author: Htjbbs, J.

text:
    L. W. Sweet & Company, Inc., Respondent, v. Provident Loan Society of New York, Appellant.
    Argued December 8, 1938;
    decided January 17, 1939.

      Neil P. Cullom and Frederick M. Schlater for appellant.
    The defendant’s lien is protected by the Factors’ Act (Pers. Prop. Law; Cons. Laws, ch. 41, § 43), because the agent was intrusted by plaintiff with the jewelry for the purpose of sale. (Freudenheim v. Gutter, 201 N. Y. 94; Schmidt v. Simpson, 204 N. Y. 434; Abrams v. Great American Ins. Co., 269 N. Y. 90; Mynard v. Syracuse, 71 N. Y. 180; Motion Picture Co. v. Universal Film Co.,
      242 U. S. 502; Lautman v. City of New York, 157 App. Div. 219.) The agent was not guilty of common-law larceny by trick and device since he persuaded the plaintiff to give him power of sale. (Zink v. People, 77 N. Y. 114; Folkes v. King, [1923] 1 K. B. 282.)

      Joseph J. Zeiger and Ephraim Berliner for R. Simpson & Co., Inc., amicus curise.

    The clear language of section 43 of the Personal Property Law, as well as its spirit, require that defendant’s lien on the jewelry be protected, even though plaintiff was induced to intrust it to the agent by his fraudulent misrepresentations. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Purdy, 167 App. Div. 637; 216 N. Y. 704; People v. Ryan, 274 N. Y. 149; Matter of Rouss, 221 N. Y. 81; Shulthis v. MacDougal, 162 Fed. Rep. 331; 170 Fed. Rep. 529; Freudenheim v. Gutter, 201 N. Y. 94; Harbeck v. Pupin, 123 N. Y. 115; People v. Dumar, 106 N. Y. 502; Phelps v. McQuade, 220 N. Y. 232; Abrams v. Great American Ins. Co., 269 N. Y. 90; Barnard v. Campbell, 58 N. Y. 76; Marden v. Dorthy, 160 N. Y. 39; Island Trading Co. v. Berg Bros., 239 N. Y. 229; Howland v. Woodruff, 60 N. Y. 73; Folkes v. King, [1923] 1 K. B. 282; Dows v. Greene, 24 N. Y. 638; First Nat. Bank v. Shaw, 61 N. Y. 283; Shenfield v. Bradley, 174 N. Y. Supp. 619; Dougherty Co. v. Krimke, 105 N. J. L. 470; Nelkin v. Provident Loan Society, 265 N. Y. 393.) The agent was not guilty of common-law larceny by trick and device since he induced, the plaintiff to give him power of sale. (Whitehorn v. Davison, [1911] 1 K. B. 463.)

      Samuel Lawrence Brennglass and David Schlang for respondent.
    The property was obtained from plaintiff by means of common-law larceny by trick and device. (Smith v. People, 53 N. Y. 111; Weyman v. People, 4 Hun, 511; 62 N. Y. 623; Loomis v. People, 67 N. Y. 322; People v. Morse, 99 N. Y. 662; People v. Dumar, 106 N. Y. 502; People v. Miller, 169 N. Y. 339; People v. Noblett, 244 N. Y. 355; Stone v. Provident Loan Society, 260 N. Y. 536; Schmidt v. Simpson, 204 N. Y. 434; Soltau v. Gerdau, 119 N. Y. 380.) The Factors’ Act has no application where property has been obtained by common-law larceny. (1 Halsbury’s Laws of England [2d ed.], p. 277; Cole v. Northwestern Bank, L. R. 10 C. P. 354; Cahn v. Pockett’s Bristol Channel Steam Packet Co., [1899] 1 Q. B. 643; Oppenheimer v. Frazer, [1907] 2 K. B. 50; Mowrey v. Walsh, 8 Cow. 238; Bassett v. Spofford, 45 N. Y. 387; Kinsey v. Leggett, 71 N. Y. 387; Soltau v. Gerdau, 119 N. Y. 380; Schmidt v. Simpson, 204 N. Y. 434; Wood v. Simpson, 149 App. Div. 471; Phelps v. McQuade, 158 App. Div. 528; 220 N. Y. 232; Thompson v. Goldstone, 171 App. Div. 666; Amols v. Bernstein, 214 App. Div. 469; Stone v. Provident Loan Society, 260 N. Y. 536; Prentice Co. v. Page, 164 Mass. 276; Davis v. Davis, 75 N. Y. 221; Kent v. Jamestown Street Ry. Co., 205 N. Y. 361; Schindler v. Royal Ins. Co., 258 N. Y. 310; Rapps v. Gottlieb, 142 N. Y. 164.) The Factors’ Act does not apply to the agent’s possession of the property, obtained for the limited purpose of a sale on behalf of plaintiff to a particular person for a specified price. (Heilbronn v. McAleenan, 1 N. Y. Supp. 875; Anderson v. McAleenan, 15 Daly, 444; Ladwin v. Baruch, 34 Misc. Rep. 544; Boston Supply Co. v. Rubin, 214 Mass. 217; Collateral Loan Co. v. Sallinger, 195 Mass. 135; Thachér v. Moors, 134 Mass. 156.)

      Richard C. Murphy, David Davidoff and Albert P. Singman for Jewelers Committee, amicus curise.

    The defendant’s retention of the ring is not justified under the Factors’ Act, which is inapplicable, because defendant received the ring from one who obtained possession by means of a common-law larceny by trick and device. (Loomis v. People, 67 N. Y. 322; Smith v. People, 53 N. Y. 111; People v. Miller, 169 N. Y. 339; Hanson v. National Surety Co., 257 N. Y. 216; Soltau v. Gerdau, 119 N. Y. 380; Schmidt v. Simpson, 204 N. Y. 434; Stone v. Provident Loan Society, 235 App. Div. 608; 260 N. Y. 536; Nelkin v. Provident Loan Society, 241 App. Div. 875; Wood v. Simpson, 149 App. Div. 471; Phelps v. McQuade, 158 App. Div. 528; 220 N. Y. 232; Thompson v. Goldstone, 171 App. Div. 666; Amols v. Bernstein, 214 App. Div. 469; Prentice v. Page, 164 Mass. 276; Boston Supply Co. v. Rubin, 214 Mass. 217; New Amsterdam v. National Union Fire Ins. Co., 266 N. Y. 254.) Since the defendant received possession of plaintiff’s property from one who obtained possession of the property for the limited purpose of a sale to a particular person for a specified price, the Factors’ Act is inapplicable. (Heilbronn v. McAleenan, 49 Hun, 607; Anderson v. McAleenan, 15 Daly, 444; Prentice v. Page, 164 Mass. 276; Collateral Loan Co. v. Sallinger, 195 Mass. 135; Boston Supply Co. v. Rubin, 214 Mass. 217; Heap v. Motorists’ Advisory Agency, 1 K. B. 577; Cuff-Waldron Manufacturing Co. v. Heald, 3 D. L. R. 1901; Busch v. Fry, 15 Ont. Rep. 122.)
   Htjbbs, J.

This case was submitted to the Appellate Division upon an agreed statement of facts. Plaintiff is engaged in the jewelry business. The defendant is a pawnbroker. Plaintiff intrusted to an employee a diamond ring to sell to one Doctor Chiaramonte for $750. At the time the employee did not intend to sell the ring, but had a preconceived design to steal it and to convert the proceeds to his own use. Thereafter the employee pledged the ring with the defendant, which in good faith loaned him $225 on it. The Appellate Division has decided that the Factors’ Act does not apply in such circumstances and that the plaintiff is entitled to recover possession of the ring without paying to the defendant the amount advanced.

The Factors’ Act (Pers. Prop. Law; Cons. Laws, ch. 41, § 43) provides: “ Every.factor or other agent, intrusted with the possession of any bill of lading * * * and every such factor or agent not having the documentary evidence of title, who shall be intrusted with the possession of any merchandise for the purpose of sale * * * shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any_ other person, for the sale or disposition of * * * such merchandise, for any money advanced * * * by such other person upon the faith thereof.” The employee of the plaintiff, in obtaining possession of the ring, was guilty of common law larceny by trick and device. (People v. Miller, 169 N. Y. 339, 354.) It is so agreed in the statement of facts. Concededly, if the employee had been guilty of embezzlement the Factors’ Act would apply, as in those circumstances the employee would ■ have rightfully obtained possession. The test seems to be whether at the time of obtaining possession, such possession was obtained with the preconceived intention of committing the crime of common law larceny by trick and device. If so, the Factors’ Act does not apply. If, however, the intent was conceived after obtaining possession, then the act applies. For over a hundred years that has been the law in this State. In Soltau v. Gerdau (119 N. Y. 380, 390) this court said: Statutes similar to this have for many years existed in England, and in most, if not all, the States of the Union, and it has never yet been held, nor, so far as we can discover, claimed in any reported case that the Factors’ Act can have any operation whatever in the case of goods taken by common law larceny from the true owner.” The same principle was applied in the case of Schmidt v. Simpson (204 N. Y. 434) and as late as the case of Stone, Inc., v. Provident Loan Society (260 N. Y. 536).

It is earnestly urged by counsel for appellant that the rule which places upon the owner the risk that his agent may decide to commit a fraud after the delivery of the article to be sold and protects the pledgee for money advanced in good faith, but in cases where the agent had decided to commit common law larceny by trick and device before delivery of the article to him, then that a pledgee in good faith is not protected, is an unreasonable rule not justified by the terms of the statute. We recognize the force of appellant’s argument. Nevertheless we feel constrained to follow an unbroken line of decisions of this court extending over many years. If a change is to be made it must be made by the Legislature.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Probate of the Will of Walter Zaiac, Deceased. Julia Taylor, Individually and as Executrix of Walter Zaiac, Deceased, Appellant; Sylvester Gruska, Consul General of Republic of Poland, as Attorney in Fact for Next of Kin of Walter Zaiac, Deceased, et al., Respondents.

      Argued January 4, 1939;
    decided January 17, 1939.

