author: Lehman, Ch. J. Desmond, J.

text:
    Lynbrook Gardens, Inc., Appellant and Respondent, v. Bernard C. Ullmann, Respondent and Appellant.
    Argued May 18, 1943;
    decided December 8, 1943.

      C. 0. Donahue, George Xanthaky, Arnold Frye and Raphael W. Alpher for plaintiff, appellant and respondent, and for certain counties, cities, villages and a town, amici curiae.

    The provisions of the statute (Tax Law, art. 7-A, tit. 3), which cut off the rights of one who receives no actual notice, constitute due process of law. (Hassall v. Willcox, 130 U. S. 493; Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272; Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526; Wheeler v. Scully, 50 N. Y. 667; Leigh v. Green, 193 U. S. 79; Campbell v. Evans, 45 N. Y. 356; City of New York v. Wright, 243 N. Y. 80; Bolles v. Duff, 43 N. Y. 469.) The result is the same even though the taxes on which the in rem proceeding was based have actually been paid. (Tax Law, § 165, 165-h, subds. 5, 6; Bryan v. McGurk, 200 N. Y. 332.)

      John E. Gaffney and J. Walter Augar for defendant, respondent and appellant.
    Title 3 of article 7-A of the Tax Law is unconstitutional and violates the provisions of sections 1 and 6 of article I of the State Constitution, section 1 of the Fourteenth Amendment of the Federal Constitution in that said statute attempts to deprive persons of their property without due process of law. The statute is unconstitutional in that it fails to give to the owner of the property with reasonable certainty, proper and due notice that the tax liens against the same are to be foreclosed. (Ives v. South Buffalo Ry. Co., 201 N. Y. 271; Douglass v. Phenix Ins. Co., 138 N. Y. 209; People v. Adirondack Ry. Co., 176 U. S. 335; Matter of Smith, 175 Misc. 668; Matter of Galvin, 153 Misc. 11.) The statute fails to safeguard the vested property rights of infants or incompetents who under the law are not capable of protecting themselves. (Alderman v. Tirrell, 8 Johns 418; Larkin v. Mann, 2 Paige 27; Fox v. Fee, 24 App. Div. 314.) The statute fails to provide for public sale of property against which the tax liens have been foreclosed and the distribution of surplus moneys to the owner of said property. The statute provides that an-action may lie where it shall appear that a tax district owns a tax lien which has been due and unpaid for a period of at least four years without regard to whether or not a valid tax lien actually exists.

      Eugene R. Hurley for Anne M. Lynch, amicus curiae.

    The taxes having been paid for the foreclosure of which the village took proceedings under article 7-A, such proceedings were unauthorized and void, and the title of the plaintiff derived therefrom is equally void. (Levy v. Newman, 130 N. Y. 11; Roseth Realty Co. v. Brighton & B. El. R. R. Co., 228 App. Div. 390; Lennon v. Mayor, 55 N. Y. 361; Bryan v. McGurk, 200 N. Y. 332; People ex rel Cooper v. Registrar, 114 N. Y. 19; Van Benthuysen v. Sawyer, 36 N. Y. 150; Wallace v. McEchron, 176 N. Y. 424.) When an “ in rem ” proceeding is authorized by statute, the jurisdiction over the subject matter is limited by the statute. The court in a proceeding under article 7-A of the Tax Law has jurisdiction only over properties on which taxes have been unpaid for at least four years. Where there are, in fact, no unpaid taxes, its proceedings are a nullity. (Wallace v. International Paper Co., 53 App. Div. 41; Risley v. Phenix Bank, 83 N. Y. 318; O’Donoghue v. Boies, 159 N. Y. 87.) The former owners are not estopped by a void judgment from showing that the taxes were paid, nor are they estopped by a statute of limitations, since the statute contains none. (Risley v. Phenix Bank, 83 N. Y. 318; Fleming v. Burnham, 100 N. Y. 1.) Where there is a possibility of a law suit, a court should not decree specific performance of a contract. (Heller v. Cohen, 154 N. Y. 299; Fleming v. Burnham, 100 N. Y. 1.)
   Lehman, Ch. J.

In 1941 Arthur J. Moore, as Treasurer and Collecting Officer of the Village of Lynbrook executed and delivered to the plaintiff a deed of parcels of land shown on the tax map of the incorporated Village of Lynbrook. Prior thereto the Village of Lynbrook had obtained a judgment in proceedings brought for the foreclosure of tax liens upon these parcels in accordance with the provisions of title 3 of article 7-A of the Tax Law of the State of New York entitled “ foreclosure of the tax lien by action in rem ”. Thereafter the plaintiff, Lynbrook Gardens, Inc., and the defendant Ullman entered into contracts for the sale and purchase of two of the parcels of land which had been conveyed to the plaintiff. The price fixed for one parcel was $125 and the price fixed for the other parcel was fifty dollars. At the time set for closing, Lynbrook Gardens, Inc., tendered deeds for the two parcels it had sold to the defendant. The purchaser refused to accept title on the ground that the tax law which authorizes proceedings in rem for the enforcement of the tax lien is unconstitutional. A judgment of foreclosure rendered in accordance with the provisions of the tax law without personal service of process would, it is said, deprive the owner of his property without due process of law in violation of provisions of the Constitutions of the State of New York and of the United States.

The plaintiff brought this action against the defendant to compel specific performance of the defendant’s contract to purchase the land. Concededly the action for specific performance has been brought for the purpose of testing the validity of title 3 of article 7-A of-the Tax Law. Indeed, the contract of sale was formulated in manner intended to facilitate the prosecution of an action to test the constitutionality of the statute. The courts below have held that a judgment of foreclosure rendered without personal service of process in the proceedings in rem against property upon which taxes were in default did not deprive the delinquent taxpayer of his property without due process of law, but that a judgment in rem for the foreclosure of a tax lien on which taxes had in fact been paid but which had been erroneously included “ on the list of delinquent taxes ” would violate the provisions of the Constitution.

We have come to the conclusion that the validity of the provision of the statute cannot properly be determined in this action. We might, perhaps, assume that the defendant entered into the contract to purchase the two parcels of land because he desired in good faith to acquire the property, and that he is defending the action in order that he may not be compelled to pay even the small purchase price for a title to the property which is unmarketable. Otherwise there would be no real controversy between the parties upon which the court may properly express an opinion. (Lord v. Veazie, 49 U. S. 251; United States v. Hamburg-American Co., 239 U. S. 466; United States v. Johnson, 319 U. S. 302.) Upon that assumption the ultimate question which, under the pleadings, the court may be called upon to decide is whether the title tendered by the plaintiff is marketable. A court may decree specific performance of the contract of purchase only if the deed which the purchaser would be compelled to accept transfers a title which cannot thereafter be challenged on substantial grounds. (Abbott v. James, 111 N. Y. 673.) At the time when the deed is tendered questions of law which have not yet been judicially determined by the courts may cast a shadow of doubt upon the title; the shadow is removed when a, court which can authoritatively decide those questions of law has spoken. A decree of specific performance does not compel a purchaser to accept a doubtful title where the decree itself constitutes an authoritative determination of the questions of law which until that time were not free from doubt. (See Pomeroy on Specific Performance, 3d ed., 1926, § 202 et seq., and cases there cited. Forster v. Scott 136 N. Y. 577.) In this case, however, the courts of this State cannot authoritatively determine the questions of law which create serious doubt as to the validity of the statute by virtue of which the seller has acquired title and no decree of specific performance can give to the buyer assurance that the title transferred to him will not be successfully challenged thereafter.

The question of the validity of the statute has been challenged on substantial grounds. This court can authoritatively determine whether or not the statute violates the provisions of the* Constitution of the State of Mew York; only the Supreme Court of the United States can ultimately determine whether the* statute violates the provisions of the Constitution of the Unitedj States. Even though this court were to sustain the validity of the statute, the Supreme Court of the United States might still reach a different conclusion. A subsequent purchaser could at any time reject title on that ground and litigate that question in a different forum. A title which can be challenged in that manner is not marketable and decree of specific performance may not be rendered under such circumstances.

The judgments should be reversed and the complaint dismissed, without costs. i

Desmond, J.

(dissenting). This suit for specific performance of a land contract directly presents a question as to the constitutionality of title 3 of article 7-A of the Tax Law, which title contains a statutory scheme, of state-wide (optional) application, for simplified tax foreclosures. Both courts below have passed on that constitutional question and the parties, as well as thirty-three counties, towns, cities and villages which join in a brief here as amici curiae, argue in this court that constitutional question, and no other. This court is about to dismiss the suit and leave that constitutional question unanswered, on the ground that, even if we held the statute constitutionally valid, its validity under the Federal Constitution would not be finally and forever disposed of by any decision of ours so holding, but might hereafter, in this or some other lawsuit, be denied by the United States Supreme Court.

The courts do not have unlimited discretion as to granting or withholding the remedy of specific performance but only a judicial discretion” (Willard v. Tayloe, 8 Wall. 557, 567; 4 Pomeroy on Equity Jurisprudence, 5th ed., § 1404). If a vendor-plaintiff proves a marketable title, he is entitled to the remedy, unless a decree of specific performance would inflict ‘ ‘ undue hardship ” on defendant-vendee. (Day v. Hunt, 112 N. Y. 191, 195.) Specific performance, so far as I can discover, is denied on the ground of “ undue hardship ” to the vendee, because of an actual or possible defect in title, only in situations where the defect is incurable except by parole evidence not presented to the court in the specific performance case and which evidence is presently unavailable or may be unavailable if and when the vendee’s title is questioned in a later litigation. (See Ferry v. Sampson, 112 N. Y. 415, 418; Toole v. Toole, 112 N. Y. 333; McPherson v. Schade, 149 N. Y. 16, 18, 21; Heller v. Cohen, 154 N. Y; 299; Dyker Meadow Land & Improvement Co. v. Cook, 159 N. Y. 6; Cerf v. Diener, 210 N. Y. 156, 161.) The rule that a vendee will not be forced to take a doubtful title “ assumes ”, according to 4 Pomeroy’s Equity Jurisprudence, 5th ed., p. 1045, “ that the question whether the vendor’s title is valid or imperfect is not definitely decided by the court ”. In other words, the doubt must be in the case not only by assertion of the vendee but must remain there after the court has tried the case on the proofs submitted to it. The authorities which say that a court should not force a defendant to buy a lawsuit ”, refer to a future lawsuit involving questions of fact which cannot be decided in the present lawsuit, which “ require farther elucidation ” leaving the title “ not yet sufficiently ascertained ” (Seymour v. DeLancey, 1 Hopk. Ch. 436, 449, 450). Here determination of marketability involves a pure question of law, a pronouncement on which is within the powers and ordinary functions of this court. The charge here by the vendee of an alleged defect in the vendor’s title, is based on the vendee’s sole assertion, not on any decision, that the Federal and State Constitutions are violated by a statute of this State whwh is not unconstitutional on its face and which is of course entitled to the usual strong presumption of constitutionality. In Anderson v. Steinway & Sons (178 App. Div. 507, affd. 221 N. Y. 639), the courts held that a vendor could not enforce specific performance when, to make his title good, he had to prove that a statute was unconstitutional. The rule should work both ways. As this case turns out, the vendee has been able by a mere assertion of unconstitutionality not only to escape his obligations in this action but also, as a practical matter, to leave the vendor without any remedy at all.

