text:
    3105 Grand Corporation et al., Appellants, v. City of New York et al., Defendants, and 92-21 Union Hall Street, Inc., Respondent.
    Submitted January 14, 1941;
    decided February 27, 1941.

      Henry N. Rapaport, Robert S. Garson and Walter Jeffreys Carlin for appellants.

      Max Kavenoff and Luden Nemser for 92-21 Union Hall Street, Inc., respondent.
   Appeal dismissed, with costs, upon the ground the determination is not a final juegment. No opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Herbert Benon, Appellant, against Fiorello H. LaGuardia, as Mayor of the City of New York, et al., Respondents.
    Argued January 16, 1941;
    decided February 27, 1941.

      Menahem, Stim and Frederick W. Becker for appellant.

      William C. Chanter, Corporation Counsel (Jeremiah M. Evarts and George G. Gallantz of counsel), for respondents.
   Order affirmed, with costs. Though, after investigation by the Commissioner of Investigations, the petitioner was exonerated from any wrongdoing, we cannot review his dismissal because he had no right of tenure under the Civil Service Law. No opinion.

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


text:
    In the Matter of Linley Merritt, Respondent, v. Thomas W. Merritt, Appellant.
    Argued January 20, 1941;
    decided February 27, 1941.

      Mortimer Scheffler for appellant.

      William C. Chanler, Corporation Counsel (James Hall Prothero, Paxton Blair and Alice E. Trubin of counsel), for respondent.
   Appeal dismissed, without costs, on the ground that the answer to the question certified rests in the discretion of the Domestic Relations Court and, therefore, cannot be reviewed by us. No opinion. (See 285 N. Y. 743.)

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


text:
    Martha King et al., Appellants, v. Franmor Equity Corporation et al., Respondents, Impleaded with Others.
    Argued January 23, 1941;
    decided February 27, 1941.

      Hugo E. Rogers, Sidney Hauptman and Ralph Losso for appellants.

      C. Elmer Spedick and Gerard A. Cartier for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippe-y, Lewis, Conway and Desmond, JJ.


text:
    Eliza Rambert, as Administratrix of the Estate of Frank Grant, Deceased, Respondent, v. Meridian Securities Corporation, Appellant.
    Argued January 13, 1941;
    decided February 27, 1941.

      Robert F. White, James J. McLoughlin and John J. Kirwan for appellant.

      Benjamin Bigg and Gustave G. Rosenberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward J. Phelan, Respondent, against Arthur J. Leonard, as Commissioner of Public Safety of the City of Saratoga Springs, et al., Appellants.
    Argued January 15, 1941;
    decided February 27, 1941.

      Francis E. Dorsey for appellants.

      James D. Connor for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Charles Feldman, Respondent, v. Thomas E. Murray, as Receiver of Interborough Rapid Transit Co., Appellant.
    Argued January 16, 1941;
    decided February 27, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair and Louis S. Carpenter of counsel), for appellant.

      Jacquin Frank and Benjamin Glickman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William Smith, Appellant, v. City of Albany, Respondent.
    Argued January 17, 1941;
    decided February 27, 1941.

      Borden H. Mills for appellant.

      James J. McGuiness, Corporation Counsel (Joseph J. Casey and Ralph S. Leonard of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Charles I. Woodard, Respondent, against Lewis J. Valentine, as Police Commissioner of the City of New York, Appellant.
    Argued January 20, 1941;
    decided February 27, 1941.

      William C. Chanler, Corporation Counsel (Charles C. Weinstein and Bernard Friedlander of counsel), for appellant.

      Louis George Rudd for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Isidor Heller, Appellant, v. Henrietta Heller, Respondent.
    Argued January 13, 1941;
    decided February 27, 1941.

      Frederick E. Klein, Herman Silver and Arthur Stoll for appellant.

      Benjamin Bag and Joseph Halpern for respondent.
   Judgment affirmed, with costs. Without deciding whether the plaintiff is estopped from prosecuting the action for annulment, we hold that the validity of the decree of divorce granted in the State of Nevada will be recognized in this State under the rule of comity. No opinion.

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


text:
    Fidelity and Casualty Company of New York, Plaintiff, v. Chase National Bank of the City of New York, Respondent, and Royal Indemnity Company, Appellant, Impleaded with Others.
    Argued January 14, 1941;
    decided February 27, 1941.

      Nathan Frankel for appellant.

      J. Francis Hayden and Leo T. Kissam for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Widening of Southern Boulevard, Whitlock Avenue and Eastern Boulevard in the Borough of The Bronx. Henry W. Mumm, Respondent.
    Argued January 16, 1941;
    decided February 27, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair, Joseph F. Mulqueen, Jr., and Eugene L. Brisach), for appellant.

      Harry H. Chambers and Harry B. Chambers for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Mitchell Siegel, Appellant.
    Submitted January 20, 1941;
    decided February 27, 1941.

      Nathan Ehrenzweig for appellant.

      Thomas E. Dewey, District Attorney (Richard G. Denzer and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Elizabeth Toth, as Administratrix of the Estate of Albert Toth, Deceased, Respondent, v. Kennedy & Smith, Inc., Appellant, and City of New York, Respondent and Appellant, Impleaded with Another.
    Argued January 22, 1941;
    decided February 27, 1941.

      Alfred McCormack, Bruce Bromley and George S. Collins for Kennedy & Smith, Inc., appellant.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for City of New York, respondent and appellant.

      Jack L. Rappaport and James Loccisano for plaintiff, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Murray Shapiro, Appellant.
    Argued January 23, 1941;
    decided February 27, 1941.

      Copal Mintz for appellant.

      William O’Dwyer, District Attorney (J. Vincent Keogh and Henry J. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Van Rensselaer Estates, Inc., Respondent, and Ben B. Hofstadter, as Trustee under a Trust Mortgage, Appellant and Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents and Appellants. (Taxes for 1925-1931.) The People of the State of New York ex rel. Ben B. Hofstadter, as Trustee under a Trust, Mortgage, Appellant and Respondent, v. James J. Sexton et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents and Appellants. (Taxes for 1932, 1933, 1935-1938, and First Half of 1939.)
    Argued January 9, 1941;
    decided February 27, 1941.

      Cloyd Laporte and Rupert Warren for Ben B. Hofstadter, relator, appellant and respondent.

      William C. Chanter, Corporation Counsel (Hyman W. Kehl, Arthur A. Segall and Irving Lew of counsel), for defendants, respondents and appellants.

      Bela Darwin Eisler for Van Rensselaer Estates, Inc., relator, respondent.
   Order of Appellate Division in so far as appealed from by defendants afiSrmed, with costs to relator-appellant; and in so far as appealed from by the relator order of the Appellate Division reversed and the proceeding remitted to Special Term, to proceed in accordance with the ruling in People ex rel. Manhattan Square Beresford, Inc., v. Sexton (284 N. Y. 145), with costs in all courts to the relator-appellant. The court was not justified in finding a valuation of the building for the year 1931 and subsequent years higher than the reproduction cost thereof less depreciation as shown by the evidence, in the absence of extraordinary circumstances not present here. No opinion.