      Fred L. Gross, Pierre J. Sherry and Frank Composto for appellant.
    No particular words or form are required with respect to a nuncupative will made by a soldier in military service. (Matter of Kennedy, 167 N. Y. 163; Matter of Wallace, 148 Misc. Rep. 867; Matter of Thompson, 4 Bradf. 154; Hubbard v. Hubbard, 12 Barb. 148; 8 N. Y. 196; Matter of Mason, 121 Misc. Rep. 142.) If the Surrogate’s decree of probate was irregular in form, such irregularity could have been easily corrected by the Appellate Division and did not justify denying probate as a matter of law. (Matter of Tangerman, 226 App. Div. 162; Matter of O’Connor, 65 Misc. Rep. 403; Matter of Mattery, 247 N. Y. 580; Matter of Stein, 119 Misc. Rep. 9; Matter of Miller, 134 Misc. Rep. 671; Matter of Hickey, 113 Misc. Rep. 261; Botsford v. Kracke, 1 Abb. Pr. [N. S.] 112; Matter of Kennedy, 167 N. Y. 163; Matter of Thompson, 4 Bradf. 154; Matter of Bassett, 84 Misc. Rep. 656; Matter of Katz, 277 N. Y. 470; Post v. Moore, 181 N. Y. 15.) Aside from the contents of the letter, there was ample evidence of the declarations of the decedent to constitute legal proof of a nuncupative will, and the determination of the case by the Appellate Division, as a matter of law, is clearly erroneous. (Hadcox v. Cody, 213 N. Y. 570.) Whether the decree of the Surrogate is regarded as based upon the findings contained in his opinion or as having the effect of a general verdict of a jury, the reversal, upon the law, was wholly unjustified. (Matter of Eno, 196 App. Div. 131; Matter of Booth, 224 App. Div. 616; Matter of Findlay, 253 N. Y. 1; Gang v. Gang, 253 N. Y. 356; Saltzsieder v. Saltzsieder, 219 N. Y. 523; Matter of Berry v. Brearton, 263 N. Y. 274; Grulich v. Paine, 231 N. Y. 311; Lenox v. Lenox, 195 N. Y. 359; Kerner v. Epstein, 269 N. Y. 443; Perkins v.
      Guaranty Trust Co., 274 N. Y. 250; Hendrickson v. Hodkin, 276 N. Y. 252; Horton v. N. Y. C. R. R. Co., 237 N. Y. 38; Dulberg v. Equitable L. A. S., 277 N. Y. 17; Matter of Mallery, 127 Misc. Rep. 784.)

      Charles H. Kelby, Joseph G. Blum, Jacob Jolles and Joseph H. Stein for Sylvester Gruska, as attorney in fact, respondent.
    The unattested holographic letter written by decedent is invalid as a will. (Fisher v. Fisher, 253 N. Y. 260; Matter of Hills, 264 N. Y. 349; Matter of Booth, 127 N. Y. 109; Matter of Turell, 166 N. Y. 330; Matter of Whitney, 153 N. Y. 259; Matter of Hering v. Clement, 196 N. Y. 218; Anderson v. Mather, 44 N. Y. 249; Moritz v. United Brethrens Church, 269 N. Y. 125; Mertz v. Mertz, 271 N. Y. 466; Matter of Mallery, 247 N. Y. 580; Matter of Stein, 119 Misc. Rep. 9; Matter of Miller, 134 Misc. Rep. 671.) The evidence was wholly insufficient to support a finding of testamentary intent or the making of any will. (Hubbard v. Hubbard, 12 Barb. 148; 8 N. Y. 196; Matter of May, 241 N. Y. 1; Matter of Satar, 275 Penn. St. 420; Matter of Thompson, 4 Bradf. 154; Prince v. Hazelton, 20 Johns. 501; Matter of O’Connor, 65 Misc. Rep. 403; Matter of Smith, 6 Phila. [Pa.] 104; Pierce v. Pierce, 46 Ind. 86; Matter of McGarry, 242 Mich. 287; Drummond v. Parish, 3 Curt. 522; Matter of Limond, L. R. [1915] 2 Ch. 240; Matter of Case, 214 N. Y. 199; Matter of Mucklow, 242 App. Div. 111; 266 N. Y. 513; Dreyer v. Reisman, 202 N. Y. 476.)

      Oswald M. Murphy, special guardian for Franciszek Zajac et al., respondents.
    The reversal by the Appellate Division of the Surrogate which admitted to probate the unattested letter of September 20, 1917, written by the decedent to appellant, was proper. (Matter of Turell, 166 N. Y. 330; Matter of Dodge, 129 Misc. Rep. 323; 220 App. Div. 794; Matter of Mattery, 247 N. Y. 580.) The declarations of the decedent were wholly insufficient as a matter of law to sustain, a finding of testamentary intent and disposition. (Matter of Satar, 275 Penn. St. 420; Matter of Smith, 6 Phila. 104; Matter of McGarry, 242 Mich. 287.)
   Htjbbs, J.

Decedent, born in Poland, enlisted in the United States army on June 1, 1917. He was sent to various military camps and was stationed at Camp Mills, Long Island, from September 10, 1917, to the time he went to France on October 29, 1917. While at that camp he took out a war risk insurance policy for $5,000, naming his sister, Julia Taylor, as the beneficiary, and the brother, Hipolite, as the alternate beneficiary. While in the Lorraine sector he took out another policy for $5,000, naming the sister, Julia Taylor, as beneficiary. He was discharged from the army for disability on November 26, 1918, and on February 13, 1919, he was confined in the Kings Park State Hospital, and was adjudged incompetent in September, 1919. He died in 1934.

During the fifteen years of his incapacity the government paid certain sums to him, under his insurance policies, which sums have accumulated and now form the whole of his estate. The principal of the insurance policies is not here involved. The proceeds of the policies go to the sister as the named beneficiary. But the amounts paid monthly to the incompetent became his property, and that is the property here involved. There is no dispute as to the insurance policies. The only dispute is as to the rest of the estate of the decedent.

The appellant attempted to probate a nuncupative will of the decedent, the proof of which was in the form of a letter written from camp to the sister, and the testimony of two men who talked with the deceased while he was in camp. The Surrogate (1) admitted to probate the letter written by the deceased; (2) revoked letters of administration and granted letters testamentary; (3) directed payment of $500 to a special guardian; (4) directed payment of stenographer’s fees. The Appellate Division denied probate of the letter as the will of the deceased, as a matter of law, and refused to allow the probate of the nuncupative will testified to by the two witnesses on the ground that there was no evidence as a matter of law to support a finding that there had been an oral will legally made. The provisions for the payment of fees to the special guardian and the stenographers were affirmed.

The letter allowed probate by the Surrogate follows:

With the Colors

September 20, 1917.

Dear Sister:

“ I inform you that I am still where I have been, that I am in good health and am wishing that the Almighty God keep you the same.

I want to know whether brother Hipólita has already left for the Camp, let me know about it if he has not left as yet. .

Now, loving sister, I want you to know that I had myself insured today for $5,000 (five thousand dollars) and it was drawn in your name and in the name of Brother Hipólita, but you are first and the brother is second. I know when I am not alive, you will get the money, but do no injustice to the brother, you would have to pay to brother Hipólita, thousand dollars, if he is alive, and if he is not alive, then everything is yours.

This is my Will in which I bequeath to you all.

“ Your ever well-wishing brother,

“ WLADYSLAW ZAIAC.”

There are three questions involved: (1) May an unattested writing (a letter) of a soldier in active service be probated as a nuncupative will? (2) If not, is there any evidence to sustain the findings of the Surrogate that a nuncupative will was legally made? (3) If there is, may the Court of Appeals direct the probate of that will in the circumstances here presented?

The learned Surrogate is persuasive in his reasoning that a letter should be admitted as a nuncupative will. Certainly the written word of the deceased is as good evidence of the will of the deceased as is the recollection of two witnesses, after twenty years, of what the deceased said. But the law appears to bar the probate of such a letter as a will. Section 141 of the Surrogate’s Court Act provides: “ Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, and competent and able to testify * * * Before a nuncupative will is admitted to probate, its execution and the tenor thereof must be proved by at least two witnesses. The proofs must be reduced to writing.” Section 21 of the Decedent Estate Law (Cons. Laws, ch. 13) provides for the manner of the execution of written wills, and section 16 of the Decedent Estate Law reads: “Unwritten wills of personal property, when allowed. No nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual military service, or by a mariner, while at sea.”

In the face of these provisions it is difficult to see how an unattested letter can be probated as a will even when written by a soldier. The law seems to be that if the will of a soldier is written it must be subscribed by two witnesses. Here there was no proof of the execution and the tenor of the letter by two witnesses. The testimony by the two witnesses was of an oral will. Such being the case, the law has not been complied with when an unattested letter is the only evidence of the will. Matter of Stein (119 Misc. Rep. 9) and Matter of Miller (134 Misc. Rep. 671) so held. The Surrogate so decided in Matter of Mattery, and that case was affirmed by the Appellate Division and the Court of Appeals (247 N. Y. 580). The Surrogate there wrote an opinion and specifically stated that the letters were not executed in the manner prescribed for a written will and could not be probated. The first point argued on appeal to the Court of Appeals was that the Surrogate erred in not admitting the letters to probate. The case stands as a direct holding that the unattested letters could not be probated. Both by reason and authority the Appellate Division was correct in denying probate to the letter.

But the Surrogate, in his signed opinion, found that the oral will was validly executed. The opinion of the Appellate Division states that there was no evidence as a matter of law to support such a finding of fact. Evidently what the Appellate Division had in mind was that the testimony of the two witnesses as to what the deceased said was that the deceased was talking only about the insurance policies when he said he wanted his sister to have his property, and that the deceased had no testamentary intention. The Appellate Division could readily have found that he had no testamentary intention and that he was merely concerned with the insurance policies, but it cannot be said that the testimony is not subject to the interpretation given the evidence by the Surrogate. Possibly the deceased had in mind only the insurance policies at the time because that is all his estate was composed of. But the Surrogate found that he was thinking primarily of his estate and only incidentally that his estate consisted merely of the policies. Such an inference is permissible, and thus there is evidence to support a finding of fact that the deceased executed a nuncupative will. After the witnesses testified that “ He said he had to sign property to the sister ” and that if anything happened to the deceased the sister gets his property,” the testimony brought out on cross-examination indicated that what he had in mind, was his insurance policies. But that was because at that time that was all that his estate was composed of. Furthermore, it does not require a stretching of the expressed intention too far to hold that even if he did not mean his estate as such, he at least meant the proceeds of the policies. The estate here consists merely of the proceeds of the policies, but such proceeds are no longer payable as insurance but have become part of the estate. In any event, the Surrogate had the right to interpret the intention of the deceased as being testamentary. Two inferences were possible where the Appellate Division has decided that only one was possible, and it was in error in holding there was no evidence to sustain the Surrogate’s findings.

