text:
    Walter S. Malley, Respondent, v. City of Rensselaer, Appellant, et al., Defendants.
    Argued March 11, 1948;
    decided March 19, 1948.

      E. Stewart Jones for motion.

      James S. Millea, Corporation Counsel, opposed.
   Motion denied, with $10 costs.


source: Caselaw Access Project

license: Public Domain

text:
    Bernard Gerla, Appellant, v. Bankers Trust Company, Individually and as Substituted Trustee under the Will of Albert S. Rosenbaum, Deceased, Respondent.
    Submitted March 15, 1948;
    decided March 19, 1948.

      Lawrence J. Lieberman for motion.

      Orison 8. Harden opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the papers were not filed within the time fixed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    Eva Kachurin et al., as Executors of Philip Kachurin, Deceased, Doing Business under the Name of Kachurin Drug Company, Appellants, v. Harry K. Barr, Doing Business under the Name of Barr Shipping Company, et al., Respondents.
    Argued March 10, 1948;
    decided April 22, 1948.

      Joseph M. Proshauer and Eugene Eisenmann for appellants.

      Neil P. Gullom, Francis J. Ryan, Jr., and Huyler Held for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    In the Matter of the Probate of the Will of Thomas Horton, Deceased. Alexander Horton et al., Appellants; Mechanics and Farmers Bank of Albany et al., Respondents.
    Argued March 12, 1948;
    decided April 22, 1948.

      Daniel H. Prior, John P. Weatherwax and James M. Strang for appellants.

      Kenneth Crehle for Mechanics’ and Farmers’ Bank of Albany, respondent.

      James A. Leary, John F. Roche, Jr., and Walter A. Fullerton for Evans W. Amidon and another, respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dye and Fuld, JJ.


text:
    The People of the State of New York ex rel. Edward V. Young, Appellant, against Walter B. Martin, as Warden of Attica State Prison, Respondent.
    Submitted March 15, 1948;
    decided April 22, 1948.

      Alexander W. Axelrod for appellant. „

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and John R. Davison of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. William Davidson, Appellant.
    Argued March 18, 1948;
    decided April 22, 1948.

      Marry G. Anderson and Louis Fisohbein for appellant.

      Miles F. McDonald, District Attorney (Solomon A. Klein of counsel), for respondents.
   Judgment affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Thacheb and Dye, JJ; Fuld, J., dissents in memorandum in which Desmond, J., concurs.

Fuld, J.

(dissenting). On August 3, 1946, defendant fired his revolver once, and, then immediately after, at least once again and as a result wounded two persons. He" was properly ' adjudged guilty of two separate crimes of assault in the first degree. For those offenses the trial court imposed two sentences of imprisonment for indeterminate terms of five to ten years in State prison, to run consecutively. The imposition of such separate consecutive sentences is fully warranted.

In addition to the sentences referred to, the trial court also imposed — in connection with each of the two simultaneously committed assaults — an extra five (5) years to ten (10) years additional for use of revolver pursuant to Section 1944 of the Penal Law ”, and directed that such further sentences also “ run consecutively ”.

I am unable to agree with the judgment of this court insofar as it affirms the imposition of both these additional sentences. All recognize that the result is harsh; in my view, it is not only harsh but unauthorized. The statute (Penal Law, § 1944) was never designed to cover a situation such as here presented and to permit the imposition of separate additional punishments —of increased imprisonment of five to ten years — where the crimes were committed simultaneously.

The judgment should be modified by voiding and annulling the additional punishment of five to ten years imposed for commission of the crime charged in the fourth count of the indictment.


text:
    In the Matter of Long Island Lighting Co., Respondent, against E. Floyd Griffin et al., Constituting the Board of Zoning Appeals of the Town of Oyster Bay, Appellants, and Fyfe’s Shipyard, Inc., et al., Interveners, Appellants.
    Argued March 19, 1948;
    decided April 22, 1948.

      John W. Davis, W. Royden Klein, Robert E. Lawther and Russel 8. Goutant for interveners, appellants.

      Charles O. Blákeslee, David K. Kadane and Charles E. Elbert for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lotighkan, Ch. J., Lewis, Conway, Desmond, Thachbe, Dye and Fuld, JJ.


text:
    George J. Felts, Appellant, v. Albany Port District et al., Respondents.
    Argued March 10, 1948;
    decided April 22, 1948.

      George N. Meyl and Arthur B. Lanphier for appellant.

      Gerald W. O’Connor for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    In the Matter of the Application of Joseph Milton, Respondent. Photographic Trade News, Inc., et al., Appellants.
    Argued March 11, 1948;
    decided April 22, 1948.

      Saul E. Rogers, Sol Ringel and Milford Fenster for appellants.

      Martin C. Greene and David N. Aberman for respondent.
   Order affirmed, with costs. Inspection of books and records may be had at times and places to be fixed upon due application to Special Term. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    In the Matter of the Estate of Arthur G. Maloy, Deceased. Anne E. O’Sullivan et al., Appellants; Jane Maloy, Respondent.
    Argued March 17, 1948;
    decided April 22, 1948.

      Kenneth 8. MacAffer, James E. Brearton and Charles E. Brennan for appellants.

      Harold E. Blodgett and James F. Dalton for respondent.
   Orders affirmed, with costs payable out of the estate to all parties appearing separately and filing briefs. No opinion.

Concur: Loughran, Ch.‘ J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    Fadex Foreign Trading Corporation, Respondent, v. Crown Steel Corporation, Appellant.
    Argued March 8, 1948;
    decided April 22, 1948.

      Ludwig Teller, Samuel Bushwick and Robert E. Tinsley for appellant.

      Franlt G. Opton and Austin D. Graham for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Loughban, Ch. J., Conway, Desmond, Thacheb and Fuld, JJ. Dissenting: Lewis and Dye, JJ.


text:
    Joseph O’Loughlin, as Administrator of the Estate of Joseph O’Loughlin, Deceased, Appellant, v. Pennsylvania Railroad Company, Respondent.
    Argued March 11, 1948;
    decided April 22, 1948.

      Jacquin Frcmh and Isidor Enselman for appellant.

      Ralph E. Hemstreet and Louis J. Carruthers for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Thacher, Dye and Fuld, JJ. Dissenting: Desmond, J.


text:
    In the Matter of Samuel Tobkes et al., Appellants, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority et al., Respondents.
    Argued March 15, 1948;
    decided April 22, 1948.

      Monroe 1. Katcher, II, Jerome S. Heller, Henry Cohen and Josephine E. Kestler for appellants.

      Alvin McKinley Sylvester for respondents.
   Appeal dismissed, with costs; no opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Anne P. Dascomb, Plaintiff, v. New York Trust Company et al., Defendants. Joseph Quittner, Guardian ad Litem for Gail F. Glavin, an Infant, et al., Appellants. New York Trust Company, Respondent.
    Submitted March 17, 1948;
    decided April 22, 1948.

      Seymour J. Wilner for appellants.

      James McCarron and Thomas Kiernan for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conwat, Desmond, Dtb and Fttld, JJ. Taking no part, Thacher, J.


text:
      Minnie Leitman, Respondent, v. Meyer Leitman, Appellant.
    Submitted April 12, 1948;
    decided April 22, 1948

      Benjamin Heller and Florence K. Dumanis for appellant.

      Julius Haimowits for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    The People of the State of New York, Appellant v. Max Estreich, Respondent.
    Argued March 11, 1948;
    decided April 22, 1948.

      Charles P. Sullivan, District Attorney (Henry W. Schoher of counsel), for appellant.

      Mordecai Eonowitz for respondent.
   Judgment and order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    In the Matter of William A. Schlobohm et al., Respondents, against the Municipal Housing Authority for the City of Yonkers et al., Appellants.
    Argued March 15, 1948;
    decided April 22, 1948.

      William L. Barrow and A. Glazier Lampfce for appellants.

      William A. Walsh, Jr., for respondents.
   Order affirmed, without costs; no opinion.

Concur: Loughban, Gh. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    In the Matter of Henrietta Dolan, Respondent, against Rufus S. McGahen et al., as Trustees of the Police Pension Fund of the City of New York, Appellants.
    Argued March 16, 1948;
    decided April 22, 1948.

      John P. McGrath, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for appellants.