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


text:
    Clarence E. Bennett, Respondent, v. Samuel Piscitello et al., Appellants.
    Argued January 13, 1941;
    decided February 27, 1941.

      John J. Reilly for appellants.

      William MacFarlane for respondent.
   Judgment affirmed, with costs, on the ground there is no evidence of breach of warranty. No opinion. (See 285 N. Y. 743.)

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


text:
    The People of the State of New York ex rel. Edward Przybyl, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Argued January 13, 1941;
    decided February 27, 1941.

      Thomas J. McKenna for appellant.

      John J. Bennett, Jr., Attorney-General (Edward T. Boyle and Patrick H. Clune of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippet, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property for the Hutchinson River Parkway Extension in the Borough of The Bronx. Henry Steers, Inc., Appellant.
    Argued January 16, 1941;
    decided February 27, 1941.

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

      William C. Chanler, Corporation Counsel (Paxton Blair, Joseph F. Mulqueen, Jr., and Eugene L. Brisach of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. General Alliance Corporation, Respondent, against State Tax Commission et al., Appellants.
    Argued January 20, 1941;
    decided February 27, 1941.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for appellants.

      Warren W. Cunningham for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Sophie Trust et al., Appellants, v. City of New York, Respondent.
    Argued January 30, 1941;
    decided February 27, 1941.

      Gordon I. Novod and Moses Z. Yam for appellants.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Arthur H. Goldberg of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    D. M. W. Contracting Co., Inc., Appellant, v. Board of Education of the City of New York, Respondent.
    Argued January 22, 1941;
    decided February 27, 1941.

      Max E. Greenberg for appellant.

      William C. Chanler, Corporation Counsel (Milton I. Newman and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary De Martino, Appellant, v. Brooklyn and Queens Transit Corporation, Respondent, Impleaded with Another.
    Argued January 23, 1941;
    decided February 27, 1941.

      Samuel Resnicoff for appellant.

      William C. Chanler, Corporation Counsel (William Mason Smith, Jr., and Paxton Blair of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Gussie Gutov, as Administratrix of the Estate of Julius Gutov, Deceased, Appellant, v. Abraham Krasne, Respondent, Impleaded with Another.
    Argued January 13, 1941;
    decided February 27, 1941.

      William L. Shumate and Edward J. Haniver for appellant.

      Joseph F. Murray and Edward L. Johnson for respondent.
   Judgments reversed and a new trial granted, with costs to the appellant to abide the event. The law of New Jersey governs and under that law the question whether the defendant Krasne was the employer of the salesman was one of fact. No opinion.

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


text:
    Amelia McGuirk, as Administrator of the Estate of Elizabeth McGuirk, Deceased, et al., Appellants, v. City of New York, Respondent.
    Argued January 22, 1941;
    decided February 27, 1941.

      Seymour L. Colin and George A. Grabow for appellants.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch and Lewis, JJ. Dissenting: Rippey, Conway and Desmond, JJ., on the ground that it was a question of fact whether under all the circumstances the defendant exercised such care as was required in the exercise of ordinary prudence.


text:
    Bank of New York, Respondent, v. Hannah Blumenthal, Appellant.
    Argued January 23, 1941;
    decided February 27, 1941.

      Barney B. Fensterstock, Israel Akselrod and Leonard Zalkin for appellant.

      Thomas B. Fenlon and Langdon P. Marvin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Benjamin E. Tilton, as Trustee of New York State Railways, Appellant, v. State of New York, Respondent.
    (Claim No. 24468.)
    Argued January 16, 1941;
    decided February 27, 1941.

      William L. Broad and Willis H. Michell for appellant.

      John J. Bennett, Jr., Attorney-General (Maurice F. Lane, Leon M. Layden and Joseph I. Butler of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William C. Farley, Respondent, v. Frederick C. Overbury, Appellant.
    Argued January 20, 1941;
    decided February 27, 1941.

      Frank W. Jackson for appellant.

      Melville J. France and Loren N. Wood for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of William W. McLaughlin, Deceased. Helen E. McLaughlin, Individually and as Executrix of William W. McLaughlin, Deceased, Appellant and Respondent; City Bank Farmers Trust Company, as Successor Executor of William W. McLaughlin, Deceased, et al., Respondents and Appellants. In the Matter of the Estate of William W. McLaughlin, Deceased. Helen E. McLaughlin, as Trustee under the Will of William W. McLaughlin, Deceased, Appellant and Respondent; City Bank Farmers Trust Company, as Successor Trustee under the Will of William W. McLaughlin, Deceased, et al., Respondents and Appellants.
    Argued January 21, 1941;
    decided February 27, 1941.

      Frederick Evan Crane, Irving II. Saypol, Leo Kotler and Samuel Lawrence Brennglass for Helen E. McLaughlin, appellant and respondent.

      Michael H. Cardozo, Jr., Andrew D. Weinberger, Frank S. Stevens, Jr., and Sidney B. Cardozo for Irene N. Coffey et al., respondents and appellants.

      James D. Ouchterloney, John W. Hannon, Earle J. Starkey and Stanley E. Anderson for City Bank Farmers Trust Company et al.,' respondents and appellants.
   Order affirmed, with costs to all parties filing separate briefs payable out of the estate. No opinion.

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


text:
    Nina Bordonaro, Appellant, v. Bank of Blasdell, Respondent.
    Argued January 22, 1941;
    decided February 27, 1941.

      William J. Flynn, Philip A. Laing and Melvin Greene for appellant.

      A. T. O’ Neill, Frank M. Osta and Joseph A. Marion for respondent.
   Judgments reversed and a new trial granted, with costs to the appellant to abide the event, on the ground that a fair question of fact was presented upon this record. No opinion.

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


text:
    Ottilie M. Martens, Appellant, v. Hellmuth Martens, Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.
   Motion for reargument denied. (See 284 N. Y. 363.)


text:
    Vanneck Realty Corporation, Appellant, v. City of New York et al., Respondents.
    Submitted February 24, 1941;
    decided March 4, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 403.)


text:
    Hazel Ellis, Appellant, v. City of Geneva, Respondent. Frank Ellis, Appellant, v. City of Geneva, Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Albert G. Kirby, City Attorney, for motions to dismiss appeals and in opposition to motions for leave to prosecute appeals as poor persons.

      Joseph J. Spillane for motions for leave to prosecute appeals as poor persons and in opposition to motions to dismiss appeals.
   Motions to dismiss appeals denied, with ten dollars costs.

Motions for leave to prosecute appeals as poor persons granted.


text:
    James Tierney, Jr., by James Tierney, His Guardian ad Litem, et al., Appellants, v. New York Dugan Brothers, Inc., Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.

      George J. Stacy for motion.

      Lawrence Isaacs opposed.
   Motion denied. Time of appellants extended for three months in order to enable them to move to prosecute appeal as poor persons.


text:
    Ethel M. Waddey, Appellant, v. Everett Waddey, Jr., Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Henry H. Shepard for motion.