It is of course true that a decision by us that this statute is valid would not serve as an insurance policy to save this defendant harmless as against a future declaration to the contrary by the United States Supreme Court. But that possibility of future harm from such an overriding decision is a possibility only. We are asked by plaintiff to enforce a contract and if defendant has been tendered such a title as he contracted for, he should be made to take the deed. I cannot believe that these parties, the very words of whose contract recognized the existence of this very question of validity of the statute, intended that defendant’s obligation to complete his purchase should never mature unless and until the United States Supreme Court put upon this statute its certificate of constitutionality. If there is hardship in taking a title lacking such a certificate, it is hardship not unforeseen by the parties.

It would not do under these circumstances for a single judge of this court to state his views as to that question of constitutionality, so I content myself with dissenting on the ground that this court should determine the question, in this case.

Loughran, Rippey, Lewis and Conway, JJ., concur with Lehman, Ch. J., Thachee J., concurs in result, Desmond, J., dissents in opinion.

Judgments reversed, etc.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Charles McLaughlin, Appellant.
    Argued December 2, 1943;
    decided January 6, 1944.

      Joseph Lonardo for appellant.
    The denial of defendant’s request for an adjournment to procure new counsel; the assignment of counsel, and the forcing of the trial at once, was an abuse of discretion, and denied to defendant his right to be represented by counsel of his own choice and to be afforded a reasonable time to prepare for trial. (People v. Price, 262 N. Y. 410; People v. Gordon, 262 App. Div. 534; State Const, art. 1, § 6; Code Grim. Pro. § 8; People v. Kerber, 172 App. Div. 755: People v. Schindler, 124 Misc. 73; People v. Jackson, 111 N. Y. 362; People v. Hull, 251 App. Div. 40; People v. Calabur, 91 App. Div. 529; People v. Palaguay, 216 App. Div. 508; People v. Botwin, 241 App. Div. 527.) The testimony of detective Knott, in rebuttal, was incompetent in that it was collateral to the issue and in that it was designed to show a previous arrest and trial, though he had been acquitted. The testimony of the witness Dolan was incompetent in that it was improper rebuttal, as it prejudicially tended to, and did confuse the issue, in that it went far beyond the limitations of rebuttal testimony, in that there was no foundation for its most prejudicial features and in that it did not tend to solve the issue on trial. (People v. Harris, 209 N. Y. 70.)

      Charles P. Sullivan, District Attorney (James F. T. Delaney of counsel), for respondent.
    There was no infringement of appellant’s right to be represented by counsel of his own choice. The testimony of the witness Dolan was properly received in rebuttal. Any suggestion that the proof in question tended to divert attention from the prime issue is patently baseless. (Gordon v. people, 33 N. Y. 501.) The rebuttal testimony was offered in its proper order, following a denial which precluded further inquiry as to matters necessarily included by such denial.
   Desmond, J.

Defendant, in January, 1940, was indicted with other persons on charges of robbery, larceny and assault, growing out of an alleged theft from a motor truck of a large quantity of whiskey. On June 25, 1940, after the cases against some of the other defendants had been disposed of, appellant McLaughlin’s case was called up before the County Court of Queens County, for a separate trial. An Assistant District Attorney informed the court that “ McLaughlin has been sent back to the calendar part to let your Honor pass upon an application.” The County Judge then asked appellant: “ Why haven’t you arranged to be ready for trial? ” McLaughlin replied: “ I was ready. I have to get a new lawyer. ’ ’ The court thereupon informed appellant in most positive language that appellant was “ going to get a lawyer,” that he (the court) was going to get one for him, that bail was canceled, defendant remanded to the city prison, and the case set down for trial at two o ’clock that afternoon. The record shows ■ that all this took place some time after 12:30 p. m. Appellant’s above quoted answer to the court’s inquiry as to appellant’s reason for his failure to be ready for trial, could only mean that appellant needed and wanted time in which to retain, and confer with, new counsel. Taking the record as we find it, we must conclude that appellant neither asked nor wished that counsel be assigned to him by the court. Yet counsel was so assigned, for the record next contains an announcement by the court, presumably made after appellant had been taken back to the city prison, that a certain named attorney had accepted an assignment — “ and we will try the case at two o’clock ”, announced the court. Whether counsel so assigned interviewed appellant before trial we do not know, but any such interview must have been a very brief one, for the case did go to trial at two o’clock that afternoon. Twenty-four hours later defendant stood convicted of robbery in the first degree. He received the mandatory sentence of from ten to thirty years in prison.

Under both our Federal and State Constitutions, a defendant has the right to defend in person or by counsel of his own choosing ” (People v. Price, 262 N. Y. 410, 412). That right, based as it is on a fundamental principle of justice, must be protected by the trial judge. (Glasser v. United States, 315 U. S. 60, 71.) To give it life and effect * * * it must be held to confer upon the relator every privilege which will make the presence of counsel upon the trial a valuable right, and this must include a private interview with his counsel prior to the trial ” (People ex rel. Burgess v. Risley, 66 How. Pr. 67, 68). This fundamental right is denied to a defendant unless he gets reasonable time and a fair opportunity to secure counsel of his own choice and, with that counsel’s assistance, to prepare for trial; no last-minute, peremptory assignment of counsel will serve, particularly when made at such a time and under such circumstances as practically to preclude the giving by counsel to prisoner and prisoner to counsel, of effective aid in the preparation of the case. (U. S. Const., 6th Arndt.; State Const, art. I, § 6; Powell v. Alabama, 287 U. S. 45; Johnson v. Zerbst, 304 U. S. 458; Code Grim. Pro., §§ 8, 188, 308; People ex rel. Moore v. Hunt, 258 App. Div. 24.) Not only must this primary right be protected, but there must be made a record of all proceedings that have a bearing thereon, so that intelligent review may be had. The record before us does not show adequate protection of this defendant’s rights, and so his conviction cannot stand. In such a situation, the absence of exceptions is no bar to a reversal. (People v. Bradner, 107 N. Y. 1; People v. Miles, 289 N. Y. 360, 363.)

We note two other violations of the settled rules for the conduct of criminal trials. The Assistant District Attorney announced a consent that “ both sides waive the right to open in this case.” The Code of Criminal Procedure (§ 388) directs that the District Attorney “must open the case”; defendant’s counsel may ” open for the defense. (See People v. Romano, 279 N. Y. 392, 395.) The other error, to which exception was taken, was in permitting protracted ‘ rebuttal ’ ’ testimony on a purely collateral matter as to which the prosecution was bound by defendant’s answers on cross-examination. (People v. Perry, 277 N. Y. 460, 467.)

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Bippey, Lewis, Conway and Thacher, JJ., concur.

Judgments reversed, etc.


author: Thacher, J. Loughran, J.

text:
    In the Matter of Henry K. Astwood, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents, and Patrolmen’s Benevolent Association of the City of New York et al., Interveners, Appellants.
    Argued October 21, 1943;
    decided October 22, 1943;
    opinions filed January 6, 1944.

      James H. Tully, Truman H. Luhrman and Gerald F. Swanton for Patrolmen’s Benevolent Association of the City of New York et ah, interveners-appellants.
    City charters are amendable by local laws adopted on initiative petition and referendum vote. (State Const, art. IX, § 12; Burke v. Kern, 287 N. Y. 203; Matter of Mooney v. Cohen, 272 N. Y. 33.) The amendatory procedure of the City Home Rule Law is without restriction. (Matter of LaGuardia v. Smith, 288 N. Y. 1; Burke v. Kern, 287 N. Y. 203.) The proposed amendment is a proper amendment to the Charter and may be made effective only by inclusion in the Charter.

      Irving H. Saypol, Leo Kotler and Saul Kaplan for William J. Alsopp et al., interveners-appellants.
    The submission to the electorate of the proposed local law amending the Charter is in strict compliance with the statutes. (City Home Law, § 19-a; Johnson v. Etkin, 279 N. Y. 1; Burke v. Kern, 287 N. Y. 203; Matter of Mooney v. Cohen, 272 N. Y. 33; Matter of LaGuardia v. Smith, 176 Misc. 482; 288 N. Y. 1.) The court at Special Term erroneously interpreted the word “ includes ” as used in subdivision 3 of section 2 of the City Home Buie Law as a word of limitation instead of in the sense of enlargement which the legislature intended and held that a charter may contain only provisions relating to the establishment or continuation of the city as a municipal corporation or body politic or fundamental provisions relating to its corporate power or which affect the frame-work of its government. (American Surety Co. v. Marotta, 287 U. S. 513; 1 McQuillan on Municipal Corporations (2d ed.), § 336; Browne v. City of New York, 241 N. Y. 96; People ex rel. Devery v. Coler, 173 N. Y. 103.)

      Daniel Wm. Leider, Nathan Witt and H. I. Cammer for Greater New York Industrial Union Council, amicus curiae in supporting the position of the appellants.
    Amendment of the Charter is a proper way whereby petitioners can be effectively assured of the increases in salary which they seek; the Charter contemplates that such increases will be secured by provision ‘ ‘ in this Charter or by statute ’ ’ and enactment of a local law by the City Council would be ineffective to secure the adjustments, since the power to grant the adjustment is vested in the Board of Estimate and not in the City Council.

      Paul Windels, Stewart W. Bowers and David B. Tolins for respondent.
    The proposed local law purporting to amend the New York City Charter by initiative and referendum is not authorized by the City Home Buie Law. It is not in fact an amendment to the New York City Charter. (Burke v. Kern, 287 N. Y. 203.) The proposed local law is in fact an amendment of the Administrative Code. It therefore purports to amend or supersede the provisions of an act of the Legislature. This is contrary to the express provisions of sections 11 and 12 of the City Home Buie Law and of section 982-7.0 of the Administrative Code.
   Thacher, J.