      Samuel J. Siegel and Robert J. Eliasberg for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher, Dye and Fuld, JJ.


text:
    In the Matter of the Arbitration between Tugee Laces, Inc., Appellant, and Mary Muffet, Inc., Respondent.
    Argued March 17, 1948;
    decided April 22, 1948.

      Samuel Rubin and Sylvan H. Elias for appellant.

      Robert R. Rruce and Andrew M. Galamari for respondent.
   Order affirmed, with.costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thachbb, Dye and Fuld, JJ.


text:
    Peggy C. Brainard, Respondent, v. Frank S. Brainard, Jr., Appellant.
    Argued April 12, 1948;
    decided April 22, 1948.

      Clifton F. Weidlicli for appellant.

      Samuel M. Lane and William J. Minsch, Jr., for respondent.
   Order affirmed, with costs. First and second questions certified answered in the affirmative. Third and fourth questions certified answered in the negative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fhld, JJ.


text:
    Ross Washer, Appellant, v. George Seager et al., Respondents, et al., Defendants.
    Argued March 10, 1948;
    decided April 22, 1948.

      I. Maurice Wormser, Sidney J. Loeb, Clifford H. Rich and Ben Mermelstein for appellant.

      Edward Lazansky, Irving Moldauer and Abram B. Freedman for George Seager and another, respondents.

      S. Joseph Oxenberg and Myle J. Holley for Sidney Kamber, respondent.'
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher, Dye and Fuld, JJ.-


text:
    In the Matter of the Accounting of Bank of New York, as Trustee under the Will of Ella J. Hoagland, Deceased, Respondent. Elinor G. Clendenin et al., Appellants; Hopewell Society of Brooklyn et al., Respondents.
    Argued March 15, 1948;
    decided April 22, 1948.

      Thomas A. Ryan for appellants.

      Albert W. Meisel for Hopewell Society of Brooklyn et al., respondents.

      George W. Martin, Richard 8. Emmet, John L. Merrill, Jr., and Eunice M. O’Neill for Bank of New York, respondent.

      Albert R. George for Violet Tangeman Cottrell, respondent.

      Nathaniel L. Goldstein, Attorney-General (P. Hodges Combier and Wendell P. Brown of counsel), for unknown beneficiaries, respondent.

      James N. Vaughan and Jeremiah P. Lyons for Bank of New York, respondent.

      Peter Keber, C. Alexander Gapron and Albert B. Maginnes for State Bankers Association, amicus curies, in support of respondents’ position.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable o.ut of the fund; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    The People of the State of New York, Appellant, v. Charles C. Betzig, Respondent. The People of the State of New York, Appellant, v. James W. Reser, Jr., Respondent.
    Argued March 16, 1948;
    decided April 22, 1948.

      John P. McGrath, Corporation Counsel (Samuel D. Johnson and Seymour B. Quel of counsel), for appellant.

      Sidney M. Bloch and Oscar Katz for respondents.
   In each case, order of the Court of Special Sessions, Appellate Part, reversed and judgment of Magistrate’s Court of the City of New York affirmed on the ground that the evidence is sufficient to warrant defendant’s conviction of the offense charged of operating a taxicab for hire without a license within the provisions of subdivisions 2(e), 3 and 43-a (a) of section 436-2.0 of the Administrative Code of the City of New York. No opinion.

Concur: Loughran, Ch. J'., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    In the Matter of the Will of Harry H. Hicks, Deceased. Victor Ingersoll, Respondent; Georgian N. Bollens, as Executrix of Harry H. Hicks, Deceased, Appellant.
    Argued March 17, 1948;
    decided April 22, 1948.

      John J. Broderick and William B. Roulstone for appellant.

      Edgar H. A. Chapman and William R. Lonergan for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

Concur; Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    The People of the State of New York ex rel. John L. Madden, Appellant, against John F. Foster, as Warden of Auburn State Prison, Respondent.
    Submitted March 18, 1948;
    decided April 22, 1948.

      John L. Madden, appellant in person.

      Nathaniel L. Goldstein, Attorney-General (William 8. EMer, Jr., of counsel), for respondent.
   Order affirmed. (See Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 138, 140; Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Hogan v. New York Supreme Court, 295 N. Y. 92.) No opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Elizabeth Coyne, Appellant, v. Charles J. Coyne, Respondent.
    Submitted March 19, 1948;
    decided April 22, 1948.

      Morrell Schwimer for appellant.

      Murray Stockman for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dye and Fuld, JJ.


text:
    County of Erie, Respondent, v. Eduard F. Metz et al., Constituting the Board of Trustees of School District No. 13, Amherst, Appellants. County of Erie, Respondent, v. Harry E. Benson et al., Constituting the Board of Fire Commissioners of Snyder Fire District in the Town of Amherst, Appellants.
    Argued March 4, 1948;
    decided April 22, 1948.

      Maurice J. Rwmisen and Ralph A. Lehr for respondents.
   In first action: Judgment affirmed, with costs; no opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.

In second action: Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Milton Shaket and John Reilly, Appellants.
    Argued March 11, 1948;
    decided April 22, 1948.

      William W. Kleinman and Mortimer Satiler for Milton Shaket, appellant.

      David F. Price and Mortimer Battler for John Reilly, appellant,

      Frank S. Hogan, District Attorney (Whitman Knapp and Edward T. Perry of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Euld, JJ.


text:
    The People of the State of New York, Respondent, v. George Calloway, Appellant.
    Argued March 16, 1948;
    decided April 22, 1948.

      John Logan O’Donnell and Martin V. Gallagy for appellant.
    • Frank 8. Hogan, District Attorney (Edward T. Perry and Whitman Knapp'oí counsel), for respondent.
   Judgments reversed and information dismissed upon the ground that the evidence did not warrant a finding of the guilt of the defendant beyond a reasonable doubt. (People v. Orr, 270 N. Y. 193; People v. Cooperman, 279 N. Y. 599; People v. Mantin, 184 App. Div. 767.) No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dye and Ftjld, JJ.


text:
    Eugene Gendel, Appellant, v. City of New York, Respondent.
    Argued April 12, 1948;
    decided April 22, 1948.

      Alfred J. Talley, Benjamin N. Bippe and Martin J. White for appellant.

      John P. McGrath, Corporation Counsel (Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.■

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Isabel George, as Administratrix of the Estate of William George, Deceased, Respondent, v. Long Island Rail Road Company, Appellant, et al., Defendants.
    Argued March 17, 1948;
    decided April 22, 1948.

      Ralph E. Hemstreet and Louis J. Carruthers for appellant.

      Benedict 8. Rosenfeld and Bernard Meyer son for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghean,. Ch. J., Lewis, Conway, Desmond, Thachee, Dye and Ftjld, JJ.


text:
    In the Matter of the Brooklyn Union Gas Company, Respondent, against Lazarus Joseph, as Comptroller of the City of New York, Appellant.
    Argued March 3, 1948;
    decided April 22, 1948.

      John P. McGrath, Corporation Counsel (Isaac C. Bonner and Gertrude Eerschler of counsel), for appellant. .

      Jackson A. Dykman, Sigourney B. Olney and Milo F. McDonald, Jr., for respondent.
   Appeal dismissed unless the appellant within twenty days files a stipulation for order absolute: No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld,- JJ.

       Stipulation for order absolute filed May 8, 1948.— [Rep.


text:
    In the Matter of Samuel S. Underhill et al., Respondents, against Board of Appeals of the Town of Oyster Bay et al., Defendants, and Hicksville Airpark Club, Intervener, Appellant.
    Argued March 8, 1948;
    decided April 22, 1948.

      Howard T. Hogan and Dennis J. Donegan for appellant.

      Alfred T. Davison and Francis B. Hamlin for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    In the Matter of the Arbitration between Piedmont Shirt Company, Respondent, and Commercial Capital Corporation, Appellant.
    Argued March 11, 1948;
    decided April 22, 1948.

      Benjamin Heller for appellant.

      Elliott B. Paley and Joseph W. Rosenberg for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loxjghran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Henry F. Przyborowski et al., Appellants, v. John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Respondents.
    Argued March 15, 1948;
    decided April 22, 1948.

      Monroe 1. Katcher, II, and Jerome S. Heller for appellants.

      Henry V. Doell and Alvin McKinley Sylvester for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thachee, Dye and Fuld, JJ.


text:
    Bertha Janota, Respondent, v. City of New York, Appellant.
    Argued March 16, 1948;
    decided April 22, 1948.