The question of procedure becomes important. It is urged by the appellant that the Surrogate made a finding of fact that a valid oral will had been executed and that this finding was affirmed by the Appellate Division by its failure to reverse the finding of fact and by its holding that there was no evidence as a matter of law to sustain the finding. If that is so, then upon a determination that there was evidence as a matter of law to sustain the finding, the holding of this court would amount to a direction to the Surrogate to grant probate to the oral will.

Undoubtedly the mind of the Surrogate was made up that a valid oral or nuncupative will had been executed, and I think the statements in his opinion constitute findings of fact that the oral will was validly executed. He said: “ It follows that not only is a will by nuncupation permissible, but the alternate common-law privilege of a disposition by unattested holographic instrument must be sustained. * * * It is obvious, therefore, that, even were the holograph to be disregarded, probate of the nuncupative will must be allowed ” (162 Misc. Rep. 642, 652, 656). Further, “ The court is satisfied that the holograph is the more rehable and accurate reflection of the wishes of this soldier. * * * The holographic instrument hereinbefore quoted will accordingly be admitted to "probate, and letters will issue to Julia Taylor as the executrix thereof, according to the tenor of the will” (p. 656).

It is also urged that the Surrogate did give effect to the oral will and merely admitted the letter to probate as corroborative of the disposition to which the witnesses testified. That, no doubt, could have been done by the Surrogate, but a reading of his opinion fails to support such contention. They are almost identical, but the letter differs from the oral will in that it directs that the brother be given one thousand dollars. This is perhaps no more than a wish of the deceased, since he was directing what was to be done with the money which the sister would get as beneficiary. While he had a right to tell her how he wished her to dispose of the money which she would get in that manner, there was no contract that she would do so. The only dispositary provision was the last sentence in which he said: This is my Will in which I bequeath to you all.” That was substantially what the witnesses testified the deceased said he wanted done.

It is also urged that there was no appeal from a denial of the probate of the oral will. There was no need to appeal when the petitioner was not aggrieved. She would take, under the letter probated, just what she would take under the other will. She could not appeal from a decision in her favor — she was not aggrieved.

It matters not whether the signed opinion of the Surrogate be treated as containing findings of fact (Matter of Booth, 224 App. Div. 616) or whether the decision is given the effect of a verdict by a jury (Surr. Ct. Act, § 71). In either event a reversal upon the law constitutes an affirmance of the facts found (Civ. Prac. Act, §§ 602, 620). Under the facts found the learned Surrogate adopted a wrong theory in formulating the decree. The error in that respect did not justify the Appellate Division in refusing probate as a matter of law. It should either have made new findings of fact or remitted the proceeding to the Surrogate’s Court.

The order of the Appellate Division, in so far as it denies probate, should be reversed, and the matter remitted to the Surrogate’s Court with instructions to admit the will to probate, with costs in this court and in the Appellate Division, payable out of the estate.

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

Ordered accordingly.


author: Hubbs, J.

text:
    Nicholas J. Karl, Appellant, v. State of New York, Respondent. Emma F. Karl, Appellant, v. State of New York, Respondent.
    (Claim No. 24751.)
    (Claim No. 24752.)

      Argued January 5, 1939;
    decided January 17, 1939.

      J. Frederick Colson for appellants.
    The record discloses ample evidence to sustain the findings of fact. (Partola Mfg. Co. v. General Chemical Co., 234 N. Y. 320; Matthews v. Truax, Carsley & Co., 265 N. Y. 6.) The State is liable because the defect which caused the accident was due to the negligence of a State officer. (Doulin v. State, 277 N. Y. 558; Ross v. State, 265 N. Y. 632; Whitney v. Town of Ticonderoga, 127 N. Y. 40; Hume v. Mayor, 74 N. Y. 264; Jewhurst v. Syracuse, 108 N. Y. 303; Hinds v. State, 144 Misc. Rep. 464; 240 App. Div. 742; 264 N. Y. 525; Miller v. State, 137 Misc. Rep. 768; 231 App. Div. 363; Floss v. State, 240 App. Div. 944; Logan v. State, 162 Misc. Rep. 793.)

      John J. Bennett, Jr., Attorney-General (John M. Dooley and Leon M. Lay den of counsel), for respondent.
    The accident having occurred outside of the period between May 1st and November 15, and having resulted from a defect in the highway, the State is not hable. (Whitney v. Town of Ticonderoga, 127 N. Y. 40; Cons. Laws, ch. 25, § 58; Smith v. State, 227 N. Y. 405; Hinds v. State, 264 N. Y. 525.)
   Hubbs, J.

The Elmira-Rochester State highway is a heavily traveled road. It is in charge of the State Superintendent of Public Works (Highway Law [Cons. Laws, ch. 25], § 12). On November 20, 1935, an automobile accident occurred near Conesus, which was caused by a so-called fat spot on the surface of the tarred road, without negligence on the part of the claimants. A “ fat spot ” was described by a witness as a spot where there is an excessive amount of bituminous material on the surface of the pavement. The spot was about thirty feet long and fifteen feet wide. It was very smooth and became very slippery when wet. It was wet at the time of the accident. It had been in that condition for some time and a number of accidents had happened because of the condition. Notice had been received by the County Superintendent of Highways of the condition and of the prior accidents. On the day of the accident, November 20, 1935, he was notified of the accident here in question and he went to the place of the accident and examined the pavement. On November 10, 1935, ten days before the accident, he wrote a letter to the Assistant County Engineer, a State employee in charge of the road at the place in question, and called his attention to previous accidents and the condition of the pavement at the place in question. Nothing was done, however, between the date of the letter of November 10th and the time of the accident, to remedy the condition, to post warning signs, or in any other way to guard against accidents. While the County Superintendent is a county officer, he is under the supervision of the Superintendent of Public Works (Highway Law, § 102), and he is the person to whom complaints are made of defects in highways. The County Engineer was a State employee in charge, and notice to him was notice to the State.

The Court of Claims found as a fact that plaintiffs were free from negligence and that said accident was caused and said damages were sustained by reason of the negligence of the State, its officers and employees.” That negligence was the negligence of the State and its employees in failing to take any action to protect travelers on the highway from the known danger prior to November 15th. An award was made in favor of the claimants.

By section 12-a of the Court of Claims Act (Laws of 1920, ch. 922, as amd. by Laws of 1929, ch. 467; Laws of 1936, ch. 775) the State waives its immunity for the torts of its officers and employees and confers jurisdiction upon the Court of Claims to determine claims for negligence of its officers and employees. The Appellate Division has decided that there can be no recovery in this case because the accident happened as a result of a defect in the highway which occurred after November 15th, at which time, under section 58 of the Highway Law, the State is not liable for damages growing out of accidents caused by defects in State highways. Section 58 provides: Liability of state for damages. The state shall not be liable for damages suffered by any person from defects in state highways, except between the first day of May and the fifteenth day of November on such highways as are maintained by the state under such system as the superintendent of public works may adopt pursuant to section twelve, but the liability for such damages shall otherwise remain as now provided by law, notwithstanding the construction or improvement and maintenance of such highways by the state under this chapter.”

The Appellate Division reversed the awards made to claimants by the Court of Claims and dismissed the claims as a matter of law. It did not, however, reverse any of the findings of the Court of Claims, or make any new findings. The findings of the Court of Claims, therefore, stand as affirmed by the Appellate Division. (Civ. Prac. Act, § 602; Matthews v. Truax, Carsley & Co., 265 N. Y. 6.) If the record contains any evidence to sustain those findings, the awards must be affirmed. We believe there was such evidence. The Assistant Engineer of the State, in charge, had written notice by the letter of November 10th, written by the County Superintendent of Highways, of previous accidents and of the slippery and dangerous condition of the pavement, and during those ten days took no steps to guard the traveling public from the danger of which he had notice.

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

Crane, Ch. J., Lottghran, Finch and Bippey, JJ., concur; O’Brien, J., dissents for the reasons stated in the opinion of the Appellate Division; Lehman, J., taking no part.

Judgment accordingly.


author: Per Curiam.

text:
    County of Herkimer, Appellant, v. Village of Herkimer et al., Respondents.
    Argued December 7, 1938;
    decided January 17, 1939.

      Chester J. Winslow, County Attorney {Warwick J. Kernan of counsel), for appellant.
    Property, title to which is acquired by a county pursuant to statute as the result of a tax sale, is held for a public use within the meaning of the Tax Law (Cons. Laws, ch. 60). (Bush Terminal Co. v. City of New York, 152 Misc. Rep. 144; Williams v. Lash, 8 Minn. 496.)

      Francis J. Moore for respondents.
    The property sought to be assessed and taxed by the village of Herkimer is not being held for public use. (People ex rel. Gould v. Barker, 150 N. Y. 52; Board of Education v. Baker, 241 App. Div. 574; 266 N. Y. 636; People ex rel. Mizpah Lodge v. Burke, 228 N. Y. 245; People ex rel. Savings Bank v. Coleman, 135 N. Y. 231; People ex rel. Delta Kappa Epsilon Society v. Lawler, 74 App. Div. 553; 179 N. Y. 535; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574; Lloyd v. Mayor, 5 N. Y. 369; Bailey v. Mayor, 3 Hill, 531; Town of Huntington v. Bradford, 273 N. Y. 603; Clark v. Sprague, 113 App. Div. 645; Village of Watkins Glen v. Hager, 140 Misc. Rep. 816; 234 App. Div. 904; Pickell v. City of Utica, 161 App. Div. 1; 216 N. Y. 740; Common School District No. 3 v. County of Chemung, 160 Misc. Rep. 477; Y. W. C. A. v. City of New York, 217 App. Div. 406; 245 N. Y. 562; People ex rel. Y. M. Assn. v. Sayles, 32 App. Div. 197; 157 N. Y. 677; Matter of Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375; Brown v. Gerald, 100 Me. 351.)
   Per Curiam.

