text:
    The People of the State of New York, Appellant, v. Harry Harrison, Respondent.
    (Argued November 27, 1933;
    decided December 12, 1933.)

      William F. X. Qeoghan, District Attorney (Henry J. Walsh of counsel), for appellant.

      Morris Krimshy for respondent.
   Judgment affirmed; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Louisiana Public Utilities Co., Inc., Respondent, v. Atlas Assurance Co., Ltd., et al., Appellants.
    (Argued November 28, 1933;
    decided December 12, 1933.)

      Frederick T. Case for Atlas Assurance Co., Ltd., et al., appellants.

      D. I. Roseriblum and S. J. Roseriblum for St. Paul Fire and Marine Insurance Company, appellant.

      Louis J. Wolff for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gordon Talbot, Respondent, v. Thomas C. Brown Company, Inc., Appellant.
    (Argued November 28, 1933;
    decided December 12, 1933.)

      J. Stanley Carter for appellant.

      Thomas B. Cotter for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Northwestern Fire and Marine Insurance Company, Appellant, v. Fred T. Ley & Co., Inc., Defendant, and Cowles Towing Company, Inc., Respondent.
    (Submitted December 4, 1933;
    decided December 12, 1933.)

      Arthur E. Otten for motion.

      Charles S. Desmond opposed.
   Motion granted to the extent that oral argument will be heard on the motion to dismiss when the case is reached in its regular order on the calendar; otherwise, denied, without costs.


text:
    Adele Fiedler, Appellant, v. George Fiedler, Respondent.
    (Submitted December 11, 1933;
    decided December 12, 1933.)

      Robert Garlock for motion.

      Ralph Weller opposed.
   Motion granted and appeal dismissed.


text:
    Adele Fiedler, Appellant, v. George Fiedler, Respondent.
    (Submitted December 11, 1933;
    decided December 12, 1933.)

      Robert Garlock for motion.

      Ralph Weller opposed.
   Motion denied on filing return and undertaking within ten days; otherwise, granted and appeal dismissed.


text:
    John T. Gedney et al., Respondents, v. Marlton Realty Company, Appellant. (Actions Nos. 1 and 2.)
    (Submitted December 11, 1933;
    decided December 12, 1933.)

      Harold R. Medina for motion.

      John Vance Hewitt opposed.
   Motion denied, without costs.


text:
    In the Matter of the Accounting of United States Trust Company of New York, as Executor of Hannah M. Lydig, Deceased, Respondent. Julia D. McIlvaine et al., Appellants; Edward P. Beckwith et al., as Executors of Margaretta P. Beckwith, Deceased, et al., Respondents.
    (Argued November 22, 1933;
    decided December 15, 1933.)

      Grenville Clark, Elihu Boot, Jr., Abram Glaser, Henry B. Closson and Joseph Potts for Julia D. Mcllvaine et al., appellants.

      Phillip W. Haberman, Jr., Sam Bernard, Jr., and Armin H. Mittelmann for James E. De Kay, appellant.

      Herbert Barry, George N. Whittlesey, J. Edwards Wyckoff, George H. Fox, Wolcott P. Robbins, Herbert S. Schoonmaker, Norborne P. Gatling, William E. Birdsall, Stephen P. Nash and Walter W. Law for The American Society for the Prevention of Cruelty to Animals and other corporations, respondents.

      William Byrd, William C. Chanler and John E. Parsons for Lenox Library Association et al., respondents.

      Gerald Donovan and Raymond D. Thurber for The New York Society for the Prevention of Cruelty to Children, respondent.

      James H. Richards and George L. Shearer for United States Trust Company of New York, as executor of Hannah M. Lydig, deceased, respondent.

      James F. Donnelly and Samuel Michelman for Honor Emergency Fund of the Fire Department of the City of New York, respondent.

      Edward W. Walker for The New York Association for Improving the Condition of the Poor, respondent.
   Order affirmed, with costs to each party appearing and filing a separate brief payable out of the estate. No opinion.

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


text:
    Joseph P. Fell, as Administrator with the Will Annexed of Lilla B. McCready, Deceased, Appellant and Respondent, v. Ira T. McCready et al., Respondents and Appellants. Lola L. Butler et al., Appellants and Respondents, v. Benjamin F. Adams et al., Respondents and Appellants.
    (Argued November 23, 1933;
    decided December 16, 1933.)

      John Lord O’Brian, Dana B. Hellings and Dion T. Rahill for Joseph P. Fell, as administrator, et al., appellants and respondents.

      Helen Z. M. Rodgers and Walter D. Herrick for Ira T. McCready et al., respondents and appellants.

      Charles W. Pooley for Doris W. McCready et al., respondents and appellants.

      Henry W. Brush for Sarah W. Birk et al., respondents and appellants.

      Thomas R. Wheeler and D. J. Kenefick, Jr., for Huida E. Miles, as administratrix, et al., respondents and appellants.
   Judgments affirmed, with costs to each party filing a brief, payable out of the estate of Riley W. McCready, deceased. No opinion. (See 263 N. Y. 669.)

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


text:
    Donald King, an Infant, by Rolland King, His Guardian ad Litem, Respondent, v. Lillian McClellan, Appellant. Rolland King, Respondent, v. Lillian McClellan, Appellant.
    (Argued November 29, 1933;
    decided December 15, 1933.)

      Róllin B. Sanford and John T. DeGraff for appellant.

      Daniel H, Prior and Samuel Englebardt for respondents.
   Judgment affirmed, with costs; no opinion. (See 263 N. Y. 669.)

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


text:
    Martin T. Erickson, Appellant, v. Adrian Grobsmith et al., Copartners under the Firm Name of Empire State Motor Express Company, Respondents.
    (Argued November 29, 1933;
    decided December 15, 1933.)

      Clayton M. Smith for appellant.

      Ralph W. Dox and Ulysses S. Thomas for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of John O. Nelson, Appellant, against Civil Service Commissioner et al., Respondents.
    (Submitted December 11, 1933,
    decided December 15, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 648.)


text:
    James G. Lo Dolce, Respondent, v. Michael Franz et al., Appellants, and United States Fidelity and Guaranty Company, Appellant and Respondent.
    (Submitted December 11, 1933;
    decided December 15, 1933.)

      Eugene L. Bondy and Maury M. Kotz for motions.

      Frederick W. Sparks opposed.
   Motions denied, with ten dollars costs and necessary printing disbursements, on the ground that leave to appeal is unnecessary.


text:
    Montgomery Acceptance Corporation, Respondent, v. Anna Coon, Appellant.
    (Submitted December 14, 1933;
    decided December 15, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 561.)


text:
    In the Matter of the Claim of John Boscarino, Responent, against Miller Cabinet Company, Appellant. State Industrial Board, Respondent.
    (Submitted December 14, 1933;
    decided December 15, 1933.)
   Motion for reargument granted to the following extent:

Return of remittitur requested and when returned it will be amended by adding thereto the following: The court considered the question as to whether section 15, subdivision 5-a, of the Workmen’s Compensation Law (Laws of 1930, ch. 316, § 2) was violative of section 1 of the Fourteenth Amendment of the United States Constitution and found that the subdivision was constitutional.” (See 263 N. Y. 581.)


text:
    In the Matter of Eber Burgey, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted December 15, 1933;
    decided January 9, 1934.)

      George A. Marcus for appellant.

      Mathias P. Poersch, Corporation Counsel (McDonald King of counsel), for respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court, on the authority of Matter of Berry v. Brearton (263 N. Y. 274). No opinion.

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


text:
    In the Matter of Edward S. Kearney, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted December 15, 1933;
    decided January 9, 1934.)

      George A. Marcus for appellant.

      Mathias P. Poersch, Corporation Counsel (McDonald King of counsel), for respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court, on the authority of Matter of Berry v. Brearton (263 N. Y. 274). No opinion.

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


text:
    In the Matter of Anthony L. Graczyk, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted December 15, 1933;
    decided January 9, 1934.)

      George A. Marcus for appellant.

      Mathias P. Poersch, Corporation Counsel (McDonald King of counsel), for respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court, on the authority of Matter of Berry v. Brearton (263 N. Y. 274). No opinion.

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


text:
    In the Matter of Angelo Grasso, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted December 15, 1933;
    decided January 9, 1934.)

      George A. Marcus for appellant.

      Mathias P. Poersch, Corporation Counsel (McDonald King of counsel), for respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court, on the authority of Matter of Berry v. Brearton (263 N. Y. 274). No opinion.

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


text:
    In the Matter of Francis J. Bottleburger, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted December 15, 1933;
    decided January 9, 1934.)

      George A. Marcus for appellant.

      Mathias P. Poersch, Corporation Counsel (McDonald King of counsel), for respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court, on the authority of Matter of Berry v. Brearton (263 N. Y. 274). No opinion.

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


text:
    In the Matter of John Buckley, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted December 15, 1933;
    decided January 9, 1934.)

      George A. Marcus for appellant.

      Mathias P. Poersch, Corporation Counsel (McDonald King of counsel), for respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court, on the authority of Matter of Berry v. Brearton (263 N. Y. 274). No opinion.

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


text:
    Wright & Kremers, Inc., Appellant, v. The State of New York, Respondent.
    (Claim No. 21683.)
    (Argued October 13, 1933;
    decided January 9, 1934.)

      Robert J. Moore for appellant.