On June 2, 1943, there was filed with the City Cleric of the City of New York a petition for submission to the electors of said city of a proposed local law providing for the payment of a salary bonus to every policeman and fireman in said city. Following the provisions of section 19-a of the City Home Buie Law, the City Clerk transmitted the proposed local law to the City Council, the local legislative body of the city. The City Council refrained from passing the proposed local law and from submitting it to the electors of the city for a period of more than two months, and on August 20, 1943, an additional petition was filed with said City Clerk requiring the submission of the proposed local law to the electors at the general election to be held in the year 1943. Thereafter the City Clerk submitted the proposed local law to the Board of Elections of said city.

This proceeding was commenced under article 78 of the Civil Practice Act to procure an order directing the Board of Elections not to print or cause said local law to be printed upon the official stationery, ballots and paraphernalia for use in said general election. Such an order was made at Special Term and affirmed in the Appellate Division, one justice dissenting.

All the formalities prescribed in section 19-a, which authorizes the amendment of a city charter by direct action of the electors, were complied with; there were more than sufficient signatures, both to the original and additional petitions, and neither the authenticity of the signatures nor the qualifications of those who signed is questioned. The procedural steps were taken in accordance with the provisions of section 19-a.

Objection is made by the respondents that the proposed local law, although designated as an amendment to the New York City Charter, was not such within the meaning of section 19-a of the City Home Buie Law. The appellants, however, insist that the proposed local law is an amendment to the New York City Charter within the meaning of this section. Both courts below held that it is not and we affirmed their decision on October 22, 1943.

Belying upon section 31 of the City Home Buie Law requiring liberal construction of that law, it is argued that the Legislature has by the enactment of section 19-a granted the power to legislate directly concerning any matter which may properly be the subject of a local law. Liberal construction may not, however, ignore the legislative mandate that only amendments to the charter, as distinguished from other laws, may be enacted by the process of initiative and referendum. On the other hand, we do not regard the definition of a city charter in section 2 of the City Home Buie Law as limiting the amendments which may thus be adopted to those which affect structure only. Between these two extremes we must find the pathway of decision, not by generalization, but by application of the statutory test to the facts in each case. The facts which control will be found in the nature of the proposed local law and its relation to the provisions of a particular city charter. The most that can be said is that in the consideration of these controlling facts will be found the basis for determination as to whether in the particular case the proposed law is in truth an amendment of the Charter or is so far unrelated to the Charter as to be an amendment only in name.

In applying this statutory test to the New York City Charter it is important to bear in mind that the Legislature has sharply distinguished between the Charter of the city and the Administrative Code. In providing for the preparation and submission of the Charter, the Legislature directed that it should be a short form charter, setting forth the structure of the city government and the manner in which it is to operate. Recognizing the need for codification of the confused mass of laws affecting the city which could not be made a part of the short form Charter for submission to the electors, the Board of Estimate and Apportionment on May 24, 1935, made a special appropriation to the Charter Revision Commission for a study of all these laws and required that such study be kept separate from the work of revising the Charter. (Report of Charter Revision Commission, New York City Charter and Administrative Code Annotated, p. x.)

In the following year the Legislature created the Board of Statutory Consolidation to take over this work and directed the Board to prepare an Administrative Code which should harmonize with the Charter if a short form Charter should be adopted by a majority of the electors. (L. 1936, ch. 483.) This Board was organized in June, 1936. (Report of Board of Statutory Consolidation, New York City Charter and Administrative Code Annotated, p. xxxix.) Section 951 of the Charter, submitted to and approved at the general election in 1936, made provision for continuing all laws affecting the city not inconsistent with the Charter but only until the adoption of the Administrative Code as contemplated by chapter 483 of the Laws of 1936. The Charter took effect January 1, 1938. In December, 1937, the Board of Statutory Consolidation made its report to the Legislature, and on December 30, 1937, the Legislature, by a two-thirds’ vote upon an emergency message of necessity, enacted the Administrative Code to take effect on January 1, 1938.

Thus it happened that New York City since January 1, 1938, has been governed by a short form Charter, setting forth the structure of the city government and the manner in which it is to operate, which was adopted by the voters of the city, and by an Administrative Code which was enacted by the Legislature as a codification and restatement of existing law in harmony with and supplemental to the New York city charter ” (L. 1937, ch. 929). City Home Buie Law, section 19-a, was added by chapter 479 of the Laws of 1937, and the general revision of the City Home Buie Law effected by chapter 867 of the Laws of 1939 changed section 19-a only with respect to the procedure for submission of a “ local law amending a city charter ” to the electorate.

In applying the statutory test to the proposed local law we must relate the law to the short form Charter of the City of New York and determine whether the law is in truth an amendment of the Charter or is merely labeled as such. The proposed local law in fact amends nothing in the Charter and the provisions of law which are amended are found in the Administra-tive Code — those relating to policemen in section 434a-10.0 and those relating to firemen in section 487a-8.0. Granting a salary bonus to city employees is quite unrelated to any provision of the New York City Charter and the grant proposed in no sense alters or changes any provision contained in the Charter. The Charter makes provision of law for fixing the compensation to be paid to city employees (§67). It also provides fixed salaries for the members of the Board of Estimate, thus relieving them of the necessity of fixing their own salaries (§§ 3, 25, 81, 91). Because it was thought desirable that the Planning Commission should be a body as independent as possible, the salary of the chairman was fixed and the salaries of the members of the Commission could not be reduced during their terms of office. (Report of New York City Charter Revision Commission, New York City Charter and Administrative Code Annotated, p. xxii; Charter, § 194.) Similar prohibition against salary reductions was made with regard to the members of the Board of Standards and Appeals in order that this quasi-judicial Board should also be independent (§ 661, subd. c). A fixed salary of $5,000 was also prescribed in the Charter for members of the City Council (§ 25). Except as provided in the Charter or by statute, the power to fix all salaries was vested in the Board of Estimate (§ 67). However, salaries fixed by statute may be increased by local law, provided the local law is approved by the Board of Estimate (§ 39). These careful provisions were quite obviously designed to transfer to the Board of Estimate the administrative duty of fixing compensation to be paid to employees by the city. Inherently, the duty is administrative.

The proposed local law changes none of these provisions relating to salaries contained in the City Charter. It ignores them all. The power of the Board of Estimate as defined in the Charter remains unchanged, as does the power of the City Council, with the approval of the Board of Estimate, to amend the Administrative Code by increasing the salaries of policemen and firemen. In a word, the proposal is. totally to ignore the existing law and with complete independence thereof to award a bonus to employees of the city by popular vote. The only law proposed to be amended is the Administrative Code, which was enacted by the Legislature and which may only be amended as provided by section 39 of the City Charter or by the Legislature itself. To ignore existing provisions of law is not to amend them.

Section 19-a restricts the use of the initiative and referendum to Charter amendments as distinguished from local laws which are enacted in ordinary course by the legislative body in the regulation of the city’s affairs without amendment of the Charter. Even more clearly, administrative action which may be taken without legislative authority or approval was not intended to be taken by direct action of the voters. The test of validity in every case is whether the local law is in truth and in fact an amendment of a city charter. (Matter of Maylender v. Morrison, 260 App. Div. 892, affd. 284 N. Y. 575; Matter of Steinberg v. Meisser, 291 N. Y. 685.) The tradition of representative democratic government is too strong to permit an inference that the Legislature intended to extend the exceptional process of direct legislation to details of administration unrelated to amendments of the Charter, whether regulated by local laws and ordinances or managed by responsible administrative agencies. (Matter of McCabe v. Voorhis, 243 N. Y. 401, 413.)

The order should be affirmed on.the ground that the proposed local law is not an amendment to the Charter of the City of New York, within the meaning of section 19-a of the City Home Buie Law.

Loughran, J.

(dissenting). Section 19-a of the City Home Buie Law is captioned “ Provisions for adoption of amendments.” It prescribes a procedure whereby “ a local law amending a city charter ” shall become operative if the law receive the affirmative vote of a majority of the qualified electors of the city voting thereon. (My emphasis.) The question made in this case is one as to the range of the direct local legislation thus, authorized. As read by this court, the above word “ amendments ” means in this connection no more than such changes in a city charter as are related to the existing charter text. For a number of reasons, I do not agree to that construction.

When so used without restriction, the word “ amendments ” is to be taken to include not only corrections or alterations of an antecedent text but also additions wholly alien thereto. (Denver v. New York Trust Co., 229 U. S. 123, 145; Christian Feigenspan, Inc., v. Bodine, 264 F. 186, 190, 253 U. S. 350; State ex rel. Greenlund v. Fulton, 99 Ohio St. 168, 179.) Our Legislature has consistently styled such an independent addition to a city charter as “ An Act to amend ” the instrument. (See City of Watertown v. Fairbanks, 65 N. Y. 588; Willis v. City of Rochester, 219 N. Y. 427, 432.) In quite the same fashion, this court in Matter of Stoughton v. Cohen (281 N. Y. 343) said: “ Beference to the revised record of the Constitutional Convention of 1938 shows an intention to amend the then existing Constitution by adding thereto new articles and modifying certain portions ” (p. 347). I see no reason for supposing that the Legislature did not follow this settled usage when the word “ amendments ” was unreservedly employed in section 19-a of the City Home Rule Law.

No question in respect of the phraseology of any particular city charter is here presented. At the moment, section 19-a of the City Home Rule Law is all that calls for construction. Nevertheless, I recognize that a city charter always embodies words which are the organic law of the municipal corporation and its Constitution. (See City Home Rule Law, § 2 and 1 Dillon on Municipal Corporations, 5th ed. § 59.) From that more elevated viewpoint, the broader inquiry is whether an amendment of a Constitution must be related in some degree to an existing provision thereof.

Strong reasons for an affirmative answer were advanced in the attack upon the Eighteenth Amendment of the Federal Constitution — the prohibition of the manufacture, sale, et cetera, of intoxicating liquors for beverage purposes. (National Prohibition Cases, 253 U. S. 350.) Thus Mr. Herbert A. Rice, as Attorney-General of Rhode Island, said: It is ‘ This Constitution ’ that may be amended. ‘ This Constitution ’ is not a code of transient laws but a framework of government and an embodiment of fundamental principles. By an amendment, the identity or purpose of the instrument is not to be changed; its defects may he cured, but This Constitution ’ must remain.” (253 U. S. at p. 355.) In like vein, Mr. Elihu Root said: The framers undoubtedly regarded the power to amend only as authorizing the. inclusion of matter of the same general character as the instrument or thing to be amended; and as all the Constitutions of their day were concerned solely with the distribution and limitation of the powers of government, and not with the direct exercise thereof by the Constitution makers themselves, no amendment of the latter sort would have been deemed appropriate or germane by them.” (253 U. S. at pp. 363-364.) This argument did not prevail. The highest court of the nation ruled that the Eighteenth Amendment — despite its irrelation to the existing text of the Federal Constitution — was within the general power to amend reserved by article V. (253 U. S. at p. 386; cf. Matter of Stoughton v. Cohen, supra.)