Property purchased by a county at a tax sale held pursuant to the provisions of articles 6 and 7 of the Tax Law (Cons. Laws, ch. 60) is not property held for a public use ” within the meaning of section 4 (subd. 3) of the Tax Law. Section 50, subdivision 2, of the Tax Law, by its terms, applies only to the assessment rolls of tax districts.” As defined by the statute, tax districts ” do not include incorporated villages. We read the statute as it is written.

The judgment should be affirmed, without costs.

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

Judgment affirmed.


text:
    The People of the State of New York ex rel. Mina Folk, Appellant, against John J. McNulty, as Sheriff of the County of Albany, Respondent.

      Argued January 17, 1939;
    decided January 18, 1939.

      Robert E. Whalen and George W. Foy for appellant.
    The Police Court of the City of Albany has exclusive jurisdiction to try and determine all charges of misdemeanor committed within that city, including the misdemeanor with which relator has been charged. (Cons. Laws, ch. 53, §§ 180, 183, 250; House v. Bodour, 168 Misc. Rep. 766; Cons. Laws, ch. 64, § 182; People v. Monahan, 257 N. Y. 388; People v. Kischel, 276 N. Y. 116; People ex rel. Kohut v. Hendrickson, 249 App. Div. 528; 276 N. Y. 563; People v. McCarthy, 168 N. Y. 549; People v. Roberts, 91 Misc. Rep. 229; Matter of Defazio v. Oneida County Court, 140 Misc. Rep. 487; People v. Sansone, 147 Misc. Rep. 581; People ex rel. Kipper v. Ellinger, 239 App. Div. 647; 266 N. Y. 423; People ex rel. Saranac Land & Timber Co. v. Supreme Court, 220 N. Y. 487.) The Extraordinary term is without power to try relator for the misdemeanor charged in the case pending against her in the Albany Police Court. (People ex rel. Mayor v. Nichols, 79 N. Y. 582; Matter of Stilwell, 139 N. Y. 337; People v. Coughtry, 58 Hun, 245; 125 N. Y. 723; People v. Monahan, 257 N. Y. 388; People ex rel. Kohut v. Hendrickson, 249 App. Div. 528; 276 N. Y. 563; Prescott v. Ferris, 251 App. Div. 113; Matter of Davies, 168 N. Y. 89; People ex rel. Burby v. Howland, 155 N. Y. 270; Darweger v. Staats, 267 N. Y. 290.) The conflict between section 67 of the Executive Law (Cons. Laws, ch. 18) and section 183 of the Second Class Cities Law must be resolved in favor of the latter as the latest expression of the legislative will. (Matter of City of New York v. Deyo, 158 App. Div. 319; 213 N. Y. 706; People v. O’Brien, 38 N. Y. 193; Koster v. Coyne, 184 N. Y. 494; People ex rel. Fowler v. Bull, 46 N. Y. 57; Matter of Mead, 74 N. Y. 216; Matter of Tiffany, 179 N. Y. 455; Excelsior Petroleum Co. v. Lacey, 63 N. Y. 422; Matter of La Rocca v. Flynn, 257 N. Y. 5; Polhemus v. Fitchburg R. R. Co., 123 N. Y. 502; Matter of Thomas, 216 N. Y. 426; Hyatt v. Taylor, 42 N. Y. 258; People ex rel. Brown v. Woodruff, 32 N. Y. 355.)

      John J. Bennett, Jr., Attorney-General {Henry Epstein and John R. O’Hanlon of counsel), for respondent.
    The Extraordinary Term, appointed by the Governor under section 67 of the Executive Law (Cons. Laws, ch. 18) and the grand jury summoned for such term, have jurisdiction to inquire into, to indict for and to try all violations of article 74 of the Penal Law in the county of Albany, including the violation of such article of the Penal Law by the relator. (People v. Tru-Sport Pub. Co., 160 Misc. Rep. 628; DeHart v. Hatch, 3 Hun, 375; People ex rel. Mayor v. Nichols, 79 N. Y. 582; Barone v. Ætna Life Ins. Co., 260 N. Y. 410; Jones v. People, 79 N. Y. 45; People v. Farini, 239 N. Y. 411; People v. Wenk, 71 Misc. Rep. 368; People v. McCarthy, 168 N. Y. 549; Matter of Church, 92 N. Y. 1; Admiral Realty Co. v. City of New York, 206 N. Y. 110; People ex rel. Kipper v. Ellinger, 239 App. Div. 647; 266 N. Y. 423; People ex rel. Willett v. Quinn, 150 App. Div. 813; People v. England, 91 Hun, 152; People v. Luft, 192 App. Div. 713; People v. Harrison, 238 N. Y. 348.)
   Per Curiam.

Albany is a city of the second class.

By the Second Class Cities Law (Cons. Laws, ch. 53), section 183, the Police Court is given exclusive jurisdiction to try and determine all charges of misdemeanors, committed within the city. We find similar provision in section 56 of the Code of Criminal Procedure pertaining to Courts of Special Sessions outside of the city and county of New York and the city of Albany. These courts have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors within their respective counties.

Upon a certificate of a county judge or a justice of the Supreme Court, stating that it is reasonable that such misdemeanor be prosecuted by indictment, the charge may be.removed to a grand jury.' All these provisions relate to the jurisdiction of courts to try and dispose of misdemeanors.

There is another act of the Legislature, however, besides the Code of Criminal Procedure which relates to the prosecution of crime. It is section 67 of the Executive Law (Cons. Laws, ch. 18), which, as its very terms indicate, is a superseding act. Whenever the Attorney-General shall advise the Governor that there is occasion for an Extraordinary Term in a county to inquire into and try cases arising under article 74 of the Penal Law, the Governor may appoint an Extraordinary Term of the Supreme Court to be constituted and held for the trial of criminal cases in such county pursuant to section 153 of the Judiciary Law (Cons. Laws, ch. 30). Jurors shall be summoned for the term. This power under section 67 relates solely to crimes against the elective franchise and prosecutions under the Election Law (Cons. Laws, ch. 17) and article 74 of the Penal Law which is the provision relating to the elective franchise. The purpose of this act is to provide a method of prosecuting all crimes relating to this subject when the Attorney-General advises that there has been a breakdown in the enforcement of the law. When the Governor appoints the Extraordinary Term upon the Attorney-General’s recommendation it would be strange indeed if the court and the grand jury could only deal with felonies but not misdemeanors. The very purpose for which the extraordinary remedy is afforded would thus be crippled by reaching only half or at least a portion of the offenses.

We are of the opinion that section 67 of the Executive Law conferred jurisdiction upon the judge and the grand jury of this Extraordinary Term to investigate all and any crimes connected with the elective franchise.

Upon this ground, without considering any other, the order appealed should be affirmed, without costs.

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

Order affirmed.


text:
    In the Matter of the Liquidation of Lawyers Title and Guaranty Company. Stewart Forshay, as Trustee, et al., Respondents; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Title and Guaranty Company, Appellant.
    Argued October 3, 1938;
    decided October 25, 1938.

      J. Donald Whelehan, Irving H. Jurow and Herman Berniksr for appellant.

      Michael F. Dee, Louis Glickhouse, Arthur Rosenberg and Maurice Finkelstein for Mortgage Commission of the State of New York, respondent.

      Leon London and Harry J. Chernock for Stewart Forshay, respondent.

      Frank W. Chambers and Frederick J. Wilkens for Trustees of Series No. 400,572 of Lawyers Title and Guaranty Company, amici curios.

   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Charles E. Singer, Appellant, against Mark Graves, as Commissioner of Taxation and Finance of the State of New York, et al., Respondents.
    Submitted October 5,1938;
    decided October 25, 1938.

      John T. DeGraffior appellant.

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune of counsel), for respondents.
   Order affirmed, with costs; no opimon.

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


text:
    In the Matter of Louise Lorch, Respondent. Caroline M. Lorch, as Executrix of William H. Lorch, Deceased, et al., Appellants.
    Argued October 5, 1938;
    decided October 25, 1938.

      Albert W. Sibek and Ellwyn F. Hayslip for Caroline M. Lorch, appellant.

      William S. Bennet and James E. Bennet for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of Iroquois Gas Corporation, Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York et al., Respondents.
    Argued October 5, 1938;
    decided October 25, 1938.

      Daniel J. Kenefick for appellant.

      Laurence J. Olmsted and Gay H. Brown for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Park & Tilford Import Corporation, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued October 5, 1938;
    decided October 25, 1938.

      MaxL. Rothenberg and Max M. Hirson for appellants.

      John J, Bennett, Jr., Attorney-General (Edward J. Gretchen and Henry Epstein of counsel), for respondents.
   Appeal from order of Appellate Division granting respondents’ motion for leave to serve an amended answer dismissed, without costs.

Order of Appellate Division confirming determination of” the State Tax Commission affirmed, with costs. No opinion.

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


text:
    Esther L. Allen, as Administratrix of the Estate of Leroy H. Allen, Deceased, Respondent, v. Thomas Ennis, Defendant, and Keller Motor Car Company, Appellant.
    Argued October 5, 1938;
    decided October 25, 1938.

      William F. Santry for appellant.

      Albert E. Campbell and Ronald J. Dunn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael McDermott, as Executor of John McDemott, Deceased, Respondent, v. Anna McD. Bennett et al., Appellants, and First National Bank and Trust Company of Baldwinsville et al., Respondents.
    Argued October 6, 1938;
    decided October 25, 1938.

      D. Charles O’Brien for appellants.

      Lawrence Conboy for plaintiff, respondent.

      Francis Preston for Florence McDermott, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph S. Robinson, Appellant, v. Mildred S. Robinson, Respondent.
    Argued October 6, 1938;
    decided October 25, 1938.

      The following questions were certified:
    “ 1. Did the Special Term have power to vacate the orders and judgment herein? ■
    “ 2. Did the Supreme Court have power in this action to enjoin a citizen of this State from prosecuting in a foreign jurisdiction an action to obtain a decree of divorce on grounds not recognized in this State, where the marriage res is within the State of New York and the defendant is personally served without the State pursuant to an order for such service? ”

      John P. McGrath for appellant.

      Murray E. Harston and Sidney Hein for respondent.
   Order affirmed, with costs. First question certified answered in the affirmative; second question certified not answered. No opinion.

