appellant.

      Harold R. Medina, Joseph Levy and William Gilbert for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ella Kalwite, Respondent, v. National Liberty Insurance Company of America, Appellant.
    (Argued October 10, 1929;
    decided October 25, 1929.)

      Percy L. Housel for appellant.

      Frank P. Nohowel for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Ira R. Smith, Respondent, v. Alex Levison, Doing Business under the Name of Sullivan County Produce Company, Appellant.
    (Argued October 10,1929;
    decided October 25,1929.)

      Harold V. Angevine, James I. Cuff and Grattan B. Shvlts for appellant.

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

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


text:
    Louis Robin, Respondent, v. Permanent Mortgage Corporation, Appellant.
    (Submitted October 11, 1929;
    decided October 25, 1929.)

      Clifford H. Owen for appellant.

      Ralph K. Jacobs and Albert Blumenstiel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Criscone, an Infant, by Secondino Criscone, His Guardian ad Litem, Respondent, v. Frank Malatesta et al., Appellants.
    (Argued October 11, 1929;
    decided October 25, 1929.)

      John J. McManus and Joseph L. Delaney for appellants.

      William E. Fitzsimmons for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed and complaint dismissed, with costs in all courts, on the ground that there is no evidence of defendant’s negligence or of the plaintiff’s freedom from contributory negligence; no opinion.

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


text:
    Standard Oil Company of New York, Respondent, v. Central Dredging Company et al., Appellants.
    (Argued October 11, 1929;
    decided October 25, 1929.)

      John J. McManus and Alfred M. O’Neill for Central Dredging Company, appellant.

      Charles B. Sullivan for National Surety Company, appellant.

      Robert E. Whalen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Fred Miller, Appellant, v. The New York Central Railroad Company, Respondent.
    (Argued October 11, 1929;
    decided October 25, 1929.)

      Harry W. Williams and James H. Hyer for appellant.

      Sherman A. Murphy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Atlantic Macaroni Co., Inc., Appellant, v. Fanny M. Schiafeino et al., Respondents.
    (Submitted October 11, 1929;
    decided October 25, 1929.)

      Joseph Nicchia for appellant.

      Cyrus S. Jullien and Joseph B. Cavallaro for respondents.
   Judgment affirmed, with costs; no opinion.

Concur; Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O'Brien and Hubbs, JJ.


text:
    Frederick F. Neuman, Appellant and Respondent, v. George W. Newgass, Respondent and Appellant.
    (Argued October 9, 1929;
    decided November 19, 1929.)

      Frank H. Hiscock and Paul Bonynge for plaintiff, appellant and respondent.

      John W. Davis, Nathan L. Miller and Irving L. Ernst for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    Ralph Ledwell, Respondent, v. Entire Service Corporation, Appellant.
    (Argued October 14, 1929;
    decided November 19, 1929.)

      Pirnie Pritchard for appellant.

      Murray Curtin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Milton Bower, an Infant, by John S. Bower, His Guardian ad Litem, Respondent, v. M. Samuels & Co., Inc., Defendant, and The Newark Shoe Peekskill, N. Y., Co., Inc., Appellant.
    (Argued October 14, 1929;
    decided November 19, 1929.)

      James Dempsey for appellant.

      Dorothy Frooks for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Herman W. Hamilton, Respondent, v. Utica Products, Inc., Appellant.
    (Argued October 14, 1929;
    decided November 19, 1929.)

      James F. Hubbell for appellant.

      Moses G. Hubbard, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Walter Hernandez, Appellant.
    (Argued October 15, 1929;
    decided November 19, 1929.)

      John P. Carroll and George H. Burtis for appellant.

      Elvin N. Edwards, District Attorney (Philip Huntington of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Marguerite Sitzler, Respondent, v. Richard Lathers, Jr., et al., Defendants, and Richard O’Gorman, Appellant. David Miller, Respondent, v. Richard Lathers, Jr., et al., Defendants, and Richard O'Gorman, Appellant.
    (Argued October 15, 1929;
    decided November 19, 1929.)

      George F. Hickey, Harold R. Oakes and William Butler for appellant.

      Thomas I. Sheridan and Daniel J. Madigan for respondents.
   In each action judgment affirmed, with costs, on the ground that by reason of the use of the premises the passage to the fire escape was not free and unobstructed; no opinion.

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


text:
    Mart A. G. Morlock, Respondent, v. Frank L. Hamilton, Appellant. George Morlock, Respondent, v. Frank L. Hamilton, Appellant.
    (Argued October 15, 1929;
    decided November 19, 1929.)

      Arthur L. Cohen for appellant.

      Jesse E. Kingsley and Henry 8. Fraser for respondents.
   In each action judgment affirmed, with costs; no opinion,

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


text:
    William C. Goldner, Appellant, v. United States Fidelity and Guaranty Company, Respondent.
    (Argued October 15, 1929;
    decided November 19, 1929.)

      B. B. Fensterstock and Abraham N. Levy for appellant.

      William J. McArthur for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Fred Trebitsch, Appellant, v. Goblet Leasing Co., Inc., Respondent.
    (Argued October 15, 1929;
    decided November 19, 1929.)

      Joseph H. Robins and Mark Frackman for appellant.

      Paul F. Riggins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Morris Leberman, Appellant.
    (Argued October 16, 1929;
    decided November 19, 1929.)

      Isidore L. Weishar and George H. Kerner for appellant.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
   Appeal dismissed; no opinion.

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


text:
    97 Bleecker Street, Inc., Appellant, v. Ess Dee Gee Co., Inc., Respondent.
    (Argued October 15, 1929;
    decided November 19, 1929.)

      Henry C. Burnstine and Emanuel J. Freiberg for appellant.

      Herman Gottlieb for respondent.
   Judgment of the Appellate Division and that of the Trial Term modified by offsetting against the judgment in favor of the defendant upon its counterclaim the installments of interest accruing upon the deposit of $25,000 at or before the commencement of the action, viz., the sum of $2,500, and as modified affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Plaia and Michael Sclafonia, Appellants.
    (Argued October 16, 1929;
    decided November 19, 1929.)

      John Car done and Louis Fabricant for appellants.

      Elvin N. Edwards, District Attorney (Philip Huntington and Albert M. DeMeo of counsel), for respondent.
   Judgment of conviction affirmed as to each defendant; no opinion.

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


text:
    117-119 West 46th Street Corporation, Appellant, v. Harry K. Wallach et al., Respondents.
    (Argued October 16, 1929;
    decided November 19, 1929.)

      Albert R. Lesinsky and Paul Van Anda for appellant.

      Robert D. Steefel, Walter S, Dryfoos and Edward Friedwald for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael Novak, Appellant, v. Mayk Melnyk, Defendant, and Olena Melnyk, Respondent.
    (Argued October 16, 1929;
    decided November 19, 1929.)

      C. Addison Keeler for appellant.

      Walter J. Relihan for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Abraham Miller et al., Respondents, v. Isidor M. Levey et al., Defendants, and Ladies’ Malbish Arumim Society of the Uptown Talmud Torah, Inc., Appellant.
    (Argued October 18, 1929;
    decided November 19, 1929.)

      Harold Manheim for appellant.

      Alvin C. Cass, Jacques W. Bacal and Jesse L. Rosenberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Arthur Brown and Frank Kowalski, Appellants.
    (Argued October 21, 1929;
    decided November 19, 1929.)

      John S. Knibloe for Arthur Brown, appellant.

      Thomas L. Newton and Michael A. Crage for Frank Kowalski, appellant.

      Guy B. Moore, District Attorney, for respondent.
   Judgment of conviction affirmed as to each defendant; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Schlager, Appellant.
    (Argued October 21, 1929;
    decided November 19, 1929.)