      John P. McGrath, Corporation Counsel (Stanley Buchsbaum, Seymour B. Quel and Samuel B. Johnson of counsel), for appellant.

      Edward T. Welch for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    Martha L. Chamberlain, Appellant, v. Town of Brighton et al., Respondents.
    Argued March 17, 1948;
    decided April 22, 1948.

      Stephen V. Lines and Samuel B. Dicker for appellant.

      James 0. O’Brien for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thauher, Dye and Fuld, JJ.


text:
    Ruth A. Knight, Respondent, v. Willard R. Knight et al., Defendants. United States of America, Intervener, Appellant.
    Argued March 18, 1948;
    decided April 22, 1948.

      James F. X. McGohey, United States Attorney for the Southern District of New York (Nathan Skolnik of counsel), for intervener, appellant.

      Louis L. Garrett, Max Chopnick and S. Leonard Watt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway," Desmond, Thacher, Dye and Fuld, JJ.


text:
    Wright E. Harris, Sr., Appellant, v. City of New York, Respondent.
    Submitted March 8, 1948;
    decided April 22, 1948.

      Wright E. Harris, Sr., in person, for motion.

      John P. McGrath, Corporation Counsel (Seymour B. Quel of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that no appeal lies to this court.


text:
    Caroline Jackman et al., Respondents, v. Bernard Grant, Appellant.
    Submitted April 12, 1948;
    decided April 22, 1948.
    • Harry M. Nieman and Jacob W. Friedman for motion.

      Samuel Oberlander and Nathan T. Oberlander opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless, within fifteen days, all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    John Bertha, Appellant, v. City of New York, Respondent.
    Submitted April 12, 1948;
    decided April 22, 1948.

      Leo E. Sherman, Joseph L. Budell' and Andrew Beiner for motion.

      John P. McGrath, Corporation Counsel (Seymour B. Quel and Fred Iscol of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless, within fifteen days, all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    Dollar Savings Bank of the City of New York, Respondent, v. Sunnybrook Associates, Inc., Appellant, et al., Defendants. Henry G. Waltemade, as Receiver, Respondent.
    Argued April 12, 1948;
    decided April 22, 1948.

      Cloyd La Porte, Werner Usen and James B. Gereghty for motion.

      Henry Cohn opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Max Reibeisen, Appellant, v. New York Life Insurance Company, Respondent.
    Submitted April 12, 1948;
    decided April 22, 1948.

      Conrad Lipton, Milton S. Marks and Sidney S. Miller for motion.

      John G. JDuport, Philip J. Lynch and Dudley Davis opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless, within fifteen days, all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    Frances B. Mendoza, Respondent, v. Armando Mendoza, Appellant.
    Submitted April 12, 1948;
    decided April 22, 1948.

      Joseph L. Greenberg for motion.

      Robert 8. Carroll and George G. Hunter, Jr., opposed.
   Motion dismissed^ with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution. [See 297 N. Y. 1030.]


text:
    George Stikeman, Jr., Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. Charles W. Millican, Jr., Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. Walter G. Darden, Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. Duncan Clardy, Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. Julie A. S. Schwartz, Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. Thomas A. Blackwell, Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. J. D. Hughes, Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. Theodore I. Penhall, Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. Miles H. Mann, Jr., Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. Dorman B. Moose, Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent. John A. Black, Appellant, v. Whitman, Requardt & Smith, a Partnership, Defendants, and Benjamin L. Smith, Respondent.
    Submitted April 12, 1948;
    decided April 22, 1948.

      Neile F. Towner for motion.
    No one opposed.
   Motion in each action granted and appeal dismissed, with costs and $10 costs of motion.


text:
    In the Matter of Samuel Rose, Appellant. Association of the Bar of the City of New York, Respondent.
    Submitted April 12, 1948;
    decided April 22, 1948.

      Sydney A. Hellenbrand and Harold W. Hastings for motion.

      Kenneth M. Spence, Einar Ghrystie and Henry F. Waldstein opposed.
   Motion dismissed upon the .ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of John R. O’Neill, Appellant, against Board of Regents of the University of the State of New York, Respondent.
    Argued April 12, 1948;
    decided April 22, 1948.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley of counsel), for motion.

      William Richter opposed.
   Motion denied.


text:
    J. Howard Johnson, as Receiver, et al., Respondents, v. John M. Smith, as Treasurer of the County of Albany, et al., Appellants.
    Submitted April 12, 1948;
    decided April 22, 1948.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended to include (1) defendants Yetta V. Sandler, John Carroll and L. Berman, as appellants on the appeal in this court, and (2) Maurice Freedman as counsel for said appellants. [See 297 N. Y. 165.]


text:
    In the Matter of the Estate of Charles A. Scherzinger, Deceased. George T. Scherzinger, Appellant; Marie L. Scherzinger, as Administratrix of the Estate of Charles A. Scherzinger, Deceased, Respondent.
    Argued April 12, 1948;
    decided April 22, 1948.

      William F. Gassin for motion.

      James N. Vaughan opposed.
   Motion denied, without prejudice to a renewal thereof upon the argument of the appeal.


text:
    Harold F. Kemp et al., on Behalf of Themselves and All Others Equally Interested, Respondents, v. Sophie Rubin et al., Appellants.
    Submitted April 12, 1948;
    decided April 22, 1948.

      Frederick W. Newton for motion.

      Andrew W. Weinberger, Paul JR. Silver stein and Irving Schuh opposed.
   Motion denied, with $10 costs.


text:
    Egg Mart, Inc., Respondent, v. Pilgrim Hygrade Ice Cream, Appellant.
    Submitted April 12, 1948;
    decided April 22, 1948.

      Irving E. Field and K. Karl Klein for motion.

      George Katsowitch opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless, within fifteen days, all papers required by rule 21 (subd. [b]) of the rules of this court are filed.


text:
    Erna H. Fischer, as Administratrix of the Estate of Ernest Hoppe, Deceased, Respondent, v. New York Central Railroad Company, Appellant; Walter G. Williams et al., Individually and Doing Business under the Firm Name of Williams Lake, Respondents, and Ulster County Construction Co., Inc., Defendants.
    Submitted April 19, 1948;
    decided April 22, 1948.

      Harry H. Flemming for motion.

      Lloyd R. Le Fever and John E. Egan opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless, within fifteen days, all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    Corinne C. Waterman, Appellant, v. Jordy & Co., Inc., et al., Defendants. Souther Whittelsey, Respondent.
    Submitted April 19, 1948;
    decided April 22, 1948.

      Max Rockmore for motion.

      Corinne C. Waterman, in person, opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the action within the meaning of the Constitution. [See 297 N. Y. 1030.]


text:
    In the Matter of Christopher Hannon, Petitioner, against Donald C. Wagner, as City Manager of the City of Long Beach, et al., Respondents.
    Submitted April 19, 1948;
    decided April 22, 1948.

      Bernard Fremont and Morris Alfred Vogel for motion.

      Morton D. Gottlieb, 'Corporation Counsel, opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the papers were not filed within the time fixed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    Little Carnegie Realty Corporation, Landlord, Appellant, v. Delmonico Movienews Theatre, Inc., Tenant; First Run Films, Inc., Respondent, et al., Undertenants.
    Submitted April 19, 1948;
    decided April 22, 1948.
   Motion for reargument of motion to dismiss appeal denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 883.]


text:
    Little Carnegie Realty Corporation, Landlord, Appellant, v. Delmonico Movienews Theatre, Inc., Tenant; First Run Films, Inc., Respondent, et al., Undertenants.
    Submitted April 12, 1948;
    decided April 22, 1948.
   Motion for order clarifying decision rendered on March 18, 1948, denying respondent’s motion to dismiss, denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 883.]


text:
    Toano Realty Corporation, Respondent, v. Lloyds of White Plains, Inc., Appellant, et al., Defendants.
    Submitted April 12, 1948;
    decided April 23, 1948.

      Emanuel Schwarts for motion.

      Arthur D. Brennan opposed.
   Motion denied, with $10 costs and necessary printing disbursements. The second sentence of section 1442 of the Civil Practice Act cannot be applied to a case like the .present consistently with subdivisions 5 of section 7 of article VI of the State Constitution which became effective January 1, 1944.


text:
    The People of the State of New York, Respondent, v. Samuel L. Geiselman, Appellant.
    Submitted April 12, 1948;
    decided April 23, 1948.