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


text:
    In the Matter of the Claim of Mary Grasso, Respondent, against Donaldson-Reynolds, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued October 6, 1938;
    decided October 25, 1938.
    Charles P. Barre for appellants.

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

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


text:
    In the Matter of the Claim of Frank C. Lissow, Respondent, against Mabbett Motors, Inc., Employer, and State Insurance Fund, Appellant. State Industrial Board, Respondent.
    Argued October 6, 1938;
    decided October 25, 1938.

      George J. Hayes and Patrick S. Mason for appellant.

      Henry Redman Dutcher and Leonard D. Marafioti for claimant, respondent.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for State Industrial Board, respondent.
   Order of Appellate Division reversed and claim dismissed with costs against State Industrial Board on the ground there is no evidence of advance payment within the meaning of section 28 of the Workmen’s Compensation Law. No opinion.

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


text:
    In the Matter of the Claim of Maria L. Botta, Appellant, against Tosti Construction Co., Inc., et al., Respondents. State Industrial Board, Appellant.
    Argued October 6, 1938;
    decided October 25, 1938.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for State Industrial Board, appellant.

      Irving I. Goldsmith and Monroe Gollenburg for claimant, appellant.

      William B. Davis and E. C. Sherwood for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of Maria Swanson, Respondent, against Ira A. Campbell et al., Appellants. State Industrial Board, Respondent.
    Argued October 6, 1938;
    decided October 25, 1938.

      William E. Lyons for appellants.

      Joseph Arcoleo for claimant, respondent.

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

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


text:
    In the Matter of the Claim of Graydon A. Cowles, Respondent, against United States Rubber Products, et al., Appellants. State Industrial Board, Respondent.
    Argued October 6, 1938;
    decided October 25, 1938.

      James H. O’Connor for appellants.

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

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


text:
    In the Matter of the Claim of Leigh Bair, Respondent, against Feer Realty Corporation et al., Appellants. State Industrial Board, Respondent.
    Argued October 6, 1938;
    decided October 25, 1938.

      Sydney Weitzer for appellants.

      Nathan H. Elman for claimant, respondent.
   Order of Appellate Division reversed and award of State Industrial Board affirmed, with costs in this court and in the Appellate Division. There was substantial evidence sufficient to create a question of fact as to the cause of death. The decision of the State Industrial Board was, therefore, final. No opinion.

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


text:
    Florence Dinegar, Appellant, v. Edward C. Sweeney, Individually and Doing Business under the Name of New Worden Hotel, Respondent.
    Argued October 6, 1938;
    decided October 25, 1938.

      J. S. Carter and M. J. Conboy for appellant.

      Rollin B. Sanford for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Frank Labicki, Appellant, v. Warden of Auburn State Prison, Respondent.
    Submitted October 7, 1938;
    decided October 25, 1938.

      Frank Labicki, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune and Edward T. Boyle of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Joseph Scarola, Appellant, v. Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted October 7, 1938;
    decided October 25, 1938.

      Joseph Scarola, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Patrick H. dune and Edward T. Boyle of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of Empire Trust Company, as Trustee under the Will of Thomas B. Hidden, Deceased, Appellant. James E. Carroll, as Special Guardian for Marjorie Sully et al., Infants, et al., Respondents.
    Argued October 7, 1938;
    decided October 25, 1938,

      William L. Woodward, William A. Mulvey and Daniel F. Cory for appellant.

      Benjamin E. Messier, James E. Carroll and Bernard Hess for respondents.
   Order affirmed, with costs to all parties filing separate briefs payable out of the estate, and the question certified answered in the affirmative. Motion to dismiss appeal denied, without costs. No opinion.

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


text:
    The People of the State of New York ex rel. Jessie C. Hagy, Individually and as Executrix of Robert M. Chalmers, Deceased, Respondent, v. Nicholas J. Fahrenkopf, as Commissioner of Assessments of the City of Albany, et al., Appellants.
    Argued October 7, 1938;
    decided October 25, 1938.

      Joseph J. Casey, Corporation Counsel, for appellants.

      Ernest B. Morris, William E. Woollard, John C. Watson and John C. Looby for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Alice H. Woollard, Respondent, v. Nicholas J. Fahrenkopf, as Commissioner of Assessments of the City of Albany, et al., Appellants.
    Argued October 7, 1938;
    decided October 25, 1938.

      Joseph J. Casey, Corporation Counsel (Thomas W. Cant-well of counsel), for appellants.

      Ernest B. Morris and William E. Woollard for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Abe Cooperman, Appellant.
    Submitted October 10, 1938;
    decided October 25, 1938.

      Abraham Umanov and Samuel Weiss for appellant.

      Thomas E. Dewey, District Attorney (Charles C. Tilling-hast, Jr., and Harris B. Steinberg of counsel), for respondent.
   Judgments reversed and information dismissed for lack of evidence of the crime charged. No opinion.

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


text:
    Kathleen Toomey, Respondent, v. Western Union Telegraph Company, Appellant.
    Argued October 10, 1938;
    decided October 25, 1938.

      John H. Waters, Francis R. Stark and John H. Walrath for appellant.

      Leonard H. Amdursky for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frederick Avery, Appellant. The People of the State of New York, Respondent, v. Alex Rosenswaike, Appellant. The People of the State of New York, Respondent, v. Harry Yale, Appellant.
    Argued October 10, 1938;
    decided October 25, 1938.

      Allen Caruthers for Frederick Avery, appellant.

      Elvin N. Edwards for Alex Rosenswaike and Harry Yale, appellants.

      William F. X. Geoghan, District Attorney (George F. Palmer, Jr., of counsel), for respondent.
   As to each defendant: judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Abraham Schenck, Appellant.
    Argued October 10, 1938;
    decided October 25, 1938.

      Louis P. Goldberg Benjamin Wyle and Joseph G. Josephson for appellant.

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

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


text:
    In the Matter of Rudy’s New Yorker, Inc., Respondent, against Everett Frooks, Appellant.
    Argued October 11, 1938;
    decided October 25, 1938.

      William J. Sleekier and David Steckler for appellant.

      Sydney D. Robins for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Mendelson Bros. Factors, Inc., Appellant, v. Arthur Sachs et al., Individually and as Copartners under the Name of Goldman Sachs & Co., et al., Respondents, Impleaded with Another.
    Argued October 11, 1938;
    decided October 25, 1938.

      Sidney S. Botíbé and Alexander Slater for appellant.

      Walter H. Poliak and Mordecai Rochlin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gordon Renegar, Respondent, v. Harry W. Barry, Appellant.
    Argued October 11, 1938;
    decided October 25, 1938.

      Ralph W. Dox and Ulysses S. Thomas for appellant.

      Albert J. Waterman for respondent.
   Judgment affirmed, with costs; no opinion. (See 279 N. Y. 685.)

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


text:
    Carl Dinkuhn, Appellant, v. Western New York Water Company, Respondent.
    Argued October 11, 1938;
    decided October 25, 1938.

      Harry D. Sanders, Chester McNeil and J. Eugene McMahon for appellant.

      Clayton M. Smith and Fred Van Aernam for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis H. Pink, Superintendent of Insurance of the State of New York, as Conservator of Assets of International Reinsurance Corporation of Dover, Delaware, Appellant, v. Coleman & Coleman, Inc., Respondent.
    Argued October 11, 1938;
    decided October 25, 1938.

      The following questions were certified:

      “ 1. Should the motion of the plaintiff for summary judgment have been granted?

      “ 2. Should the defenses and setoffs contained in paragraphs marked ‘ 5 ’ to ‘ 24/ inclusive, of the amended answer have been stricken out as having been improperly interposed?
    “ 3. Should paragraphs ‘ 5 ’ to ‘ 24/ inclusive, of the amended answer have been stricken out as contravening the order of liquidation dated April 21, 1933?”

      Irvin Waldman and Alfred C. Bennett for appellant.

      Clifton F. Weidlieh for respondent.
   Order affirmed, with costs, and questions certified answered in the negative. No opinion.

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


text:
    In the Matter of Max Brown, Appellant. New York County Lawyers’ Association, Respondent.
    Submitted October 17, 1938;
    decided October 25, 1938.

      Max Brown, in person, for motion.

      George B. Adams opposed.
   Motion denied on the ground that the order is not final.

       On reargument, on December 6, 1938, motion granted.


text:
    In the Matter of Mortgage Investments Guaranteed by Lawyers Westchester Mortgage & Title Company and Westchester Title and Trust Company. Charles A. Herman et al., Appellants; Charles J. F. Decker et al., Respondents.
    Submitted October 17, 1938;
    decided October 25, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 278 N. Y. 593.)


text:
    Ethel Zeiger et al., Appellants, v. Interborough Rapid Transit Company et al., Respondents.
    Submitted October 24, 1938;
    decided October 25, 1938.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.
   No one opposed.

Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants serve and file an undertaking and perfect appeal on or before November 7, 1938, in which event the motion is denied.


text:
    Harold D. Percival, Appellant, v. John Hirzler et al., Respondents.
    Submitted October 24, 1938;
    decided October 25, 1938.

      W. Earle Costello for motion.

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


text:
    In the Matter of Frank P. Masone, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Defendants, and H. Schwebech et al., Appellants.
    Argued October 26, 1938;
    decided October 27, 1938.

      Sydney Rosenthal and Mortimer M. Cassidy for appellants.

      M. M. Leiman for respondent.

      William C. Chanter, Corporation Counsel (Seymour B. Quel and Russell Lord Tarbox of counsel), for S. Howard Cohen et al., constituting the Board of Elections of the City of New York, defendants.
   Appeal dismissed. The order is not a final order. This court is limited by the terms of the order itself, unaffected by the opinion. No opinion.

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


text:
    In the Matter of Catherine Dowgwilla, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Defendants, and Alexander Christie et al., Appellants.
    Argued October 26, 1938;
    decided October 27, 1938.

      Sydney Rosenthal and Mortimer M. Cassidy for appellants.

      M. M. L&iman for respondent.

      William C. Chanler, Corporation Counsel (Seymour B. Quel and Russell Lord Tarbox of counsel), for S. Howard Cohen et al., constituting the Board of Elections of the City of New York, defendants.
   Appeal dismissed. The order is not a final order. This court is limited by the terms of the order itself, unaffected by the opinion. No opinion.