      Layton H. Vogel and W. Bartlett Sumner for appellant.

      Guy B. Moore, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    In the Matter of Edward Decker, Appellant, v. Stephen B. Storey, as City Manager of the City of Rochester, Respondent.
    (Argued October 21, 1929;
    decided November 19, 1929.)

      William DeGraff and John D. Sullivan for appellant.

      Clarence M. Platt, Corporation Counsel (George B. Draper of counsel), for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Hyman Rintel, Respondent, v. Morris Steinberg, Appellant.
    (Submitted October 23, 1929;
    decided November 19, 1929.)

      Emanuel Mehl for appellant.

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

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


text:
    Sarah Hart, Appellant, v. Northern Union Gas Company, Respondent. Henry Hart, Appellant, v. Northern Union Gas Company, Respondent.
    (Argued October 23, 1929;
    decided November 19, 1929.)

      Robert H. Elder, Joseph C. Thomson and Otho S. Bowling for appellants.

      Chauncey B. Qarver for respondent.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    J. William Lee, Respondent, v. American Employers’ Insurance Company, Appellant.
    (Argued October 23, 1929;
    decided November 19, 1929.)

      Everett W. Bovard for appellant.

      Alfred B. Nathan and S. Howard Imbrey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Geneva Leppard, Appellant, v. John J. O’Brien, Respondent.
    (Argued October 23, 1929;
    decided November 19, 1929.)

      Walter A. Chambers for appellant.

      William C. Maynard for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Adelbert C. Lindsley, as Administrator of the Estate of Margaret M. W. Lindsley, Appellant, v. Anna B. Jeffrey, Defendant, and Nellie Brown et al., Respondents.
    (Submitted October 23, 1929;
    decided November 19, 1929.)

      Avery S. Wright for appellant.

      Charles J. Yorkey and John Tiernan for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    George Colon & Company, Respondent, v. Commercial Casualty Insurance Company, Appellant.
    (Argued October 24, 1929;
    decided November 19, 1929.)

      Daniel Mungall for appellant.

      Stanley Garten and Henry W. Kiralfy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Cora Giberson, Respondent, v. Buffalo, Rochester and Pittsburgh Railway Company, Appellant. John W. Giberson, Respondent, v. Buffalo, Rochester and Pittsburgh Railway Company, Appellant. (Actions 1 and 2.)
    (Argued October 24, 1929;
    decided November 19, 1929.)

      James Mann for appellant.

      George S. Van Schaick for respondents.
   Judgments in each action affirmed, with costs; no opinion.

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


text:
    John J. Halligan, Respondent, v. Jacob Porte, Appellant.
    (Argued October 24, 1929;
    decided November 19, 1929.)

      Irving Lemov and Samuel Juster for appellant.

      Charles R. Weeks, Thomas R. Fay and George A. Gibson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William Davidson, Respondent, v. Morse Dry Dock and Repair Company, Appellant.
    (Argued October 25, 1929;
    decided November 19, 1929.)

      John Kirby Hartley for appellant.

      Lester Hand Jayne for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Julius A. Higier, Respondent, v. Almeda Moynehan, Appellant.
    (Argued October 25, 1929;
    decided November 19, 1929.)

      John T. Morrison for appellant.

      Alfred D. Dennison for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hyman H. Goldberg, Respondent, v. Arthur Blank et al., Individually and as Copartners under the Firm Name of Consolidated Gas Iron Company, Appellants.
    (Submitted October 25, 1929;
    decided November 19, 1929.)

      Daniel Handler for appellants.

      George L. Livingston and Joseph Goldberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Patrick W. Hennessy, Respondent, v. Nelson King et al., Appellants.
    (Submitted October 25, 1929;
    decided November 19, 1929.)

      George J. Moore for appellants.

      Frederick G. Paddock for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Beardsley Realty Company, Inc., Appellant, v. William E. Walsh et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    (Submitted October 25, 1929;
    decided November 19, 1929.)

      Louis L. Lavine and Ralph D. Elmer for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Willard S. Allen and J. Joseph Lilly of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Louis Weisberg et al., Copartners, under the Firm Name of Weisberg & Greenwald, Respondents, v. The Art Work Shop, Appellant.
    (Submitted October 25, 1929;
    decided November 19, 1929.)

      William H. Means for appellant.

      Daniel A. Shirk and Milton A. Goldiner for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Matthew Peters, Appellant. Willis E. Heaton et al., Composing the Character Committee of the Third Judicial District, Respondent.
    (Submitted May 27, 1929;
    decided November 19, 1929.)
   Motion for reargument denied. (See 250 N. Y. 595.)


text:
    The People of the State of New York, Respondent, v. Ernest Duane, Appellant.
    (Argued October 15, 1929;
    decided November 26, 1929.)

      Carl L. McMahon, Nash Rockwood and Frank B. Howe, Jr. for appellant.

      William McCane, District Attorney (Alfred D. Dennison and Bernard W. Kearney of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    In the Matter of the Claim of Swartz, Inc., against The City of Utica. Lottie Swartz et al., as Administrators of the Estate of Abe R. Swartz, Deceased, Appellants; Ezra Hanagan et al., Respondents.
    (Argued October 7, 1929;
    decided November 26, 1929.)

      Warnick J. Kernan for motion.

      David F. Lee opposed.
   Motion to dismiss appeal from the order of the Appellate Division, dated May 2, 1928, denied upon the appellants filing an undertaking as required by section 593 of the Civil Practice Act, within ten days and serving notice thereof, paying ten dollars costs of the motion, and also filing and serving printed record on appeal within the next thirty days.

Motion to dismiss appeal taken from order of Special Term entered July 14, 1928, granted, without costs.


text:
    Ernest N. Adler, Respondent, v. William F. Deegan, as Tenement House Commissioner of the City of New York, et al., Appellants.
    (Submitted November 18, 1929:
    decided November 26, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 467.)


text:
    James V. P. Oglesby, Respondent, v. Massachusetts Accident Company, Appellant. (Actions Nos. 1 and 2.)
    (Argued November 18, 1929;
    decided November 26, 1929.)

      William A. Wight for motion.

      B. A. Mansfield Hobbs opposed.
   Motion to dismiss appeals denied. Leave to withdraw appeals granted on payment of costs.


text:
    Packard Motor Car Company of New York, Appellant, v. Ferdinand Haenlein et al., Respondents.
    (Argued November 18, 1929;
    decided November 26, 1929.)

      Emmanuel Greenberg for motion.

      Lowen E. Ginn opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Sophie C. Brosemer, Appellant, v. Alice Mongin, Defendant; John Tiernan et al., Respondents and Appellants, and Oswego City Sayings Bank, Respondent.
    (Submitted November 18, 1929;
    decided November 26, 1929.)

      Avery S. Wright and John Tiernan for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Lizzie Cohen, Respondent, v. 1165 Fulton Avenue Corporation et al., Defendants, and Charles Tisch, Inc., Appellant.
    (Submitted November 18, 1929;
    decided November 26, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 251 N. Y. 24.)


text:
    In the Matter of General Footwear Corporation, Respondent, against A. C. Lawrence Leather Company, Appellant.
    (Argued October 2, 1929;
    decided December 3, 1929.)

      David Paine for appellant.

      Bernard Hershkopf for respondent.

      Julius Henry Cohen, Kenneth Dayton and Burton A. Zorn for Chamber of Commerce of the State of New York et ah, amici cwrice.

   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of the People of the State of New York, by James A. Beha, Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of the Moscow Fire Insurance Company of Moscow, Russia, Respondent. In the Matter of Henry F. Lesch, Appellant.
    (Argued November 18, 1929;
    decided December 3, 1929.)