      No one opposed.
   Motion denied on the ground that no appeal lies to this court from the order of the Appellate Division or from the order of the County Court of Nassau County. Appeal dismissed.


text:
    In the Matter of Rochester Gas & Electric Corporation, Respondent, and General Public Utilities Corporation, Intervener, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.
    Submitted April 19, 1948;
    decided April 23, 1948.

      Edmund B. Naylon, T. Carl Nixon, Earl L. Bey, George Foster, Jr., Allen E. Throop and James B. Liberman for respondents.

      Samuel B. Madison and Sherman C. Ward opposed.
   Motion denied, with leave to renew upon the argument of the appeal.


text:
    The People of the State of New York, Respondent, against Nicholas Mysholowsky, Appellant.
    Submitted April 19, 1948;
    decided April 23, 1948.

      Nicholas Mysholowshy, in person, for motion.
    No one opposed.
   Motion denied on the ground that no appeal may be taken to this court from the order of the Appellate Division.


text:
    The People of the State of New York ex rel. Edward Schlecter, Appellant, against John F. Foster, as Warden of Auburn State Prison, Respondent.
    Submitted April 21, 1948;
    decided April 23, 1948.

      Edward Sehleoter, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (William S. Elder, Jr., of counsel), opposed.
   Motion »for leave to appeal denied. Appeal taken as of right dismissed.


text:
    In the Matter of Joseph A. Fogarty, Individually and as City Manager of the City of Newburgh, Appellant, against Herbert A. Warden, Individually and as Mayor of the City of Newburgh, et al., Respondents.
    Submitted April 12, 1948;
    decided May 18, 1948.

      Henry Hirschberg and Ernest M. Levinson for appellant.

      W. E. Gribari and George W. Scapolito for respondents.
   Order affirmed, without costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    Joseph Brendese, Appellant, v. City of Schenectady et al., Respondents.
    Argued April 13, 1948;
    decided May 20, 1948.

      Homer E. Peters and George M. Simon for appellant.

      Kelsie E. Mead, Corporation Counsel (Edward E. Weber of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Jean Pfister, Respondent, v. Abe Coopersmith, Appellant.
    Argued March 16, 1948;
    decided May 20, 1948.

      Frank S. Samansky for appellant.

      John P. McGrath, Corporation Counsel (Stanley Buchshaum of counsel), for City of New York, amicus curia, in support of appellant’s position.

      Salvator Milasso for respondent.
   Appeal dismissed, without costs, unless the appellant within ten days files a stipulation for order absolute. (See N. Y. Const., art. VI, § 7, subds. 3, 6; Floyd-Jones v. Schaan, 203 N. Y. 568; Travelers Ins. Co. v. Schachner, 280 N. Y. 758.) No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.

       Stipulation for order absolute filed on May 21, 1948.— [Rep.


text:
    In the Matter of Kalman Molnar, Appellant, against Patrick A. Curtin, as Clerk of the Municipal Court of the City of New York, Respondent.
    Argued April 14, 1948;
    decided May 20, 1948.

      Victor Sussman for appellant.

      John P. McGrath, Corporation Counsel (Stanley Buchsbaum, Seymour B. Quel and William L. Messing of counsel), for respondent.
   Order affirmed, with costs, upon the authority of Matter of Tartaglia v. McLaughlin (297 N. Y. 419), decided herewith. No opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Teachers College, Appellant and Respondent, v. Nathaniel L. Goldstein, as Attorney-General of the State of New York, et al., Respondents, and Donald Elliott et al., Infants, by Harrison S. Elliott, Their Guardian, et al., Interveners, Respondents and Appellants.
    Argued April 19, 1948;
    decided May 20, 1948.

      Timothy N. Pfeiffer and Rebecca M. Cutler for plaintiff, appellant and respondent.

      Austin W. Scott, William M. Chadbourne, Clinton DeWitt Van Siclen, Bernard Hellring and John E. Larkin for intervening defendants; respondents and appellants.
   Judgment affirmed, without costs;-no opinion.

Concur: Lotjghran, Oh. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


author: Per Curiam.

text:
    John H. Blackburn, Respondent, v. Andrew V. Clements et al., Constituting the Board of Education of Union Free School District No. 1, Town of Coeymans, et al., Appellants.
    Argued March 16, 1948;
    decided May 20, 1948.

      John W. Manning and Edward 8. Godfrey for appellants.

      Joseph J. Casey for respondent.
   Per Curiam.

A school district is not a municipal corporation

within the meaning of section 51 of the General Municipal Law. (Brooks v. Wyman, 246 N. Y. 534.) That question was not raised or considered in Judd v. Board of Education (278 N. Y. 200). The first question certified is answered in the negative, the orders are reversed and the complaint dismissed, with costs in all courts. The second question certified is not answered.

Loughraw, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Ftjld, JJ., concur.

Orders reversed, eta.


text:
    Rose Altman et al., Appellants, v. David Altman et al., Respondents, et al., Defendants.
    Argued March 15, 1948;
    decided May 20, 1948.

      Nathaniel Rubin for appellants.

      Francis C. Dale for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Oh. J., Lewis, Conway, Desmond, Thachee, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Anthony R. Papa, Appellant.
    Argued April 13, 1948;
    decided May 20, 1948.

      Edward E. Edstrom for appellant.

      James N. Gehrig, District Attorney' (Philip Huntington and Henry Root Stern, Jr., of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fund, JJ.


text:
    East Brooklyn Savings Bank, Appellant, v. Hickman Realty Corp. et al., Respondents, et al., Defendants.
    Argued April 15, 1948;
    decided May 20, 1948.

      Francis A. Devin for appellant.

      Morway Picket and Daniel Secunda for respondents.
   Appeal dismissed, without costs, upon the ground that the order does not finally determine an action or special proceeding within the meaning of the Constitution; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    In the Matter of The Guardian Life Insurance Company of America, Respondent, against Lazarus Joseph, as Comptroller of the City of New York, Appellant.
    Argued April 20, 1948;
    decided May 20, 1948.

      John P. McGrath, Corporation Counsel (Isaac C. Bonner and Ira Wollison of counsel), for appellant.

      Ferdinand Tannenhaum, Joseph E. Crown, Joseph Eisner and Walter F. Sloan for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lotjghean, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Ftjld, JJ.


text:
    In the Matter of Alfred L. Rose et al., Respondents. Williams Auction Sales Corp., Appellant.
    Argued April 16, 1948;
    decided May 20, 1948.

      Jack N. Blinkoff, J esse Káhn and Herbert Stern for appellant.

      Phillip W. Haberman, Jr., Joseph E. Low and Leonard S. Kramer for respondents.
   Order affirmed, with costs; no opinion. [See 298 N. Y. 544.]

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher, Dye and Fuld, JJ.


text:
    In the Matter of the Estate of Frank M. Gould, Deceased. Helen D. Gould, Appellant; Paul J. Longua et al., as Executors and Trustees under the Will of Frank M. Gould, Deceased, et al., Respondents. In the Matter of the Estate of Frank M. Gould, Deceased. Helen D. Gould, Appellant; Paul J. Longua et al., as Executors and Trustees under the Will of Frank M. Gould, Deceased, et al., Respondents.
    (Appeals Nos. 1 and 2.)
    (Appeal No. 3.)
    Argued April 12, 1948;
    decided May 20, 1948.

      James N. Vcmghan and Archibald B. Watson for appellant.

      Daniel E. Woodhull, David H. Taylor and Eugene D. Wads-worth for Paul J. Longua and Bank of New York, executors and trustees, respondents.

      George B. Brooks for Florence B. Sturgeon, as general guardian of infant respondents.

      Thomas B. Fay and David B. Siegel for Thomas R. Fay, as special guardian for unborn issue and unknown persons, respondents.
   In. the first and second proceedings (Appeals Nos. 1 and 2): Order affirmed, with costs in one proceeding only to all parties appearing separately and filing briefs, payable out of the estate; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fold, JJ.

In third proceeding (Appeal No. 3): Order affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    In the Matter of Michael Pichacz et al., Appellants, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority et al., Respondents.
    Submitted April 13, 1948;
    decided May 20, 1948.

      Martin Benjamin for appellants.

      Alvin McKinley Sylvester for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Julius Langguth, Respondent, v. Bickford’s Inc., Appellant, et al., Defendants.
    Argued April 15, 1948;
    decided May 20, 1948.