But no such mighty contest now detains us. Unlike our Constitutions, the charters of our cities never have been merely basic laws. The historical fact is that in respect of the peculiar composition of the governing body, these charters have been of great variety. (See 1 Dillon on Municipal Corporations, 5th ed. § 59.) Moreover, most of these charters contain numerous minor subjects which exhibit manifold differences in content and detail. (See People ex rel. City of Rochester v. Briggs, 50 N. Y. 553; People ex rel. Ellis-Joslyn Pub. Co. v. Common Council of City of Lackawanna, 223 N. Y. 445; Matter of Keep v. City of Lockport, 266 N. Y. 583; Heaton v. City of Cohoes, 270 N. Y. 222, 226; Schaefer v. City of Long Beach, 271 N. Y. 81; City of Johnstown v. Wells, 275 N. Y. 623; Kaplan v. City of Poughkeepsie, 279 N. Y. 153; Ellis v. City of Geneva, 288 N. Y. 478.) Hence, section 19-a of the City Home Buie Law did not look to any need to preserve the essential character of ingrained procedures.

Section 2 of the City Home Rule Law provides: As used in this chapter, * * * the term ‘ charter ’ means a state statute or local law which establishes or continues the city as a municipal corporation or body politic and includes the fundamental provisions defining, extending or limiting its corporate powers or affecting the frame-work of its government.” I agree with the court in its refusal to read this definition as a ban upon all amendments to a city charter save those affecting the structure of the city government.

In short, I believe the local law in question was a local law amending a city charter ” within the purview of section 19-a of the City Home Rule Law. (See Matter of Steinberg v. Meisser, 291 N. Y. 685.)

Lehman, Ch. J., Rippey, Lewis and Conway, JJ., concur with Thacher, J.; Loughran, J., dissents in opinion in which Desmond, J., concurs.

Order affirmed, etc.


text:
    Mary A. Coffey et al., Respondents, v. State of New York, Appellant.
    (Claim No. 24384.)
    Argued October 21, 1943;
    decided January 13, 1944.

      Nathaniel L. Goldstein, Attorney-General (Gerald J. Carey and Orrm G. Judd of counsel), for appellant.
    Damages sustained by reason of the temporary closing of a street during the work of a public improvement are not recoverable. (Matter of Staten Island R. T. Ry. Co., 220 App. Div. 80, 245 N. Y. 643;
      Matter of Erie R. R. Co. v. Board of Public Utility Commrs., 254 U. S. 394; Welde v. N. Y. & H. R. R. Co., 28 App. Div. 379; Matter of Squire, 125 N. Y. 131; St. John v. Mayor of New York, 13 How. Pr. 527; Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122; Adamo v. State of New York, 235 App. Div. 12; Farrell v. Bose, 253 N. Y. 73; Transportation Co. v. Chicago, 99 U. S. 635; Chicago Flour Co. v. Chicago, 243 Ill. 268; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Lahr v. Metropolitan Elev. Ry. Co., 104 N. Y. 268; Pappenheim v. Metropolitan Elev. Ry. Co., 128 N. Y. 436; Moiler v. N. Y. C. R. R. Co., 282 N. Y. 188.)

      Samuel Ginsburg and Levi Ginsburg for respondents.
    The award for damages sustained hy claimants as a result of the temporary interference with, and obstruction of, their rights and easements was proper. (West 158th St. Garage Corp. v. State of New York, 256 App. Div. 401; Mirro v. State, 172 Misc. 963, 260 App. Div. 525, 285 N. Y. 678; Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202; Taylor v. N. Y. & H. R. R. Co., 27 App. Div. 190; Williams v. Brooklyn Elev. R. R. Co., 126 N. Y. 96; Matter of Grade Crossing Commrs., 17 App. Div. 54, 154 N. Y. 550; Pond v. Metropolitan Elev. Ry. Co., 112 N. Y. 186; Cooper v. New York L. & W. Ry. Co., 122 App. Div. 128; Moller v. N. Y. C. R. R. Co., 282 N. Y. 188.)
   Desmond, J.

The Court of Claims gave claimants an award against the State for alleged damage to their real property situated on Railroad Avenue in the city of Elmira, New York, which damage, the court found, had resulted from the construction by the State of a grade crossing elimination project in Railroad Avenue. The award is made up of two items. The first item, not here contested by the State, is for permanent damage to the fee value of the premises resulting from permanent obstruction and interference with the easements of light, air and access to the premises The other part of the award, being the part which the State questions on this appeal, was allowed by the Court of Claims as compensation for the temporary diminution in rental value of the premises during the progress of the work by reason of the laying in the street, very close to but not on claimants’ premises, of temporary railroad tracks. These tracks were in use for about ten months and were necessary, at a certain stage in the progress of the general improvement, temporarily to carry the trains of the Erie Railroad Company. Prior to the elimination work the tracks of the Erie Railroad ran at grade down the middle of Railroad Avenue on which thoroughfare claimants’ premises had a frontage of 105 feet with a frontage of eighty-eight feet on West Market Street, which intersected Railroad Avenue. Claimants’ real property did not include any part of Railroad Avenue. The elimination project consisted of the erection in the center of Railroad Avenue, of an elevated concrete structure about twenty feet high and constructed within the same part of Railroad Avenue that had theretofore been occupied by the railroad tracks at grade. After the project had been completed there remained in Railroad Avenue in front of claimants’ property and between their property and the new structure, a roadway eighteen feet wide, somewhat wider than the stretch of open roadway which had previously lain between claimants ’ property and the nearest track. The grade of Railroad Avenue in front of claimants’ building was changed only slightly and the slight change, as found by the court, caused no damage. The item for temporary damages, here contested by the State, arose from this situation: when the construction work on the new project reached a point where the new structure was not ready for use but it was not feasible any longer for the railroad tracks to be used in their old location in Railroad Avenue, temporary detour tracks were laid around the new structure at grade and on the side nearer to claimants’ property. These temporary tracks which were used for nearly a year as aforesaid, at no point trespassed on or occupied any part of claimants’ land but were entirely within the street lines. Parallel to the temporary tracks and within the street lines but on a part of what had been a sidewalk in front of claimants’ premises, there was built a fence between the new tracks and the remain- ‘ ing part of the sidewalk leaving in front of claimants ’ building a sidewalk only four feet wide. Besides the inconvenience that resulted to pedestrians from the narrowing of the sidewalk there was noise, smoke and cinders from the passing trains so that, while the narrowed sidewalk was not completely impassable it was rendered so inconvenient that few if any pedestrians used it. Temporarily the rental value of the stores and apartments in claimants’ building was practically destroyed.

We have come to the conclusion that there was no legal basis for an award to claimants to compensate them for this real though temporary damage. A reversal of that part of the award, we think, while it may appear to be at variance with natural justice, rests upon the soundest legal reasons ” (Transportation Co. v. Chicago, 99 U. S. 635, 641).

There can be no doubt, and it was expressly found by the Court of Claims, that the temporary closing of Railroad Avenue in front of claimants’ property was in the course of and for the purpose of a grade crossing elimination and pursuant to the authority of the legislature of the State of New York.” Although the detour tracks were laid for the use of, and immediately for the benefit of, the railroad, it cannot be doubted that this track relocation was a part of the public project for the elimination of the crossing at grade. The whole work was done in accordance with chapter 678 of the Laws of 1928, and the answer to the question in this case depends on the application here of section 6 of that chapter which is as follows: “ If the work of such elimination causes damage to property not acquired as above provided, the state shall be liable therefor in the first instance, but this provision shall not be deemed to create any liability not already existing in law. * *

In Askey & Hager, Inc., v. State of New York (240 App. Div. 451, 453, affd. without opinion 266 N. Y. 587) a practically identical provision in another statute was constructed to mean “ that if there was a remedy available to such injured property owner at the time the act took effect, the State agrees to pay; but if there was not, the statute is not to be taken as creating any new liability.” We think it finally settled that section 6 of chapter 678 of the Laws of 1928 above quoted, did not create any new cause of action in any case where no cause of action previously existed but did impose on the State of New York, in the first instance, any liabilities that theretofore existed under common law or statute. We do not find that there ever existed any right of action for temporary (or permanent) damage consisting of partial loss of access and resulting inconvenience to an abutting property owner caused by the erection of a grade crossing elimination structure in the adjacent street. In Miller v. State of New York (229 App. Div. 423, 425) cited with approval in the Van Aken case in this court to which we shall hereafter refer, the Appellate Division said that “ it is settled law that the owner of property abutting upon a highway which is graded or changed by the public authorities has no right of action, unless it is given by some express statute.” In Van Aken v. State of New York (261 N. Y. 360) which arose under the same statute as the present case, and in which Judge O’Brien’s opinion cites with approval the Miller case excerpt above quoted, claimant owned a farm which fronted on a public road but which farm was bisected by a railroad which crossed at grade a road which ran in front of the farm. While the railroad crossing remained at grade claimant could go from one part of his farm to the other by passing over the railroad crossing in the road. This crossing at grade was eliminated by the State by erecting a fence on each side of the tracks crossing the road at this point, so that claimant and his visitors, in passing from one part of the farm to the other, had thereafter to take a circuitous route, more than a half mile long, over other roads. In the Van Aken case as in the present case there was an award, uncontested in this court, for an actual taking of an easement and a dispute, just as here, over the legality of awarding compensation for consequential damages resulting from the closing of the road at the railroad crossing. This court said that “ such consequential damages as may be awarded are those resulting from a direct taking ” and that there could be no compensation allowed for inconvenience resulting from impaired access to the road. ‘ ‘ On these facts ” said this court in the Van Aken case (p. 363) “ no damages for closing were recoverable at common law and the statute has distinctly failed to create a new liability.” This court reversed the judgment of the Court of Claims and sent the case back to that court with directions to make an award only for the actual taking of the easement over a small part of the Van Aken farm, and not for the loss of access.