      William J. H. Molinari opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the appeal lies as of right. (See 285 N. Y. 744.)


text:
    In the Matter of Alma M. Fabricius, Appellant, against Ernest E. Cole, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued February 24, 1941;
    decided March 4, 1941.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum of counsel), for motion.

      Alma M. Fabricius, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Respondent, v. Vendome Service, Inc., Appellant.
    Submitted February 24, 1941;
    decided March 4, 1941.
   Motion for reargument denied. (See 284 N. Y. 742.)


text:
    In the Matter of the Estate of Jerome E. Howe, Deceased. Leon Brown, as Administrator of the Estate of Charles Howe, Deceased, Appellant; Erskine C. Rogers, as Executor of Jerome E. Howe, Deceased, Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.

      William, Gitnick and B. Leo Schwarz for motion.

      LeRoy E. Middleworth opposed.
   Motion dismissed on ground that no respondent is in court.


text:
    Harold S. Clark, Appellant, v. George A. Reynolds, Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Harold S. Clark, in person, for motion.
    No one opposed.
   Motion denied. The moving papers do not indicate that the plaintiff moved for a direction of a verdict or that the trial court erred in submitting questions of fact to the jury. Upon an appeal from an order of the Appellate Division reversing a judgment on the facts and granting a new trial, this court may consider only whether as matter of law on the evidence the plaintiff was entitled to judgment.” (Rockowitz C. & B. Corp. v. Madame X Co., 248 N. Y. 272.)


text:
    Susan Pringle, Respondent, v. Edenwald Realty Corp. et al., Defendants, and Frank J. Nardozzi et al., Appellants.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Leo E. Sherman for motion.

      Charles Korn opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action. (Leary v. Lipkind, 253 N. Y. 534; Van Arsdale v. King, 155 N. Y. 325.)


text:
    The People of the State of New York ex rel. George Conklin, Appellant, against Blakely R. Webster, as Superintendent of Dannemora State Hospital, Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.

      George Conklin, in person, for motion.
    No one opposed.
   Motion denied on the ground that no appeal has been taken within the statutory time and no leave to appeal can now be granted.


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring an Easement Within the United States Bulkhead Lines of Newtown and Maspeth Creeks in the Boroughs of Brooklyn and Queens. Cord Meyer Company, Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 493.)


text:
    In the Matter of the Accounting of John J. Hare, as Executor of Ellen A. Brown, Deceased, Appellant. B. Brown Coggshall et al., as Executors of Sara B. Coggshall, Deceased, Respondents.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Georgia Hare for motion.

      A. J. Buck opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    Walter F. Jenkins et al., Appellants, v. 313-321 W. 37th Street Corporation, Appellant and Respondent, and National Transportation Corporation et al., Respondents, Impleaded with Another.
    Submitted February 24, 1941;
    decided March 4, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 397.)


text:
    Vera L. Binzen, Respondent, v. Giles G. Healey, Appellant.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Gustave I. Jahr for motion.

      Howard Osterhout and Robert W. Maloney, Jr., opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action. (Van Arsdale v. King, 155 N. Y. 325; Potter v. Diamond, 266 N. Y. 635.)


text:
    In the Matter of Aaron Rich, Appellant, against Beatrice R. Kaminsky et al., Respondents.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Milton M. Eisenberg for motion.

      Benjamin M. Franklin .and Samuel Robert Weltz opposed.
   Motion dismissed, with ten dollars costs and necessary-printing disbursements, on the ground that the order is not final.


text:
    Anna Rose et al., Appellants, v. Daily Mirror, Inc., Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 335.)


text:
    Mary Harris, Appellant, v. Sandel Manufacturing Company, Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Eugene T. O’ Neill for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Stanley Skidmore, Respondent, v. Sol A. Rosenblatt et al., Appellants.
    Submitted February 24, 1941;
    decided March 4, 1941.

      J oseph Haskell for motion.

      William B. Shelton opposed.
   Motion denied, without costs.


text:
    Title Guarantee and Trust Company, Appellant, v. Estate of Louis Bossert, Inc., et al., Defendants. Brooklyn Trust Company, as Trustee, etc., et al., Appellants; Public Operating Corporation, Respondent.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Nicholas P. Callaghan and Walter F. O’Malley for motion.

      Samuel Rubin opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action.


text:
    Harold H. Whitford, Respondent, v. Anna U. Whitford, Appellant.
    Submitted February 24, 1941;
    decided March 4, 1941.

      James P. Kalteux, Patrick J. Tuffy and Emmet L. Holbrook for motion.

      Charles Ward Brown opposed.
   Motion dismissed on the ground that the motion for leave to appeal was made too late in the Appellate Division.


text:
    Reichhold Chemicals, Inc., Respondent, v. Schenectady Coating Corporation, Appellant.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Thomas B. Tillott for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking on appeal and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    Walter H. Meredith, Jr., Respondent, v. First Trust Company of Albany, Appellant.
    Submitted February 24, 1941;
    decided March 4, 1941.

      Edward S. Rooney for motion.

      John J. Conway and Russell E. Harrington opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on ground order of Appellate Division is not a final determination.


text:
    John Callahan et al., Appellants, v. Mary E. Underwood et al., Respondents.
    Argued January 23, 1941;
    decided March 6, 1941.

      Harry Kantor for appellants.

      Urbane C. Lyons for respondent.
   Judgment affirmed, with costs; no opinion.

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


author: Finch, J.

text:
    The People of the State of New York ex rel. 277 Park Avenue Corporation, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, et al., Appellants. (Three Proceedings; Taxes for 1935, 1937, 1938 and First Half of 1939.)
    Argued January 6, 1941;
    decided March 6, 1941.

      ■William C. Chanler, Corporation Counsel (Arthur A. Segall, Arthur H. Goldberg and Murray Sendler of counsel), for appellants.

      Philip Sheridan McNally and David E. Firestone for respondent.
   Order affirmed, with costs, on the ground that it does not appear upon this record that the court at Special Term adopted a wrong theory of valuation.

Concur: Lehman, Ch. J., Loughran, Rippet, Lewis and Desmond, JJ.; Finch, J., dissents in the following opinion in which Conway, J., concurs:

Finch, J.

(dissenting). This is a certiorari proceeding to review the assessment by the city of New York upon certain real estate known as No. 277 Park avenue. The property in question consists of a square block possessing valuable surface and subsurface uses. The surface of the land is improved with a twelve-story apartment house, while below the surface there are railroad tracks and other improvements appurtenant to the Grand Central Terminal. The unofficial referee before whom the hearings were held recommended substantial reductions in the assessments for the years under review and his report was accepted by Special Term with certain modifications which will be noted. In view of the affirmance by the Appellate Division, questions of fact as to the amount of the assessment as reduced, admittedly may not be urged in this court, but whether the referee employed proper principles of valuation is a question of law which we must consider. It is submitted that the referee adopted an erroneous theory of valuation and that in regard to the valuation of the subsurface use of the land the error of the referee was confirmed by Special Term.