      Boyce A. Wilson and Lawrence J. McGinn for appellant.

      Arthur G. Carney, Samuel J. Jackman and Salvatore J. Milano for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lougheán, Ch. J., Lewis, Conway, Desmond, Thachee, Dye and Fuld, JJ.


text:
    Frank E. Forsbrey, Appellant, v. Pulp & Paper Trading Company, Defendant, and J. & J. Rogers Company, Respondent.
    Argued April 13, 1948;
    decided May 20, 1948.

      Thomas D. Scoble, Jr., and Ralph 8. Kent for appellant.

      Louis Schack, Louis 8. Lewis and Edwin A. Lewis for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and - Fuld, JJ.


text:
    The People of the State of New York ex rel. New York Athletic Club, Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued April 14, 1948;
    decided May 20, 1948.

      Charles Lamb, Walter L. Hopkins and Loretta A. Conway for appellant.

      John P. McGrath, Corporation Counsel (Morris Handel and William F. Murphy of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    J. Stephen Holt, Appellant, v. Fidelity Phoenix Fire Insurance Company of New York, Respondent.
    Argued April 16, 1948;
    decided May 20, 1948.

      Jack Goodman for appellant.

      Nelson B. Pirnie for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Thacher and Fuld, JJ. Dissenting: Desmond and Dye, JJ., on the ground that plaintiff was entitled to summary judgment and an assessment of damages.


text:
    Edith E. McClintock, as Administratrix of the Estate of Thomas McClintock, Deceased, Respondent, v. Albert E. Santana, Doing Business as Daytime Dress Company, Appellant.
    Argued April 20, 1948;
    decided May 20, 1948.

      John J. Cunneen and Jacob Schild for appellant.

      Sydney A. Syme for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher, Dye and Ftjld, JJ.


text:
    The People of the State of New York, Respondent, v. Thomas Dominski, Appellant.
    Argued April 13, 1948;
    decided May 20, 1948.

      Earl W. Brydges for appellant.

      William E. Miller, District Attorney (J. F. Henry De Lange of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thachee, Dye and Fuld, JJ.


text:
    Nathan Kantrowitz, Respondent, v. Dairymen’s League Co-operative Association, Inc., Appellant.
    Argued April 15, 1948;
    decided May 20, 1948.

      Seward A. Miller and William H. Michaels, Jr., for appellant.

      LeBoy Loimsberry for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghram, Oh. J., Lewis, Con way, Desmohd, Thacher, Dye and Fuld, JJ.


text:
    Arthur Burton, Appellant, v. American Bridge Co., Respondent, et al., Defendants.
    Argued April 14, 1948;
    decided May 20, 1948.

      Edward Lazansky, Melvin Sacks, Ralph Stout and Harry A. Gair for appellant.

      Nathan L. Miller, Thomas F. Lynch, Mark F. Hughes and Raymond C. Murphy for respondent.
   Per Curiam.

There is evidence in the record which presented a question of fact for the jury whether at the time of the accident the crane operator, Kemp, was the servant of the defendant American Bridge Company. It was error to hold as a matter of law that he was the ad hoc employee of the Arthur A. Johnson Co. (Bartolomeo v. Bennett Contr. Co., 245 N. Y. 66; Ramsey v. New York Central R. R. Co., 269 N. Y. 219; Kristiansen v. Wagner’s Steel Erectors, Inc., 295 N. Y. 668). The judgments should be reversed, the verdict reinstated and judgment directed to be entered thereon in favor of plaintiff, with costs in all courts.

Loijghban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Ftjld, JJ., concur.

Judgments reversed, etc. [See 298 N. Y. —.]


text:
    The People of the State of New York, Respondent, v. Angelo Presenzano, Frank Spiess and Edward Baglivi, Appellants.
    Argued April 13, 1948;
    decided May 20, 1948.

      Alfred I. Bosner for Edward Baglivi, appellant.

      David M. Markowitz for Angelo Presenzano and Frank Spiess, appellants.

      Frank 8. Hogan, District Attorney (Eugene A. Leiman and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Emigrant Industrial Savings Bank, Respondent, v. New Rochelle Trust Company, as Trustee under the Will of Gertrude A. Alderdice, Deceased, Appellant, et al., Defendants.
    Argued April 14, 1948;
    decided May 20, 1948.

      Albert Ritchie for appellant.

      John E. McAniff, Edwin A. Berkery, Lester T. O’Connor and Joseph C. Wolf for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fttld, JJ.


text:
    Alice Frontenac, Appellant and Respondent, v. Great Atlantic & Pacific Tea Company, Appellant, and Beacon Chemical Corp., Respondent.
    Argued April 15, 1948;
    decided May 20, 1948.

      Lester Samuels, Murray G. Spett and Abraham Shapiro for defendant and appellant.

      Harold M. Harkavy and Frederick M. Garfield for defendant and respondent.

      Abraham N. Levy and Milton L. Sloane for appellant and respondent.
   Judgment affirmed, with costs to the plaintiff against the Great Atlantic & Pacific Tea Company, and with one bill of costs to the defendant-respondent Beacon Chemical Corporation against plaintiff and the Great Atlantic & Pacific Tea Company. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    The People of the State of New York, Appellant, v. Wilfred Betts, Martin Hirsch, Leonard Cohen and William Henry, Respondents.
    Argued April 19, 1948;
    decided May 20, 1948.

      Frank 8. Hogan, District Attorney (Eugene A. Leiman and Whitman Knapp of counsel), for appellant.

      Sol Gelb and Harris B. Steinberg for respondents.
   Order affirmed; no opinion.

Concur: Lotjgi-iban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    In the Matter of Rose Watkins et al., Appellants, against Henry L. Ughetta, a Justice of the Supreme Court of the State of New York, et al., Respondents.
    Argued May 17, 1948;
    decided May 20, 1948.

      Emil N. Baar, William G. Fullen, Lawrence J. Lieberman and Charles B. Russell for appellants.

      John P. McGrath, Corporation Counsel (Harry E. O’Donnell, Reuben Levy, Stanley Buchsbaum and Benjamin Offner of counsel), for respondents.
   Order affirmed, without costs. On this record there is no showing that this is not a taking for a public use. No opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fixed, JJ.


text:
    In the Matter of United Parcel Service of New York, Inc., Respondent, against Lazarus Joseph, as Comptroller of the City of New York, Appellant.
    Argued March 9, 1948;
    decided May 20, 1948.

      John P. McGrath, Corporation Counsel (Isaac C. Bonner and Harry Kate of counsel), for appellant.

      H. Struve Hensel and Richard G. McClung for respondent.
   Order affirmed, with costs; no opinion.

Concur; Loughran, Ch. J., Lewis, Conway, Desmond, Thaohee, Dye and Fuld, JJ.


text:
    Gold Coast Farmers’ Association, Ltd., Appellant, v. Barclays Bank (Dominion, Colonial and Overseas), Respondent.
    Argued April 12, 1948;
    decided May 20, 1948.

      Isidor Wasservogel, Alexander Slater and Murray L. Jacobs for appellant.

      Clifton S. Thomson, Gerhard R. Gerhard and John B. Kernan, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Sno-Wite, Inc., Respondent, v. Gerald Operating Corp., Appellant.
    Argued April 13, 1948;
    decided May 20, 1948.

      Harold J. Trecmor for appellant.

      Charles N. Maybruch for respondent.
   Order affirmed, with costs. Questions certified answered in the affirmative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ. '


text:
    In the Matter of a Plan by Mortgage Commission of the State of New York with Respect to a Mortgage Covering Premises 8718 Ridge Boulevard, Borough of Brooklyn, Guaranteed by Lawyers Mortgage Company. (Mortgage No. 200,643.) Robert E. Dineen, Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Mortgage Company, and Bureau of Trust Supervision, Respondents; Brooklyn Trust Company, as Trustee under a Declaration of Trust Dated the 21st Day of November, 1938, Appellant.
    Argued April 14, 1948;
    decided May 20, 1948.

      Stanley S. EawTces and Ralph W. Crolly for appellant.

      J. Francis Lynch, Gertrude D. E. Perlman and Thomas D. Austin for respondents.

      Stanley Zucherman for amici curia in support of respondents’ position.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Thomas Flanagan, Appellant.
    Argued April 19, 1948;
    decided May 20, 1948.

      Joseph Aronstein for appellant.