      Frank H. Hiscock and Paul Bonynge for appellant.

      James F. Donnelly, Alfred C. Bennett, John M. Downes and Clarence C. Fowler for Superintendent of Insurance, respondent.

      Frederick B. Campbell and Paul C. Whipp for Moscow Fire Insurance Company, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Ernest Behre et al., Plaintiffs, v. Second Russian Insurance Company, Appellant and Respondent. Thermod Jullum, Plaintiff, v. Second Russian Insurance Company, Appellant and Respondent. John F. Murphy, Plaintiff, v. Second Russian Insurance Company, Appellant and Respondent. Fred S. James & Company, Plaintiff, v. Second Russian Insurance Company, Appellant and Respondent. Hamburg Insurance Company, Plaintiff, v. Second Russian Insurance Company, Appellant and Respondent. The Superintendent of Insurance of the State of New York, Appellant and Respondent; Albert Massey, Respondent and Appellant.
    (Argued November 18, 1929;
    decided December 3, 1929.)

      James F. Donnelly, Alfred C. Bennett, John M. Downes and Clarence C. Fowler for Superintendent of Insurance, appellant and respondent.

      Robert J. Sykes and William S. Harding for Second Russian Insurance Company, appellant and respondent.

      Albert Massey, John E. O’Brien and Michael S. Gleason for respondent and appellant.
   Orders affirmed, without costs; no opinion.

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


text:
    Louis Griessman, Appellant, v. Raymond M. Fisher, Respondent.
    (Argued November 18, 1929;
    decided December 3, 1929.)

      William Owen Van Keegan for appellant.

      Mortimer B. Patterson and Natalie F. Couch for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Clark Henry Corporation, Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    (Argued November 18, 1929;
    decided December 3, 1929.)

      Arthur J. W. Hilly, Corporation Counsel (William H.

      King, Patrick A. Bolgsr and John D. Lyons of counsel), for appellants.

      Lewis M. Isaacs for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of Catherine Martin, Deceased. Niagara. Falls Memorial Hospital, Appellant; Robert W. Carter, as Executor, et al., Respondents.
    (Argued November 18, 1929;
    decided December 3, 1929.)

      Basil Robillard and Thomas G. Rickert for appellant.

      Alan V. Parker for Salvation Army of Niagara Falls, respondent.

      Angelo F. Scalzo for Rose Pacella, respondent.

      Eugene L. McCollum for Mary Powley, respondent.
   Order of the Appellate Division reversed and decree of the surrogate modified by holding that the legacy of stock to Mary Powley and the Niagara Falls Memorial Hospital is a specific legacy not subject to abatement with general legacies and as so modified affirmed, with costs in this court and the Appellate Division to all parties filing briefs in this court payable out of the estate.

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


text:
    In the Matter of the New York Central Railroad Company, Appellant, v. Public Service Commission et al., Respondents.
    (Submitted November 18, 1929;
    decided December 3, 1929.)

      Frederick L. Wheeler, Leo Manville and Alexander S. Lyman for appellant.

      Sherman C. Ward and Charles G. Blakeslee for Public Service Commission, respondent.

      Hamilton Ward, Attorney-General (Thomas Penney, Jr., and Albert J. Danaher of counsel), for Department of Public Works, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The Bank of America, Respondent, v. P. J. Tierney Sons, Inc., Appellant, Impleaded with Others. (Actions Nos. 1 & 2.)
    (Argued November 19, 1929;
    decided December 3, 1929.)

      Nathan R. Margold and Leonard Acker for appellant.

      Jackson A. Dykman and Ralph W. Crolly for respondent.
   Judgments in each action affirmed, with costs; no opinion.

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


text:
    Samuel Schoen, Respondent, v. Samuel W. Stoloff, Defendant, and Esther Bernstein, Appellant.
    (Submitted November 25, 1929;
    decided December 3, 1929.)

      Irving Moldauer for motion.

      Charles Pearle and Joseph J. Schwartz opposed.
   Motion to dismiss appeal denied on payment of ten dollars costs by appellant to respondent.


text:
    In the Matter of the Accounting of Benjamin J. Weil et al., as Executors of Jonas Weil, Deceased, Respondents. Belle W. Salmont et al., Appellants and Respondents; Benjamin J. Weil et al., Appellants and Respondents; Nathan Burkhan, as Special Guardian for Howard J. Frohlich et al., Respondents.
    (Argued November 19, 1929;
    decided December 6, 1929.)

      Edward L. Blackman and Edgar J. Drachman for Belle W. Salmony et al., appellants and respondents.

      Nathan D. Stern and Norman M. Behr for Benjamin J. Weil et al., appellants and respondents.

      Samuel Levy for executors, respondents.

      Nathan Burkhan for Howard J. Frohlich et al., respondents.
   Order affirmed, with costs to all parties appearing in this court and filing briefs payable out of the estate; no opinion.

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


text:
    Bernhard Voss, Appellant, v. John Lowry, Inc., Respondent.
    (Argued November 20, 1929;
    decided December 6, 1929.)

      Harry Lesser and Samuel Lesser for appellant.

      Daniel S. Murphy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James G. Graham, as Trustee in Bankruptcy of Maxim Corporation, Appellant, v. Henry R. R. Coles et al., as Executors of J. Campbell Thompson, Deceased, Respondents.
    (Argued November 21, 1929;
    decided December 6, 1929.)

      Ralph Montgomery Arkush for appellant.

      Frank H. Hiscock, Abraham, Schlissel and Paul E. Tuthill for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Kate Modlin et al., Respondents, v. Harry Licht et al., Appellants, Impleaded with Others.
    (Argued November 21, 1929;
    decided December 6, 1929.)

      Charles A. Rathkopf and Arden H. Rathkopf for appellants.

      Bruce R. Duncan and Mitchell Klupt for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alvah Armstrong, Appellant, v. Michael Boomansour, Respondent.
    (Argued November 22, 1929;
    decided December 6, 1929.)

      John W. Hollis and Wilbur F. Knapp for appellant.

      James S. Drake, Jr., and George J. Moore for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    David Cohn, Appellant, v. Gersh Realty Corporation et al., Defendants, and Abraham Mason et al., Respondents.
    (Argued November 22, 1929;
    decided December 6. 1929.)

      Harold G. Conger for appellant.

      Benjamin David Reisman and Leo J. Rosen for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Howard Ridall, Respondent, v. Archibald Courson, Appellant.
    (Argued November 22, 1929;
    decided December 6, 1929.)

      Harold E. Simpson for appellant.

      Riley H. Heath for respondent.
   Appeal dismissed, with costs, on the authority of Nod-Away Co. v. Carroll (240 N. Y. 252); no opinion.

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


text:
    James E. Tillman, Appellant, v. Guaranty Trust Company of New York, Respondent.
    (Argued November 25, 1929;
    decided December 6, 1929.)

      Borris M. Komar for appellant.

      William C. Cannon and Ralph M. Carson for respondent.
   Appeal withdrawn by consent on argument, without costs; no opinion.

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


text:
    George Colon and Company, Respondent, v. Commercial Casualty Insurance Company, Appellant.
    (Submitted December 2, 1929;
    decided December 6, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 565.)


text:
    Seneca Engineering Company, Respondent, v. Cayuga Rock Salt Company, Inc., Appellant.
    (Submitted December 2, 1929;
    decided December 6, 1929.)

      Fitch H. Stephens and William W. Gregg for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Grinnell Lithographic Company, Inc., Respondent, v. H. H. Butler Stores, Inc., Appellant.
    (Argued November 21, 1929;
    decided January 7, 1930.)

      Edward Copeland for appellant.