Although the review on certiorari is limited to a review of the total assessment, the assessors are required to state separately the value of the land as if it were wholly unimproved (Tax Law, § 21, subd. 3; Cons. Laws, ch. 60; Greater New York Charter, § 889; L. 1901, ch. 466, as amd.). There need be no speculation in the case at bar as to how the referee arrived at his final, total figures, for his report reveals in detail each step in the process. In conformity with the statute, the referee stated the value of the improvements and of the land separately. So far as the valuation of the improvement is concerned, no question is now raised, but the city does complain of the land figures in so far as they fail to reflect the value of the subsurface use. That the subsurface use does impart to the land an additional value does not seem to be disputed. The issue is rather whether the referee arrived at his figures as a result of the application of permissible standards of valuation. The referee plainly stated that, for the reasons given by him in his report, he employed the capitalization of income rule to the exclusion of all other methods. In so doing he subtracted apartment house operating expenses from the total income produced by the building and then, by a residual valuation method, he determined how much of the net income was attributable to the land and how much to the building. After making allowance for the payment of taxes out of net income, he capitalized the resulting figures upon the basis of what he determined to be a fair rate of return. Thus at this stage it is clear that no allowance was made for the income either actual or estimated, which may be attributed to the capital value of either the subsurface land use or the subsurface improvements. The referee was aware of the problem, for he devoted an entire section of his report to a discussion of this particular issue. His solution was to avoid any attempt to value the subsurface by crediting as the amount which should be allowed for the payment of taxes out of the net operating income only that portion of the total taxes on the entire parcel which he deemed attributable to the surface uses and to the surface improvements of the parcel.

There can be no doubt that such a technique results in a complete failure to value the subsurface use contrary to the rule heretofore unquestioned that the total assessment upon a parcel of real property must account for not only some portions, but all elements which together comprise the total value of the parcel.

Did the modifications made by Special Term correct the error of the referee? Again there is no need to speculate, for the opinion of Special Term specifies in what particulars the referee’s figures were revised. First, the referee was criticized for relying exclusively upon the capitalization of income rule. Second, the land figures were enhanced but only because the referee failed to give due credit to the factors of plottage and of the frontage on the side streets. And third, in stating building values, Special Term made an allowance for the subsurface improvements. The failure to include the value of subsurface use in the value of the land as if vacant and unimproved was not corrected by Special Term and the error of the referee was thereby perpetuated. Since the Appellate Division made no changes whatever, the case as it appears on appeal to this court has not been purged of the serious error committed by the referee.

It is submitted, therefore, that the order of the Appellate Division should be reversed and the matter remitted for a new hearing.


text:
    In the Matter of Sidney Gondelman, an Attorney, Appellant. Brooklyn Bar Association, Respondent.
    Argued November 25, 1940;
    decided March 6, 1941.

      Frederick Evan Crane, Charles II. Kelby and Harold L. Turk for appellant.

      Charles J. Buchner and Charles Goodwin for respondent.
   Order affirmed; no opinion.

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


text:
    Adler’s Quality Milk, Inc., Respondent, v. Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    Argued January 14, 1941;
    decided March 6, 1941.

      Robert G. Blabey and Milo R. Kniffen for appellant.

      Samuel Rubin for respondent.
   Judgments reversed and complaint dismissed on the authority of Adler, Inc., v. Noyes (285 N. Y. 34).

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


text:
    In the Matter of Torpedo Dress Corporation. City of New York, Appellant; State of New York et al., Respondents.
    Argued January 7, 1941;
    decided March 6, 1941.

      William C. Chanler, Corporation Counsel (Sol Charles Levine, Arthur A. Segall and Morris L. Heath of counsel), for appellant.

      John J. Bennett, Jr., Attorney-General (Francis R. Curran, W. Gerard Ryan and Henry Epstein of counsel), for State of New York, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Samuel Barnett, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    Argued January 14, 1941;
    decided March 6, 1941.

      Samuel Lawrence Brennglass and Alvin T. Sapinsley for appellant.

      William Marshall Bullitt and Harry Cole Bates for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dominic Rotella, Appellant, v. Titanium Alloy Company, Respondent.
    Submitted January 20, 1941;
    decided March 6, 1941.

      Ulysses S. Thomas for motion.

      William L. Clay opposed.
   Motion granted and appeal dismissed, without costs. (See Powers v. Porcelain Insulator Corp., 285 N. Y. 54.)


text:
    Sadie Appel, Appellant, v. New York Life Insurance Company, Respondent.
    Argued February 24, 1941;
    decided March 13, 1941.

      Borris M. Komar for appellant.

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

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


text:
    Marie Friedman, Respondent, v. Charles A. Gordon et al., Defendants. Jay S. Jones et al., Constituting the Firm of Jones & Gogolick, Appellants, and Milton R. Goldstein, Respondent.
    Argued February 25, 1941;
    decided March 13, 1941.

      Morris Gogolick for appellant.

      Philip Hoffer and James A. Doherty for plaintiff, respondent.

      Charles Wilson for Milton R. Goldstein, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lohghran, Finch and Desmond, JJ. Dissenting: Rippey, Lewis and Conway, JJ.


text:
    In the Matter of Andrew A. Vanore, Respondent, against Mary Immaculate Hospital et al., Appellants. State Industrial Board, Respondent.
    Argued February 25, 1941;
    decided March 13, 1941.

      A. S. Hore, Jr., for appellants.

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

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


text:
    In the Matter of Alfred E. Smith, Jr., et al., Constituting a Committee of the Council of the City of New York, Respondents, against Paul J. Kern, Individually and as President of the Municipal Civil Service Commission of the City of New York, Appellant.
    Argued February 24, 1941;
    decided March 13, 1941.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer, Oscar L. Tucker and Denis B. Sullivan of counsel), for appellant.

      Emil K. Ellis, Louis Qruss and S. David Stutson for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ. Lehman, Ch. J., dissents on the ground that a subcommittee of one is without power to compel a witness against his will to appear for any examination which is not public.


text:
    In the Matter of Theodora B. Frost, Individually and as Executrix of George S. Frost, Deceased, Appellant, against A. Pierre Bachman, as Executor of Charles G. Hensley, Deceased, Respondent.
    Argued February 25, 1941;
    decided March 13, 1941.

      John F. Finn, Jr., for appellant.

      A. P. Bachman and Daniel Wechsler for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Helen Wolfe, Respondent, against Frank J. Brohman, Doing Business as Mammoth Food Market, et al., Appellants. State Industrial Board, Respondent.
    Argued February 25, 1941;
    decided March 13, 1941.

      John E. Leach for appellants.

      John J. Bennett, Jr., Attorney-General (John F. Loehr and Joseph A. McLaughlin of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch and Conway, JJ., on the ground that there is evidence that the death of the employee was the result of occupational disease. Rippey, Lewis and Desmond, JJ., vote to affirm without qualification.


text:
    In the Matter of Anna G. Podell, Appellant, against William Hodson, as Commissioner of the Department of Welfare of the City of New York, et al., Respondents.
    Argued February 26, 1941;
    decided March 13, 1941.