In Dwornik v. State of New York (155 Misc. 458, revd. 251 App. Div. 675, affd. 283 N. Y. 597) a provision in the Buffalo grade crossing statute, identical with the above quoted part of chapter 678 of the Laws of 1928, was under examination. Claimant Dwornik alleged that he had been damaged by reason of the permanent closing off at various points of each of two streets, which several street closings had cut off all access to his premises' from various other parts of said streets. There was no direct talcing of any of his property. The Court of Claims made an award but the Appellate Division, noting that there was no change of grade in any street in front of claimant’s property and that claimant’s property was not cut off from all means of ingress and egress, held that there was no common-law liability and no statutory provision creating a liability for such damage. The Court of Appeals affirmed without opinion. We find no controlling difference between the present case and the Miller, Van Alten and DworniJc cases. In each case the alleged wrong consisted of a deprivation of some part of the access to a street or road with resulting inconvenience to the owner. In each decision the distinction was carefully made between such consequential damage and recoverable damage for the actual taking of physical property or the direct impairment of easements. We cannot find that, prior to the enactment of the 1928 statute above quoted, there was any liability against anyone for such consequential damage and since the 1928 statute clearly did not create any new liabilities there is no liability now. As the dissenting justice in the Appellate Division wrote in this case “ any (consequential) damage which respondents may have suffered is damnum absque injuria.”

The judgment and order of the Appellate Division should be modified by deducting therefrom so much thereof as represents the award of $1,650 and interest thereon for consequential damages caused by the temporary detour tracks, and as so modified affirmed, without costs to either party.

The judgments should be modified in accordance with this opinion and as so modified affirmed, without costs.

Lehman, Ch. J., Lotjghean, Rippey, Lewis, Conway and Thacher, JJ., concur.

Judgment accordingly.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Bounded by Farragut Road, East 40th Street, Foster Avenue and Albany Avenue in the Borough of Brooklyn, for Park Purposes. Lily B. Cortelyou et al., Appellants.
    Argued May 20, 1943;
    decided July 20, 1943.

      George Schenker and Edwin A. McGuire for appellants.

      Robert E. Schaffer, Acting Corporation Counsel (Reuben Levy, Julius Isaacs and Joseph S. Deutsch of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thaoheb, J.


text:
    Buel A. Paradis, Appellant, v. Ethel A. Doyle, Respondent.
    Argued June 18, 1943;
    decided July 20, 1943.

      Daniel E. Prior, Edgar S. Knox and Milton B. Knox for appellant.

      Kenneth J. Dugan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Bippey, Lewis, Conway. Desmond and Thagher, JJ.


text:
    Pocket Books, Inc., Respondent, v. Joseph Meyers et al., Doing Business under the Firm Name of Avon Pocket-Size Books, et al., Appellants.
    Argued April 13, 1943;
    reargument ordered July 20, 1943.

      Joseph M. Proskauer, J. Alvin Van Bergh and Louis P. Eisner for appellants.

      Harold R. Medina, Douglas M. Black, Edward K. Hanlon and John W. Jordan for respondent.
   Reargument ordered and argument set for first week in October next. No opinion. (See 292 N. Y. 59.)

Concur: Loughran, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Lehman, Ch. J.


text:
    The People of the State of New York ex rel. Chemical Bank & Trust Co., as Trustee, etc., Appellant and Respondent, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Respondents and Appellants.
    Argued May 17, 1943;
    decided July 20, 1943.

      Abraham N. Getter and Irving Sonnenschein for appellant and respondent.
    ■ Robert H. Schaffer, Acting Corporation Counsel (Arthur H. Goldberg, Arthur A. Segall and Edmund B. Hennefeld of counsel), for respondents and appellants.
   Order affirmed, without costs to either party; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.

       In the above ease, and also in three other companion eases argued on the same day, namely, People ex rel. Bryant Park Building, Inc., v. Miller, 291 N. Y. 528; People ex rel. Prudential Insurance Co. v. Lilly, 291 N. Y. 600, and People ex rel. MacCracken v. Miller, 291 N. Y. 55, the city contended that “the Appellate Division may not substitute its finding of value for the finding of the trial Justice unless the latter finding is clearly contrary to the weight of the credible evidence,” citing Matter of City of New York (Newtown Creek), 284 N. Y. 493. Lehman, Ch. J., in his opinion in the MacCracken case, rejected such contention, saying: “We find no authority in the cited case or in other cases decided by this court for any differentiation in the powers of the Appellate Division to review and set aside findings of value by the Special Term in a certiorari proceeding and its powers to reverse findings of fact made by Special Term in any other special proceedings or actions.” (291 N. Y. 55, 60.) — [Rep.


text:
    The People of the State of New York, Respondent v. John Regan, Appellant.
    Argued June 9, 1943;
    decided July 20, 1943.

      Henry A. Lowenberg, Myron J. Greene and Francis L. Valente for appellant. :

      Frank 8. Hogan, District Attorney (Bernard L. Alderman, Stanley H. Fuld and Milton H. Spiero of counsel), for respondent.
   Judgment of conviction affirmed; no opinion. (See 291 N. Y. 702.)

Concur: Lotjghran, Lewis, Conway, Desmond and Thacher, JJ. Dissenting: Lehman, Ch. J., and Rippey, J., on the ground that the evidence is insufficient to show guilt beyond a reasonable doubt.


text:
    Mattie McCutcheon, Individually and as Administratrix of the Estate of David C. McCutcheon, Deceased, Appellant, v. National City Bank of New York, Respondent, et al., Defendants.
    Argued June 16, 1943;
    decided July 20, 1943.

      Meyer Kreeger, Samuel Seligsohn and Lionel Golub for appellants.

      Joseph S. McCann for respondent.
   Judgment affirmed,.with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    The People of the State of New York ex rel. Frank Kerrigan, Appellant, against Walter B. Martin, as Warden of Clinton Prison, Respondent.
    Submitted June 11, 1943;
    decided July 20, 1943.

      Frank Kerrigan, appellant in person.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley and Orrin G. Judd of counsel), for respondent.
   Order affirmed; no opinion. (See 291 N. Y. 662.)

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thaoher, JJ.


text:
    In the Matter of the Application of Florence L. Hutson to Compel James R. Duncan et al., as Trustees for George W. Fowler, under the Will of George Fowler, Deceased, to Pay Over Income of the Trust to Her. Florence L. Hutson, Petitioner-Respondent; James R. Duncan, The City National Bank of Binghamton, and Raymond D. Dewey, as Trustees under the Will of George Fowler, Deceased, Appellants; George W. Fowler, Respondent.
    Argued June 17, 1943;
    decided July 20, 1943.

      G. W. Turner for appellants.

      W. B. Roulstone for Florence L. Hutson, respondent.

      Clinton DeWitt Van Siclen and John G. Powers for George W. Fowler, respondent.
   Order affirmed, with costs to all attorneys payable out of the fund. No opinion.

Concur: Lehman, Ch. J., Lotjghran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    William Hodson, as Commissioner of Welfare of the City of New York, on the Complaint of Bertha Hoff, Respondent, against William Hoff, Appellant.
    Argued June 14, 1943;
    decided July 20, 1943.

      Noah Seedman for appellant.

      Robert H. Schaffer, Acting Corporation Counsel (Paxton Blair of counsel), for respondent.
   Orders affirmed; no opinion. (See 291 N. Y. 672, 763.)

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.


text:
    Julius A. Schulman, Appellant, v. The City of New York, Respondent.
    Argued May 25, 1943;
    decided July 20, 1943.

      George L. Allin and Arad Biggs for appellant.

      Bobert II. Schaffer, Acting Corporation Counsel (Alfred D. Jahr, Julius Isaacs and Leo Brown of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.


text:
    Louis Weinberg Associates, Inc., Respondent, v. Nathaniel Kramer, Appellant.
    Submitted June 11, 1943;
    decided July 20, 1943.

      Bernard G. Nemeroff for appellant.

      Herbert Champagne and Norman Adams for respondent.
   Judgment of Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground that the decision of the Trial Term is in accord with the weight of the evidence. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    The People of the State of New York, Respondent, v. Blue Baking Co., Inc., Appellant.
    Argued June 10, 1943;
    decided July 20, 1943.

      Samuel D. Goldstein for appellant.

      Thomas CradocJc Hughes, Acting District Attorney (Fred J. Loughran of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Conway, Desmond and Thacher, JJ. Taking no part; Lewis, J.


text:
    Mary E. Lee, Appellant, v. Glens Falls Hospital, Respondent.
    Submitted June 17, 1943;
    decided July 20, 1943.

      J. Clarence Herlihy and Delon F. Mousaw for appellant.

      Robert J. Bell, William F. Martin and Thomas H. Clearwater for respondent.
   Judgment affirmed, with costs; no opinion. (See 291 N. Y. 670.)

Concur: Lehman, Ch. J., Loughkan, Bippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    In the Matter of Fred A. Healey, Respondent, against John Bazinet, Mayor of the City of Glens Falls, et al., Constituting the Board of Public Safety of Said City, Appellants.
    Argued April 8, 1943;
    reargument ordered July 20, 1943.

      C. E. Fitzgerald and Thomas J. McCarthy for appellants. Frank Hurley for respondent.
   Reargument ordered and argument set for first week in October next. No opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway and Desmond, JJ.


text:
    The People of the State of New York ex rel. Bryant Park Building, Inc., Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    Argued May 17,1943;
    decided July 20, 1943.

      Robert H. Schaffer, Acting Corporation Counsel (Arthur H. Goldberg, Arthur A. Segall and Edmund B. Hennefeld of counsel), for appellant.

      Henry H. Harhavy and Sidney B. Moshovitz for respondent.
   Order affirmed, with costs, no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.

       See footnote to People eco rel. Chemical Bank & Trust Co. V. Miller, 291 if. Y. 507, 508 — [Rep.


text:
    The People of the State of New York, Respondent, v. Samuel Maduro, William Brown and Frank Holmes, Appellants.
    Argued June 9, 1943;
    decided July 20, 1943.

      Abraham J. Gellinoff,. Charles Pilatshy, Samuel Morgenroth, Eustace V. Dench and Gerard P. Culhin for William Brown, appellant.

      Moses A. Sachs, William T. Andrews, Dominic T. Aurichio, Harry J. Fine and Abraham J. Gellinoff for Samuel Maduro, appellant.

      Robert Mitchell, Charles Tolleris, N. Henry Lindenauer, LeRoy Campbell and Abraham J. Gellinoff for Frank Holmes, appellant.

      Franh S. .Hogan, District Attorney (Richard G. Denser, Stanley H. Fuld and George R. Raducan of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    The Franklin Society for Home-Building and Savings, Respondent, v. Martin K. Flavin, Appellant.
    Argued June 11, 1943;
    decided July 20, 1943.