      Thomas H. Dugan and Hersey Egginton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emanuel Clayton, as Administrator of the Estate of Francis G. Clayton, Respondent, v. City of Niagara Falls, Appellant.
    (Argued November 25, 1929;
    decided January 7, 1930.)

      George W. Knox for appellant.

      Francis T. Findlay for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Dissenting: Kellogg, J., on the ground there is no proof of the defendant’s negligence. Not sitting: Cardozo. Ch. J.


text:
    Ellen Peterson, Appellant, v. The Fordham Cornice Works, Inc., Respondent.
    (Argued November 25, 1929;
    decided January 7, 1930.)

      William A. Schacht for appellant.

      Samuel Robert Weltz for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Patrick F. O’Brien, Appellant, v. Matthew F. McGunnigle et al., as Executors of Peter O’Brien, Deceased, et al., Defendants, and Catherine McGunnigle, Respondent.
    (Argued November 25, 1929;
    decided January 7, 1930.)

      Thomas J. Cuff and Milton Pinlcus for appellant.

      Charles R. Weeks, John R. Niesley and George A. Gibson for respondent."
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Vincenzo Amore, Appellant.
    (Argued November 26, 1929;
    decided January 7, 1930.)

      Alfred V. Norton for appellant.

      Albert C. Fach, District Attorney (Lester L. Callan of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Louis H. Schleider, Respondent, v. Maryland Casualty Company, Respondent, and Bertha Horowitz, Appellant.

    (Argued November 26, 1929;
    decided January 7, 1930.)

      Harris Jay Griston for appellant.

      L. H. Schleider and Ida P. Schleider for plaintiff-respondent.

      Robert B. Livingston and James J. Mahoney for defend-, ant-respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    R. S. Fisher, Inc., Respondent, v. Kingsway Realty and Mortgage Corporation, Appellant.
    (Argued November 26, 1929;
    decided January 7, 1930.)

      Philip J. Termini and John J. O’Leary for appellant.

      Vincent E. Donihee and Abraham Sarason for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    David E. Blumenauer, Appellant, v. Loch Sheldrake Amusement Company et al., Respondents, Impleaded with Others.
    (Argued November 26, 1929;
    decided January 7, 1930.)

      Nellie Childs Smith and John D. Lyons for appellant.

      Albert J. Hiers and W. F. Kimber for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William H. Reinhardt, Respondent, v. Walter Burczynski, Defendant, and International Bus Corporation, Appellant.
    (Argued November 27, 1929;
    decided January 7, 1930.)

      Peter A. Schultz, John J. K. Cashie and Gordon Steele for appellant.

      Worthy B. Paul and John G. Lesswing for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nathan M. Gilbert, Respondent, v. Harry S. Huffman, Appellant.
    (Argued November 27, 1929;
    decided January 7, 1930.)

      Bernard II. Chernvh for appellant.

      Arthur J. Rutland and Herman F. Nehlsen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Kennell, Respondent, v. George W. Rider et al., Appellants.
    (Submitted November 27, 1929;
    decided January 8, 1930.)

      WiUiam D. Cunningham for appellants.

      Lloyd R. LeFever and Andrew J. Cook for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    269 Canal Street Corporation, Respondent, v. Zurich General Accident and Liability Insurance Company, Ltd., Appellant.
    (Argued December 3, 1929;
    decided January 7, 1930.)

      Fred H. Rees for appellant.

      George W. Smyth and Samuel L. Sargent for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Paul C. Sweinhart, Appellant, v. The City of New York, Respondent.
    (Argued December 3, 1929;
    decided January 7, 1930.)

      Arthur F. Driscoll, Edward J. Clarke and Edward R. Peckerman, Jr., for appellant.

      Arthur J. W. Hilly, Corporation Counsel {Henry J. Shields, J. Joseph Lilly and Edward A. Gobel of counsel), for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Tropical Fruit Corporation, Appellant.
    (Argued December 3, 1929;
    decided January 7, 1930.)

      George Thoms for appellant.

      Hamilton Ward, Attorney-General (.Borden H. Mills of counsel), for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Ætna Finance Corporation, Respondent, v. Rex Hedwig Laboratories, Inc., Appellant.
    (Argued December 4, 1929;
    decided January 7, 1930.)

      Nathan Stieglitz and Harry H. Oshrin for appellant.

      Benjamin Pepper and Dennis F. O’Brien for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dan H. Arnold, Appellant, v. Potter, Hamilton & Butler, Inc., Respondent.
    (Argued December 4, 1929;
    decided January 7, 1930.)

      George D. Carrington, Edward S. Greenbaum and Jonas J. Shapiro for appellant.

      William H. Hamilton and Norman C. Conklin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gerry W. Colgrove, as Administrator of the Estate of Arion Mason, Deceased, et al., Respondents, v. Bessie A. Smith, Appellant.
    (Argued December 4, 1929;
    decided January 7, 1930.)

      McKinley L. Phillips for appellant.

      Gerald A. Herrick and Benjamin S. Dean for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles A. Erickson, Respondent, v. Ernest Sutton, Defendant, and Elvin Sundell, Appellant.
    (Argued December 4, 1929;
    decided January 7, 1930.)

      Me Kinley L. Phillips for appellant.

      J. Russell Rogerson for respondent.
   Judgment affirmed, with costs, on the ground that the question presented by the appellant is not raised upon the record; no opinion.

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


text:
    Sarah Moore, as Administratrix of the Estate of Thomas T. Moore, Deceased, Respondent, v. The City of New York, Appellant.
    (Argued December 4, 1929;
    decided January 7, 1930.)

      Arthur J. W. Hilly, Corporation Counsel (Vine H. Smith, Matthew J. Troy and J. Joseph Lilly of counsel), for appellant.

      Lester Hand Jayne for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Paul Geaneas, Respondent, v. Arthur E. Fanroth, Appellant.
    (Argued December 5, 1929;
    decided January 7, 1930.)

      Charles L. Craig for appellant.

      Bruce R. Duncan and Mitchell Klupt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    712 Holding Corporation, Respondent, v. Greeley Building Co., Inc., Appellant.
    (Argued December 5, 1929;
    decided January 7, 1930.)

      Robert Seelav for appellant.

      Joseph Fischer and Louis J. Vorhaus for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Martin Siegelstein, Respondent, v. Second Avenue Baths Corporation, Appellant.
    (Submitted December 5, 1929;
    decided January 7, 1930.)

      Ralph Nathan for appellant.

      Gustave B. Garfield and Maurice V. Seligson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Katherine Sperling, Appellant, v. Title Guarantee and Trust Company, Respondent.
    (Argued December 6, 1929;
    decided January 7, 1930.)

      Hugo Hirsh and Irving Moldauer for appellant.

      Charles H. Street and Bawdon W. Kellogg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of George E. Wyman, as Administrator with the Will Annexed of Elizabeth N. Blake, Deceased, Respondent. George C. Bowes, Appellant; William F. Cooper, Respondent.
    (Argued December 6, 1929;
    decided January 7, 1930.)

      Edward A. Brown and Ernest M. Morrison for appellant.

      Joseph F. Murray for administrator-respondent.

      Milton P. Kupfer and Sylvester Pindyck for William F. Cooper, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    William N. Craig, Appellant, v. The Hickok Music Company, Inc., Respondent.
    (Argued November 27, 1929,
    decided January 14, 1930.)

      Elijah T. Russell for appellant.

      Edward K. Haas for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground that it was error for the Appellate Division to reverse the judgment upon the law alone as the evidence presented questions of fact which were properly submitted to the jury.