      Franh S. Kogan, District Attorney (William Koppen and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    In the Matter of the Accounting of Ogden Phipps et al., as Executors of Ogden L. Mills, Deceased, Respondents. A. Perry Osborn et al., as Successor Trustees of the Trust Created by Ogden L. Mills, by Indenture, et al., Appellants. John R. Fell, Jr., et al., Respondents.
    Argued April 21, 1948;
    decided May 21, 1948.

      John L. Gray, Jr., Arthur A. Ballantine and Carl E. Heilman for A. Perry Osborn and another, appellants.

      Gertrude Glennon, as special guardian, appellant.

      Ernest M. Strong for Ogden Phipps and another, appellants.

      Windsor B. Putnam for the New York Trust Company, appellant.

      Leslie D. Dawson, Roy G. Gasser and J. Wesley Seward for Ogden Phipps and another, respondents.

      Frank A. F. Severance and Walter G. Dunnington, as special guardian for John R. Fell, Jr., and others, respondents.
   Order affirmed, with costs to the respondents payable out of the estate; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    Michael T. Clark et al., Respondents, v. Joseph Curtis, as President of Newspaper and Mail Deliverers’ Union of New York and Vicinity, an Unincorporated Association, et al., Appellants. (Two Actions.)
    Argued April 20, 1948;
    decided May 21, 1948.

      • Samuel Duker for Newspaper and Mail Deliverers’ Union of New York and Vicinity, appellant.

      Edwin F. Korkus for Rockaway News Supply Co., Inc., appellant.

      Arthur G. Warner and James E. Birdsall for respondents.
   In both actions: Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thachee, Dye and Fuld, JJ.


text:
    Mary Paley, as Administratrix of the Estate of Matey Paley, Deceased, Appellant, v. New York Central Railroad Company, Respondent.
    Argued April 23, 1948;
    decided May 21, 1948.

      William E. J. Connor, Michael Le Sawyer and F. Walter Bliss for appellant.

      Charles E. Nichols for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, on the ground that the record presents questions of fact for a jury as to the negligence of the defendant and the contributing negligence of the plaintiff’s intestate. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    The People of the State of New York ex rel. W. A. Realty Corporation, Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued April 20, 1948;
    decided May 21, 1948.

      Christian S. Lorentzen for appellant.

      John P. McGrath, Corporation Counsel (Anthony Curreri, William F. Murphy and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fulo, JJ.


text:
    Kent P. Leeds, Respondent, v. Guaranty Trust Company of New York, Respondent, and Karl A. Katzenstein, Appellant.
    Argued April 21, 1948;
    decided May 21, 1948.

      Thomas L. McCannon and Thomas J. Blake for appellant.

      James L. Morrison, Attorney, Department of Justice, David L. Bazelon, Assistant Attorney General, John F. X. McGohey, United States Attorney, and Max Isenbergh, Special Assistant to the Attorney General, for United States of America, amicus curicc, in support of appellant’s position.

      Henry I. Fillmcm and Otto C. Sommerich for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    Frances Diehl et al., Respondents, v. Myron Garden Apartments, Inc., Appellant.
    Argued April 21, 1948;
    decided May 21, 1948.

      Emile Z. Berman, Louis Helfenstein and Norman Lustig for appellant.

      J ames G. Purdy for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaohbr, Dye and Fuld, JJ.


text:
    Parke-Bernet Galleries, Inc., Appellant, v. Cristina De B. Patino et al., Respondents.
    Argued April 22, 1948;
    decided May 21, 1948.

      J. Arthur Leve for appellant.

      J. Harlin O’Connell and Richard Heller for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkan; Ch. J., Lewis, Conway, Desmond, Thachek, Dye and Fuld, JJ.


text:
    Hughes Tool Company, Appellant, v. Benjamin Fielding, as Commissioner of Licenses of the City of New York, et al., Respondents.
    Argued April 21, 1948;
    decided May 21, 1948.

      Charles Poletti, Sidney A. Diamond, and Robert R. Eisner for appellant.

      Milton R. Weir for The League of New York Theatres, Inc., amicus curies, in support of appellant’s position.

      Emanuel Redfield and Osmond K. Fraenhel for American Civil Liberties Union, amicus curies, in support of appellant’s position.

      John P. McGrath, Corporation Counsel (Charles F. Preusse, W. Bernard Richland and Harry Hollander of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    Daniel A. McKeever, Respondent, v. William F. Schwerin et al., Defendants, and Carl J. Hynes, Appellant.
    Argued April 22, 1948;
    decided May 21, 1948.

      Melvin F. Kinldey for appellant.

      Stanford H. Waite for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkan, Oh. J., Conway, Desmond, Thacheb and Dye, JJ.; Lewis and Fuld, JJ., dissent and vote for reversal of the judgment and dismissal of the complaint as against the defendant Hynes, with costs in all courts.


text:
    Grace Lotito, Appellant, v. Samuel Kyriacus et al., Respondents.
    Submitted May 17, 1948;
    decided May 21, 1948.

      William Ryan for motion.
    No one opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements (see Civ. Prac. Act, § 589, subd. 1).


text:
    In the Matter of the Estate of Frederick W. Stiefel, Deceased. Marie Stiefel, Appellant; Evelyn M. Eberhardt, Respondent.
    Submitted May 17, 1948;
    decided May 21, 1948.

      Fred M. Ahern, Fred M. Ahern, Jr., and Mabel Areuri for motion.

      George Kaufman opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements unless, within fifteen days, all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed. -


text:
    In the Matter of Vim Electric Co., Inc., Appellant. Retail & Wholesale Employees Union, Local 830, Respondent.
    Submitted May 17, 1948;
    decided May 21, 1948.

      Sidney 0. Raphael for motion.

      Samuel A: Sacher. opposed.
   Motion denied, with $10 costs and necessary printing disbursements on the ground that an appeal lies as of right. Whether the appeal as of right should be taken from the order or from the judgment, we need not consider. (See Matter of Morris White Fashions, 295 N. Y. 450; Arcadu v. Levinson, 250 N. Y. 355; Eighth Annual Report of N. Y. Judicial Council, 1942, p. 440.)


text:
    Margaret R. Wilson, Appellant and Respondent, v. Kirke R. Wilson, Respondent and Appellant.
    Submitted May 17, 1948;
    decided May 21, 1948.
   Motion by defendant for reargument denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 646.]


text:
    Edmund Tipaldi, Respondent, v. Riverside Memorial Chapel, Inc., et al., Appellants, and J. Alexander Stein, Inc., Appellant and Respondent, et al., Defendants.
    Submitted May 17, 1948;
    decided May 21, 1948.

      Harry Touran, Jacob Fuchsberg and William E. Lyons for motions to dismiss.

      William E. Lyons for motion for leave to appeal.

      James H. Brassel opposed.
   Motions denied on the ground appeal lies as of right.


text:
    The People of the State of New York, Respondent, v. Carmine Romanelli, Appellant.
    Submitted May 17, 1948;
    decided May 21, 1948.

      Frank S. Hogan, District Attorney (Whitman Knapp of counsel), for motion.

      Carmine Bomanelli, in person, opposed.
   Motion granted and appeal dismissed.


text:
    Frances B. Mendoza, Respondent, v. Armando Mendoza, Appellant.
    Submitted May 17, 1948;
    decided May 21, 1948.
   Motion by appellant for reargument of motion for leave to appeal denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 950.]


text:
    Corinne C. Waterman, Appellant, v. Jordy & Co., Inc., et al., Defendants. Souther Whittelsey, Respondent.
    Submitted May 17, 1948;
    decided May 21, 1948.
   Motion by appellant for reargument of motion to dismiss appeal denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 957.]


author: Lewis, J.

text:
    New York Company, as Trustee, Respondent, v. Nina E. Weaver et al., Appellants, and Lildie D. Ernsberger et al., Respondents.
    Argued March 2, 1948;
    decided May 21, 1948.