      Herbert Plaut and Harold Davis for appellant.

      William C. Chanter, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), for respondents.
   Order of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division. The appointment of petitioner became absolute, and was not conditional subject to re-examination as to qualifications by the Municipal Civil Service Commission. The law admits of no conditional appointments such as is claimed by the Commission. (See Matter of Wolff v. Hodson, 285 N. Y. 197.) No opinion.

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


text:
    Anna E. Kraft, Appellant, v. Village of Hastings-on-Hudson et al., Respondents.
    Argued February 24, 1941;
    decided March 13, 1941.

      Gerald FitzGerald, and Lawrence T. Gross, Jr., for appellant.

      Chester A. Slocum, James D. Hopkins and Henry R. Barrett, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rifpey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Estate of Albert W. Breedon, Deceased. Robert Breedon, as Trustee under the Will of Albert W. Breedon, Deceased, Appellant; Delia Breedon, Respondent.
    Argued February 26, 1941;
    decided March 13, 1941.

      Donald F. Boyle and Harry Sherburne for appellant.

      A. Howard Burtch for respondent.
   Appeal dismissed, without costs; no opinion.

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


text:
    In the Matter of Milton Paley, Appellant. Anne Ritholtz, Respondent.
    Submitted February 26, 1941;
    decided March 13, 1941.

      Robert P. Levis for appellant.

      Max Ornstein for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Mabel Carpenter, Appellant, against Lawrence J. Kane, Respondent. State Industrial Board, Respondent.
    Submitted January 10, 1941;
    decided March 13, 1941.

      John J. Cucci for appellant.

      Thomas J. Mangan for Lawrence J. Kane, respondent.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    The People of the State of New York ex rel. Vanderbilt Avenue Realty Corporation, Respondent, against Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Taxes for 1928.) The People of the State of New York ex rel. Vanderbilt Avenue Realty Corporation, Respondent, against James J. Sexton et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Two proceedings; Taxes for 1930 and 1931.)
    Argued February 24, 1941;
    decided March 13, 1941.

      William C. Chanler, Corporation Counsel (Arthur A. Segall, Arthur H. Goldberg and Harry S. Lucia of counsel), for appellants.

      Albert A. Raphael and Samuel D. Schwitzer for respondent.
   Order affirmed, with costs. The question of law argued by the appellants is not presented upon this record. No opinion.

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


text:
    In the Matter of the Estate of William J. Kelley, Deceased. John J. Kelley, as Ancillary Administrator of the Estate of Delia Kelley, Appellant; City of New York, Respondent.
    Submitted February 25, 1941;
    decided March 13, 1941.

      William J. Scanlon for appellant.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Herbert Lefkowitz of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Daisy G. Smith, Respondent, against City of New York, Appellant. State Industrial Board, Respondent.
    Submitted February 26, 1941;
    decided March 13, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair and Stanley Buchsbaum of counsel), for appellant.

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

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


text:
    Abbie K. Ranbuska, as Administratrix of the Estate of Otto Ranbuska, Deceased, Respondent, v. Ontario Knife Company, Appellant.
    Argued February 24, 1941;
    decided March 13, 1941.

      James M. Cash and John Marshall Gorman for appellant.

      William L. Clay for respondent.
   Appeal dismissed, with costs to respondent, on the ground that a question of discretion is involved which we cannot review. No opinion.

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


text:
    In the Matter of the Accounting of Marie Stutzin, as Executrix of Rose W. Englander, Deceased, Respondent. Jacob Englander, Appellant; Anna Weinstein, Respondent.
    Submitted February 27, 1941;
    decided March 13, 1941.

      Edward A. Ldpton and Harold Chase for appellant.

      Louis W. Rosen for Marie Stutzin, as executrix, respondent.

      Carl Eill Schiffer for Anna Weinstein, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Irwin Lalin, Respondent, v. Dorothea M. Darby et al., Appellants.
    Submitted March 3, 1941;
    decided March 13, 1941.

      Leo E. Sherman and James M. Kelly for motion.

      Harold Epstein and Charles H. Finkelstein opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    John H. Awtry, Appellant, v. Temple H. Morrow et al., Defendants, and Traders & General Insurance Company, Respondent.
    Submitted March 3, 1941;
    decided March 13, 1941.

      Philip M. Payne for motion.

      J. M. Richardson Lyeth and John G. Haviland opposed.
   Motion dismissed, with ten dollars costs and necessary-printing disbursements, on the ground that the order is not a final determination of the action within the meaning of the Constitution.


text:
    In the Matter of the Estate of Henry Hubbs, Deceased. Alpheus R. Phelps et al., Appellants; Helen P. Leach, Respondent.
    Submitted March 3, 1941;
    decided March 13, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 776 )


text:
    Jeanne G. Finclair, Respondent, v. 211 W. 66th St. Corp. et al., Defendants, and Alden Brokerage Corporation, Appellant. Joseph P. Ferrigan, as Receiver, Respondent.
    Submitted March 10, 1941;
    decided March 13, 1941.

      Jerome Count for motion.

      Samuel W. Dorfman opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order is not appealable.


text:
    In the Matter of Home Title Insurance Company. Del Ritz Holding Company, Inc., Appellant; Frederick L. Cranford, as Trustee, et al., Respondents.
    Submitted March 10, 1941;
    decided March 13, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 545.)


text:
    Theodore Quint, Appellant and Respondent, v. Lena Greenberg, Respondent and Appellant, Impleaded with Others.
    Submitted March 10, 1941;
    decided March 13, 1941.

      Harry M. Goodman for plaintiff.

      Albert Mintzer for Lena Greenberg, defendant.
   Motions dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order is not appealable.


text:
    In the Matter of Aaron Steger, Appellant, against Board of Examiners of the Board of Education of the City of New York et al., Respondents.
    Submitted March 10, 1941;
    decided March 13, 1941.

      William C. Chanler, Corporation Counsel (Charles F. Murphy of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of N. J. Boots, Petitioner, against Francis Martin, Alfred H. Townley, Edward J. Glennon, Irwin Untermyer and Albert Cohn, Justices of the Appellate Division of the Supreme Court in the First Judicial Department, Defendants.
    Submitted March 10, 1941;
    decided March 13, 1941.

      George L. Schein for petitioner.

      Francis Martin, as Presiding Justice of the Appellate Division of the Supreme Court in the first judicial department, opposed.
   Motion for peremptory order of mandamus dismissed.


text:
    Gertrude A. Caldwell, Individually and as Receiver, Appellant, v. Richard T. Caldwell et al., Respondents.
    Argued February 28, 1941;
    decided April 17, 1941.

      Edward J. Pigott and Albert L. Krull for appellant.

      Joseph A. Nickerson, J. Edgar Swanin and S. Stewart Graff for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Richard O. Cross, Appellant, v. Town of Harmony, Respondent.
    Submitted March 4, 1941;
    decided April 17, 1941.