      John J. Bennett, Jr., Attorney-General (Harold P. Burke of counsel), for respondent.
   Judgment modified by adding thereto the sum of $1,165.25 awarded to plaintiff by the Court of Claims by reason of the State’s delay in clearing the site; otherwise, judgment affirmed, without costs. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien. Eubbs and Crouch, JJ.


text:
    The People of the State of New York, Respondent, v. Antonio Posterino, Appellant.
    (Argued November 27, 1933;
    decided January 9, 1934.)

      Joseph T. McCaffrey, Richard J. Shanahan and Thomas F. Zaia for appellant.

      Harry M. Stacy, District Attorney (Clarence J. Gorman of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Benjamin Mallow, Appellant.
    (Argued November 27, 1933;
    decided January 9, 1934.)

      Sim C. Binder, Nathaniel H. Kramer and John E. Brandfon for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Frank Gervasi and Salvatore Natale, Appellants.
    (Submitted November 28, 1933;
    decided January 9, 1934.)

      Joseph Lonardo for appellants.

      Charles S. Colden, District Attorney {Mordecai Konowitz of counsel), for respondent.
   Judgment as to each defendant affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Lloyd Price, Appellant.
    (Argued December 4, 1933;-
    decided January 9, 1934.)

      Philip J. Jones and Moe Levy for appellant.

      William F. X. Geoghan {Henry J. Walsh of counsel), for respondent..
   Judgment of conviction affirmed; no opinion.

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


text:
    Arthur Sans Soucy, Respondent, v. Craver, Cowee & Baxter, Inc., Appellant.
    (Argued December 5, 1933;
    decided January 9, 1934.)

      Everett F. Warrington for appellant.

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

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


text:
    August Hanniball, Appellant, v. Franco American Baking Corporation et al., Defendants, and Isidore Langner, Respondent.
    (Argued December 5, 1933;
    decided January 9, 1934.)

      Francis L. Driscoll, Richard J. Mackey and C. Campbell Hunicke for appellant.

      Everett F. Warrington and F. G. Mann for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Kyle Stewart, Respondent, v. Hall Cold Storage Co., Inc., Appellant.
    (Argued December 5, 1933;
    decided January 9, 1934.)

      C. Willard Rice for appellant.

      M. Maurice Chacchia for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Maria Posato, Respondent, v. Public Fire Insurance Company, Appellant.
    (Argued December 5, 1933;
    decided January 9, 1934.)

      J. Frank Tra-ynor for appellant.

      Arthur VD. Chamberlain and Paul Muscarella for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Lawrence T. Gresser, Appellant, against John P. O’Brien et al., Constituting the Board of Estimate and Apportionment of the City of New York, Respondents.
    (Argued December 5, 1933;
    decided January 9, 1934.)

      Frank C. Laughlin and Stewart W. Bowers for appellant.

      Darnel J. Kenefick for Robert J. Summers, amicus curice.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and William E. C. Mayer of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hurbs and Crouch, JJ.


text:
    Harry Young, Respondent, v. Theodore A. Sunderman, as Acting Property Clerk of the Police Department of the City of New York, Appellant.
    (Submitted December 5, 1933;
    decided January 9, 1934.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Charles E. Ramsgate of counsel), for appellant. J. Leonard Stoll for respondent.
   Judgment affirmed; no opinion.

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


text:
    Carlo Schirone, as Receiver of the Banca Popolare Monopoli, et al., Respondents, v. Hochheiser & Weisberg, Inc., Appellant. (Actions 1 and 2.)
    (Argued December 5, 1933;
    decided January 9, 1934.)

      Stanley Garten for appellant.

      Samuel F. Frank and Nathaniel S. Corwin for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Sarah Russ, Appellant, v. Madeline Russ, Respondent.
    (Argued December 6, 1933;
    decided January 9, 1934.)

      Herman Horowitz, Benjamin Algase and Edward J, Knitzer for appellant.

      Sol A. Hyman and Milton H. Greenwald for respondent.
   Judgment reversed and judgment for appellant directed with costs in all courts, on the ground that there is no substantial evidence to sustain the judgment; no opinion.

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


text:
    In the Matter of Modesto Berardini, as Executor and Trustee under the Will of Michael Berardini, Deceased, Appellant; Philip Berardini et al., Respondents.
    (Argued December 6, 1933;
    decided January 9, 1934.)

      Richard J. Mackey for appellant.
   Leighton Lobdell and William H. O’Brien for respondents. Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    Emma Kolb, Individually and as Administratrix of the Estate of John B. Kolb, Deceased, Appellant, v. Katherine M. Kolb, Respondent.
    (Argued December 6, 1933;
    decided January 9, 1934.)

      H. H. Brown, William B. Davis and James E. Turner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Stephen S. Walsh, Deceased. Mary V. Leddy, Appellant; Thomas G. Walsh, as Executor of Stephen S. Walsh, Deceased, Respondent.
    (Argued December 7, 1933;
    decided January 9, 1934.)

      James G. Purdy and James M. Kelly for appellant. William Flatto and Harold Flatto for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    George B. Case, Respondent, v. Donald J. Hardenbrook, Appellant.
    (Argued December 7, 1933;
    decided January 9, 1934.)

      E. J. Dimock, B. L. Visscher and G. W. Watkins for appellant.

      Walter Jeffreys Carlin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hebbs and Crouch, JJ.


text:
    Jasinthe Trading Corporation et al., Appellants, v. Andreas Keup et al., as Executors of Katharina Keup, Deceased, Defendants, and Irving Bachrach et al., Respondents. (Actions 1 and 2.)
    (Argued December 7, 1933;
    decided January 9, 1934.)

      I. Maurice Wormser and Henry W. Fried for appellants.

      Frank H. Hiscock, Saul Bernstein and Marshall M. Bernstein for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    New York Investors, Inc., Respondent, v. Tinus Building Corporation et al., Appellants, and The Prudence Company, Inc., Respondent, Impleaded with Others, Defendants.
    (Argued December 7, 1933;
    decided January 9, 1934.)

      I. Maurice Wormser, Lee Parsons Davis, Harry Brody and Theodore N. Tarlau for Tinus Building Corporation, appellant.

      Joshua M. Fiero, Jr., for George B. Hall, as trustee, appellant.

      Henry Hetkin, Lester Samuels and Lynn G. Goodnough, for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elmer W. Howell et al., Copartners under the Firm Name of E. W. Howell Company, Appellants, v. Robert Branigan, as President of Bricklayers, Masons and Plasterers International Union, Local No. 41, Respondent.
    (Submitted December 7, 1933;
    decided January 9, 1934.)

      William J. Beglin for appellants.

      Murray Hulbert and Francis X. Gallagher for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nathan Magida et al., Respondents, v. Title Guarantee and Trust Company, Appellant.
    (Argued December 7, 1933;
    decided January 9, 1934.)

      Clarence B. Plantz, William B. Ewing and Maurice E. McLoughlin, Jr., for appellant.

      Charles J. McDermott, W. Irving Taylor and Samuel Flatow for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of St. John’s Church of Mt. Morris, Respondent. Frances L. S. Kelly et al., Appellants.
    (Argued December 8, 1933;
    decided January 9, 1934.)

      John F. Connor and Frank K. Cook for respondent.
   Order affirmed, with costs payable out of the trust fund; no opinion.

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


text:
    In the Matter of the Estate of Oscar S. Foster, Deceased. Albert Q. Foster, as Executor, Respondent; State Tax Commission, Appellant.
    (Argued December 8, 1933;
    decided January 9, 1934.)

      Seth T. Cole and Mortimer M. Kassell for appellant.

      Richard R. Martin for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    James A. Leary, as Executor of Will W. Blackmer, Deceased, Appellant and Respondent, v. Capitol Trust Company of Schenectady et al., Respondents and Appellants.
    (Argued December 8, 1933;
    decided January 9, 1934.)

      Walter A. Fullerton for plaintiff, appellant and respondent.

      George B. Smith and Laurence F. Benedict for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

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


text:
    Beatrice Schneider, Appellant, v. Harold Schneider, Respondent.
    (Argued December 11, 1933;
    decided January 9, 1934.)

      Jay Leo Rothschild and Walter S. Beck for appellant.

      Irving Moldauer and Emanuel Newman for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Max Schweiger, Appellant, v. The Brooklyn City Railroad Company, Respondent.
    (Argued December 11, 1933;
    decided January 9, 1934.)

      Jay Leo Rothschild and Walter 8. Beck for appellant.

      Harold L. Warner and George D. Yeomans for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Louisa S. Cole, Deceased. Mary S. Cole et al., as Executrices of Louisa S. Cole, Deceased, et al., Appellants; State Tax Commission, Respondent.
    (Argued December 11, 1933;
    decided January 9, 1934.)

      Francis H. Warland, Joseph F. McCloy, Leo Brady and M. Francis Brayman for appellants.

      Seth T. Cole for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Solomon Abramowitz, an Infant, by Heinrich Abramowitz, His Guardian ad Litem, Respondent, v. G. M. N. Realty Corporation et al., Appellants.
    (Argued December 12, 1933;
    decided January 9, 1934.)

      Harold D. Scharf, Charles Horowitz and Henry E. Papenberg for appellants.

      Harry Gilbert for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rose Dileo, Appellant, v. Eagle Indemnity Company, Respondent. Frank Dileo, Appellant, v. Eagle Indemnity Company, Respondent.
    (Argued December 12, 1933;
    decided January 9, 1934.)

      Ford White for appellants.

      Albert T. O’Neill for respondent.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Brooklyn Trust Company et al., as Trustees under the Will of N. Willard Curtis, Deceased, Appellants, v. Brislin Lumber Co., Inc., et al., Respondents.
    (Argued December 12, 1933;
    decided January 9, 1934.)

      Bruce R. Duncan for appellants.