      Sidney S. Levine for appellant.

      Leon Quat for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Conway and Desmond, JJ. Dissenting: Rippey and Lewis, JJ. Taking no part.:, Thacheb, J.


text:
    In the Matter of the Application of Frank Bailey et al., Appellants, for an Order, Pursuant to Section 61-a of the General Corporation Law, Assessing upon Bush Terminal Company, Respondent, the Reasonable Expenses, Including Attorneys’ Fees Incurred by Petitioners in Connection with an Action in the Supreme Court of the State of New York, New York County, Entitled: “ C. Walter Randall, as Trustee, Plaintiff, v. Frank Bailey et al., Defendants,” and awarding such expenses as special costs recoverable as statutory costs. In the Matter of the Application of Title Guarantee and Trust Company, as Ancillary Executor of Edward T. Bedford, Deceased, Appellant, for an Order, Pursuant to Section 61-a of the General Corporation Law, Assessing upon Bush Terminal Company, Respondent, the Reasonable Expenses, Including Attorneys’ Fees Incurred by Petitioner in Connection with an Action in the Supreme Court of the State of New York, New York County, Entitled: “ C. Walter Randall, as Trustee, Plaintiff, v. Frank Bailey et al., Defendants,” and awarding such expenses as special costs recoverable as statutory costs.
    Argued June 10, 1943;
    decided July 20, 1943.

      Spencer Pinkham, Henry F. Holthusen and Lawrence S. Pratt for appellants in first above-entitled proceeding.

      David Paine, George Koegler and Francis D. Kalosky for appellants in second above-entitled proceeding.

      Frederick E. Crane, Arthur Garfield Hayes, John Schulman- and Morris Shilensky for respondent.
   Orders affirmed, with costs, on the ground that the final judgment within the meaning of the statute had been entered before the date when the statute went into effect. We pass on no other question. No opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Conway, Desmond and Thacheb, JJ. Taking no part: Lewis, J.


text:
    George Marquardt, Respondent, v. Erie Railroad Company, Appellant. Marie Dudzik, Respondent, v. Erie Railroad Company, Appellant. Vera Andrasiak, Respondent, v. Erie Railroad Company, Appellant. Elizabeth Kostraba, Respondent, v. Erie Railroad Company, Appellant.
    Argued June 17, 1943;
    decided July 20, 1943.

      LeRoy II. Hurlbert and William G. Conable for appellant.

      Arthur E. Often, Joseph Ambrusko and Ueffren J. Cohen for respondents.
   Judgments affirmed, with, costs; no opinion.

Concur: Lehman, Ch. J., Loughean, Rippey, Lewis, Conway. Desmond and Thacheb, JJ.


text:
    The People of the State of New York, Respondent, v. Frank Bonino and Santa Caminito, Appellants, and Charles Noia, Defendant.
    Argued May 27, 1943;
    decided July 20, 1943.

      Joseph A. Martinis for Frank Bonino, appellant.

      Joseph K. Guerin for Santo Caminito, appellant.

      Thomas Cradock Hughes, Acting District Attorney (Solomon A. Klein of counsel), for respondent.
   Judgments affirmed under the provisions of section 542 of the Code of Criminal Procedure. No opinion.

Concur: Lehman, Oh. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    J. Henry Esser, Respondent, v. Village of Mamaroneck, Appellant.
    Argued June 7, 1943;
    decided July 20, 1943.

      Anthony Bansone for appellant.

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

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    James Kuykendall, Respondent, v. City of New York, Appellant.
    Argued June 8, 1943;
    decided July 20, 1943.

      Robert E. Schaffer, Acting Corporation Counsel (Paxton Blair and Joseph F. Mulqueen, Jr., of counsel), for appellant.

      Ralph Stout, Robert McGowan Smith, Louis E. Levine and Abraham L. Kanter for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Rippey, Lewis, Conway and Desmond, JJ. Dissenting: Lehman, Ch. J. Taking no part: Thaoheb, J.


text:
    Albert A. Raphael, Appellant, v. New York State Realty and Terminal Company et al., Respondents.
    Argued June 14, 1943;
    decided July 20, 1943.

      Edward R. Finch and Edward Kurland for appellant.

      Gerald E. Dtvyer, Clive C. Handy and Edward R. Bruml'ey for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thachee, JJ.


text:
    Joseph D. Sylvester, Respondent, v. R. H. Macy & Co., Inc., Appellant, et al., Defendants.
    Argued June 15, 1943;
    decided July 20, 1943.

      Samuel E. Swiggett for appellant.

      Abraham M. Fisch for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughbae, Rippey, Lewis, Coeway and Desmoed, JJ. Lehmae, Ch. J., and Thacheb, J., dissent and vote for a new trial on the ground that the instructions concerning the implied authority of a sales-girl to warrant an article, which she has authority to sell, were erroneous.


text:
    Harrison E. Fryberger, Appellant, v. Consolidated Electric and Gas Company et al., Respondents.
    Argued June 16, 1943;
    decided July 20, 1943.

      Harrison E. Fryberger, appellant in person.

      Arthur M. Bool for respondents.
   Appeal dismissed, with costs, on the ground that no substantial constitutional question is involved. No opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    In the Matter of Sol Cohen, Doing Business under the Firm Name of Brooklyn Auto School, Appellant, against John Splain, as Commissioner of Motor Vehicles of the State of New York, Respondent.
    Submitted June 17, 1943;
    decided July 20, 1943.

      Julius Soloway for appellant.

      Nathaniel L. Goldstein, Attorney-General (John G. Crary, Jr., Orrin G. Judd and John P. Powers of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    In the Matter of New York State Labor Relations Board, Petitioner, against George B. Wheeler, Inc., Respondent. In the Matter of The People of the State of New York ex rel New York State Labor Relations Board, Respondent, against George B. Wheeler, Inc., et al., Appellants.
    Argued June 18, 1943;
    decided July 20, 1943.

      Howard C. Campbell and E. Crosby Kindleberger for appellants.

      William E. Grady, Jr., George G. Gallants and Daniel Kornblum for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    In the Matter of Robert B. Smith et al., Respondents, against Board of Education of the City of New York et al., Appellants.
    Argued May 19, 1943;
    decided July 20, 1943.

      Robert H. Schaffer, Acting Corporation Counsel (Nicholas Bucci and Paxton Blair of counsel), for Board of Education and others, appellants, and Arthur S. Gales for Sam Edelson and others, appellants.

      Michael M. Platsman for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippet, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.


text:
    Joseph Moskowitz, Appellant, v. Leon Feuer, as Executor of Joseph Feuer, Deceased, Respondent.
    Argued May 17, 1943;
    decided July 20, 1943.

      Jacob H. Gilbert, Susan Brandéis and Harold L. Crossman for appellant.

      Edgar R. Kraetzer and Herbert M. Statt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Robert D. Emmerich, Appellant, v. Central Hanover Bank and Trust Company, Respondent. (Consolidated Appeals.)
    Submitted May 27,1943;
    decided July 20, 1943.

      Isidor Enselman and Howard Hilton Spellman for appellant.

      Francis S. Bensel, Alexander M. Lewis and W. Frederick Knecht for respondent.
   Judgment affirmed, with costs, on authority of Elkind v. Chase National Bank (259 App. Div. 661, affd. 284 N. Y. 726) and Hendry v. Title Guarantee & Trust Co. (255 App. Div. 497, affd. 280 N. Y. 740). No opinion.

Concur: Lehman, Ch. J., Lotjghkan, Rippey, Lewis, Conway, Desmond and Thachek, JJ.


text:
    In the Matter of Sidney M. Wittner, an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Argued May 24, 1943;
    decided July 20, 1943.

      I. Maurice Wormser, Samuel Bader and Lloyd Paul Stryker for appellant.

      Binar Chrystie for respondent.
   Order affirmed; no opinion.

Concur: Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ. Taking no part: Lehman, Ch. J.


text:
    The People of the State of New York, Respondent, v. William Wade, Appellant.
    Argued June 7, 1943;
    decided July 20, 1943.

      Joseph F. Kosman, Harry Geist, David Sober and Charles Forster for appellant.

      Elbert T. Gallagher, District Attorney (John J. Dillon of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughban, Rxppey, Lewis, Conway, Desmond and Thacheb, JJ.


author: Lehman, Ch. J.

text:
    The People of the State of New York, Respondent, v. Morris U. Schappes, Appellant.
    Argued April 20, 1943;
    decided July 20, 1943.

      Henry Epstein and Victor 8. Axelroad, for appellant.

      Herbert D. David, for New York City Chapter of the National Lawyers Guild, amicus curiae, in support of appellant’s position.

      Louis B. Boudin for Bakery & Confectionery Workers International Union of America, Local 1, A. P. of L., et al., amici curiae, in support of appellant’s position. .

      Harold J. Gammer for Greater New York Industrial Union Council et al., amici curiae, in support of appellant’s position.

      Abraham J. Isserman and Nathcm Witt for National Federation for Constitutional Liberties, amicus curiae, in support of appellant’s position.

      Frank 8. Hogan, District Attorney (Stanley H. Fuld, George Raducan and David Riesman of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran; Rippey, Lewis, Conwat and Desmond, JJ. Lehman, Ch. J., dissents in the following memorandum:

Lehman, Ch. J.

I dissent on the ground that though there may be sufficient evidence to show that the defendant gave false testimony and is unfit to teach in an institution of learning yet the evidence is insufficient to sustain a finding of guilt of perjury in the first degree upon the theory on which the case was tried, or to sustain a finding that the “ program of the Communist International ” was used “ in making the policy or guiding the actions of a communist unit at the College of the City of New York ” within the meaning of the charge of the trial judge.


author: Conway, J.

text:
    Mabel L. Crane, as Administratrix of the Estate of Arthur M. Crane, Jr., Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 24038.)
    Argued June 14, 1943;
    decided July 20, 1943.

      Francis B. Cantwell for appellant.

      Nathaniel L. Goldstein, Attorney-General (James H. Glavin, Jr., and Orrin G. Judd of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis, Desmond and Thacher, JJ. Conway, J., dissents in the following memorandum, in which Rifpey, J., concurs:

Conway, J.