      Alton R. Erickson for appellant.

      McKinley L. Phillips and W. Travis Look for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Historic Estates, Inc., Appellant, v. United Paper Board Company, Respondent.
    Argued March 5, 1941;
    decided April 17, 1941.

      Walter H. Liebman, D. William Leider and Harold I. Cammer for appellant.

      Wyman S. Bascom and Harry Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Watson E. Pelton, Appellant, v. City of Geneva, Respondent.
    Argued March 7, 1941;
    decided April 17, 1941.

      Earl W. Murray and Samuel B. Dicker for appellant.

      Albert G. Kirby for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Public National Bank and Trust Company of New York, Respondent, v. Garcia Sugars Corporation, Defendant, and National Sugar Refining Company et al., Appellants.
    Argued March 10, 1941;
    decided April 17, 1941.

      Samuel B. Stewart, Jr., Clinton H. Blake, George E. Diethelm and H. Beach Carpenter for appellants.

      Joseph M. Proskauer, Sam L. Cohen, Alfred W. Bressler and Henry Schneider for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Merchants Refrigerating Company, Appellant, v. Benjamin Titman Corporation et al., Respondents.
    Argued January 24, 1941;
    decided April 17, 1941.

      Murray C. Bernays and Harold D. Klipstein for appellant.

      John E. Geraty for Benjamin Titman Corporation, respondent.

      John A. Kelly for Borden Company, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Saul Tubis, Respondent, against H. Weaderhorn, Inc., et al., Appellants. State Industrial Board, Respondent.
    Submitted February 25, 1941;
    decided April 17, 1941.

      Jeremiah F. Connor for appellants.

      Albert Adams and William I. Levy for claimant, respondent.

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

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


text:
    Harry Karlinsky, Appellant, v. Morris Silberman, Individually and as Executor of Ike Silberman, Deceased, Respondent.
    Submitted February 28, 1941;
    decided April 17, 1941.

      Maurice Rubinger and Hyman Frank for appellant.

      Robert F. Blumofe and Stanley D. Waxberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Manuel G. Rodriguez, Appellant, v. Western Union Telegraph Company, Respondent.
    Argued March 3, 1941;
    decided April 17, 1941.

      Murray M. Cowen for appellant.

      John H. Waters and Francis R. Stark for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Modern Industrial Bank, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued March 4, 1941;
    decided April 17, 1941.

      Frederick E. Crane and Sylvia Livingston for appellant.

      John J. Bennett, Jr., Attorney-General (John C. Crary, Jr., and Wendell Brown of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    Anna J. Levy et al., as Executrices of Jacob Levy, Deceased, Appellants, v. Louis Kram, Inc., Respondent.
    Argued March 5, 1941;
    decided April 17, 1941.

      Sidney J. Loeb and Jay B. Van Veen for appellants.

      John G. Jackson and John Scully, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


author: Conway, J.

text:
    Abe Lowenhar, Appellant and Respondent, v. Commercial Outfitting Co., Inc., Appellant, and Samuel Fine, Respondent.
    Argued March 10, 1941;
    decided April 17, 1941.

      Clarence S. Zipp, William S. O’Connor and Daniel Miner for defendant, appellant.

      Francis J. Hughes for plaintiff, appellant and respondent.

      John F. Bowden and Hobart R. Marvin for defendant, respondent.
   On plaintiff’s appeal: Judgment affirmed, with costs to respondent Fine. On appeal by defendant Commercial Outfitting Co., Inc.: Order affirmed and judgment absolute ordered against appellant Commercial Outfitting Co., Inc., on the stipulation, with costs in all courts to the plaintiff, on the ground that, as against this defendant, plaintiff made out a prima facie case of common-law negligence. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Desmond, JJ. Conway, J., concurs as to defendant Fine but dissents in following memorandum as to Commercial Outfitting Co., Inc.:

Conway, J.

(dissenting). There are two defendants, the owner and the corporate tenant. The latter leased two floors in a building about three weeks before the plaintiff sustained his injuries. The plaintiff is a window cleaner employed by a window cleaning concern. The defendant tenant undertook to have the windows cleaned on one of the floors it had leased. An employee or agent of defendant tenant told the plaintiff to clean them. He did not tell him how to do the work. Plaintiff was not told to clean the windows from the outside nor was he told to take hold of a shutter bar there. The employee or agent was not present during the cleaning. The defendant tenant had not attached the shutter bars to the building and there was no attempt to prove notice of a defective condition of any of them. Plaintiff cleaned from the inside and then went outside, apparently standing on the window sill. He took hold of a shutter bar from time to time in the course of his work. The shutter bar on the second floor rear window gave way and plaintiff was precipitated onto a skylight with resultant injuries, which are the subject of this action.

We are affirming as to defendant tenant upon the ground that plaintiff established prima facie common-law negligence and that there must be an affirmance under the stipulation for judgment absolute.

In my opinion plaintiff’s proof, and I have related all of it, did not establish prima facie common-law negligence on the part of the defendant tenant, Commercial Outfitting Co., Inc. As to it the judgment should be reversed and the complaint dismissed, with costs.

I concur in the affirmance of the judgment as to defendant Fine.


text:
    Moscow Fire Insurance Company of Moscow, Russia, et al., Respondents, v. Heckscher & Gottlieb et al., Appellants, and Bank of New York and Trust Company, as Agent of Moscow Fire Insurance Company et al., Respondents. Samuel E. Morro et al., Respondents, v. Moscow Fire Insurance Company of Moscow, Russia, et al., Defendants.
    Argued March 11, 1941;
    decided April 17, 1941.

      Hartwill Cabel, Chester W. Davis and Osmond K. Fraenkel for appellants.

      Paul C. Whipp and Lounsbury D. Bates for Paul Lucke, respondent.

      Borris M. Komar for Samuel E. Morro et al., respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Ernest Whitney, Appellant, against Joseph H. Wilson, as Warden of Great Meadow Prison, Respondent.
    Submitted March 14, 1941;
    decided April 17, 1941.

      Ernest Whitney, in person, for appellant.

      John J. Bennett, Jr., Attorney-General (Everett D. Mereness and Bernard L. Alderman of counsel), for respondent.
   Order affirmed, no opinion.

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


text:
    John Mirro et al., Respondents, v. State of New York, Appellant.
    (Claim No. 24173.)
    Argued March 7, 1941;
    decided April 17, 1941.

      John J. Bennett, Jr., Attorney-General (Gerald J. Carey and Leon M. Lay den of counsel), for appellant.

      Paul Tison and Louis J. Carruthers for Long Island Railroad Company.

      Israel Uhrman and Jacob B. Gersten for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward G. Fischer, as Ancillary Administrator with the Will Annexed of the Estate of Sarah F. Barnes, Deceased, Appellant, v. Guaranty Trust Company et al., as Executors and Trustees of Max Lippman, Deceased, et al., Respondents.
    Submitted January 23, 1941;
    decided April 17, 1941.