      John J. Curtin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry E. Welsh, as Executor of Juliette Welsh, Deceased, Respondent, v. John E. Neumann et al., Appellants.
    (Submitted December 12, 1933;
    decided January 9, 1934.)

      Joseph F. Hanley for appellants.

      Humphrey J. Lynch and Monroe J. Cahn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    E. V. P. Holding Corporation, Respondent, v. William B. Evans, Appellant.
    (Argued December 12, 1933;
    decided January 9, 1934.)

      Joseph J. Schwartz and Herman Schwartz for appellant.

      Saul I. Radin and Otto C. Sommerich for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis Rosen, Appellant, v. John Chesnius, Respondent.
    (Argued December 12, 1933;
    decided January 9, 1934.)

      Abraham H. Sarasohn for appellant.

      Louis Nizer, Robert S. Benjamin and Arthur B. Krim for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Arfst Beelendorf, Appellant, v. Deneke Provision Co., Inc., Respondent.
    (Argued December 12, 1933;
    decided January 9, 1934.)

      Robert H. Charlton for appellant.

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

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


text:
    Henry B. Merritt, as Administrator of the Estate of Ruth M. Reichal, Deceased, Respondent, v. James H. Leddy, Jr., Appellant.
    (Argued December 12, 1933;
    decided January 9, 1934.)

      Daniel Mungall for appellant.

      Humphrey J. Lynch, Monroe J. Cahn and Joseph Merritt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Germantown National Bank et al., Appellants, v. The Employers' Liability Assurance Corporation, Ltd., of London, England, et al., Respondents.
    (Argued December 13, 1933;
    decided January 9, 1934.)

      Raymond E. Aldrich for appellants.

      Charles B. Sullivan, Frank B. Holsapple and Bertrand L. Pettigrew for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    337-339 East Thirtieth Street Corporation, Appellant, v. Detroit Fidelity and Surety Company, Respondent.
    (Argued December 13, 1933;
    decided January 9, 1934.)

      David L. Podell and Donald I. Peyser for appellant. Edward G. Griffin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Myra McGrath, as Administratrix of the Estate of George McGrath, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    (Argued December 13, 1933;
    decided January 9, 1934.)

      Howard Cobb for appellant.

      Clayton R. Lusk for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gordon L. Summers, Appellant, v. Carl Winters, Sr., et al., Respondents.
    (Argued December 13, 1933;
    decided January 9, 1934.)

      Clayton R. Lusk for appellant.

      George G. Coughlin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Marshall E. Francis, Respondent, v. Susan E. Fromer, Individually and as Executrix of Jacob Fromer, Deceased, et al., Appellants.
    (Argued December 14, 1933;
    decided January 9, 1934.)

      Henry Epstein and Paul Fromer for appellants.

      George F. Kaufman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Benjamin McClung, Respondent, v. First Citizens Bank and Trust Company of Utica, Appellant, Impleaded with Others.
    (Argued December 14, 1933;
    decided January 9, 1934.)
    , Thayer Burgess and George H. Kenny for appellant.

      Charles B. Sullivan and Warner M. Bouck for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    Sam Kaplan, Individually and as President of Moving Picture Machine Operators Union, Local No. 306, Respondent, v. William C. Elliott, Individually and as President of International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, et al., Respondents, and Samuel I. Rosenman et al., Appellants.
    (Argued December 15, 1933;
    decided January 9, 1934.)

      Jeremiah T. Mahoney, Vincent L. Leibell and John A. Bell, Jr., for appellants.

      Isidor Bregoff, Abner J. Rubien and Alexander D. Diamond for William C. Elliott, individually and as president, respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Sager-Spuck Supply Company, Inc., Respondent, v. Ter Bush & Powell, Inc., Appellant.
    (Argued December 16, 1933;
    decided January 9, 1934.)

      II. E. Blodgett for appellant.

      Edwin L. Fowler for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Marcus Brennan, Respondent, against Mack International Motor Truck Corporation et al., Appellants. State Industrial Board, Respondent.
    (Submitted January 8, 1934;
    decided January 9, 1934.)
   Motion to amend remittitur denied. The award of costs to the claimant and State Industrial Board is the award of a single bill of costs and not separate bills of costs to both the claimant and the State Industrial Board. (See 262 N. Y. 660; 263 N. Y. 563.)


text:
    Frank Pagano, as Administrator of the Estate of Federico Pagano, Deceased, Appellant, v. John Loughlin et al., Copartners under the Firm Name of Loughlin Bros., Respondents.
    (Submitted January 8, 1934;
    decided January 9, 1934.)

      James A. Nooney for motion.

      William F. Lally opposed.
   Motion denied.


text:
    James Van Buren, Respondent, v. Albany Insurance Company, Appellant, Impleaded with Others.
    (Argued December 15, 1933;
    decided January 16, 1934.)

      Charles B. Sullivan and Warner M. Bouck for appellant.

      Borden H. Mills and Samuel Cooper for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bertha S. Babcock, Respondent, v. Millard C. Babcock et al., Appellants.
    (Submitted November 20, 1933;
    decided January 16, 1934.)

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

Motion for leave to appeal granted.


text:
    In the Matter of Jacob A. Gangnagel, Appellant, against Charles Butler et al., Constituting the State Board of Examiners and Registration of Architects, et al., Respondents.
    (Argued January 8, 1934;
    decided January 16, 1934.)

      John J. Bennett, Jr., Attorney-General (Dorothy U. Smith of counsel), for motion.

      William S. Rann opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Sidney K. Johnson, Appellant, v. The International Harvester Co. of America (Inc.), Respondent.
    (Argued January 8, 1934;
    decided January 16, 1934.)

      Francis D. McCurn for motion.

      Ward N. Truesdell opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Brainard Avery et al., as Trustees, Plaintiffs, v. Brainard Avery et al., as Executors of and Trustees under the Will of Isabel A. Crosby, Deceased, et al., Defendants; M. George Thompson, as Administrator of the Estate of Charles W. Crosby, Deceased, et al., Respondents, and Walter Scott Free Industrial School for Crippled Children, Inc., Appellant.
    (Submitted January 8, 1934;
    decided January 16, 1934.)

      Edward S. Frith for motion.

      John Edmond Hewitt opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not the final determination of the action.


text:
    Irene Mitchell, Appellant, v. The Northwestern Ohio Savings Association, Defendant, and Paul A. Warner, as Superintendent of Building and Loan Associations in the State of Ohio, Respondent. Kathleen C. Weeks, Appellant, v. The Northwestern Ohio Savings Association, Defendant, and Paul A. Warner, as Superintendent of Building and Loan Associations in the State of Ohio, Respondent.
    (Submitted January 8, 1934;
    decided January 16, 1934.)

      Bertram Schwimmer for motion.

      Robert S. Sloan opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not a final determination of the action.


text:
    The People of the State of New York ex rel. Wedgewood Realty Co., Inc., Appellant, against Thomas M. Lynch et al., Constituting the State Tax Commission, Respondents.
    (Submitted January 8, 1934;
    decided January 16, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 202.)


text:
    Lola L. Butler et al., Appellants and Respondents, v. Benjamin F. Adams et al., Respondents and Appellants.
    (Submitted January 8, 1934;
    decided January 16, 1934.)
   Motions for reargument denied, with ten dollars costs and necessary printing disbursements. fSee 263 N. Y. 602.)


text:
    N. A. N. A., Inc., Appellant, v. Lake and Danenhower, Inc., Respondent.
    (Submitted January 8, 1934;
    decided January 16, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 522.)


text:
    Donald King, an Infant, by Rolland King, His Guardian ad Litem, Respondent, v. Lillian McClellan, Appellant. Rolland King, Respondent, v. Lillian McClellan, Appellant.
    (Submitted January 8, 1934;
    decided January 16, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 604.)


text:
    James J. Walsh, Respondent, v. Charles A. Judge et al., Defendants, and Alex Kelso et al., Appellants.
    (Submitted January 8, 1934;
    decided January 16,1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 136,)


text:
    Dampskibs Aktieselskabet Eldrid, Inc., Respondent, v. Guisippina Parascandola, as Administratrix of the Estate of Joseph Auditore, Deceased, Appellant, Impleaded with Another.
    (Submitted January 8, 1934;
    decided January 16, 1934.)

      Edgar R. Kraetzer for motion to dismiss appeal and in opposition to motion for leave to appeal.

      Edward H. Wilson in opposition to motion to dismiss appeal and for motion for leave to appeal.
   Motion to dismiss appeal denied.

Motion for leave to appeal denied, without costs, as unnecessary.


text:
    Elizabeth G. Cunningham, Respondent, v. Pressed Steel Car Company, Appellant.
    (Submitted January 8, 1934;
    decided January 23, 1934.)

      Albert Stickney and Frank H. Heiss for appellant.

      Eugene Untermyer and Abraham Shamos for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hermina Vandeweghe, Appellant, v. The City of New York, Respondent.
    (Argued January 8, 1934;
    decided January 23, 1934.)

      Harry B. Chambers and Harry H. Chambers for appellant.

      Paul Windels, Corporation -Counsel (J. Joseph Lilly, Henry J. Shields, Charles W. Miller .and Paxton Blair of ■counsel), for respondent.
   Order affirmed, with costs. Third question certified answered in the negative; other questions not answered. No opinion.

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


text:
    Lucy C. T. Magraw, Respondent, v. Charles Hann, Jr., Appellant. (2 Actions.)
    (Argued January 8, 1934;
    decided January 23, 1934.)

      William J. Rapp and Peter J. Larney for appellant.