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


text:
    In the Matter of Israel N. Thurman et al., as Executors and Trustees under the Will of David Taylor, Deceased, Respondents. Francis P. Callahan, as Special Guardian for Alexander A. Taylor et al., Respondents; Benjamin Taylor et al., Respondents; Fannie Taylor, Appellant.
    (Submitted January 6, 1930;
    decided January 14, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 218.)


text:
    Ernest N. Adler, Respondent, v. William F. Deegan, as Tenement House Commissioner of the City of New York, et al., Appellants.
    (Submitted January 6, 1930;
    decided January 14, 1930.)
    (See 251 N. Y. 467.)
   Recall of remittitur requested and the same when recalled will be amended by striking out the award of costs and a like amendment will be made in respect of the order denying the motion for reargument.


text:
    National Surety Company, Appellant, v. President and Directors of the Manhattan Company, Respondent and Appellant, and The Bank of America, Respondent.
    (Submitted January 6, 1930;
    decided January 14, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 247.)


text:
    Samuel Kleinberg et al., Respondents, v. Morris Ratett, Appellant.
    (Submitted January 6, 1930;
    decided January 14, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 236.)


text:
    Lloyds First Mortgage Corporation, Respondent, v. Hurtjam Realty Corporation et al., Defendants, and Greater New York Export House, Inc., Appellant.
    (Submitted January 6, 1930;
    decided January 14, 1930.)

      Joseph A. Seidman for motion.

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


text:
    Packard Motor Car Company of New York, Appellant, v. American Balsa Wood Corporation, Respondent.
    (Submitted January 6, 1930,
    decided January 14, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 174.)


text:
    97 Bleecker Street, Inc., Appellant, v. Ess Dee Gee Co., Inc., Respondent.
    (Submitted January 6, 1930;
    decided January 14, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 555.)


text:
    Norwegian Evangelical Free Church, Respondent. v. Michael Milhauser, Appellant.
    (Submitted January 6, 1930;
    decided January 14, 1930.)
   Motion for reargument denied, without costs. (See 252 N. Y. 186.)


text:
    In the Matter of the Estate of Otto Kiekebusch, Deceased. Emil Kiekebusch, as Executor, Appellant; Ida Kiekebusch, Respondent.
    (Submitted January 6, 1930;
    decided January 14, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 244 N. Y.

236.)


text:
    Village of Lynbrook, Appellant, v. George J. Cadoo et al., Respondents, Impleaded with Others.
    (Submitted January 6, 1930;
    decided January 14, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 308.)


text:
    The People of the State of New York, Respondent, v. Lawrence Placek, Appellant.
    (Submitted January 13, 1930;
    decided January 14, 1930.)

      Francis T. Findlay for motion.
    No one opposed.
   Motion granted.'


text:
    In the Matter of the Application of the City of New York, Appellant, Relative to the Opening of Woodhaven Boulevard. Causeway Boulevard Corporation, Respondent.
    (Argued January 6, 1930;
    decided January 17, 1930.)

      Arthur J. W. Hilly, Corporation Counsel {Joel J. Squier, Joseph G. Mathews and Ten Broeck S. Imlay of counsel), for appellant.

      Harry B. Chambers and James A. Lynch for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Henry Leder, Respondent, v. Charles A. Harnett, Commissioner of Motor Vehicles, Appellant.
    (Argued January 6, 1930;
    decided January 17, 1930.)

      Hamilton Ward, Attorney-General {Robert P. Beyer of counsel), for appellant.

      Nathan Epstein and Alfred J. Gilchrist for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Proving the Will of Patrick J. Ryan, Deceased. Thomas F. Ryan, Appellant; James Ryan, as Executor, Respondent.
    (Argued January 6, 1930;
    decided January 17, 1930.)

      Louis Lande and Louis Solomon for appellant.

      Henry Hirschberg for respondent.
   Order of the Appellate Division reversed and decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division payable out of the estate and questions certified answered in the negative on the authority of Matter of Conway (124 N. Y. 455), which has not been overruled by Matter of Field (204 N. Y. 448).

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


text:
    In the Matter of the Claim of Lawrence T. Sullivan, against G. B. Seely Son, Inc., et al., Respondents. State Industrial Board, Appellant.
    (Submitted January 6, 1930;
    decided January 17, 1930.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for appellant.

      Jeremiah F. Connor for respondents.
   Order affirmed, with costs against the State Industrial Board; no opinion.

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


text:
    In the Matter of Lotus Weinberg et al., Appellants, against Israel A. Needleman, Respondent.
    (Argued January 7, 1930;
    decided January 17, 1930.)

      Arthur Levitt for appellants.

      I. Maurice Wormser, Leonard Acker and Israel A. Needleman for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Nelson Sharp, Respondent, against Queensboro Corporation et al., Appellants. State Industrial Board, Respondent.
    (Argued January 7, 1930;
    decided January 17, 1930.)

      Frank L. Ward and Harry E. Wareham for appellants.

      Hamilton Ward, Attorney-General {E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Rose Lasher, Respondent, against Primo Producing Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued January 7, 1930;
    decided January 17, 1930.)

      Frank L. Ward for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Sam Schranger, Respondent, against Louis Hirsch et al., Appellants. State Industrial Board, Respondent.
    (Submitted January 7, 1930;
    decided January 17, 1930.)

      Everett F. Warrington and Patrick J. Fogarty for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Louis J. Castellano, as Trustee in Bankruptcy of Isidore Hoffer et al, Respondent, v. The American Insurance Company, Appellant.
    (Argued January 7, 1930;
    decided January 17, 1930.)

      Frederick T. Case for appellant.

      Frank C. Laughlin, Joseph W. Kirkpatrick and Thomas C. Frost for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Weisman, Appellant, v. Executives Holding Corporation, Respondent.
    (Argued January 7, 1930;
    decided January 17, 1930.)

      Louis Cohen for appellant.

      Thomas W. Constable for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Peter Hanley, Respondent, v. Charles J. Smith, Appellant.
    (Submitted January 13, 1930;
    decided January 17, 1930.)

      Abraham K. Weber for motion.

      Thomas F. Frawley opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


author: Cabdozo, Ch. J.

text:
    In the Matter of the Estate of John Findlay, Deceased. Alfred Brooks, Appellant; William Findlay et al., as Administrators, Respondents.

      (Argued January 7, 1930;
    decided February 11, 1930.)

      Christian S. Lorentzen for appellant.
    Error was committed either in admitting incompetent hearsay evidence on the question of parentage or, being admitted without or over objection, in considering it inconclusive, and invoking the rule of presumption. (Horan v. Hastorf, 223 N. Y. 490; Reed v. McCord, 160 N. Y. 330; Hull v. Littauer, 162 N. Y. 569; Flora v. Carbeau, 38 N. Y. 111; Koester v. Rochester Candy Works, 194 N. Y. 92; Matter of Seabury, 1 App. Div. 231; 153 N. Y. 443; Banbury Peerage Case, 1 Sim. & Stu. 153; Morris v. Davis, 5 Cl. & Fin. 463; Burnaby v. Bailee, 42 Ch. Div. 282; Schouler’s Domestic Relations [5th ed.], § 225; 2 Kent’s Com. 211; Matter of Matthews, 153 N. Y. 443; Matter of Madura v. City of New York, 238 N. Y. 214.) No presumption arose in favor of the respondent Findlay claiming through his mother who had left her lawful husband and contracted a bigamous marriage. (O’Gara v. Eisenlord, 38 N. Y. 296; Minner v. Minner, 238 N. Y. 534; Machini v. Zanoni, 5 Redf. 492; Gall v. Gall, 114 N. Y. 109; Williams v. Williams, 63 Wis. 58; Matter of Richards, 133 Cal. 524; Olmstead v. Olmstead, 190 N. Y. 458; 216 U. S. 386.) The proof of non-access was irrefragable. (Thyll v. N. Y. Long Branch R. R. Co., 92 App. Div. 513.)