(dissenting). A careful reading of the record has convinced me that the appellant was defeated in her claim because the trial court mistakenly believed that the deceased was a man who had been intoxicated shortly before the accident at a nearby fair grounds. In addition to the fact that the identity of the deceased with the man at the fair grounds was not established, the doctor and the night supervisor in charge of the Saranac Lake General Hospital (a registered nurse) who attended the deceased upon his removal to the hospital immediately after the accident testified that they saw no sign or symptom of intoxication and specifically testified that there was no odor of alcohol upon his breath. The doctor said that he ‘ ‘ saw no evidence of intoxication in the man at that time,” no clinical evidence at all ” of intoxication and: “ Ordinarily, when a person is intoxicated his pupils are usually contracted for one thing and the eyes are more or less blood shot and his eyes were equal and round and freely movable, reacted to light and accommodation. That would indicate there was no intoxication.” The night supervisor testified: “ Q. Will you tell the Court from your observation and your attendance on this patient at that time whether there was any evidence of intoxication, or whether he was under the influence of liquor? A. He was not. Q. Will you tell what you observed? A. I think the odor of their breath would be the main thing and usually our surgeons when you speak to them * Do you think this man was drinking?’, and I remember both the surgeon and myself shook our head and said, ‘ No, this man isn’t under the influence of liquor.’ ”

Following the first trial, the Appellate Division remitted the cause to the Court of Claims upon the question of contributory negligence of the decedent and damages ” and only as to those issues. (257 App. Div. 699, 702.) As to the issue of contributory negligence the burden was on the State. (Civ. Prac. Act, § 265.) On the new trial on the question of contributory negligence there was no proof, even assuming the deceased to have been intoxicated, that any act of the deceased contributed in the slightest degree to the accident which caused his death. Before remitting the cause to the Court of Claims for the taking of proof as to the contributory negligence of the deceased, the Appellate Division made the following “ new findings of fact as to the negligence of the State which resulted in the death of the intestate ” which constitute the law of this case as to the negligence of the State:

33. That on July 31st, 1934, there existed at a point on panel 22 of the said roadway * * * a depression, hole or groove of a width of about three inches and of a depth of about two inches.
********
“ 42. Said depression, groove or rut as described and established by claimant was of a width and depth sufficient to catch, deflect, divert or turn the wheels of passing automobiles and make steering said automobiles difficult over said points.
*******
“ 47. Prior to July 31st, 1934, for at least 18 months before said accident, motorists had experienced the action of said depression, groove or rut at or near the spot described as the place of the accident in this claim, and had their automobiles turned, diverted, swayed by the action of the said defect in the said highway.”

• Under the facts as established the claimant was entitled to judgment as a matter of law.

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


author: Per Curiam.

text:
    Samuel Morris, Appellant, v. Morton Coal Co., Inc., Respondent.
    Argued June 15, 1943;
    decided July 20, 1943.

      Jay Leo Rothschild for appellant.

      Samuel B. Stewart, Jr., and George G. Tennant, Jr., for respondent.
   Per Curiam.

We think this controversy is one that can be justly determined only through a trial. The judgments should be reversed and the motion denied, with costs in the Appellate Division and in this court.

Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ., concur.

Judgments reversed, etc.


text:
    Joseph Kirsch, Appellant, v. Edward A. Richards, as Executor of Vito Giglio, Deceased, Respondent.
    Argued June 8, 1943;
    decided July 20, 1943.

      Herman S. Bachrach and Clarence G. Bachrach for appellant.

      John P. McGrath, Reginald 8. Hardy and Gardiner Conroy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Winthrop Taylor, Respondent and Appellant, v. Smithtown Country, Outing and Beach Club, Inc., Appellant and Respondent, Bank of Smithtown, Respondent, et al., Defendants.
    Argued June 9, 1943;
    decided July 20, 1943.

      Walter R. Kuhn and John J. Kuhn for plaintiff-respondent and appellant.

      Archibald R. Watson and Guy O. Walser for SmithtoAvn Country, Outing and Beach Club, Inc., defendant-appellant and respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    William G. Solomon, Appellant, v. Brooklyn Cornell Utilities, Inc., et al., Respondents.
    Argued June 14, 1943;
    decided July 20, 1943.

      Paul O’Dwyer for appellant.

      James J. McLoughlin and Thomas P. Harrigan for Estate of Josiah T. Smith, Inc., respondent.

      Francis X. McHugh for Brooklyn Cornell Utilities, Inc., respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Esther Serlin, Appellant, v. City of New York, Respondent.
    Argued June 15, 1943;
    decided July 20, 1943.

      Louis L. Friedman and Irving D. Josefsberg for appellant.

      Robert H. Schaffer, Acting Corporation Counsel (Joseph F. Mulgueen, Jr., and Paxton Blair of counsel), for respondent.
   Judgment affirmed, without costs; Ho opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.


text:
    George H. Westbrook, Appellant, v. Onondaga Company, Respondent, et al., Defendants.
    Counsel appeared June 17, 1943;
    decided July 20, 1943.

      Thomas J. Mangan for appellant.

      Lewis C. Ryan for respondent.
   Appeal withdrawn on condition appellant pay respondent’s disbursements; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    New York Trap Rock Corporation et al., Plaintiffs, and Binghamton Metal Forms, Inc., Plaintiff-Appellant, v. The National Bank of Far Rockaway, Respondent.
    Submitted June 18, 1943;
    decided July 20, 1943.

      Daniel Combs for appellant.

      Carl E. Peterson and Joseph F. Finkelstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur; Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    The People of the State of New York ex rel. The Prudential Insurance Company of America, Respondent, against Joseph Lilly et al., Constituting the Tax Commission of the City of New York, et al., Appellants.
    Argued May 17, 1943;
    decided July 20, 1943.

      Robert H. Schaffer, Acting Corporation Counsel (Arthur A. Segall, Arthur E. Goldberg and Edmund B. Eennefeld of counsel), for appellants.

      Philip Sheridan McNally for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.

       See footnote in People ex rel. Chemical National Bank v. Miller, 291 N. Y. 508.— [Rep.


text:
    Brown, Wheelock, Harris, Stevens, Inc., Respondent, v. Coty, Inc., Appellant.
    Argued May 27, 1943;
    decided July 20, 1943.

      Mahlofi B. Doing and Alexis C. Coudert for appellant.

      Alexander Pfeiffer and Myron P. Gordon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Arnold R. Krakower, Appellant, v. Helen Krakower, Respondent.
    Argued June 7, 1943;
    decided July 20, 1943.

      Charles C. Peters for appellant.

      Henry Cohen and Lazarus Joseph for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Jack Tobin, Respondent, v. Ariel Holding Corporation et al., Appellants.
    Argued June 14, 1943;
    decided July 20, 1943.

      Everett W. Bovard for appellants.

      I. Maurice Wormser, Louis II. Schleider and Morris Silver for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thachepv, JJ.


text:
    Robert P. Adrian et al., Respondents, v. City of New York, Appellant.
    Argued June 15, 1943;
    decided July 20, 1943.

      Robert H. Schaffer, Acting Corporation Counsel, for appellant.

      James H. Tully and Truman U. Luhrman for respondents.
   Judgment affirmed, with costs, on the authority of Schneider v. City of New York (289 N. Y. 785). No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.


text:
    Delia Kelly et al., Appellants, v. Maurice H. Rose, Respondent, et al., Defendants.
    Argued June 16, 1943;
    decided July 20, 1943.

      John J. Stewart and William H. Monroe for appellants.
    „ William B. Davis, T. L. Karpf and E. C. Sherwood for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    In the Matter of the Probate of the Will of Bessie Millens, Deceased. Max Millens et al., Appellants; Sarah Kramer et al., Respondents.
    Submitted June 18, 1943;
    decided July 20, 1943.

      Chris J. Flanagan for appellants.

      Kenneth 8. MacAjfer and Carl 0. Olson for respondents.
   Order affirmed, with costs to respondents payable out of the estate. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    In the Matter of Lawyers Mortgage Company. Brentmore Estates, Inc., et al., Appellants; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Mortgage Company, Respondent. Reorganization Managers of Lawyers Mortgage Company.
    Argued May 25, 1943;
    decided July 20, 1943.

      Leon Leighton, Charles L. Sylvester and Sidney Karris for appellants.

      Edward F. Keenan and Joseph Lapidus for respondent.

      K. B. Egg'mton for Reorganization Managers of Lawyers Mortgage Company.
   Order affirmed with costs; no opinion. (See 291 N. Y. 721.)

Concur: Lehman, Ch. J., Lotjghkan, Rippey, Lewis, Conway, Desmond and Thacheb, JJ,


text:
    John G. Giardina, Respondent, v. Garnerville Holding Corp., Inc., et al., Appellants, et al., Defendants. (Action No. 1.) Charles Avery, Respondent, v. Garnerville Holding Corp., Inc., et al., Appellants, et al., Defendants. (Action No. 2.)
    Argued June 8, 1943;
    decided July 20, 1943.

      Charles F. Bachmann, John Nielsen, Jr., Albert B. Eberlein and John P. Smith for appellants.

      James Dempsey and Sidney Fischman for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    City of New Rochelle, Respondent, v. Morgan H. Seacord, Appellant, et al., Defendants.
    Argued June 10, 1943;
    decided July 20, 1943.

      Lyle Evans Mahan for appellant.

      Aaron Simmons, Corporation Counsel, for respondent.
   Judgment modified to the extent that the description under which the property is to be sold is stricken out, and the cause remanded to the Special Term to decide the correct description under which the property is to be sold, and as so modified" affirmed, without costs. No opinion.

Concur: Lehman, Ch. J., Lotjghran, Rippey, Conway, Desmond and Thacheb, JJ. Taking no part: Lewis, J.


text:
    George Montis et al., Appellants, v. Fifth Avenue Coach Company, Respondent, et al., Defendants.
    Submitted June 11, 1943;
    decided July 20, 1943.

      Benjamin H. Siff and Jerome J. Licari for appellants.

      Joseph Cole and Henry J. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ. Taking no part: Lehman, Ch. J.


text:
    The People of the State of New York, Respondent, v. Anibal Almodovar, Appellant.
    Argued June 15, 1943;
    decided July 20, 1943.

      Rudolph Stand, Robert Mitchell and Joseph D. Allen for appellant.

      Frank S. Hogan, District Attorney (Richard Q. Denser and Stanley H. Fuld of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Mary E. Strance et al., Appellants, v. Martin’s, Inc., Respondent, et al., Defendant.
    Argued June 16, 1943;
    decided July 20, 1943.

      Solomon Pearlman and Louis Barnett for appellants.

      William B. Davis and E. C. Sherwood for respondent.
   Judgments reversed and a new trial granted, with costs to the appellants to abide the event on the ground that the evidence presents questions of fact in regard to the defendant’s negligence and the plaintiffs ’ freedom from contributory negligence. No opinion.