      John J. McGinty for respondent.
   Appeal dismissed in each case, with costs. In order to answer the question certified this court must determine a question of fact which it has no power to do. (Bowlby v. McQuail, 240 N. Y. 684.) No opinion.

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


text:
    In the Matter of the Claim of Junius A. Whitmire, Respondent, against Blaw-Knox Construction Company et al., Appellants. State Industrial Board, Respondent.
    (Argued January 9, 1934;
    decided January 23, 1934.)

      Herbert F. Hastings, Jr., and Everett F. Warrington for appellants.

      John J. Bennett, Jr., Attorney-General (H. A. Bobichon of counsel), for State Industrial Board, respondent.
   Order of the Appellate Division and award of the State Industrial Board reversed, and claim dismissed, with costs in all courts against the State Industrial Board, on the authority of Matter of Proper v. Palley Bros. (233 App. Div. 621; affd., 259 N. Y. 516). No opinion.

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


text:
    In the Matter of the Claim of Harry Beach, Respondent, against The Travelers Insurance Company, Respondent, and Wilson & Company, Appellant. State Industrial Board, Appellant.
    (Argued January 9, 1934;
    decided January 23, 1934.)

      William Warren Dimmick and Samuel Israel for Wilson & Company, appellant.

      JohnJ. Bennett, Jr., Attorney-General (JohnR. O’Hanlon and Henry Epstein of counsel), for State Industrial Board, appellant.

      William B. Davis and E. C. Sherwood for The Travelers Insurance Company, respondent.
   Order of the Appellate Division reversed and award of the State Industrial Board affirmed, with costs -'in this court and in the Appellate Division against the insurance carrier. The finding of the State Industrial Board that the payments were advancements of compensation should not be disturbed. (Workmen’s Compensation Law [Cons. Laws, ch. 67], § 23.) The State Industrial Board had authority to make the award. (Workmen’s Compensation Law, § 25.) No opinion.

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


text:
    In the Matter of the Claim of Robert Tyner, Respondent, against Roman Catholic Orphan Asylum Society et al., Appellants. State Industrial Board, Respondent.
    (Submitted January 9, 1934;
    decided January 23, 1934.)

      H. Dudley Bierau for appellants.

      Jeremiah F. Connor for Robert Tyner, respondent.

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

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


text:
    Johnson Plaza Corporation, Appellant, v. The Harriman National Bank and Trust Company of the City of New York, Respondent.
    (Argued January 9, 1934;
    decided January 23, 1934.)

      Edward Q. Carr, Isidor Ensélman, H. H. Nordlinger and Max Frank for appellant.

      John Vance Hewitt and Milton I. Newman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Michael, Respondent, v. Charles I. H. Greenbaum, Appellant, Impleaded with Another.
    (Argued January 9, 1934;
    decided January 23, 1934.)

      Meyer D. Siegel for appellant.

      Julius F. Newman, Milton W. Levy and Myron Slater for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis Hutter, Respondent, v. William J. Rodenbach, Appellant, Impleaded with Another.
    (Argued January 9, 1934;
    decided January 23, 1934.)

      Bernard Hershkopf and Charles Eno for appellant.

      Harry A. Schwartz for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Minnie Rousak et al., Respondents, v. Rose Rudnick, Appellant.
    (Argued January 9, 1934;
    decided January 23, 1934.)

      John J. McOinty, Joseph C. Thomson and Frederick Mellor for appellant.

      Fred P. Harrington and Charles S. Scholnicoff for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, CK. J., Crane, Lehman, Kellogg, O'Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of Ignatius Kornbluh et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    (Submitted January 15, 1934;
    decided January 23, 1934.)

      John T. Dooling for motion.

      Modie Harris opposed.
   Motion granted and appeal dismissed, without costs.


text:
    Edmond E. Frisch, Respondent, v. J. Clarke Dulany et al., Appellants, Impleaded with Others.
    (Submitted January 15, 1934;
    decided January 23, 1934.)

      William 0. Robertson for motion.

      Peter W. Quinn opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that no leave to is


text:
    Dorothy Kratz, an Infant, by Ethel Kratz, Her Guardian ad Litem, Respondent, Impleaded with Others, v. Joseph H. Freedlander, Appellant.
    (Submitted January 22, 1934;
    decided January 23, 1934.)

      Thomas J. O’ Neill for motion.

      Robert H. Charlton opposed.
   Motion denied, with ten dollars costs.


text:
    Rose Fishman et al., Appellants, v. Brooklyn Jewish Center, Inc., Respondent.
    (Submitted January 22, 1934;
    decided January 23, 1934.)

      John G. Reilly for motion.

      J. Emanuel Ankus opposed.
   Motion granted and appeal dismissed, with costs and . ten dollars costs of motion.


author: Lehman, J.

text:
    The Emigrant Industrial Savings Bank, Plaintiff, v. Scott’s Bridge Realty Co., Inc., et al., Defendants. Mount Vernon Trust Company, Appellant; Francis M. Fallon, as Receiver, Respondent.

      (Argued January 8, 1934;
    decided February 27, 1934.)

      Clinton T. Taylor, Albert Stiefel and Abraham Levine for appellant.
    The funds of the receiver are not moneys paid into court. (Henkel v. Carnegie Trust Co., 213 N. Y. 185; Matter of Egan, 258 N. Y. 334; Matter of Bank of United States [Moore], 236 App. Div. 826; 261 N. Y. 645.)

      Arthur Ofner, Leo C. Fennelly, Edward V. Mallon and Carl J. Austrian for The Bank of United States, amicus curiӕ.

    The moneys deposited by the receiver constituted neither moneys paid into court nor a special deposit. (Matter of Bank of United States [Moore], 261 N. Y. 645; Kent v. West, 33 App. Div. 112; Matter of Ireland, 231 App. Div. 288; Matter of Otis, 101 N. Y. 580; Pharis v. Gere, 110 N. Y. 336; Matter of Bond v. Broderick, 232 App. Div. 468; Matter of Wasserman v. Broderick, 140 Misc. Rep. 174; Matter of Bank of United States [Ravitch], 237 App. Div. 76; Matter of Bologh, 185 Fed. Rep. 825; Isaacs v. Stock, 66 Fed. Rep. [2d] 928; Wilson v. Lyon

      County Bank, 4 Fed. Supp. 608; Kansas City Life Ins. Co. v. Taylor, 184 Ark. 772; Stephenson v. Taylor, 185 Ark. 1100; State v. Corning State Sav. Bank, 128 Iowa, 597.)

      Francis M. Fallon, in person, for respondent.
    The bank is not in liquidation and there are no restrictions. (Trumpbour v. Trumpbour, 70 Hun, 571; Van Wagoner v. Buckley, 148 App. Div. 808; Matter of McCarthy, 139 Misc. Rep. 147.) The receiver’s possession is the possession of the court. The receiver is not vested with title to the funds, and, therefore, could not establish the relationship of debtor and creditor with the bank. (Stannard v. Reid & Co., 118 App. Div. 304; 195 N. Y. 530; Smith v. Pacific Improvement Co., 104 Misc. Rep. 481; Matter of Fischer, 168 App. Div. 326; Shrady v. Van Kirk, 51 App. Div. 504; O'Mahoney v. Belmont, 62 N. Y. 133; Farnsworth v. Western Union Tel. Co., 53 Hun, 636; Matthews v. Cooper, 66 Hun, 626; Quincy, Missouri & Pacific R. R. Co. v. Humphreys, 145 U. S. 82; Matter of Potell, 53 Fed. Rep. [2d] 877; Attorney-General v. Guardian Mut. Life Ins. Co., 77 N. Y. 272; Walling v. Miller, 108 N. Y. 173; Central Trust Co. v. Pittsburgh, S. & N. R. R. Co., 223 N. Y. 347; Herring v. N. Y., L. E. & W. R. R. Co., 105 N. Y. 340; Stokes v. Hoffman House, 167 N. Y. 554.)
   Lehman, J.

The order appointing a receiver of rents in a foreclosure action directed that the receiver deposit all moneys received by him in Mount Vernon Trust Company. He complied with that direction. In March, 1933, the bank, together with all other banks in the State, was closed in accordance with the proclamation of the Governor of the State, and remained closed until March "24, 1933, in accordance with the proclamation of the President of the United States. On that date it reopened, but has restricted its operation in accordance with conditions and directions imposed by the New York State Banking Department, and has not paid to any depositor more than ten per cent of the depositor’s balance as it existed on the date of the reopening. The balance of the receiver’s account was then $6,438.67. The trust company has paid the receiver ten per cent thereof, but has refused to pay the remainder. The Appellate Division has held that the receiver is entitled to a summary order directing the trust company to pay to him that remainder.

We are not, on this appeal, concerned with any question as to the force and effect of the conditions and restrictions under which the bank is operating. Such questions might perhaps arise if these restrictions and conditions were urged as a defense to an action to recover the amount of the deposit or in" regard to the enforceability and effect of a judgment. Here the question is whether the court may summarily order the bank to pay the amount of a deposit made by a receiver though the bank is refusing to pay deposits to its other depositors.

Moneys held by a receiver are in a sense in court, for they are held by the court’s officer subject to its control, but the statute limits the preference to payments brought into court under prescribed conditions.” (Henkel v. Carnegie Trust Co., 213 N. Y. 185, 193.) There the court was considering statutory, preferences upon the liquidation of a bank under the Banking Law, and it held that a receiver in bankruptcy was not entitled to a preference, for the moneys collected by the receiver and deposited in the bank are not moneys “ paid into court ” within the meaning of the statute and the bank does not hold such moneys either as a trustee or “ depositary.” (Banking Law, Cons. Laws, ch. 2, § 188.) In Matter of Egan (258 N. Y. 334) and Matter of Bank of United States [Moore] (261 N. Y. 645) we reiterated the rule enunciated in Henkel v. Carnegie Trust Co. (supra), and applied it to deposits made by the Public Administrator and the committee of a lunatic.