      Ray Shoemaker and David Hantgan for appellants.
    I. Tbe 1927 document was intended to modify tbe 1926 trust indenture. II. Tbe trust indenture could not be modified, extended or enlarged without tbe written consent of all persons beneficially interested in tbe trust as required by section 23 of tbe Personal Property Law. (Schoellkopf v. Marine Trust Go., 267 N. Y. 358; Graham v. Manufacturers Nat. Bank, 261 App. Div. 46; Cram v. Walker, 173 App. Div. 804; WhiMemore v. Equitable Trust Co., 250 N. Y. 298; Smith v„ Tiñe Guar. $ Trust Co., 287 N. Y. 500; Gage v. Irving Bank, & Trust App. Div. 92, 248 N. Y. 554.) III. Tbe settlor did not by tbe 1927 agreement dispose of bis expectant interest in tbe corpus of tbe trust. (Bennett v. Garlock, 79 N„ Y. 302; Martin v. Funk, 75 N. Y. 134; Central Trust Co. v. Gaffney, 157 App. Div. 501, 215 N. Y. 740; Matter of Wolanski, 157 Mise. 470.) IV. Tbe 1926 indenture if modified, extended and enlarged by tbe 1927 document, unlawfully suspends tbe absolute owner» ship of personal property. (Bankers Trust Co. v. Topping, 180 Mise. 596; Blake v. Mattern, 186 App. Div. 488; Underwood v. Curtis, 127 N. Y. 523; Matter of Durand, 250 N. Y. 45; Matter of Green, 146 Mise. 530, 263 N. Y. 575; Schettler v. Smith, 41 N. Y. 328; Ward v. Ward, 105 N. Y. 68.)

      A. Hayne deYampert and Dana C. Backus for Tbe New York Trust Company, respondent.
    I. Whether tbe settlor intended by the 1927 agreement to modify the 1926 indenture is wholly immaterial. II. The 1927 agreement revokes neither the whole nor any part of the trust created by the 1926 indenture and section 23 of the Personal Property Law is, therefore, not appli- . cable. (New York Life Ins. & Trust Co. v. Gary, 191 N. Y. 33.) III. The 1927 agreement disposes of the settlor’s reversion under the 1926 indenture. IV. The trust instruments do not suspend the absolute ownership of the trust property for more than two lives in being, forbidden by section 11 of the Personal Property Law. (Matter of Bruckheimer, 294 N. Y. 31; Scher-merhorn v. Cotting, 131 N. Y. 48; Bird v. Bickford, 141 N. Y. 18; Crooke v. County of Kings, 97 N. Y. 421; Bailey v. Bailey, 97 N. Y. 460; New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33; Schettler v. Smith, 41 N. Y. 328; Matter of Friend, 283 N. Y. 200, 283 N. Y. 775; Matter of Trevor, 239 N. Y. 6; Tiers v. Tiers, 98 N. Y. 568.)
    . Arthur W. Procter and Caleb A. Harding for Earl R. Erns-berger, Jr., and others, respondents
    I. There was no modification of the 1926 indenture in whole or in part and section 23 of the Personal Property Law does not apply. (New York Life Ins. & Trust Co.< v. Gary, 191 N. Y. 33; McCurdy v. New York Life Ins. & Trust Co., 83 Hun 612, 151 N. Y. 667; Title Guar. & Trust Co. v. Haven, 214 N. Y. 468; Matter of Albro, 165 Mise. 486; First Nat. Bank & Trust Co. v. Palmer, 235 App. Div. 593.) II. The agreement of 1927 disposed of the settlor’s reversion under the indenture of 1926. (New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33; First Nat. Bank & Trust Co. v. Palmer, 235 App. Div. 593; De Graff v. Joyce, 172 Mise. 919; McCurdy v. New York Life Ins. & Trust Co., 83 Hun 612,151 N. Y. 667; National Park Bank of N. Y. v. Billings, 144 App. Div. 536, 203 N. Y. 556.) III. The indenture of 1926 and the agreement of 1927 do not violate the rule against perpetuities. (New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33; McCurdy v. New York Life Ins. & Trust Co., 83 Hun 612, 151 N. Y. 667; Genet v. Hunt, 113 Y. 158; Bishop v. Bishop, 257 N. Y. 40; Fargo v. Squires, 154 N. Y. 250; Matter of Mount, 185 N, Y. 162; Looram v. Loorarn, 269 N. Y. 296.)

      I. The 1927 indenture did not effect the beneficial interest of settlor’s son. The change related solely to the reversionary interest of settlor. {Smith v. Title Guar. & Trust Go., 287 N. Y. 500.) II. The 1927 indenture related solely to the rever-sionary interest of the settlor. It disposed of his interest in the trust fund. III. The rule of perpetuities was not violated by the two indentures. Income payable to more than two persons during the measuring lives does not violate the statute. (Schermerhorn v. Gotting, 131 N. Y. 48; Morris v. Morris, 272 N. Y. 110.)
   Lewis, J.

The trustee of two inter vivos trusts has instituted this action to determine their validity and construction. The answer and counterclaims interposed by the defendants-appellants — which pleaded the invalidity of the second trust agreement— were dismissed at Special Term upon a motion by the plaintiff-trustee for summary interlocutory judgment. Special Term ruled that the trusts were valid and ordered the trustee to account. The Appellate Division unanimously affirmed the interlocutory judgment and the order of Special Term. Thereupon, accounts were filed by the trustee and Special Term ordered final judgment approving those accounts. Pursuant to leave granted by us this appeal — taken directly from the final judgment mentioned above — seeks to review only the prior determination of the Appellate Division which unanimously affirmed the interlocutory judgment and order of Special Term.

Prom the allegations of the complaint it appears that in April, 1926, Earl R. Ernsberger, as settlor of a trust, delivered to the plaintiff trustee $200,000 under an agreement which provided that the income therefrom should be paid to his wife, Mary Hope Ernsberger until her death or remarriage ”. The trust agreement also made provision for two contingencies as follows:

“ If the party of the first part [the settlor] shall be at the time of the death or remarriage (whichever event shall first occur) of said Mary Hope Ernsberger, then upon such death or remarriage said trust shall in any and every event terminate, and the Trustee is directed to thereupon assign, transfer and pay over the principal of said trust fund to the party of the first part, absolutely and forever.
“ In tiie event, however, that the party of the first part shall be deceased at the time of the death or remarriage (whichever event shall first occur) of said Mary Hope Ernsberger, then the Trustee is directed to pay the net income of said trust fund, in quarterly installments of equal amount, or as nearly equal as possible, to Earl E. Ernsberger, Jr., son of the party of the first part, for and during the term of his natural life, and upon the death of said Earl E. Ernsberger, Jr., said trust shall terminate and the Trustee is directed to assign, transfer and pay over the principal of said trust fund, in equal shares, to the children then living of said Earl E. Ernsberger, Jr., and to the issue then living of deceased children of said Earl E. Erns-berger, Jr., the issue of deceased children taking per stirpes and not per capita.” (Italics supplied.)

The settlor reserved no power to alter or revoke the 1926 trust agreement quoted in part above.

On November 5,1927, the settlor as “ party of the first part ” and Mary Hope Ernsberger as “ party of the second part ” executed an instrument, captioned “ Agreement for tion of Trust Agreemeftt ” which provided in part:

“ It is now hereby agreed * * . that said indenture [the 1926 trust indenture] * * * is hereby expressly confirmed and ratified in all respects, except and subject only to the following modifications and revocations, none of which in any respect affect the beneficial interests in said trust of the said Earl R. Ernsberger, Jr.:
“ That the provisions of said indenture for creation of trust fund, in so far as the same provides for the termination of said trust on the death or remarriage of said Mary Hope Ernsberger, prior to the death of party of the first part herein, and the transfer, in either event, of said trust fund to said party of the first part, be, and the same are hereby revoked, and in substitution thereof it is agreed that in the event of the death of the party of the second part, prior to the death of first party herein, said trust shall continue thereafter for the uses and benefits of said Earl E. Ernsberger, Jr., during his natural life, and that, upon the death of the latter, said trust shall terminate, and said Trustee shall be, and it is now directed then and on the happening of said event, to assign, transfer and pay over the principal of said trust fund, in equal shares, to the children then living of said Earl R. Ernsberger, Jr., and to the issue then living of deceased children of said Earl R. Ernsberger, Jr., the issue of deceased children taking per stirpes, and not per capita; but provided further that if party of the second part hereto shall be deceased before the death of said Earl R. Ernsberger, Jr., and the latter, at his decease, shall leave no issue of his body, or descendants thereof, but shall leave a lawful widow, said trust fund shall be distributed by said Trustee, and the latter is hereby directed to assign, transfer and set over said principal as follows; viz.:
“ To the lawful widow of said Earl R. Ernsberger, Jr., if any he leave, one-third of said fund.
“ To the party of the first part if still living, otherwise to the heirs of his body * * * one-third of said principal fund, and
“ Likewise, to the lawful heirs of party of the second part * * * one-third of said trust fund. *
Provided further, that said trust agreement shall be further supplemented and modified by the additional provision that should the said party of the second part hereto remarry, prior to the death of the first party hereto, then, and in that event the said Trustee named in said trust agreement shall pay to party of the first part one-half of said net income of said fund, and the remaining one-half thereof to the said party of the second part, until the termination of said trust agreement, or the death of party of the second part, as hereinbefore and hereinafter provided.
And, provided further, that * * * in the event of the death of party of the second part, or her remarriage, in either event, before the death of party of the first part, one-half of the net income of said trust fund shall be paid by said Trustee to party of the first part, during his natural life, but thereafter said one-half of said net income shall be paid to said Earl R. Ernsberger, Jr., during the remainder of his natural life.” (Italics supplied.)