      Herman Bachrach, I. Bregoff, C. E. McGee and Edward G. Fischer for appellant.

      George W. Whiteside and Charles Pickett for Manufacturers Trust Company, as executor and trustee of Nathan I. Sachs, deceased, respondent.

      Thomas I. Sheridan and Matthew Svjerling for Guaranty Trust Company et al., as executors and trustees of Max Lippman, deceased, et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Ripfey, Lewis, Conway and Desmond, JJ.


text:
    Mary Rooney, as Administratrix of the Estate of Patrick Rooney, Deceased, Appellant, v. Thomas E. Murray, as Receiver of Interborough Rapid Transit Company, Respondent.
    Submitted February 28, 1941;
    decided April 17, 1941.

      Frederick Hemley, Morris L. Wolf and Frances S. Ecker for appellant.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rose Czerny, Respondent, v. Ralsut, Inc., Appellant.
    Argued March 4, 1941;
    decided April 17, 1941.

      Samuel Gorad and Philip F. Jacobs for appellant.

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

Concur: Lehman, Ch. J., Loughran, Finch, Rippet, Lewis, Conwat and Desmond, JJ.


text:
    In the Matter of the Estate of Alexander Newton, Deceased. Euphemia G. Newton, as Committee of David Newton, an Incompetent Person, et al., Appellants; American Surety Company of New York, Respondent.
    Argued March 4, 1941;
    decided April 17, 1941.

      Frederick A. Keck, Frank B. Devlin and FredL. Gross for appellants.

      Mahlon A. Freeman and Norman C. Conklin for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Estate of Alexander Newton, Deceased. Euphemia G. Newton, as Committee of David Newton, an Incompetent Person, et al., Appellants; American Surety Company of New York, Respondent.
    Argued March 4, 1941;
    decided April 17, 1941.

      Frederick A. Keck, Frank B. Devlin and FredL. Gross for appellants.

      Mahlon A. Freeman for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Wendell J. O’Brien, an Infant, by Frederick J. O’Brien, His Guardian ad Litem, et al., Appellants, v. Fidelity and Deposit Company of Maryland, Respondent.
    Argued March 6, 1941;
    decided April 17, 1941.

      Clarence Z. Spriggs for appellants.

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

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


text:
    Alexander Bershad, Respondent, v. Neimand Bros., Inc., Defendant, and Samuel Gilinsky, Appellant.
    Submitted March 7, 1941;
    decided April 17, 1941.

      William L. Shumate for appellant.

      Andrew F. Van Thun, Jr., and Isidore R. Gross for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Geraldine Dwyer, an Infant, by Charles M. Dwyer, Her Guardian ad Litem, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Argued March 11, 1941;
    decided April 17, 1941.

      William B. Moore for appellant.

      Arthur E. Farmer and Benjamin H. Stern for respondent.
   Judgment affirmed, with costs. Any error in the charge was not prejudicial. No opinion.

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


text:
    In the Matter of the Estate of Daniel J. Leary, Deceased. Estelle Werner, Appellant; William C. Reid et al., as Executors of Daniel J. Leary, Deceased, et al., Respondents.
    Argued February 27, 1941;
    decided April 17, 1941.

      Henry A. Uterhart and Alfred M. Schaffer for appellant.

      Siegfried F. Hartman for William C. Reid et ah, as executors of Daniel J. Leary, deceased, et al., respondents.

      John H. Schmid for Cynthia Leary et al., respondents.
   Order affirmed, with costs, and question certified answered in the negative. Motion to dismiss appeal denied. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Lincoln L. Stevenson, Appellant.
    Submitted February 28, 1941;
    decided April 17, 1941.

      Harry L. Marcus, Albert H. Treiman and Moe Levy for appellant.

      John J. Bennett, Jr., Attorney-General (Bernard Bienstock of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Lottghean, Finch, Lewis, Conway and Desmond, JJ. Rippey, J., dissents and votes to dismiss the information.


text:
    John J. Hoffman et al., Appellants, v. Tempa E. Dyruff et al., Respondents, Impleaded with Another.
    Argued March 4, 1941;
    decided April 17, 1941.

      Sylvester Benjamin for appellants.

      Nicholas F. Dyruff for Tempa E. Dyruff, respondent.

      William L. Shumate for Bernheim Contracting Company, Inc., respondent.

      Samuel E. Swiggett for Herman Kishner, respondent.
   Appeal from order of Appellate Division granting new trial dismissed, with costs. Judgment of Appellate Division dismissing the complaint as to Tempa E. Dyruff affirmed, with costs. No opinion.

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


text:
    In the Matter of the Claim of Charles Wanamaker, Respondent, against Burton Selfridge, Doing Business as Empire Scaffolding & Ladder Company, Respondent, and Lumber Mutual Casualty Insurance Company of New York, Appellant. State Industrial Board, Respondent.
    Argued March 6, 1941;
    decided April 17, 1941.

      George S. Collins and Bruce Bromley for appellant.

      Sanford Green for claimant, respondent.

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

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


text:
    Bertha Liubowsky, as Administratrix of the Estate of Henry Liubowsky, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 25491.)
    Argued March 10, 1941;
    decided April 17, 1941.

      John J. Bennett, Jr., Attorney-General (James H. Glavin, Jr., and Harold Greenstein of counsel), for appellant.

      Samuel L. Greenberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Board of Education of the City of New York, Appellant, against Ernest E. Cole, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued March 12, 1941;
    decided April 17, 1941.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Nicholas Bucci and Arthur H. Kahn of counsel), for appellant.

      Herman Hoffman for Frank A. Craig, respondent.

      Charles A. Brind, Jr., and JosephLipsky for Commissioner of Education, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Isaac Goldberg, Appellant, v. City of New York, Respondent.
    Argued March 13, 1941;
    decided April 17, 1941.

      Alexander E. Rosenthal, Mordecai Goldberg and Irving Segal for appellant.

      William C. Chanler, Corporation Counsel (Hyman W. Kehl and Arthur A. Segall of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rector, Churchwardens and Vestrymen of the Church of the Nativity et al., Appellants, v. Carrie O. Fleming, as Executrix of Andrew Fleming, Deceased, Respondent, Impleaded with Another.
    Argued February 25, 1941;
    decided April 17, 1941.

      Jackson A. Dykman and Robert B. Lisle for appellants.

      Frederick M. Boyer, Chancellor of the Diocese of Central New York, amicus curiæ.

      Herbert Peake and Benjamin H. Eisen for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Bank for Savings in the City of New York, Respondent, v. Rellim Construction Company, Appellant, Impleaded with Others.
    Submitted February 28, 1941;
    decided April 17, 1941.

      Frederick Hemley and Jesse Hemley for appellant.

      John A. Sullivan and Walbridge S. Taft for respondent.
   Judgment affirmed, with costs, and motion to dismiss appeal denied. No opinion.