What was said and decided in those cases leaves no room for argument that a different rule should be applied to deposits made by a receiver of rents appointed in a foreclosure action. Moneys collected by him may be in the “ constructive custody of the court ” (Henkel v. Carnegie Trust Co., supra, p. 188), but the statute was not intended to give a preference for moneys in the constructive custody of the court, but only for moneys which have been “ brought into court as provided by the Code of Civil Procedure, now transferred to sections 133 to 137 of the Civil Practice Act, and to sections 44-c and subdivision 8 of section 4 of the State Finance Law (Cons. Laws, ch. 56), and deposited as permitted by subdivision 6 of section 185 and subdivision 5 of section 188 of the Banking Law.” (Matter of Egan, supra, p. 339.) The moneys of the receiver were concededly not brought into court ” in that manner. The moneys collected by the receiver had been deposited by him in accordance with the directions of the court of which he has been an officer. He has accepted the obligation of the bank to repay the money on demand, and holds that'obligation in place of the moneys he has collected. The bank did not agree to hold the moneys intact as a bailee or trustee. It assumed only the obligations of a debtor, and the statute gives no right to a preference in the enforcement of such obligations.

The trust company in this case is, as we have said, still doing business, and the Superintendent has not taken possession of its assets and it is not being liquidated. The statutory provisions for priority of payment of its obligations apply only to liquidation proceedings. The summary direction to repay the deposit is, it is said, not based on the Banking Law, but upon the power of the court to protect or perfect its possession of funds which are in its custody. Therefore, it is said that it is quite immaterial whether or not the statute has granted priority of payment for such funds upon liquidation.

That is true, if we find that the court has the inherent power to give such summary direction; but, in determining whether the court has such power, the presence or absence of rights to priority over other creditors in case of insolvency would be a factor which must be given weight. “A summary proceeding will not lie to compel payment of a deposit to the depositor, neither will it lie to compel payment to the receiver of the depositor.” (Matter of Delaney, 256 N. Y. 315, 320.) Here, it is true, there is more, the deposit was made by the receiver. The bank had notice that the moneys received by it were, even then, in the constructive possession of the court. We have not determined how far, if at all, the courts possess a summary jurisdiction to compel payment to its receiver of moneys which are wrongfully withheld by a person who is not a party to the action in which the receiver was appointed. (Klasko Finance Corp. v. Belleaire Hotel Corp., 257 N. Y. 1.) A distinction might perhaps be drawn between proceedings to enforce a cause of action or to recover property withheld from a receiver where title has become vested in the receiver but derived from another, and proceedings to recover money or property taken from a receiver as an officer of the court. In the first case the proceedings would be for the purpose of reducing a right to possession, in the second case the proceedings would be for the purpose of remedying wrongful interference with the lawful possession or custody of the court. We may assume, though without so deciding, that a court may make a summary order to restore to the custody of the court money or property which has been wrongfully withdrawn from that custody. A constructive possession by the court might then be sufficient to give the court summary jurisdiction to compel restoration. Even so, at least, it must be shown that there has been wrongful interference with the court’s possession, actual or constructive. Summary jurisdiction cannot be invoked for the recovery of a debt whtSh is denied. If invoked for the recovery of money or property taken from the possession of the court, there must, at least, be proof that there is a wrongful interference with the constructive possession of the court. (Matter of Times Square Auto Supply, Inc., 47 Fed. Rep. [2d] 210; Matter of Irving Trust Co., 259 N. Y. 588.)

Here the receiver was directed by the court to deposit the moneys collected by him. He performed his duty in obeying that direction, and neither he nor his sureties can be charged for loss accruing through performance of his official duty. . The bank received possession from the receiver and committed no wrong in accepting that possession. If the bank had received possession as bailee reclamation proceedings might perhaps have been sustained against it. If the bank had received it as trustee, the trust could have been enforced and upon liquidation of the bank priority of payment of the amount held in trust might have been compelled in the liquidation. In fact it received the moneys neither as bailee nor trustee. It was permitted to mingle these moneys with its other funds. It became a mere debtor to the receiver. The right to demand payment of the debt remained in the constructive possession of the court, the moneys collected were no longer in its custody.

The debt is admitted but payment is withheld because temporarily, at least, the bank is withholding payment from all depositors. Payment to one depositor cannot be enforced without diminution of the assets to which all the depositors must look for repayment. Perhaps where there is no dispute as to the facts the court might have power to grant a summary order for the repayment of a deposit made by a receiver, if the receiver had priority over other depositors, and such summary order would not interfere with the rights of other depositors or creditors. The court has no power, however, to create such priority. Since the bank, in this case, acted lawfully in receiving the deposit and incurred no obligation to the receiver other than the repayment of the debt, the court cannot summarily order the repayment of the deposit at the possible expense of other creditors and for the purpose of creating a priority.

The question of whether or not the restrictions and conditions on the conduct of the bank’s business imposed by the Banking Department are binding upon the bank or upon its depositors is not involved in this proceeding. The department’s function and duty to protect the depositors of a bank are not challenged. Its order is, at least, a warning that payment in full to one depositor might jeopardize the rights of other depositors. In such case, the courts may not disregard the warning and resort to a summary jurisdiction, even assuming that such jurisdiction might otherwise be invoked, in order to obtain repayment of a debt to its receiver. The receiver must in such case proceed to enforce his rights in the same manner as other creditors.

The order of the Appellate Division should be reversed and the proceeding dismissed, with costs in all courts.

Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ., concur; Kellogg, J., not voting.

Order reversed, etc.


text:
    In the Matter of Times Square Trust Company. Nicholas P. Iannuzzi, as Referee, Appellant; Joseph A. Broderick, as Superintendent of Banks, Respondent.

      (Argued January 8, 1934;
    decided February 27, 1934.)

      Thomas J. Blake for appellant.
    Claimant is entitled to priority under section 188, subdivision 8, of the Banking Law (Cons. Laws, ch. 2). (Swart v. Central Trust Co., 7 N. Y. Supp. 558; House v. Amsdell Brewing & Malting Co., 133 App. Div. 486; Rosenkranz v. Gibson Realty Improvement Co., 206 App. Div. 732; Civ. Prac. Act, §§ 133,137; Matter of Rothschild, 109 App. Div. 546; Davison v. MacDonald, 124 Misc. Rep. 726; 216 App. Div. 759; Stretz v. Zolkoski, 118 Misc. Rep. 806; Washington Life Ins. Co. v. Clark, 79 App. Div. 160; North River Sav. Bank v. Buckley, 130 N. Y. Supp. 787; Wilkinson v. Paddock, 57 Hun, 191; Matter of Ellis, 110 Misc. Rep. 192; Matter of Stilwell, 139 N. Y. 337.) Both by reason of the non-designation of the bank as a depositary and as a matter of common law claimant is.entitled to preference of payment. (Kingston Bank v. Eltinge, 40 N. Y. 391; Barker v. Clark, 12 Abb. Pr. [N. S.] 106; Matter of International Milling Co., 259 N. Y. 77; Matter of Holden, 264 N. Y. Supp. 244; Van Wagoner v. Buckley, 148 App. Div. 808; Genesee Seminary v. U. S. F. & G. Co., 247 N. Y. 53; Matter of McCarthy, 139 Misc. Rep. 147; Emigrant Bank v. Scott Co., 266 N. Y. Supp. 27; Matter of Raymond v. Davis, 248 N. Y. 67.)

      T. Lawrence McGannon and John A. Mullen for respondent.
    Claimant is not entitled to preference under the provisions of the Banking Law or at common law. (Matter of Egan v. Broderick, 258 N. Y. 334; Henkel v. Carnegie Trust Co., 213 N. Y. 185; Matter of Bank of United States [Moore], 236 App. Div. 826; Lathers v. Hamlin, 102 Misc. Rep. 563.)
   Lehman, J.

The judgment, entered in an action for the foreclosure of a mortgage on real property, directed that the referee, appointed to conduct the sale, should deposit the balance of the moneys arising from the sale, after making certain payments therefrom, in the Times Square Trust Company. In accordance with section 1082 of the Civil Practice Act, the judgment provided that he deposit the surplus moneys * * * with the aforesaid depositary within five days after the same shall be received and be ascertainable, to the credit of this action, to be withdrawn only on the order of the court, signed by a justice of this court.” Pursuant to these directions the referee deposited $37,575.05 in the Times Square Trust Company in a special account in the name of the referee, designated by the title of the action. Thereafter an order was entered confirming the report of the referee and directing the payment to the plaintiff in the action of the money deposited in the trust company. Meanwhile the Superintendent of Banks had taken possession of the trust company in order to liquidate it. The referee claimed a preference in the liquidation proceedings. The Appellate Division has held that the claim for priority of payment over other depositors cannot be allowed.

The right to a preference in liquidation proceedings is governed by section 188 of the Banking Law (Cons. Laws, ch. 2). The claimant is entitled in the liquidation proceedings to priority of payment for moneys held by a trust company as depositary for moneys paid into court.” This court has said that “ moneys held by a receiver are in a sense in court, for they are held by the court’s officer, subject to its control, but the statute limits the preference to payments brought into court under prescribed conditions.” Moneys which come into the hands of trustees and receivers of estates in bankruptcy “ in the administration of their estates,” and then are deposited by them in a trust company, are not brought into court under the prescribed conditions. When the Legislature granted priority of payment for debts of a trust company as depositary for moneys paid into court, it used those words in the same sense in which they were used in chapter 8, title 3, sections 743 to 754, of the Code of Civil Procedure: “ Payment of money into court, and care and disposition thereof.” (Henkel v. Carnegie Trust Co., 213 N. Y. 185.)