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


text:
    In the Matter of Chris J. Flanagan, Appellant, against Harry H. Flemming, Respondent.
    Argued October 27, 1938;
    decided October 27, 1938.

      William A. Kaercher for appellant.

      George F. Kaufman and Robert G. Groves for respondent.
   Order of Appellate Division reversed and that oi Special Term affirmed. The voter Davide did not bring himself within the provisions of section 203 of the Election Law, and the omissions are not mere irregularities. No opinion.

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


text:
    In the Matter of Fred G. Moritt, Appellant and Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York and the County Board of Canvassers of the County of Kings, et al., Defendants, and Lloyd I. Herzka, Respondent and Appellant.
    Argued October 27, 1938;
    decided October 27, 1938.
   Per Curiam.

We give our judgment upon the ballots submitted to us for determination. We number them according to exhibit numbers. The following ballots, according to exhibit numbers, are declared void: 11, 60, 77, 81, 86, 90, 97, 107, 128, 29, 103, 106, 85.

The following ballots we find to be good and should be counted accordingly: 19, 44, 51 (objections withdrawn), 114 (objections withdrawn), 95, 115 (objections withdrawn), 119, 78, 123.

The order should be affirmed.

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

Order affirmed.


text:
    Louis Seidman et al., Respondents, v. New York Life Insurance Company, Appellant.
    Submitted October 12,1938;
    decided October 28,1938.

      Lee M. Gammill and Louis H. Cooke for appellant.

      Christian S. Lorentzen for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rose Reinhardt, Appellant, v. Philip Lehman, as Receiver of 436 Jersey Corp., Respondent.
    Argued October 13,1938;
    decided October 28,1938.

      Sidney Eisen and Barnet L. Asrelan for appellant.

      C. 0. Donahue, Barent L. Visscher, John C. Howes and William J. Ahearn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael Kobryn et al., Respondents, v. Travelers Insurance Company, Appellant.
    Submitted October 13,1938;
    decided October 28,1938.

      Louis P. Galli and William J. Moran for appellant.

      David M. Engelson and Sidney Bur stein for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Oliver C. Wagstaff et al., Appellants, v. Holly Sugar Corporation et al., Respondents.
    Argued October 13,1938;
    decided October 28,1938.

      Arleigh Pelham and James L. Banks, Jr., for appellants.

      T. F. Davies Haines, Charles Oarside, Gerhard R. Gerhard, Henry C. Smith and A. C. Patterson for respondents.
   Judgment affirmed, with costs; no opinion. (See 279 N. Y. 686.)

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


text:
    Celia D. White, Respondent, v. Fishkill Electric Railway Company Appellant.
    Argued October 14,1938;
    decided October 28,1938.

      Stanley B. Johnson and William A. Earl for appellant.

      Leonard J. Supple for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frances Cartelli, Appellant, v. Prudential Insurance Company of America, Respondent.
    Submitted October 24, 1938;
    decided October 28,1938.
   Motion for leave to appeal as a poor person granted to the extent of permitting appellant to prosecute appeal as a poor person. (See Siegelbaum v. Dowling, 279 N. Y. 22.)


text:
    In the Matter of Terese G. Spiegelberg, Appellant and Respondent, against Fiorello H. LaGuardia et al., as Trustees of New York City Employees’ Retirement System, Respondents and Appellants.
    Argued October 4, 1938;
    decided November 22,1938.

      George A. Spiegelberg, Milton Goldman and Isidor Neuwirth for petitioner, appellant and respondent.

      William C. Chanler, Corporation Counsel (Seymour B. Quel and Nicholas Bucci of counsel), for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. David Lucas, Appellant.
    Argued October 10,1938;
    decided November 22,1938.

      David E. Jeffery and Michael J. Noonan for appellant.

      Raymond A. Knowles, District Attorney (Harry L. Gilrie of counsel), for respondent.
   Judgment of conviction affirmed, no opinion.

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


text:
    The People of the State of New York, Respondent, v. Salvatore Gati and Charles Sberna, Appellants.
    Argued October 11,1938;
    decided November 22,1938.

      John Me Kim Minton, Jr., and Robert M. Davis for Salvatore Gati, appellant.

      Erwin N. Schapira, Ralph J. Barra and Caesar B. F. Barra for Charles Sberna, appellant.

      Thomas E. Dewey, District Attorney (Felix C. Benvenga, Jacob J. Rosenblum and Charles C. Tillinghast, Jr., of counsel), for respondent.
   As to each defendant: judgment of conviction affirmed; no opinion.

Concur: Crane, Ch. J., O’Brien, Httbbs and Finch, JJ.; Lehman, Loughran and Rippey, JJ., concur under section 542 of the Code of Criminal Procedure.


text:
    Hemport Corporation, Appellant, v. Sutter-Ralph Corporation, Respondent.
    Argued October 12, 1938;
    decided November 22, 1938.

      Harry Schneider, Henry A. Uterhart and Joseph Otis for appellant.

      Martin S. House, Joseph Glass and Bernard Alpert for respondent.
   Judgment modified so as to enjoin the plaintiff from erecting the structure described in the complaint, and, as so modified, affirmed, without costs. No opinion.

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


text:
    John B. Lynch, Appellant, v. W. Frazer Gibson et al., Individually and as Copartners under the Name of Edey & Gibson, Defendants, and Raymond T. Fish, Respondent.
    Argued October 12, 1938;
    decided November 22, 1938.

      William S. Bennet, Victor House and Samuel H. Levinhind for appellant.

      Nathan Coplan and Barney B. Fensterstoch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Remington Rand, Inc., et al., Respondents, v. Vernon M. Crofoot, Individually and as President of Machinists Local Union No. 381, et al., Appellants.
    Argued October 12,1938;
    decided November 22,1938.

      Clifford H. Searl for appellants.

      George H. Bond, Tracy H. Ferguson and John A. W. Simson for respondents.
   Order affirmed, without costs, and question certified answered in the affirmative. No opinion.

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


text:
    Nordred Realties, Inc., Appellant, v. “John” Langley, Respondent.
    Argued October 13,1938;
    decided November 22,1938.

      Nathan Ottinger for appellant.

      Vernal J. Williams, Hope R. Stevens and Sally Gatling for respondent.

      William C. Chanler, Corporation Counsel (William S. Gaud, Jr., of counsel), for City of New York, amicus curiae.

   Order affirmed, with costs; no opinion.

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


text:
    Grand Union Company, Respondent, v. General Accident, Fire and Life Assurance Corporation, Ltd., Appellant.
    Argued October 17,1938;
    decided November 22,1938.

      Daniel Mungall and Edwin C. Markel for appellant.

      Philip L. Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alice L. Busch et al., Respondents, v. Metropolitan Casualty Insurance Company of New York, Appellant, and Continental Bank & Trust Company of New York, Respondent.
    Argued October 18, 1938;
    decided November 22, 1938.

      The following questions were certified:
    “ 1. On the facts disclosed by the record on appeal herein, are the plaintiffs, or any of them, entitled to summary judgment?

      “ 2. On the facts disclosed by the record on appeal herein, is the defendant-respondent The Metropolitan Casualty Insurance Company of New York entitled to summary judgment? ”

      Harold W. Newman, Jr., and David Miller for appellant.

      Lester Grossman and Henry B. Wilson for plaintiffs, respondents.

      Henry N. Rapaport and Robert S. Garson for Robert Benenson et al., amici curice.

   Order affirmed, with costs. First question certified answered in the affirmative, and second question certified answered in the negative. No opinion.

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


text:
    Joseph Mercadante et al., Appellants, v. Empire Trust Company, Respondent.
    Argued October 18,1938;
    decided November 22,1938.

      Edmund F. Lamb and John E. Purdy for appellants.

      Max D. Steuer and Henry Klein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Jeremiah Dennehy et al., Appellants and Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents and Appellants.
    Argued October 19, 1938;
    decided November 22, 1938.

      Albert De Roode for petitioners, appellants and respondents.

      William C. Chanler, Corporation Counsel (Frederick P. Bryan and Leonard M. Wallstein, Jr., of counsel), for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Httbbs, Lottghran, Finch and Rippet, JJ.


text:
    In the Matter of the Accounting of Peter Doelger et al., as Trustees under the Will of Peter Doelger, Deceased. John W. Hannon, Special Guardian for Edward G. Kuser et al., Appellant; Charles Tschanett et al., Respondents.
    Argued October 19,1938;
    decided November 22, 1938.

      John W. Hannon for appellant.

      Sydney Krause and Edmond N. Cohn for Charles P. Doelger et al., respondents.

      Hersey Egginton for Central Hanover Bank and Trust Company, as executor of Peter Doelger, Jr., deceased, respondent.

      H. Maurice Darling for Marie L. Bridgett et al.. respondents.
   Order affirmed, with costs to all parties appearing and filing a brief payable out of the estate. No opinion.

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


text:
    Joseph Burdo, as Administrator of the Estate of Minnie Burdo, Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Argued October 19, 1938;
    decided November 22, 1938.

      Samuel Seabury and P. C. Dugan for appellant.

      James A. Leary and Walter A. Fullerton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Arthur L. Shevlin et al., Appellants, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate of the City of New York, Respondents.
    Argued October 19,1938;
    decided November 22,1938.

      Albert De Boode for appellants.

      William C. Chanter Corporation Counsel (Seymour B. Quel and Paxton Blair of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Robert McKeever, an Infant, by Joseph McKeever, His Guardian ad Litem, Respondent, v. New York Telephone Company, Appellant.
    Argued October 20, 1938;
    decided November 22, 1938.

      Irving W. Young, Jr., N. H. Egleston, H. N. Wells, Cyrus F. Smythe and Charles T. Bussell for appellant.

      Charles I Sterling and Leo E. Falkin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Juanita Carballal, an Infant, by Jose Carballal, Her Guardian ad Litem, et al., Respondents, v. Pilgrim Laundry, Inc., Appellant.
    Argued October 20, 1938;
    decided November 22, 1938.

      Thomas A. Shaw and George E. Miner for appellant.

      Robert McGowan Smith, Fred L. Gross and Francis A. Madden for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    •Helen Hanstick, an Infant, by Frank Hanstick, Her Guardian ad Litem, Respondent, and Frank Hanstick, Plaintiff, v. H. C. Bohack Co., Inc., Appellant.
    Submitted October 21, 1938;
    decided November 22, 1938.