Concur: Lottghran, Rippey, Lewis and Conway, JJ. Dissenting: Lehman, Ch. J., Desmond and Thacher, JJ.


text:
    Abraham Sacks, Respondent, v. Louis E. Philips, Appellant, et al., Defendant.
    Argued June 17, 1943;
    decided July 20, 1943.

      Julius S. Christensen, James J. McLoughlin and Thomas F. Harrigan for appellant.

      Arthur 8. Gales and Joseph 8. Robinson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    In the Matter of Joseph Keenan, Appellant, against Walter B. Martin, as Warden, et al., Constituting the Prison Board at Clinton Prison, Dannemora, N. Y., Respondents.
    Submitted June 18, 1943;
    decided July 20, 1943.

      Joseph Keenan, appellant in person.

      Nathaniel L. Goldstein, Attorney-General (Robert G. Booth and Patrick H. Clime of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Bippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    The People of the State of New York ex rel. New York Trust Company, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Submitted June 14, 1943;
    decided July 20, 1943.
   Motion by appellant for reargument and to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 290 N. Y. 785.)


text:
    Metropolitan Savings Bank, Respondent, v. Friend L. Tuttle, as Surviving Executor and Trustee under the Will of Angelo Ubriaco, Deceased, et al., Appellants, et al., Defendants.
    Submitted July 20, 1943;
    decided July 20, 1943.
   Motion by respondent for reargument denied, with ten dollars costs and necessary printing disbursements. (See 290 N. Y. 497.)


text:
    In the Matter of the Will of Rudolph R. Noll, Deceased. Gerda Noll et al., Petitioners-Appellants. Otto Ruprecht et al., Individually and as Executors and Trustees under the Will of Rudolph R. Noll, Deceased, et al., Respondents. National Surety Corporation et al., Respondents. (2 Proceedings.) In the Matter of the Estate of Rudolph R. Noll, Deceased. Eleanore G. Noll, an Infant, by Gerda Noll, Her Guardian ad Litem, et al., Petitioners-Appellants. Otto Ruprecht et al., Individually and as Executors and Trustees under the Will of Rudolph R. Noll, Deceased, Respondents. Edward A. Pfeffer et al., Respondents.
    Submitted July 20, 1943;
    decided July 20, 1943.
   Separate motions by appellants for reargument denied, with ten dollars costs and necessary printing disbursements. (See 290 N. Y. 909.)


text:
    Henry Hendrickson, Plaintiff, v. Carter & Weekes Stevedoring Company, Appellant, and United Port Service, Inc., Defendant-Respondent.
    Submitted July 20, 1943;
    decided July 20, 1943.

      Lyman A. Spalding and Robert E. Curran for motion.

      Patrick E. Gibbons and E. C. Sherwood opposed.
   Motion granted and appeal dismissed, with costs, and the dollars costs of motion.


text:
    Josephine Macaluso, an Infant, by Lena Macaluso, Her Guardian ad Litem, et al., Appellants, v. Fresh Air Recreation Co., Inc., Respondent.
    Submitted July 20, 1943;
    decided July 20, 1943.

      Frank J. Wheelan for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion.


text:
    Josephine A. Harrington, Respondent, v. Robert P. Harrington, Appellant.
    Submitted July 20, 1943;
    decided July 20, 1943.
   Motion to direct filing of the remittitur dismissed, without costs, since it appears by affidavits of defendant’s attorneys that after the motion was made they compliéd with the request of plaintiff’s attorney. (See 290 N. Y. 126.)


text:
    In the Matter of Marie Ramundo, Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    Submitted July 20, 1943;
    decided July 20, 1943.

      Robert M. Schaffer, Acting Corporation Counsel (James Hall Prothero of counsel), for motion.

      Max A. Gulach opposed.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York, Respondent, v. Mike Peller and Abraham Podinker, Appellants.
    Submitted July 20, 1943;
    decided July 20, 1943.
   Separate motion by each appellant for reargument granted. Reargument set for second week of October, 1943. (See 290 N. Y. 905.)


text:
    Gilbert Haas, Appellant, v. Maurice Wertheim et al., Copartners under the Name of Wertheim & Co., Respondents.
    Submitted July 20, 1943;
    decided July 20, 1943.

      Raphael H. Weissman for motion.
    No one opposed.
   Motion denied, with leave to renew upon argument.


text:
    Maryland Casualty Company, Respondent, v. Central Trust Company, Rochester, N. Y., Appellant. United States of America ex rel. Maryland Casualty Company, Respondent, v. Central Trust Company, Rochester, N. Y., Appellant. (Consolidated Actions.)
    Submitted June 14, 1943;
    decided July 20, 1943.

      Ruben A. Danhoff for motion.

      J. Paul Brennan opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Yeckes-Eichenbaum, Inc., Respondent, v. Wilson McCarthy et al., as Trustees of the Property of Denver and Rio Grande Western Railroad, in Reorganization Proceedings, Appellants.
    Submitted June 14, 1943;
    decided July 20, 1943.
   Motion by respondent for reargument denied, with ten dollars costs and necessary printing disbursements. (See 290 N. Y. 437.)


text:
    In the Matter of Albert L. Ward, Individually and as Secretary of the State Committee of the Democratic Party of the State of New York, Respondent, against Thomas J. Curran, as Secretary of State of the State of New York, Appellant.
    Argued August 19, 1943;
    decided August 19, 1943.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Wendell P. Brown of counsel), for appellant.

      William J. O’Shea, Edward D. Burns, Henry Epstein, John P. McGrath, Andrew M. Lawlor and Saul Kaplan for respondent.
   Order affirmed; no opinion.

Concur: Lehman, Ck. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    The People of the State of New York, Respondent, v. Morris U. Schappes, Appellant.
    Submitted September 9, 1943;
    decided September 9, 1943.
   Motion to amend remittitur granted. Return of remittitur requested and when returned, it will be amended by adding thereto the following:

‘ ‘ A question under the Constitution of the United States was presented and necessarily passed upon by this court, viz: Was the refusal by the Legislative Committee to produce the testimony of People’s witnesses at the private hearings of the Legislative Committee, so as to permit of their inspection by the Trial Court, or their use by the defense in cross examination, a denial to defendant of a fair trial and a deprivation to him of his liberty without 1 due process of law ’ in violation of the Fourteenth Amendment to the Constitution of the United States t ” (See 291 N. Y. 575.)


text:
    In the Matter of Thomas A. Aurelio, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Appellants. In the Matter of Matthew M. Levy et al, Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents. In the Matter of Thomas J. Curran et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents. Michael J. Kennedy et al., Constituting the Committee on Vacancies Appointed by the Judicial Convention for the First Judicial District of the Democratic Party, et al., Appellants.
    Argued September 27, 1943;
    decided September 27, 1943.

      Ignatius M. Wilkinson, Corporation Counsel (Paxton Blair and James Hall Prothero of counsel), for Board of Elections of the City of New York, appellants.

      Charles H. Tuttle for George Frankenthaler, appellant.

      Louis J. Lefkowitz and Alfred J. Bohlinger for Thomas J. Curran et al., appellants.

      Andrew M. Lawler and Harold P. Spivak for the Democratic Party, appellant.

      Leo J. Rosett and Harold P. Spivak for Matthew M. Levy, appellant.

      Robert H. Elder and Otho S. Bowling for Thomas A. Aurelio, respondent.

      Anthony J. Graziano for William Lauricella et al., object ants, respondents.
   Orders affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    John V. Morris, Appellant, v. Chemical Bank & Trust Company, Respondent.
    Submitted July 20, 1943;
    decided October 7, 1943.

      Adolph Hirsch Bosenfeld for motion.

      Lester Kissel opposed.
   Motion dismissed, without costs, on the ground that the application was not made within the time specified in section 592, subdivision 3, of the Civil Practice Act. (Pollak v. Port Morris Bank, 257 N. Y. 287, 288; Low v. Bankers Trust Co., 265 N. Y. 264, 265; Metropolitan Casualty Ins. Co. v. Public Nat. Bank & Trust Co., 262 N. Y. 614.)


text:
    International Patent Company, Limited, Respondent, v. Eric W. Eweson, Appellant.
    Submitted July 20, 1943;
    decided October 7, 1943.

      Louis F. Huttenlocher for motion.

      Winthrop Taylor opposed.
   Motion dismissed, without costs, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of New York Telephone Company, Appellant. William F. Canough, as Commissioner of Assessment of the City of Syracuse, Respondent. (2 Proceedings —1941 and 1940 Assessments.)
    Submitted July 20, 1943;
    decided October 7, 1943.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 290 N. Y. 537.)


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Whitestone Bridge Approach in the Borough of Queens. Hy-Dor Realty Associates, Inc., et al., Appellants.
    Submitted July 20, 1943;
    decided October 7, 1943.

      Charles P. Kramer for motion.

      Ignatius M. Wilkinson, Corporation Counsel (Reuben Levy of counsel), opposed.
   Motion dismissed, without costs, on the ground that the application was not made within the time specified in section 592, subdivision 3, of the Civil Practice Act. (Poliak v. Port Morris Bank, 257 N. Y. 287, 288; Low v. Bankers Trust Co., 265 N. Y. 264, 265; Metropolitan Casualty Ins. Co. v. Public Nat. Bank & Trust Co., 262 N. Y. 614.)


text:
    The People of the State of New York, Respondent, v. John Williams, Appellant.
    Submitted October 4, 1943;
    decided October 7, 1943.

      Alexander I. Borke, LeBoy Campbell and Stanley S. Katsenstein for motion.

      Frank S. Hogan, District Attorney, opposed.
   Motion dismissed, without prejudice to the making of any motion in the Court of General Sessions, as defendant may be advised.


text:
    Homer P. Hand, Appellant and Respondent, v. Henry B. Boland et al., Individually and as Copartners Doing Business as H. B. Boland & Company, Respondents and Appellants.
    Argued June 9, 1943;
    decided October 14, 1943.

      John T. Trimble for defendants, appellants and respondents.

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

Concur: Lehman, Ch. J., Loughban, Eippey, Lewis, Conway, Desmond and Thachee, JJ.


text:
    Dunbar & Sullivan Dredging Company, Appellant, v. State of New York, Respondent.
    (Claim No. 25371.)
    Argued May 27, 1943;
    decided October 14, 1943.

      George H. liothlauf for appellant.

      Nathaniel L. Goldstein, Attorney-General (Arthur W. Matt-son, Orrin G* Judd and Herbert A. Einhorn of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Eippey, Lewis, Conway, Desmond and Thacheb, JJ.