      James N. Gehrig, Jeremiah Wood and Ward Wilklow for respondents.
    Appellant having failed to take proper exception to the decision of the Surrogate and the dismissal of the petition, the case is not one which is properly reviewable by the Court of Appeals. (Surr. Ct. Act, § 72; Sugg v. Wandling, 250 N. Y. 517; People v. Davis, 231 N. Y. 60; Wangner v. Grimm, 169 N. Y. 421; Hopkins v. Clark, 158 N. Y. 299; City of Buffalo v. New York, L.

      E. & W. R. R. Co., 152 N. Y. 276; Matter of Sprague, 125 N. Y. 732; Matter of Kellogg, 104 N. Y. 648; Matter of Hood, 104 N. Y. 103; Angevine v. Jackson, 103 N. Y. 470.) Where the legitimacy of a child is attacked, the burden is upon the person attacking the legitimacy of that cliild to prove that the mother and her husband had not access to each other during the period of conception, prior to the birth of the said child. (Hynes v. McDermott, 91 N. Y. 451; Caujolle v. Ferrie, 23 N. Y. 90; Mayer v. Davis, 122 App. Div. 393; Matter of Barthel, 111 Misc. Rep. 727; 192 App. Div. 926; Coler v. McTighe, 213 App. Div. 831; Young v. Shulenberg, 165 N. Y. 385; Tracy v. Frey, 95 App. Div. 579; Reed v. McCord, 160 N. Y. 330; Aalholm v. People, 211 N. Y. 406.) Where the legitimacy of a child is attacked, the law raises a presumption of a valid marriage between the parents of the child. (Matter of Biersack, 96 Misc. Rep. 161; 179 App. Div. 916; Price v. Tompkins, 108 Misc. Rep. 263; Hutchins v. Kimmell, 31 Mich. 130; Peet v. Peet, 52 Mich. 467; Kopke v. People, 43 Mich, 45; Barber v. Valentine, 125 Mich. 336; Opdyke v. Opdyke, 237 Mich. 417.)
   Cabdozo, Ch. J.

Alfred Brooks, a brother of the decedent, John Findlay, formerly Albert Brooks, brings this, proceeding to revoke letters of administration granted to William Findlay and another upon the false suggestion as he claims that William was John’s brother, and entitled as such to administer the estate.

Henry Brooks and Ann Aldridge were married in England in 1852. They had three children: Arthur, who died unmarried many years ago; Albert, the decedent, who came to America in 1874 at the age of nineteen and changed his name to John Findlay; and Alfred, the petitioner, born in 1859, and still a resident of England.

Ann Brooks (formerly Ann Aldridge), the mother, left her husband and children in 1864, and ran away with James Findlay. She came to America with her paramour, though the date of their sailing is not precisely fixed. There is testimony by a surviving brother of Henry Brooks that it was shortly after the elopement. There is a trace of testimony for the respondent that might place it as late as 1875. Ann Brooks, or Ann Findlay as she was then known, had three children after her flight from Henry Brooks. One of these, Walter, now dead, was born in 1865 or at the latest 1867, was reared in the home of the Findlays, and through life was acknowledged as their son. The second, William, to whom letters have been issued, was born in September, 1875, was similarly reared and similarly acknowledged. The third and youngest, Percy, was born in the United States, and reared and acknowledged in the same way.

James and Ann Findlay on their arrival in America made their home for a season at Hamilton, Ontario, and then at Medina, New York, but soon drifted to Detroit, where they resided till they died. Albert Brooks, who had come to the United States in 1874, joined his mother in Detroit and made his home with her for a time, assuming the name of John Findlay. He left Detroit later, and went to Hempstead, Long Island, where he resided at his death. Alfred Brooks, the petitioner, paid a short visit to the United States in 1881 and found his mother and James Findlay living in Detroit with the children of the guilty union, or children so acknowledged. It was there that James died at a date not stated in the record. It was there that the mother died in March, 1900. She had never recrossed the seas except perhaps for a brief visit with James Findlay and the children at a time not clearly stated, but, it seems, about 1891. Meanwhile, during all the years since her elopement in 1864, her abandoned husband, Henry Brooks, had continuously remained in England where he died in March, 1906, at the age of seventy-nine. A search of the English records shows that his marriage to Ann Aldridge had never been dissolved.

The decedent, John Findlay, formerly Albert Brooks, died a widower, without issue and intestate at Hempstead, Long Island, in 1926. William Findlay, claiming to be a legitimate brother, applied to the Surrogate for letters of administration, and prayed that the respondent Wood be named as joint administrator, though there is no suggestion that Wood was of kin to the decedent. Letters were issued accordingly in January, 1927. About six months later Alfred Brooks, learning of the grant of letters, began this proceeding. He attacked the appointment of William Findlay as made upon a false suggestion of legitimate kinship. He attacked the appointment of the coadministrator, Findlay’s nominee, upon the ground of an adverse interest. The Surrogate dismissed the petition on the merits. The evidence in his view was inadequate to overcome the presumption of legitimacy. William Findlay acknowledging himself continuously as the son of Ann Aldridge and James Findlay, and so acknowledged by them, was to be presumed, none the less, to be the son of Ann Aldridge and Henry Brooks, her abandoned husband. The Appellate Division unanimously affirmed.

We have said that William had continuously acknowledged himself as the son of Ann Aldridge and James Findlay, and was so acknowledged by them. He did not retract this acknowledgment when testifying here. Placed on the stand as a witness for the petitioner, and asked the blunt question, “ What was your father’s name? ’’ he answered bluntly, James Findlay.” Cross-examined by his own counsel, he explained in effect that since his earliest infancy, he had been brought up in that belief. Upbringing and belief must yield, we are told, to the presumption of legitimacy. If Ann Brooks, who ran away with James Findlay in 1864, did not come to America till 1875, the year of William’s birth, there is a bare possibility that she was visited by her abandoned husband while she was living away from him in adultery, and that Walter and William and Percy, acknowledged by her and the adulterer as the fruit of the illicit union, were conceived at these clandestine meetings, miproven but presumed. Upon this possibility and no more, the decree in controversy rests. The presumption of legitimacy will not bear so great a strain.