      Clarence S. Zipp, James F. Robertson and Daniel Miner for appellant.

      Henry Koenig and Gustave Schwartz for respondent.
   Judgment of Appellate Division reversed and order of Trial Term setting aside verdict affirmed, with costs to abide the event. We fail to find any evidence of negligence. No opinion. (See 279 N. Y. 785.)

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


text:
    Sparkill Realty Corporation et al., Respondents, v. State of New York, Appellant.
    (Claim No. 19587.)
    Argued October 19, 1938;
    decided November 29, 1938.

      John J. Bennett, Jr., Attorney-General (Walter H. Poliak, Leon M. Layden, Mordecai Bochlin and Henry Epstein of counsel), for appellant.

      Jackson A. Dykman, Benjamin McClung, Sigourney B. Olney and Henry J. Hemmens for respondents.
   Judgment affirmed, with costs; no opinion. (See 268 N. Y. 192.)

Concur: Crane, Ch. J., O’Brien, Hxjbbs and Rippey, JJ.; Lehman, Loughran and Finch, JJ., dissent on the ground that the evidence is insufficient as matter of law to sustain the findings of value.


text:
    Arthur L. Davis, Respondent, v. Palmira Davis, Appellant.
    Argued October 21, 1938;
    decided November 29, 1938.

      Harry L. Sitomer for appellant.

      John F. Middlemiss for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Town of Irondequoit, Plaintiff, v. County of Monroe, Appellant, Impleaded with Others. James E. Cuff, Respondent.
    Argued October 21, 1938;
    decided November 29, 1938.

      Harry Rosenberg for appellant.

      Percival D. Oviatt and Robert L. Griffith for respondent.
   Appeal dismissed, with costs, on the ground no constitutional question is directly involved. No opinion.

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


text:
    In the Matter of the Probate of the Will of Margaret Zimmerman, Deceased. Marine Trust Company of Buffalo et al., Appellants; Wheel Chair Home for Incurables et al., Respondents.
    Argued October 21, 1938;
    decided November 29, 1938.

      Clark H. Hammond, John K. Gerken, Darvin De Marchi, Herbert A. Zimmerman and Walter F. Hofheins for appellants.

      Clayton M. Smith and Harold V. Cook for respondents.
   Order affirmed, with costs payable out of the estate to each party filing a separate brief. No opinion.

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


text:
    John J. Neff et al., Appellants, v. Farmers’ Loan and Trust Company et al., Respondents.
    Argued October 24, 1938;
    decided November 29, 1938.

      Harold L. Smith, Frederick W. P. Lorenzen, William F. Unger, Frank M. Swacker and Hugh F. O’Donnell for appellants.

      Sydney R. Prince, John W. Davis, William G. Gannon and Henry L, Walker for Southern Railway Company, respondent.

      William D. Mitchell, George S. Mittendorf, John B. Marsh and Paul E. Bermingham for Farmers’ Loan and Trust Company, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Revere Copper and Brass, Incorporated, Respondent, v. Gehnrich Oven Company, Incorporated, Appellant.
    Argued October 25, 1938;
    decided November 29, 1938.

      Isadore Bookstein and Abraham Daniels for appellant.

      M. M. Leichter and John L. Ketcham for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ian Johnson, Appellant, v. Cerretta Dietrich, Inc., Respondent.
    Argued October 25, 1938;
    decided November 29, 1938.

      Oliver K. King for appellant.

      F. A. W. Ireland for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Andrea Shaw, an Infant, by Ruth E. Shaw, Her Guardian ad Litem, et al., Respondents, v. City of New York et al., Appellants.
    Argued October 25, 1938;
    decided November 29, 1938.

      William C. Chanler, Corporation Counsel (Leonard M. Wallstein, Jr., and Paxton Blair of counsel), for City of New York, appellant.

      Desmond T. Barry, Edward A. Shandell and Chauncey L. Grant for Abgor Contracting Company, Inc., appellant.

      William Dike Reed, J. C. Thomson and John C. Delaney for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Delia Keane, Appellant, v. Joseph Rosenzweig et al., Respondents.
    Argued October 26, 1938;
    decided November 29, 1938.

      James Rosthal, Michael H. Grae and Milton S. Klaw for appellant.

      Stanley A. Katcher and Samuel Poses for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nicholas Roerich et al., Appellants, v. Louis L. Horch et al., Respondents.
    Argued October 26, 1938;
    decided November 29,1938.

      Herbert Plaut and Harold Davis for appellants.

      Edward J. Chapman, Jonas J. Shapiro and Harold H. Stem for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Frances R. Grant et al., Appellants, against Sidney Newberger et al., as Trustees of Master Institute of United Arts, Inc., Respondents.
    Argued October 26, 1938;
    decided November 29, 1938.

      Herbert Plaut and Harold Davis for appellants.

      Edward J. Chapman, Jonas J. Shapiro and Harold H. Stern for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Mary Rosenberg, as Administratrix of the Estate of Joseph Rosenberg, Deceased, et al., Appellants, v. Adolph Feldblum, Individually and as Administrator of the Estate of Meyer Chinsky, Deceased, Respondent, Impleaded with Others.
    Argued October 26, 1938;
    decided November 29, 1938.

      Joseph Bosch, Hyman Grossman, Emil Peters and Benjamin M. Goldstein for appellants.

      Louis E. Goldstein and Aaron William Levy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rose Sarkin, Respondent, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company, Appellant.
    Submitted October 26, 1938;
    decided November 29, 1938.

      Charles F. Kingsley and James L. Quackenbush for appellant.

      Abraham Passman and Edward Nyer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Worrell, Respondent, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company, Appellant.
    Submitted October 28, 1938;
    decided November 29, 1938.

      Charles F. Kingsley and James L. Quackenbush for appellant.

      James G. Mitchell and Nathan Young for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James I. Cuff, as Substituted Receiver of the Property of John B. Ryan, Respondent, v. Fidelity and Deposit Company of Maryland, Appellant, Impleaded with Another.
    Submitted October 28, 1938;
    decided November 29, 1938.

      Thomas E. White, R. Elliott Davis and William E. Robinson for appellant.

      Francis D. McGarey and John J. McMahon, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Julius Madia, Appellant.
    Argued October 28, 1938;
    decided November 29, 1938.

      Sol A. Klein and Abraham II. Kesselman for appellant.

      William F. X. Geoghan, District Attorney\ (Edward H. Levine, Henry J. Walsh and Julius Helfand of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Felt & Tarrant Mfg. Co., Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued October 28, 1938;
    decided November 29, 1938.

      William C. Chanler, Corporation Counsel (Milton Sandberg and Bernard, H. Sherris of counsel), for appellant.

      Newton K. Fox for respondent.
   Order affirmed, with costs, upon the authority of Matter of National Cash Register Co. v. Taylor (276 N. Y. 208). No opinion.

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


text:
    Jennie M. Tracy et al., Appellants, v. Sadie M. Danzinger, as Executrix of Sarah E. Ackley, Deceased, Respondent.
    Argued October 28, 1938;
    decided November 29, 1938.

      Frank W. Barnes for appellants.

      Edwin C. Morseh, Edwin B. Goddin and Charles W. Fuess for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mendel Joelson, Appellant, v. Jacob Mayers, Respondent, Impleaded with Others.
    Submitted October 24, 1938;
    decided November 29, 1938.

      Manfred Nathan for motion.
   No one opposed.

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


text:
    Catherine Bernunzio, Appellant, v. William T. Plumb et al., as Receivers of New York State Railways, Respondents. John Bernunzio, Appellant, v. William T. Plumb et al., as Receivers of New York State Railways, Respondents.
    Submitted November 21, 1938;
    decided November 29, 1938. ■

      John II. Berman for motion.
   No one opposed.

Motion granted and appeals dismissed, with costs and ten dollars costs of motion, unless appellants file and serve undertaking on appeals and pay ten dollars costs within ten days, in which event the motion is denied.


text:
    Henry Heilbrunn et al., as Executors of Louis Heilbrunn, Deceased, Respondents, v. Nelson S. Kellogg, as Executor of Homer F. Kellogg, Deceased, Appellant, Impleaded with Others.
    Submitted November 21, 1938;
    decided November 29, 1938.

      Samuel H. Block for motion.

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


text:
    In the Matter of the Accounting of Manufacturers and Traders Trust Company et al., as Executors of John E. Johnson, Deceased, Respondents. William R. Emblidge, as Trustee in Bankruptcy of John Johnson Construction Company, Appellant.
    Submitted November 21, 1938;
    decided November 29, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 556.)


text:
    In the Matter of the Accounting of Frank H. Fisher, as Committee of Vincent Volkmar, an Incompetent Person, Respondent. Eugene Raines, as Special Guardian for Vincent Volkmar, an Incompetent Person, Appellant; Lena Volkmar et al., Respondents.
    Argued November 21, 1938;
    decided November 29, 1938.

      Ira H. Moris for motion.

      Eugene Raines opposed.
   Motio'n denied.


text:
    Gordon Renegar, Respondent, v. Harry W. Barry, Appellant.
    Submitted November 21, 1938;
    decided November 29, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 605.)


text:
    P. Delany and Company, Respondents, v. Rosanna Duvoli et al., Defendants; Frances M. Lobes, Appellant, and Louis Argenio et al., Respondents.
    Submitted November 21, 1938;
    decided November 29, 1938.
   Motion for reargument of motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 278 N. Y. 328, 715.)


text:
    Katherine Sadrakula, as Administratrix of the Estate of Nicholas Sadrakula, Deceased, Respondent, v. James Stewart & Co., Inc., Appellant.
    Submitted November 21, 1938;
    decided November 29, 1938.

      Clarence E. Mellen, Glenn C. Beechler and Frederick Mellor for motion.

      Leo Fixler opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that an appeal has been properly taken as of right.


text:
    Oliver C. Wagstaff et al., Appellants, v. Holly Sugar Corporation et al., Respondents.
    Submitted November 21,1938;
    decided November 29,1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 279 N. Y. 625.)


text:
    In the Matter of John Hetherington, as Surrogate of the County of Queens, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Appellants.
    Argued October 26, 1938;
    decided December 2, 1938.