These sections of the Code provided that where moneys paid into court are delivered to an officer other than the County Treasurer, he must pay it to the County Treasurer, or in the city of New York, to the City Chamberlain, within two days after he receives it. Such moneys may, after being deposited with the County Treasurer and City Chamberlain, be “ paid out, transferred, invested or reinvested,” only in accordance with the directions of the court embodied in an “ order or decree of said court, founded upon proper and sufficient evidence satisfactory to the court that such disposition of the property is best for the interests of the owners thereof or parties interested therein.” (§ 747.) Quite evidently these provisions of the Code and the other provisions of the same title regulating the custody of such moneys can have no application to moneys in the hands of administrators vested with any discretion as to their application even though in the exercise of that discretion they may be subject to orders of the court. They were intended to provide a general system for the custody of money paid into court, to be held by the court, pending directions of the court for its ultimate application, and in using the words moneys paid into court,” both in the Banking Law and the Code of Civil Procedure, the Legislature intended to include only such money. No other moneys, though in the possession or control of an administrative officer of the court, have been brought into court ” under the prescribed conditions. (Henkel v. Carnegie Trust Co., supra.)

The provisions of chapter 8, title 3, of the Code of Civil Procedure have been transferred to article 14 (§§ 133 to 137) of the Civil Practice Act, and to section 44-c and subdivision 8 of section 4 of the State Finance Law (Cons. Laws, ch. 56). Their substance remains unchanged. Their scope has not been enlarged and the priority of payment provided in the Banking Law for debts of a “ depositary for moneys paid into court ” still applies only to moneys paid into court as provided in these sections and deposited as permitted by subdivision 6 of section 185 and subdivision 5 of section 188 of the Banking Law (Matter of Egan, 258 N. Y. 334), though statutory variation in provisions for the custody of moneys paid into court” does not destroy the right of priority of payment of deposits of such moneys. Accordingly, a debt arising from the deposit of moneys in the hands of an officer of the court vested with discretionary administrative powers, such as a receiver, a guardian, or a committee, is entitled to no priority of payment. (Matter of Egan, supra; Matter of Bank of United States [Moore], 261 N. Y. 645; Emigrant Industrial Sav. Bank v. Scott’s Bridge Realty Co., 264 N. Y. 1.)

In those cases it was clear that the moneys deposited were not moneys paid into court as provided in article 14 of the Civil Practice Act. The problem presented was whether the provisions of the Banking Law for priority should be given broader scope. The scope of the provisions of the Banking Law has now been defined as coterminous with the scope of the provisions of the Civil Practice Act. The problem presented here is whether moneys arising from the sale of real property under a judgment of foreclosure fall within that scope.

The referee who receives those moneys has no discretionary power in regal'd to their custody, administration or application. He is simply a custodian of moneys which can be disposed of only by direction of the court in the same manner as moneys delivered to a County Treasurer or the City Chamberlain. Indeed, it cannot be disputed that the provisions of article 14 of the Civil Practice Act would apply to the moneys received by the referee appointed by the court to conduct a sale, if other specific provisions had not been made elsewhere for the custody of such moneys. Rule 261 of the Rules of Civil Practice provided that “ all surplus moneys arising from the sale of mortgaged premises under any judgment shall be paid by the sheriff or referee making the sale, within five days after the same shall be received and be ascertainable, in the city of New York to the chamberlain of the said city, and in other counties to the treasurer thereof, unless otherwise specially directed, subject to the further order of the court.” Practical considerations dictated here some variations in the general system provided by the Civil Practice Act in regard to the custody of moneys paid into court to await further direction of the court as to their disposition. The court might give directions to the referee as to the disposition of some or all of the moneys paid to him before delivery of the moneys to the County Treasurer or City Chamberlain, where otherwise such directions would be given to the permanent custodian, and delivery by the referee to the County Treasurer might be made within five days after the referee received the moneys, where otherwise delivery within two days would have been required. When the County Treasurer or Chamberlain did receive these moneys, the general provisions of the Civil Practice Act governing the custody of moneys paid into court ” applied in full force.

The Legislature, by chapter 486 of the Laws of 1930, amended section 1082 of the Civil Practice Act to provide that all surplus moneys arising from the sale of mortgaged premises under any judgment shall be deposited by the officer appointed to conduct .the sale of the premises within five days after the same shall be received and be ascertainable to the credit of the action in a bank or trust company named by the court in a final judgment * * * subject to the further order of the court.” If upon motion to confirm the referee’s report of sale it appears to the court that the owner of the equity of redemption is entitled to all of the surplus moneys and is the only person claiming the same, it may order that such, money be paid to him. Otherwise the court must direct the referee or Sheriff to pay the moneys to the County Treasurer or, in the city of New York, to the City Chamberlain. The purpose of the statute is clear. Where right to the moneys is uncontested, the payment may be made without the formality of previous relinquishment of custody by the officer receiving the moneys to another officer.

The Banking Law does not in express terms provide that preference in payment of debts due from a bank as depositary for moneys paid into court ” shall be limited to deposits of such moneys when made by a County Treasurer or City Chamberlain, as provided by the. Civil Practice Act or the State Finance Law. This court has never read such a limitation into the statute by implication. Indeed it could not do so without eliminating the express provision of the statute that deposits of moneys “ brought into court by order or judgment of any court of record of this State, or of any other State or of the United States ” are entitled to such preference. The custody of moneys brought into court by order or judgment of a court of the United States are not subject to the provisions of the Civil Practice Act governing the payment or custody of moneys paid into a court of this State. The only test of preference is whether the banking corporation is a depositary of moneys “ paid into court.”

Because, at the time the Banking Law was enacted, the Code of Civil Procedure provided under a separate title for “ Payment of money into court, and care and disposition thereof,” we held that no moneys were paid into court ” within the purview of the Banking Law which were not “ paid into court ” as provided in these sections of the Code. The general system for the custody of moneys paid into court ” provided by these sections serves to define the meaning of that term. Moneys which though constructively in the possession of the court, to be administered by an officer with discretionary powers, are thus excluded. Moneys which are paid into court by order or judgment of the court as provided by these sections, to be held by a mere custodian subject to the further direction of the court, may come within the definition, though the order or judgment be made by a court of the United States, not subject to any regulations made by this State, or though the Legislature by other statute makes specific provision for the custody of particular moneys, so paid. In the earlier cases we have said or decided nothing different.

At times there may be difficulty in determining whether moneys have been paid into court as provided by article 14 of the Civil Practice Act, where other specific provision is made for their custody. No such difficulty exists in this case, for the moneys remain in the custody of the referee only pending decision whether there are any conflicting claims thereto. If such claims are made, the moneys must be delivered to the usual custodian of moneys paid into court. Payment into court takes place when the money is delivered to a custodian authorized by the court to receive it. (Civ. Prac. Act, § 133.) Ordinarily he must then deliver the moneys paid into court to the County Treasurer or City Chamberlain. Payment into court is, none the less, complete when the money is paid to him. That is true whether he is authorized to retain the money before delivery to the fiscal officer who ordinarily is the custodian of all moneys paid into court for two days or for four months. Where a custodian authorized to receive and hold moneys paid into court is also authorized to deposit the moneys “ subject to the further order of the court ” the bank receiving such deposit knowingly becomes a depositary for moneys paid into court ” and the deposit is entitled to the priority of payment accorded in such case by the Banking Law. The Banking Law applies to all deposits of moneys paid into court under order or judgment of a court of record and which can be disbursed only by direction of the court in the manner provided in sections 133 to 136 of article 14 of the Civil Practice Act. Variation from the general provisions of that article in regard to the temporary custody of such moneys or the person who makes the deposit is immaterial.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ., concur; Kellogg, J., not voting.

Ordered accordingly.


text:
    The People of the State of New York ex rel. Iroquois Gas Corporation, Appellant, v. Public Service Commission of the State of New York, Respondent.
    (Argued January 9, 1934;
    decided February 27, 1934.)

      Daniel J. Kenefick for appellant.
    The Commission was without jurisdiction to affix to its order granting consent to the transfer of the gas plant a condition requiring the petitioner to charge a part of the purchase price to surplus. (People ex rel. N. Y. R. Co. v. Pub. Serv. Comm., 223 N. Y. 373; Matter of Quinby v. Pub. Serv. Comm., 223 N. Y. 244; People ex rel. D. & H. Co. v. Stevens, 197 N. Y. 1; People ex rel. B. L., H. & P. Co. v. Stevens, 203 N. Y. 7; Electric Public Utilities v. West, 140 Atl. Rep. 840; Passaic Water Co. v. Board, 139 Atl. Rep. 324.)

      Charles G. Blakeslee, John T. Ryan and John J. Donohue for respondents.
    The Public Service Commission has power to impose reasonable conditions to its approval and consent to the transfer by a gas corporation of its franchises, works or system to any' other person or corporation. (Cons. Laws, ch. 48, § 70; People ex rel. West Side St. R. R. Co. v. Barnard, 110 N. Y. 548; Matter of International Ry. Co. v. Pub. Serv. Comm., 226 N. Y. 474; Matter of Quinby v. Pub. Serv. Comm., 223 N. Y. 244; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Public Service Comm. v. Westchester St. R. R. Co., 206 N. Y. 209; People ex rel. Kings County Lighting Co. v. Straus, 178 App. Div. 840; United States v. Chicago, N. S. & M. R. R. Co., 288 U. S. 1; New York, N. H. & H. R. R. Co. v. Interstate Commerce Comm., 200 U. S. 361; Logan v. Davis, 233 U. S. 613; Brewster v. Gage, 280 U. S. 327; Atlantic Coast Line R. R. Co. v. United States, 284 U. S. 288.)
   Lehman, J.