Potent, indeed, the presumption is, one of the strongest and most persuasive known to the law (Hynes v. McDermott, 91 N. Y. 451, 459; Matter of Matthews, 153 N. Y. 443), and yet subject to the sway of reason. Time was, the books tell us, when its rank was even higher. If a husband, not physically incapable, was within the four seas of England during the period of gestation, the court would not listen to evidence casting doubt on his paternity. The presumption in such circumstances was said to be conclusive (Cross v. Cross, 3 Paige, 139; Van Aernam v. Van Aernam, 1 Barb. Ch. 375; Thayer, Preliminary Treatise on the Law of Evidence, p. 540; 5 Wigmore, Evidence, § 2527; Nicolas on Adulterine Bastardy, pp. 29, 30). The rule of the four seas was exploded by the judgment in Pendrell v. Pendrell (2 Strange, 925), decided in 1732. It was exploded, as Grose, J., observed in a later case (Rex v. Luffe, 8 East, 193,208; Nicolas, swpra, pp. 164, 172) “ on account of its absolute nonsense.” Since then the presumption of legitimacy, like other presumptions, such as those of regularity and innocence, has been subject to be rebutted, though there have been varying statements of the cogency of the evidence sufficient to repel it. At times the cases seemed to say that any possibility of access, no matter how violently improbable, would leave the presumption active as against neutralizing proof (Rex v. Luffe, supra, per Lord Ellenborough; Head v. Head, 1 Sim. & Stu. 150). A formula so inexorable has yielded with the years to one more natural and supple. There are survivals here and there of the rule of olden days (cf. Powell v. State, 84 Ohio St. 165; Bunel v. O’Day, 125 Fed. Rep. 303, 317; Patterson v. Gaines, 6 How. [U. S.] 550, 589). By and large, none the-less, the courts are generally agreed that countervailing evidence may shatter the presumption though the possibility of access is not susceptible of exclusion to the point of utter demonstration. Issue will not be bastardized as the outcome of a choice between nicely balanced probabilities (Head v. Head, supra). They will not be held legitimate by a sacrifice of probabilities in a futile quest for certainty. Some of the books tell us that to overcome the presumption, the evidence of non-access must be clear and convincing ” (Hynes v. McDermott, supra; Hargrave v. Hargrave, 9 Beav. 552; cf. Caujolle v. Ferrié, 23 N. Y. 90, 108, 139); others that it must lead to a conclusion that is “ strong and irresistible v (The Aylesford Peerage Case, [L. R.] 11 App. Cas. 1, 17); others that it must be proof “ beyond all reasonable doubt ” (Cross v. Cross, supra; Van Aernam v. Van Aernam, supra; Phillip's v. Allen, 2 Allen, 453; Sullivan v. Kelly, 3 Allen, 148; Stegall v. Stegall, 2 Brock. 256; Fed. Cas. No: 13,351 [Marshall, J.]; 33 Harv. L. Rev. 307). What is meant by these pronouncements, however differently phrased, is this and nothing more, that the presumption will not fail unless common sense and reason are outraged by a holding that it abides. If husband and wife are living together in the conjugal relation, legitimacy will be presumed though the wife has harbored an adulterer (Hargrave v. Hargrave, supra; Bury v. Philpot, 2 Mylne & Keen, 349). It may even be presumed though the spouses are living apart if there is a fair basis for the belief that at times they may have come together. Whether such a basis exists in any given instance is to be determined, however, in the light of experience and reason. The presumption does not consecrate as truth the extravagantly improbable, which may be one, for ends juridical, with the indubitably false (cf. Matter of Case, 214 N. Y. 199, 204).

Illustration will be helpful to guide us to a choice. The beginning of the modern tendency can be marked in Goodnight v. Saul (4 Term Rep. [Dumford & East] 356 [1791]). The husband and the wife had separated, and a child born later had received a different name, and had been brought up by its mother while living with another man. The court held the presumption overcome, though there was a possibility of meetings between the separated spouses. The next casé to be noted, Morris v. Davies (5 Cl. & F. 163, 255) is a judgment of the House of Lords. The mother was living in adultery when the child was born, its birth was concealed from the husband, it was baptized as a baseborn child, and was recognized by the wife’s paramour as the child of their union. Again the holding was that the presumption had been rebutted, though again there was a possibility, however remote, that the spouses had come together. Hawes v. Draeger ([L. R.] 23 Ch. Div. 173) is another case where there was separation, with issue born thereafter, reared in the household of the paramour, and known by his name. Once more the presumption was held to have been shattered. The Aylesford Peerage Case ([L. R.] supra, pp. 17,18), a judgment of the House of Lords, renews the discussion and brings the precedents together. The conclusion is in harmony with the judgments we have summarized (cf. Burnaby v. Baillie, [L. R.] 42 Ch. Div. 282; Cope v. Cope, 5 Car. & P. 604; Cross v. Cross, supra; Wright v. Hicks, 15 Ga. 160, 170, 171, per Lumpkin, J.).

We think the case at hand is ruled by these decisions. To apply to the facts before us the presumption of legitimacy, we must find in the first place that Ann Brooks was still in England in 1874 or 1875. This is very doubtful. On the one side, there is testimony that she left shortly after her elopement in 1864. On the other, there is William’s statement, so haltingly expressed as to be hardly more than a suggestion, that by family tradition he had been brought to America while a babe in the arms. If we assume in his favor that his mother may be found on the strength of this statement to have been in England at his birth, other difficulties are left. There is no evidence that Henry Brooks was a man of perverted or indecent habits. He must have been this in shocking measure if he was continuing carnal commerce with his wife who had run away from his home and was living apart from him in unconcealed adultery. There is no evidence that Ann Brooks after her flight with James Findlay led a promiscuous or disordered life. On the contrary, the home that she established, so far as strangers could judge of it, was orderly and decent. There is thus at the outset a high degree of improbability in the hypothesis that covertly at intervals during a period of ten years she was lying with the husband whom she had abandoned for another. This improbability, standing alone, might conceivably be insufficient to break the force of the presumption (Van Aernam v. Van Aernam, supra, with which compare, however, Cope v. Cope, and The Aylesford Peerage Case, supra). It is reinforced by many others. The sons born to the mother after her desertion of her husband were recognized by the Findlays as their own and not another’s. The eldest of the three, Walter, was a grown child of eight or ten when William came into the world. Each knew the other as his brother and the Findlays as his parents. Each was born into a family life maintained with all the signs of regularity and order. We presume a vileness and degradation so improbable as at least to border on extravagance when we infer without proof that the relation thus established, a relation of de facto marriage, was soiled by the disgrace of a clandestine connection between the separated spouses. The extravagance is more violent, it approaches an absurdity, when the presumption is upheld in the face of a lifetime of avowal by mother and paramour that the children, reared as their own, were their own in very truth. “ When all the ends which the presumption of legitimacy is designed to conserve have been defeated by sordid facts, the courts must deal with the situation in a common sense way (per Burch, J., in Nolting v. Holt, 113 Kan. 495). “ Unless a case of this kind is to be dealt with otherwise than according to the ordinary rules of reason and probability, I think the burden of proof would be rather on those who might suggest that they did meet again than on those who suggest the contrary ” (per Selborne, L. C., The Aylesford Peerage Case, supra, p. 14). There are breaths of human nature at which presumptions shrink and wither.

Much was said in the opinion of the Appellate Division as to the admission of testimony in violation of the rules that govern hearsay declarations in respect of pedigree. Whatever was received in that regard was without objection and exception, and must, therefore, be considered, whether competent or incompetent (Flora v. Carbean, 38 N. Y. 111, 113). The Appellate Division, conceding this, was of the opinion that the error was of such a nature as to diminish probative effect. The supposed error, as we view it, must be held to be unreal. There is nothing in the pedigree, rule that would bar testimony by William Findlay to the effect that James Findlay was his father (Comstock v. State, 14 Neb. 204; 4 Chamberlayne, Evidence, § 2962). His statement was an admission against interest which, though it be only a conclusion, was at least, evidence against the witness, apart from any question whether it was evidence in his favor. Again there is nothing in the pedigree rule that would bar the testimony of William as to declarations by his mother. The criticism is that there was an absence of independent evidence that the declarant was related to the one whose pedigree was in question (Young v. Shulenterg, 165 N. Y. 385, 388; Aalholm v. People, 211 N. Y. 406). But the fact that Ann was the mother was conceded by every one, including, of course, William, who built his case upon that basis. A closer question, untouched by the court below, is whether her declarations were received in violation of the rule that neither spouse may testify that there was no access to the other (Chamberlain v. People, 23 N. Y. 85, 88; Russell v. Russell, [1924] App. Cas. 687; Palmer v. Palmer, 79 N. J. Eq. 496; Matter of Taylor, 9 Paige, 611, 616, 617; Wigmore, Evidence, vol. 4, § 2063; Stephen’s Digest of Law of Evidence, art. 98). Admissions by the spouses out of court are on the same plane in this regard as testimony in court (Wigmore, supra; Stephen, supra). Even so, a distinction is drawn between declarations separate from conduct, avowals of bastardy in the nature of mere confessions, and declarations in the form of verbal acts, which characterize and color the family relation. There may be acts and conduct ” [of the one spouse or the other] “ tending, as part of a series of res gestee, to throw light upon and to lead to a just conclusion upon a question on which they would not directly be permitted to give evidence ” (The Aylesford Peerage Case, supra, at p. 9; see, also, The Poulett Peerage, [1903] App. Cas. 395; Jane’s Estate, 147 Penn. St. 527, 531, and cf. Goodright v. Saul, Morris v. Davies, Hawes v. Draeger, supra). What was said by Ann Findlay in the home life at Detroit was more than a mere confession. It was an act accompanying and explaining the care of the household and the upbringing of the children. What was said by the putative father and the brothers was aimed at the same ends.