At the time the 1927 agreement, last quoted above, was entered into, Earl R. Ernsberger, Jr., was twelve years of age and accordingly did not execute a consent thereto. The administering the trusts under 1926 agreement — paid the income therefrom to Mary Hope Ernsberger until her death on November 3, 1937, at which time the settlor was still living. As Mary Hope Ernsberger had not remarried, the trustee — subsequent to her death and in accord with the terms of the 1927 agreement — paid .one half the income from the trust to the settlor and the remaining one half to his son Earl E. Ernsberger, Jr.

On September 8, 1944, the settlor died intestate. Thereafter the trustee commenced this action to determine the validity and construction of the 1926 and 1927 instruments.

Martha Ernsberger — who with her three daughters were named defendants and are appellants before us — allegedly had been married to the settlor prior to his marriage to Mary Hope Ernsberger and prior to his execution of either of the trust agreements mentioned above. Upon this appeal the appellants do not dispute the validity of the trust entered into in 1926. Their claim is that when Mary Hope Ernsberger died in 1937, prior to the death of the settlor, the 1926 trust terminated; that the trustee should then have paid over the principal of the trust fund to the settlor in which event the appellants would have become entitled to a share of the principal of the trust as heirs of the settlor under the laws of Texas in which State the settlor resided on the date of his death.

In support of their position that the 1927 • agreement was invalid it is argued by the appellants (1) that the 1927 agreement attempted to revoke and to modify parts of the agreement of 1926 and that, inasmuch as Earl E. Ernsberger, Jr.— a beneficiary under the 1926 agreement — did not execute a written consent to such a modification, there was a failure to comply with section 23 of the Personal Property Law and, accordingly, that the modification was ineffective; and (2) that even if the 1927 agreement was valid, the two instruments unlawfully suspend the ownership of the property beyond two lives in being at the time of the creation of the trust.

The first challenge by the appellants to the validity of the 1927 agreement depends upon the application of section 23 of the Personal Property Law which provides: “ § 23. Revocation of trusts upon consent-of all persons interested. Upon the written consent of all the persons beneficially interested in a trust in personal property or any part thereof heretofore or hereafter created, the creator of such trust may revoke the same as to the whole or such part thereof, and thereupon the estate of the trustee shall cease in the whole or such part thereof.”

We agree with the rulings made at Special Term and at the Appellate Division that the change made in the 1926 trust agreement by the agreement of 1927, was not such as to necessitate the written consent thereto of Earl R. Ernsberger, Jr. Although the settlor entitled the 1927 instrument as A Modification Agreement ”, a study of that instrument prompts the conclusion that there was no revocation of those provisions of the 1926 agreement which created beneficial interests in favor of persons other than the settlor. Under the 1926 agreement, the wife, Mary Hope Ernsberger, was to. receive the income of the trust fund until her death or remarriage. Alternate provisions were made for the administration of the trust after her death or remarriage depending upon whether the settlor was alive at that time. In the event the settlor had died prior to that time, provision was made for a life income to Earl, Jr., with remainder to his issue. However, in the event the settlor was still living at the time of the death or remarriage of Mary Hope Ernsberger, the trust was to terminate and the 'principal returned to the settlor. Thus we see that, according to the terms of the 1926 agreement, in the event the death or remarriage of Mary Hope Ernsberger preceded the death of the settlor, provision was made for a reversion of the trust estate to the set-tlor. (Eeal Property Law, § 39.) If the settlor died prior to the death or remarriage of Mary Hope Ernsberger, certain benefits arose in favor of their son Earl Ernsberger, Jr.

In 1927, the second instrument was executed in which it was expressly provided that the 1927 agreement was not to “ affect the beneficial interests in said trust [the 1926 trust] of the said Earl R. Ernsberger, Jr.” under which, as we have seen, trust benefits had been given Earl E. Ernsberger, Jr., in the event the death of the settlor occurred prior to the death or remarriage of Mary Hope Ernsberger. The 1927 agreement affected only a situation arising if the death or remarriage of Mary Hope Erns-berger occurred during the lifetime of the settlor. In that event, rather than to provide for a reservation of a reversion to the settlor and the termination of the trust at such time — which had been the plan prescribed under the 1926 agreement — the 1927 agreement made provision for the disposition of the set-tlor’s reversionary interest. In other words, the 1927 agreement made no revocation of any beneficial interests created by the 1926 trust agreement except to change the disposition of the interest in that trust which arose in the settlor’s favor in the event his wife, Mary Hope Ernsberger died or remarried during his lifetime. In fact, the 1927 agreement “ expressly confirmed and ratified in all respects ” the earlier trust except for the provision which directed a reversion in favor of the settlor.

Our conclusion is that the change effected by the 1927 agreement in the disposition of the settlor’s reversionary interest did not work such a revocation of any provision of the 1926 agreement — within the provisions of section 23 of the Personal Property Law — as to require the consent of Earl K.. Ernsberger, Jr. The 1927 agreement did not revoke the trust for the son in any way. All that was done was to dispose of the settlor’s rever-sionary interest reserved by the 1926 agreement. The reversion thus created was an estate belonging to the settlor which he could dispose of as any other type of estate without the consent of anyone. (New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33, 39; Livingston v. N. Y. Life Ins. & Trust Co., 59 Hun 622, opinion in 13 N. Y. S. 105, on second appeal sub nom. McCurdy v. New York Life Ins. & Trust Co., 83 Hun 612, affd. 151 N. Y. 667 on opinion below on first appeal; National Parh Bank v. Billings, 144 App. Div. 536, affd. on opinion below, 203 N. Y. 556; Farmers’ Lorn & Trust Co. v. Bostwick, 190 N. Y. 569, and see Chaplin, Suspension of the Power of Alienation [3d ed.], §. 139.)

The appellants also challenge the validity of the 1927 agreement upon the ground that the trusts created by the 1926 and 1927 instruments served to suspend the power of alienation beyond two lives in being. (Personal Property Law, § 11.) This contention is based upon the theory that the two instruments provide for payment of income to the settlor’s wife, during her life and, upon her death, one half to his son and one half to him, and that upon the death of the settlor, his son is to receive the entire income for life. This trust plan, say the appellants, measured the trust by three lives and consequently was unlawful. The interpretation thus given these instruments by the appellants is upon the theory that the two instruments must be read together and considered as one in determining the rights of the parties interested in the estate. Concluding, as we do, that the second (1927) instrument made provision merely for the disposition of the settlor’s reversionary interest, it follows that it is not necessary to read the two agreements together as a single instrument in determining the number of lives which measure the trusts involved. (Genet v. Hunt, 113 N. Y. 158, 168, 169; New York Life Ins. & Trust Co. v. Cary, supra, pp. 38-41; Farmers’ Loan & Trust Co. v. Bostwick, supra; Livingston v. New York Life Ins. & Trust Co., supra, p. 108; Guaranty Trust Co. v. New York Trust Co., 297 N. Y. 45, 49, 50; and see Chaplin, Suspension of the Power of Alienation [3d ed.] § 139, p. 117.)

Considering separately the 1926 and 1927 agreements — in accord with the authorities cited above — there is in neither instrument a postponement of vesting beyond two lives in being in violation of section 11 of the Personal Property Law.

The judgment and order should be affirmed, with costs to the respondents, payable out of the fund.

LoughraN, Ch. J., CoNway, DesmoND, Thacher, Dye and Fuld, JJ., concur.

Judgment and order affirmed.