The relator Iroquois Gas Corporation agreed to purchase from John C. McMahon a plant for the production of natural gas. The agreed purchase price was $130,000, and the agreement was made subject to the approval of the Public Service Commission. The Public Service Commission, after a hearing, found that the purchase price was greater than the depreciated book value of the property and at least $30,000 more than the"reproduction cost new, less depreciation.” Nevertheless it determined that the public interest will be served by approval of the transfer, providing that an amount of $40,000 of the purchase price is charged to surplus by the purchaser.” Accordingly, an order was made by the Commission consenting to the proposed purchase, but subject to the condition That of the purchase price of $130,000, the amount of $40,000 shall be charged on the books and records of the Iroquois Gas Corporation to surplus.” The relator objects to the condition, but the determination of the Commission has been affirmed by the Appellate Division.

The Public Service Law (Cons. Laws, ch. 48) prohibits the transfer of the franchise, works or system or any part thereof of a gas or electric corporation without the written consent of the commission.” (§ 70.) No power to annex conditions to a consent is conferred in express terms. Since the power to grant consent includes the power to withhold consent, it is plain that the Commission may, at least, make its consent conditional upon change in the terms of the contract of purchase. That in „ effect would be a denial of consent to the transfer as proposed, coupled with unconditional approval of a different transfer. So too, the Public Service Commission might, perhaps, have power to couple its consent with any direction which it would have independent power to make. Here the condition imposed is different. It does not change the terms of the transfer nor the manner in which the property will be operated after transfer; it requires the purchaser to make an entry upon its books which the Commission would have no power to direct unless it has plenary power to annex any conditions it may see fit to its consent. The question before us is whether the Commission has such plenary power.

We are not dealing with a consent of a local authority to the construction and operation of a street railway or other utility upon a street or highway within the control of such local authority. The franchise to operate a street railway can be granted only by the State and the Constitution of the State specifically directs that “ no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad.” (Art. Ill, § 18.) Thus the consent is in effect a grant of a franchise which might be given or denied at the pleasure of the local authority. Consent when given is a voluntary derogation of its control of the streets and highways. It may be absolute or conditional. (Matter of Quinby v. Public Service Comm., 223 N. Y. 244; Matter of International Ry. Co. v. Public Service Comm., 226 N. Y. 474.)

The Public Service Commission by its consent to a transfer confers no franchise or authority to operate a public utility. That is derived from the State and the contract of purchase. The functions of the Commission, in this respect, are purely regulatory. Its orders are subject to review by the courts. It may withhold its consent to a transfer of a franchise granted by the State, unless such transfer is shown to be in the public interest. It may insist upon the insertion in the contract of transfer of terms and conditions which will reasonably protect the public interest, before it grants consent. It may exercise powers of regulation or direction elsewhere given in order to assure proper operation of the franchise after the transfer is approved. The most that can be urged is that it may impose conditions which will insure efficient operation in the public interest in those matters which fall within the general field of its powers. It cannot make its consent dependent upon conditions which are unreasonable or which do not change the terms of the transfer of the franchise, works or systems, or which encroach upon the right of the relator to administer its corporate affairs according to its own judgment in matters in which the Legislature has not given the Public Service Commission any regulatory or supervisory powers. (Cf. People ex rel. D. & H. Co. v. Stevens, 197 N. Y. 1; People ex rel. Binghamton L., H. & P. Co. v. Stevens, 203 N. Y. 7.)

We are told that, without this condition, the Commission would have refused to find that the transfer would be in the public interest, because a purchase at excessive cost might hereafter hamper the exercise of power of the Commission to insist upon reasonable rates. We do not doubt that the Commission might have refused to consent to a transfer at excessive cost unless and until the cost was reduced, if in its opinion the transfer at excessive cost would not be in the public interest. It has not done so. The cost remains the same, but the Commission requires the purchaser to write off part of that price on its books so that the book value would be less than the price paid. If the purchase price is an element of value upon which the relator is entitled under the Constitution to a reasonable return, it is difficult to understand how an enforced entry upon the books would work any change. The power vested in the Commission to prescribe uniform methods of keeping accounts and records (Pub. Serv. Law, § 66, subd. 4) does not include the power to compel a corporation to write off from its book value a loss which it has not sustained, or to give up a part of its constitutional rights. If, as has been said, “ the actual cost of the property — the investment the owners have made — is a relevant fact ” (Los Angeles Gas & Elec. Corp. v. Railroad Comm., 289 U. S. 287, 306), a corporation cannot be compelled to make entries upon its books calculated to conceal such relevant fact. It follows that the Commission had no power to impose such condition. We are not now called upon to determine whether the Commission would have power to annex to its consent a condition affecting the manner of operation of the transferred property. No such condition is here. (Cf. Atlantic Coast Line R. R. Co. v. United States, 284 U. S. 288.)

The question remains whether the order should be reversed or should be modified'by striking out the condition. If it appeared that even without such condition the Commission would not, in the exercise of its discretion, have refused consent, then modification would cure the defect. That is not the case here. It has balanced benefit to some consumers, through incorporation of a small plant in a larger system, against possible injury to consumers at large by reason of the effect of the purchase upon its power to regulate rate. It has sought to diminish this effect by imposing a condition which is beyond its power. It must now weigh possible benefit against possible injury if unconditional consent be given. If the Commission should refuse its unconditional consent, its order would be again subject to review. On this appeal we review only the validity of the order granting conditional consent. Whether the evidence conclusively shows that the cost is not excessive and that the transfer will be in the public interest is a question which can arise only after a contrary determination by the Commission.

The order should be reversed and the proceeding remitted to the Public Service Commission, without costs.

Pound, Ch. J., Crane, Hubbs and Crouch, JJ., concur; O’Brien, J., concurs in result; Kellogg, J., not voting.

Order reversed, etc.


text:
    In the Matter of Louis Michel, Inc., Appellant, against Whitecourt Construction Corporation, Defendant. Franklin Surety Company, Respondent.
    (Argued January 16, 1934;
    decided February 27, 1934.)

      Abraham Wilson for appellant.
    An attorney who has appeared and filed an answer in an action may thereafter consent and agree to a reference or arbitration of the issues in the action, and where such consent and stipulation is evidenced by an order of the court, it is binding upon the client who cannot be heard to question his counsel’s authority. (Farrill v. Railway Co., 2 Exch. 344; Filmer v. Delber, 3 Taunt. 486; Wilson v. Young, 9 Barr. 101; Holker v. Parker, 7 Cranch, 436; Talbot v. McGee, 4 T. B. Mon. 377; Jenkins v. Guilespe, 10 S. & M. 31; Scarborough v. Reynolds, 12 Ala. 252; Gorham v. Gale, 7 Cow. 739; Tilton v. U. S. Life Ins. Co., 8 Daly, 84; Dowse v. Coxe, 3 Bing. 20; Somers v. Balabrega, 1 Dall. 177; Bates v. Vischer, 2 Cal. 355; Lee v. Grimes, 4 Col. 185; Wade v. Powell, 31 Ga. 1; Counett v. Powell, 114 Ill. 233; Jones v. Horsey, 4 Md. 306; Haskell v. Whitney, 12 Mass. 47; Pike v. Emerson, 5 N. H. 393; Morris v. Grier, 76 N. C. 410; Tiffany v. Lord, 40 How. Pr. 481.) The court below erred in holding that the attorney who filed an answer verified by one of the surety’s officers and who later served a written demand for arbitration did not possess the authority, express or implied, to bind his client by the arbitration had pursuant to the demand. (Wilson v. Young, 9 Penn. St. 101; Brooks v. New Durham, 55 N. H. 559; Louisville Trust Co. v. Stone, 88 Fed. Rep. 407; 174 U. S. 429; Ohlquest v. Farwell, 71 Iowa, 231; Smith v. Barnes, 9 Misc. Rep. 368; Franklin v. National Ins. Co., 43 Mod. 491; Matter of Heath, 83 Iowa, 215; Jones v. Welwood, 71 N. Y. 208; Matter of Priore v.
      Schermerhorn, 237 N. Y. 16; Denton v. Noyes, 6 Johns. 296; Hamilton v. Wright, 37 N. Y. 502; Brown v. Nichols, 42 N. Y. 26; Blodgett v. Conklin, 9 How. Pr. 442; Clinton v. N. Y. C. & H. R. R. R. Co., 147 App. Div. 468; Graham v. Andrews, 11 Misc. Rep. 649.)

      Carl Sherman and Samuel N. Leiterman for respondent.
    The judgment against respondent was invalid because no written agreement for arbitration was entered into by-respondent. The attorney for the surety in the mechanic’s lien action had no implied authority to appear for the surety in the arbitration proceeding. An attorney hired to' defend an action has no authority to stipulate to increase the liability of or diminish the rights of his client. (Matter of Brescia Constr. Co. v. Walart Constr. Co., 238 App. Div. 45; Sherman & Sons Co. v. Princess Shirt Waist Mfg. Co., 213 App. Div. 140; Lewis v. Duane, 141 N. Y. 302; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Schneider v. Abrams, 228 App. Div. 1; Gaston & Co. v. All Russian Zemsky Union, 221 App. Div. 732; Bush v. O’Brien, 164 N. Y. 205; Stone v. Bank of Commerce, 174 U. S. 412.)
   Lehman, J.