Viewing the evidence before us in all its cumulative significance, we think it points with overwhelming force to one conclusion and one only. We have no thought to weaken the presumption of legitimacy by allowing its overthrow at the call of rumor or suspicion, or through inferences nicely poised. What we are now holding is in line with the historical development which has shorn the presumption of some of its follies and vagaries. Follies and vagaries by concession there have been. We have abandoned the nonsence ” of the rule of the four seas. We nú longer adhere to Lord Campbell’s dictum (Piers v. Piers, 13 Jurist, 569, 572) that a mulatto child born of a white mother must be ascribed to the white husband, and not to the black paramour, if the husband had access to his wife during the period of gestation (Thayer, supra, p, 346; Bullock v. Knox, 96 Ala. 195; Rhyne v. Hoffman, 59 N. C, 335). Extravagances hardly less violent there have been at other times in insisting upon the negation of every shadowy possibility. These and nothing more we are pruning from the law.

Another basis for the judgment suggested in the briefs of counsel must have a word of notice. The suggestion is put forward that there may have been a common-law marriage between James and Ann Findlay, and then to meet the objection that such a marriage would have been bigamous, the court is asked to presume that the earlier marriage, the one with Henry Brooks, was subject to some impediment, unknown and unproved, and may be disregarded now as void. In aid of a presumption that William is legitimate, there is to be an opposite presumption that the petitioner and the decedent, born of a ceremonial marriage, were, each of them, illegitimate. This is the presumption of legitimacy gone mad. It is with the clash of like presumptions as it is with the conflict of estoppels. The bringing forward of unusual facts * *■ * discharges the whole matter from the operation of presumptions, and like Coke’s estoppel against estoppel1 doth put the matter at large ’ ” (Thayer, Preliminary Treatise on Evidence, p. 351).

A word must be said also as to the coadministrator, Mr. Wood. There is no basis for a finding that he is disqualified by any adverse interest. He was appointed, however, at the request of William Findlay (Surr. Ct. Act, § 118) and can have no better title. The petitioner being a non-resident alien is incompetent to serve (Surr. Ct. Act, § 94). In default of other next of kin, administration must be granted to the public administrator, if there is one, or if none, to the treasurer of the county (Suit. Ct. Act, § 118). Only if these refuse or are incompetent, does the appointment go to others.

There remains for final consideration a question of practice. The respondents insist that the appeal is ineffective to bring up anything for review, and this upon the ground that there was an omission by the appellant to file an exception to the Surrogate’s decision. The Surrogate did not make any separate findings of fact and conclusions of law. If he had, exceptions to the findings would unquestionably have been necessary to present a question here. Instead he filed a decision in the form of an opinion denying revocation of the letters previously granted. A decree dismissing the petition ón the merits was subsequently entered.

Surrogate’s Court Act (§§71 and 72) provides as follows:

" § 71. Decision by surrogate after trial without a jury. Upon a trial before the surrogate without a jury, the surrogate must file in his office his decision in writing which shall direct the decree to be entered, which, except for such direction, need not contain either the facts found or the conclusions of law. No party shall have the right, after the close of the trial, to request a finding upon any question of fact or a ruling upon a question of law. For the purposes of appeal or other form of review, the decree made by the surrogate upon the trial by him of an issue of fact shall have the same effect as the general verdict of a jury would have if the same issues were triable before a court and a jury and were so tried and a general verdict rendered thereon.

“ § 72. Exceptions upon a trial. An exception may be taken to a ruling by a surrogate upon the trial by him of an issue of fact, in a case where such an exception may be taken to a ruling of the supreme court upon a trial of a civil action without a jury, of an issue of fact. The provisions of law relating to the manner and effect of taking such an exception, and the settlement of a case containing the exceptions, apply to such a trial before a surrogate; for which purpose, the decree is regarded as a judgment, and notice of an exception may be filed in the surrogate’s office.”

Referring to the Civil Practice Act for the practice in the Supreme Court, we find the following regulations as to the taking of exceptions:

§ 444. Exception to ruling on question of law.

“ 1. An exception may be taken to the ruling of the court or of a referee, upon a question of law, arising upon the trial of an issue of fact.

“ 2. An exception, other than an exception to a determination of a challenge to a juror or to a panel or array of jurors, cannot be. taken to a ruling upon a question of fact.

3. For the purposes of this article, a trial by a jury is regarded as continuing until the jury is discharged.

4. Upon the trial of an issue of fact by a referee or by a court without a jury, a finding of fact without any evidence tending to sustain it, is a ruling upon a question of law within the meaning of this section.

§ 445. Exceptions after close of trial by court or referee. Where an issue of fact is tried by a referee, or by the court, without a jury, an exception to a ruling, upon a question of law, made after the cause is finally submitted, must be taken by filing a notice'of the exception in the clerk’s office and serving a copy thereof upon the attorney for the adverse party. The exception may be so taken at any time before the expiration of ten days after service upon the attorney for the exceptant of a copy of the decision of the court or report of the referee and a written notice of the entry of judgment thereupon. If the notice of exception is filed before the entry of final judgment, it must bé inserted in the judgment-roll; if afterwards, it must be annexed to the judgment-roll. In either case, it constitutes a part of the papers upon which an appeal from the judgment must be heard.”

There is no procedure in the Supreme Court whereby a judge, sitting without a jury and without directing a verdict, may render a decision on the merits except in the form of findings. That being so, there is no provision of the statute whereby the filing of an exception to such a decision is required. An exception is prescribed where the decision is one of nonsuit (People v. Journal Co., 213 N. Y. 1), though the omission may be waived either expressly or by sfinnce (People v. Journal Co., supra; Termini v. Huth, 191 App. Div. 218). The decree now before us is an adjudication on the merits. We are not prepared to extend by dubious analogy a requirement of practice so obviously futile* Where findings are separately stated, an exception has avalué, even if a slight one, since it is a warning to court and counsel of the findings that are challenged (Angevine v. Jackson, 103 N. Y. 470, 471). No such function is fulfilled where there is a general decision, equivalent, as the statute says (Surr. Ct. Act, § 71), to the verdict of a jury. In such a case there is nothing to be gleaned from an exception beyond what there would be without it in the notice of appeal. The exception, if filed, is a meaningless formality. “ It indicates no specific error; it directs attention to no finding, and leaves court and counsel in the dark as to the precise cause of complaint ” (Angevine v. Jackson, supra). The statute must be specific before a meaningless formality will be exalted to the rank of an indispensable condition.

An examination of other records upon the files of the court reinforces this conclusion. At times, the appellant, reviewing a ruling of a Surrogate, has filed an exception to a general decision, and at other times, not. We have entertained the appeals in spite of the omission, though without considering the question, for not until the present case has it been brought to our attention. None the less, the uncertainty of the statute is reflected and exemplified in the incoherence of the precedents and the looseness of the practice. Extension by analogy becomes the less admissible when diversity óf construction is so strikingly attested.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, with costs in the Appellate Division and in this court, and the proceeding remitted to the Surrogate’s Court for the entry of a decree in accordance with this opinion.

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

Ordered accordingly.