      William C. Chanler, Corporation Counsel {Jeremiah M. Evarts and Seymour B. Quel of counsel), for appellants. , Thomas D. Austin for respondent.
   Order affirmed, with costs, on the authority of Matter of Wingate v. McGoldrick (279 N. Y. 246), decided herewith. No opinion.

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


text:
    In the Matter of Joseph Rosenthal, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Appellants.
    Argued October 26, 1938;
    decided December 2, 1938.

      William C. Chanter, Corporation Counsel {Jeremiah M. Evarts and Seymour B. Quel of counsel), for appellants.

      Jesse C. Rogers and Samuel Binder for respondent.
   Order affirmed, with costs, on the authority of Matter of Wingate v. McGoldrick (279 N. Y. 246), decided herewith. No opinion.

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


text:
    Alice Montant, Respondent, v. Louis J. Montant, Appellant.
    Submitted October 25, 1938;
    decided December 6, 1938.

      Julius L. Neidle and Max Taylor for appellant.

      Edward S. Bentley for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William McLaughlin, Respondent, v. Burns Bros., Appellant, Impleaded with Another.
    • Argued October 26, 1938;
    decided December 6, 1938.

      James I. Cuff, James I. McCuire, Bernard Jenkin and A. Harold Frost for appellant.

      Jacquin Frank and Isidore Dollinger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Samuel Elmore, Appellant.
    Argued October ¿7, 1938;
    decided December 6, 1938.

      William C. Casey and Peter F. Gulotta for appellant.

      Frank H. Innes, District Attorney (Thomas K. Hall of counsel), for respondent.
   Judgment of conviction affirmed under the provisions of section 542 of the Code of Criminal Procedure. No opinion.

Concur: Crane, Ch. J., O’Brien, Hubbs and Finch, JJ. Lehman, Loughran and Rippey, JJ., dissent on the ground that the question of fact presented is too close to permit us to overlook the errors committed at the trial; and Rippey, J., dissents on the additional ground that the evidence of guilt was insufficient to warrant a conviction, and the indictment should be dismissed.


text:
    In the Matter of the Accounting of Joseph Lo Palo, as Executor of Charles Guggino, Deceased. Joseph Lo Palo, Individually, Appellant; Rosaria G. Siragusa et al., Respondents.
    Argued November 21, 1938;
    decided December 6, 1938.

      Kenneth B. Keating and Nicholas E. Brown for appellant.

      De Silver Drew for Rosaría G. Siragusa, respondent.

      Charles J. Mondo for Joseph Lo Palo, as executor, respondent.

      Michael Rogers for Joseph Guggino et al., infants, respondents.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of the Application of the Corporation Counsel of the City of New York Relative to Appointment of Commissioners to Determine Damages to Property Owners Caused by the Closing of Old Third Avenue in the Borough of the Bronx. John L. Armstrong, as Executor of John Armstrong, Deceased, Appellant; City of New York, Respondent.
    Argued November 21, 1938;
    decided December 6, 1938.

      F. W. Hottenroth for appellant.

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

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


text:
    Paul Livoti, as County Clerk of Queens County, Respondent, v. Maurice A. Fitzgerald, as Sheriff of Queens County, Appellant.
    Submitted November 21, 1938;
    decided December 6, 1938.

      Austin B. Mandel for appellant.

      Mordecai Konowitz for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of Frederic K. Knowlton et al., as Administrators of the Estate of Mark D. Knowlton, Deceased, Respondents; Elizabeth K. Knowlton et al., Appellants.
    Argued November 22, 1938;
    decided December 6, 1938.

      Francis C. Wickes and John F. Thomas for appellants.

      John G. Shaw and John W. Branch for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of Michael N. Price, Deceased. Minnie N. Giffler et al., Appellants; Morris Nacht et al., Respondents.
    Argued November 22, 1938;
    decided December 6, 1938.

      Louis J. Schwartz, Philip K. Schwartz, Arthur Brandwein and Samuel B. Goodman for appellants.

      Charles G. Coster and Joseph M. Paley for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Edith Britt et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.
    Argued November 22, 1938;
    decided December 6, 1938.

      William C. Chanter, Corporation Counsel (Samuel J. Silverman and Paxton Blair of counsel), for appellants.

      Albert de Boode for respondents.
   Order affirmed, with costs; no opinion. (See 279 N. Y. 795.)

Concur: Crane, Ch. J., O’Brien, Hubbs, Loughran, Finch and Rippey, JJ. Lehman, J., concurs under the construction placed by the majority of the court upon its decision in Matter of Kraus v. Singstad (275 N. Y. 302).


text:
    In the Matter of the Claim of Otto Neuman, Respondent, against North River Garnet Company. State Insurance Fund, Appellant.
    Submitted November 22, 1938;
    decided December 6, 1938.

      George J. Hayes and Patrick S. Mason for appellant.

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

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


text:
    In the Matter of the Estate of Frederick M. Dress, Deceased. Jenny Dress, Appellant; James Fanning et al., as Executors of Frederick M. Dress, Deceased, et al., Respondents.
    Argued November 22, 1938;
    decided December 6, 1938.

      Peter Klein, Joseph E. Kinsley and August P. Klein for appellant.

      James B. Lyttle for executors, respondents.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Katherine T. Maxwell, Appellant and Respondent, against George L. Maxwell et al., Respondents and Appellants.
    Submitted November 21, 1938;
    decided December 6, 1938.

      George Gordon Battle for motion.

      Clarence Blair Mitchell opposed.
   Motion denied on the ground that leave to appeal is unnecessary.


text:
    The People of the State of New York ex rel. Bernard Frankel, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted November 28, 1938;
    decided December 6, 1938.

      John J. Bennett, Jr., Attorney-General (Everett D. Mereness of counsel), for motion.
   No one opposed.

Motion granted and appeal dismissed because not properly taken.


text:
    Clara Wildman, an Infant, by Abraham Wildman, Her Guardian ad Litem, et al., Appellants, v. City of New York, Defendant, and Board of Education of City of New York, Respondent.
    Submitted November 28, 1938;
    decided December 6, 1938.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.
   No one opposed.

Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants file and serve undertaking on appeal and pay ten dollars costs within ten days, in which event the motion is denied.


text:
    Mary Detelj, an Infant, by Stella Detelj, Her Guardian ad Litem, et al., Appellants, v. John S. Jacobus, Individually and as Trustee under the Will of Samuel M. Jacobus, Deceased, Respondent.
    Submitted November 28, 1938;
    decided December 6, 1938.

      Theodore L. Karpf for motion.
   No one opposed.

Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants file and serve undertaking on appeal and pay ten dollars costs within ten days, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Dominick Guariglia, Joseph H. O’Loughlin, Arthur Friedman, Phillip Chaleff and Isadobe Zimmerman, Appellants.
    Argued October 28, 1938;
    decided December 9, 1938.

      Edward W. McDonald, Maxwell Lehrhaupt and Louis J. Lefkowitz for Dominick Guariglia, appellant.

      Jodb H. Banion and Myron Sulzberger, Jr., for Joseph H. O’Loughlin, appellant.

      Vincent R. Impellitteri and Erwin N. Schapira for Arthur Friedman, appellant.

      Louis J. Gribetz, Lester Lyons, Frederick J. Sullivan and William K. Harris for Phillip Chaleff, appellant.

      James D. C. Murray, Sam Feldman and Philip Poger for Isadore Zimmerman, appellant.

      Thomas E. Dewey, District Attorney (Felix C. Benvenga, Jacob J. Rosenblum and Arnold Bauman of counsel), for respondent.
   As to each of the defendants Dominick Guariglia, Arthur Friedman, Philip Chaleff and Isadore Zimmerman, judgment of conviction affirmed. No opinion.

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

As to the defendant Joseph Harvey O’Loughlin, judgment of conviction affirmed. No opinion.

Concur: Crane, Ch. J., O’Brien, Hubbs, Finch and Rippey, JJ. Lehman and Loughran, JJ., concur under section 542 of the Code of Criminal Procedure.


text:
    In the Matter of Charles F. Sergeant, Appellant, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued November 22,1938;
    decided December 9,1938.

      Albert De Roode for appellant.

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune of counsel), for State Civil Service Commission, amicus curise.

      Samuel M. Bimbaum and Simon L. Miller for the American Legion, amicus curise.

      Seth T. Cole for Firemen’s Association of the State of New York, amicus curise.

      William C. Chanler, Corporation Counsel (Samuel J. Silverman and Paxton Blair of counsel), for respondents.

      John T. DeGraff for Association of State Civil Service Employees of the State of New York, amicus curise.

   Order affirmed, with costs; no opinion.

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


text:
    The Commission of Public Charities of the City of Hudson et al., Appellants, v. William Wortman, as Mayor of the City of Hudson, Respondent.
    Submitted November 23,1938;
    decided December 9,1938.

      B. Monell Herzberg for appellants.

      Lewis E. McNamee for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anna J. Schoellkopf, Appellant, v. Marine Trust Company of Buffalo, Individually and as Trustee, Respondent, and Walter H. Schoellkopf et al., Appellants.
    Argued November 23, 1938;
    decided December 9, 1938.

      Henry B. Harrington for plaintiff, appellant.

      George G. Davidson, Jr., for defendants, appellants.
    - Fritz Fernow and William E. Lytle for defendant, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Land Brokerage Company, Respondent, v. Michael Samit, Appellant.
    Submitted December 5, 1938;
    decided December 9, 1938.

      Herbert Z. Buck for motion.
   No one opposed.

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


text:
    Jennie Weingarten et al., Appellants, v. Henry M. Rinder et al., Respondents.
    Submitted December 5,1938;
    decided December 9, 1938.
   Motion for reargument denied. Retrun of remittitur requested and when returned it "will be amended by adding thereto the following, “ without prejudice to the bringing of a new action.” (See 278 N. Y. 341.)


text:
    Louis M. Hauben et al., Individually and as Stockholders of Industrial Finance Corporation, Plaintiffs, and William I. Rosenfeld et al., Individually and as Stockholders of Industrial Finance Corporation, Appellants, v. Arthur J. Morris et al., Respondents, Impleaded with Others.
    Submitted December 5, 1938;
    decided December 9,1938.

      Frank Aranow for motion.

      Norman P. S. Schloss, in person, opposed.
   Motion denied.