The plaintiff Louis Michel, Inc., entered into a contract with Whitecourt Construction Corporation for the improvement of real property owned by that corporation. In February, 1929, it filed a notice of lien against the property. Thereafter other notices of liens were filed by subcontractors, naming Whitecourt Construction Corporation as owner and Louis Michel, Inc., as contractor. The hens were discharged by a bond of Franklin Surety Company.

Louis Michel, Inc., began an action to foreclose its lien and named as parties defendant the owner, the surety company and the subcontractors. The owner and the surety company appeared by the same attorneys. They were, it is said, retained by the owner, and they filed substantially identical answers for both the owner and the surety company. The answer of the surety company was verified by its vice-president. That answer sets up as an affirmative defense that the contract between the owner and contractor provided that all questions that may arise thereunder and the performance of the work thereunder, shall be submitted to arbitration at the choice of either of the parties hereto,” and “ That the defendant Whitecourt Construction Corporation has filed a demand for arbitration * * * and this defendant now claims the right to submit the questions in dispute herein to arbitration, and that the plaintiff is not entitled to prosecute the within action.”

The plaintiff then moved in the mechanic’s lien action for an order that the arbitration proceed and appointing an umpire, in accordance with the terms of the plaintiff’s contract. The motion was denied, but without prejudice to the renewal of the application in a special proceeding under the Arbitration Law (Cons. Laws, ch. 72).

Louis Michel, Inc., then made application under the Arbitration Law. Notice of motion addressed to the attorneys of the surety company was served, but no notice was served upon the company otherwise. The application was opposed by the attorneys in behalf of the owner and the surety company but was granted, and the action was stayed.

An order entitled in the arbitration proceedings was made, upon a written consent signed by a vice-president of the surety company, for the substitution of a new' attorney for the contractor and owner. That attorney then stipulated in behalf of both parties that the parties to the arbitration proceedings should withdraw the arbitrator they had appointed, and that William Cohn is hereby designated as the sole arbitrator and umpire to decide all the matters at issue and in controversy between the parties and to adjudge and determine their rights. That the decision, award, or determination of the umpire shall be final, binding and conclusive upon the parties and a judgment to that effect may be entered by the Clerk of the Court without notice.” The order for arbitration was resettled accordingly, and provides for the decision by the arbitrator of “ all matters at issue in a controversy between the parties to this proceeding, namely, Louis Michel, Inc., Whitecourt Construction Corporation, Franklin Surety Company and Sam S. Glauber, Inc., and that the said arbitrator and umpire shall adjudge and determine the rights of the said parties.” It further provides that the Umpire may in making his award * * * determine the amount due the various lienors aforementioned, and said award shall determine the rights and equities of the lienors and the amounts due thereon, and that said award and determination shall be binding and conclusive upon such lienors and shall be entered as a judgment of this court by the Clerk thereof.”

The substituted attorney appeared at the hearings for both defendants and entered into stipulations for both defendants. The umpire made an award against both defendants and a judgment was entered thereon. Then the surety company, by a different attorney, moved to strike from the award and judgment the name of the surety company. The order of Special Term denying this motion has been reversed by the Appellate Division and the motion granted.

Machinery to give effect to the provisions for arbitration contained in the written contract between the owner and the lienor is created by the Arbitration Law. Either party to the contract might insist that disputes arising thereunder should be determined by arbitration rather than by the courts. The surety company was not a party to that contract. Its bond must be “ conditioned for the payment of any judgment which may be rendered against the property for the enforcement of the lien.” (Lien Law;- Cons. Laws, ch. 33, § 19, subd. 4.) It might insist that no judgment for the enforcement of the lien could be granted until after disputes arising between the contractor and owner were determined by arbitration in accordance with the contract they had made, but liability under its bond could be established only by a “ judgment which may be rendered against the property for the enforcement of the hen.” It could not be compelled to litigate that liability in a forum created by a contract to which it was not a party. Even after disputes between the lienor and the owner of the property were determined by arbitration in accordance with the terms of their contract, the surety might still insist that any other, issues, such as the validity of the hen, should be determined by the court. Only by its consent or voluntary appearance could it be made a party to the arbitration proceedings, and only by consent to an arbitration and the entry of judgment upon the arbitrator’s award could hability be imposed upon it on the bond without a judgment for the enforcement of the hen against the property.

The attorney who appeared for the surety in the arbitration proceedings was retained to appear for it in the hen action. There is no evidence that he was given express authority to appear for it in the arbitration proceedings or to consent in such proceedings to an arbitration which might result in an award and judgment against the surety. The question then arises whether the attorney had any such implied authority.

It has been frequently asserted that an attorney retained in an action may consent to arbitration of the dispute. (Cf. Holker v. Parker, 7 Cranch, 436; Tilton v. U. S. Life Ins. Co., 8 Daly, 84.) That may be true where arbitration is an accepted method of trying issues and may result in a judgment. This court has, however, said, though the statement was only a dictum, that “ an attorney at law cannot bind his client by a submission to arbitration.” (McPherson v. Cox, 86 N. Y. 472, 478.) In this State the statute provides for a formal submission to arbitration only by writing “ duly acknowledged or proved, and certified, in like manner as a deed to be recorded.” (Civ. Prac. Act, § 1449.) Certainly an attorney has no implied power to make such submission. True, there may also be a common-law submission without such formalities, but there is no provision for the entry of a judgment upon the award made on a common-law submission. In retaining an attorney to prosecute or defend an action, a client may hardly be presumed to have intended to vest the attorney with authority to remove the controversy from the courts into a forum of his own creation. (Cf. 2 Mechem on Law of Agency, § 2162, note 51; Morrison Stores Co. v. Duncan, 110 W. Va. 289; King v. King, 104 La. 420; Daniels v. City of New London, 58 Conn. 156; McGinnis v. Curry, 13 W. Va. 29.) Certainly, where a surety has given an undertaking conditioned for the payment of a judgment rendered against property for the enforcement of a hen, a retainer to defend an action brought for the enforcement of the lien does not by reasonable intendment include authority to consent to an arbitration under the Arbitration Law, in which a judgment for the payment of money might be entered on an award, but no judgment for the enforcement of a hen.

In this case, however, there is more than a mere retainer to defend the action brought to enforce the hen. The answer verified by an officer of the surety company claims the right to submit the questions in dispute herein to arbitration.” The surety had no such right. The questions in dispute were, it is plain, the issues in the action. At most, the surety had the right to demand that the action be stayed until the owner’s right to compel arbitration of disputes arising under the contract between the owner and contractor was given effect. Though the claim by the surety of a “ right to submit the questions in dispute herein to arbitration ” was without any foundation in law, it was nevertheless a claim which the surety’s attorney was authorized to urge, and which the plaintiff in the action was required to meet. The plaintiff met the claim by acceding to it. The surety cannot now urge that the attorney at law had no authority to make such claim. The surety gave such authority when it verified the answer.

The subsequent arbitration proceedings were merely steps in giving effect to the claim made through its attorney by the surety. Implied in the authority to make the claim is the authority to take these steps. The other parties to the action and the court had no reason to question authority so clearly bestowed. When the attorney appeared for the surety and made stipulations ostensibly in behalf of the surety not only for the conduct of the arbitration but for an award determining all questions in dispute, he acted under authority which the surety company in its answer in the hen action had apparently conferred upon him. After an award was made against the surety company, it is too late for the surety to withdraw its invitation to the other litigants to submit the questions in dispute to arbitration.

The statutes provide for the entry of a judgment upon an award only where there is a statutory submission in accordance with the provisions of article 84 of the Civil Practice Act, or a contract which falls within the scope of the Arbitration Law. Here the surety was not a party to such submission or contract. The proceedings for arbitration were properly brought under the Arbitration Law against the owner who was a party to a contract within the scope of that law. The surety in its answer in the hen action claimed the right to be made a party to such arbitration. Through its attorney, retained to advance that claim, it consented to the entry of judgment. The question before us is not whether parties may, by consent, confer jurisdiction upon an arbitrator to grant a judgment for the enforcement of a hen on real property. The question here presented is whether a party which has given a bond conditioned for the payment of such a judgment may by appearance and consent become a party to a proceeding for the arbitration of the question in dispute in which a personal judgment can be entered against it. The answer to that question seems clear.

When the questions in dispute between parties are determined, only formal technicalities must be disposed of before judgment upon the bond could be entered. The surety chose to waive them when it claimed the right to submit the questions in dispute to arbitration in accordance with the Arbitration Law. The court in those proceedings and the umpire appointed by the court obtained jurisdiction of the person of the surety through the surety’s consent. Judgment upon the award might then be entered in accordance with the statute against all the parties to that proceeding, even though without such consent the surety could not have been made a party thereto. Having acquired jurisdiction of arbitration proceedings, and the person of the surety, the inclusion in the order, by consent of the surety, of a provision for arbitration of questions in dispute which would not be subject to compulsory arbitration, was also within the jurisdiction of the court. That is true, at least, where such questions are intertwined with questions upon which arbitration may be compelled and must be decided before a money judgment could be rendered.

There is nothing in this record to show that the umpire failed to decide every dispute between the parties when he rendered bis award. After decision against it in a forum to which it appealed, the surety company claims that it was never subject to the jurisdiction of that forum. That it may not do.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ., concur; Kellogg, J., not voting.

Ordered accordingly.