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


text:
    Joseph V. O’Connor, Respondent, v. Joseph Caputo et al., Defendants, and Village of Scarsdale, Appellant. May O’C. Davis, Respondent, v. Joseph Caputo et al., Defendants, and Village of Scarsdale, Appellant.
    Submitted February 28, 1941;
    decided April 17, 1941.

      Thorne Baker for appellant.

      Howard H. Schrecke for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ruth DeSantes, Respondent, v. Mural Transportation Corporation et al., Appellants, Impleaded with Another.
    Argued March 4, 1941;
    decided April 17, 1941.

      Samuel N. Leiterman, E. Edan Spencer and Bernard Glassman for Mural Transportation Corporation et al., appellants.

      William C. Chanler, Corporation Counsel (Paxton Blair and Irving Galt of counsel), for Brooklyn and Queens Transit Corporation, appellant.

      Sol Douglas, Coleman Charney and Gustave Schwartz for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    New York Life Insurance Company, Appellant, v. William F. White et al., Respondents.
    Argued March 5, 1941;
    decided April 17, 1941.

      Roy P. Ohlin, Louis H. Cooke and Franklin D. L. Stowe for appellant.

      Peter Ward and Charles. W. Schohl for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elise E. Weisbecker, Respondent, v. Charles Weisbecker, Appellant.
    Submitted March 7, 1941;
    decided April 17, 1941.

      Harry M. Maries and Benjamin E. Messier for appellant.

      Herbert C. Smyth, Jr., Herbert C. Smyth and George Natanson for respondent.
   Order affirmed, with costs; and question certified answered in the negative. No opinion.

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


text:
    The People of the State of New York ex rel. John Seinfeld, Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    Argued March 11, 1941;
    decided April 17, 1941.

      S. Sidney Smith, Joseph Abramson and Julius Hahn for appellant.

      William C. Chanter, Corporation Counsel (James Hall Prothero and Paxton Blair of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loxtghran, Finch, Rifpey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Arlington C. Hall, Appellant, against Edward P. Leonard, as Borough Superintendent of Buildings for Borough of the Bronx, Respondent.
    Argued February 27, 1941;
    decided April 17, 1941.

      Raymond R. Stringham, William Alston Lamb and Charles Lamb for appellant.

      William C. Chanler, Corporation Counsel (Charles C. Weinstein and Bernard Friedlander of counsel), for respondent.

      A. Joseph Oeist, Theodore Kadin and Karl Leibel for Chamber of Commerce of the Rockaways, amicus curiee.

      J. M. Richardson Lyeth and Robert L. Fay for Fieldston Property Owners Association, Inc., et al., amici curiee.

   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughs,an, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Henry R. Winthrop et al., Copartners Doing Business under Name of Winthrop, Mitchell & Co., Respondents, v. Daniel Loewenthal et al., Appellants, Impleaded with Others.
    Argued March 3, 1941;
    decided April 17, 1941.

      Milton P. Kupfer, Raphael E. Kalvin and Eli S. Silberfeld for appellants.

      John F. Murray for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Berger, as Administrator of the Estate of Samuel Berger, Deceased, Appellant, v. City of New York, Respondent, Impleaded with Others.
    Argued March 4, 1941;
    decided April 17, 1941.

      Robert Jabiin, Herbert Holt and Hiram S. Gans for appellant.

      William C. Chanter, Corporation Counsel (Paxton Blair and Stanley Buchsbaum of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Peter Salemi, Appellant.
    Argued March 5, 1941;
    decided April 17, 1941.

      David L. Malbin and Samuel Goldstein for appellant.

      William O’Dwyer, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Virga, Appellant, Impleaded with Others.
    Argued March 6, 1941;
    decided April 17, 1941.

      Samuel J. Ohringer and Benjamin Spector for appellant.

      Thomas E. Dewey, District Attorney (Stanley II. Fuld and Charles W. Manning of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Fillmore L. Hall, Appellant, v. Robert G. Bardol et al., Respondents.
    Argued March 10, 1941;
    decided April 17, 1941.

      Clayton M. Smith for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Josephine Williams and Adele H. Sassen, Appellants.
    Argued March 11, 1941;
    decided April 17, 1941.

      Elvin N. Edwards and Harvey J. George for appellants.

      Edward J. Neary, District Attorney (Philip Huntington of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    John White, Respondent, v. The State of New York, Appellant.
    (Claim No. 25163)
    Argued March 12, 1941;
    decided April 17, 1941.

      John J. Bennett, Jr., Attorney-General (James H. Glavin, Jr., and Jacob S. Honigsbaum of counsel), for appellant.

      Frederick L. Kane and Stephen D. Finale for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Long Island Railroad Company. Rudolph Reimer, Appellant; Transit Commission of State of New York et al., Respondents.
    Argued March 14, 1941;
    decided April 17, 1941.

      Julius Henry Cohen, Burton A. Zorn, William A. Pallme and Eugene H. Gordon for appellant.

      Frank C. Bowers and George H. Stover for the Transit Commission, respondent.

      Otto M. Buerger and Louis J. Carruthers for Long Island Railroad Company, respondent.

      William C. Chanter, Corporation Counsel (Herman Horowitz and William Mason Smith, Jr., of counsel), for City of New York, respondent.

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for State of New York, amicus curiæ.
   Order affirmed, without costs; no opinion.

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


author: Desmond, J.

text:
    In the Matter of Morris Borodkin, Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued February 26, 1941;
    decided April 17, 1941.

      William C. Chanler, Corporation Counsel (John D. J. Moore, Jr., and Louis M. Weintraub of counsel), for appellants.

      Albert B. Breslow for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis and Conway, JJ. Desmond, J., dissents in the following opinion in which Finch, J., concurs.

Desmond, J.

(dissenting). In March, 1938, the Municipal Civil Service Commission of the City of New York published a notice of examination for the position of “ Supervisor of Park Operations.” The notice stated that the examination would be divided into three parts, to wit: “ Subjects and Weights: Experience, weight 3, 70 percent required; duties [written], weight 4, 75 percent required; technical-oral, weight 3, 70 percent required.” For reasons not here material the examination was not held at the time announced. Thereafter, the Commission published an amended notice of examination for the position listing the subjects and weights as above except that the per cents required were not stated. The written part of the examination was first conducted, and the applicants, including petitioner, were advised before the examination that, “ The thirty (30) highest candidates in the written test who have attained a mark of not less than 75% will be passed in this test. In the event of a tie for the thirtieth place all persons tied will be passed.”

The thirtieth highest candidate attained a grade of 77.4 per cent in the written test. Petitioner’s grade was 76.9 per cent. Failing to place among the thirty highest candidates, petitioner was not permitted to take part in the technical-oral test and received no rating for his experience.

The courts below have held that the requirement that applicants must place among the thirty highest and attain a grade of 75 per cent in the written test in order to qualify to participate in the rest of the examination was arbitrary, capricious and in conflict with the constitutional provision that an examination to determine merit and fitness so far as practicable shall be competitive.

Although not required by the Civil Service Law (Cons. Laws, ch. 7) or the Rules of the Commission, petitioner was informed before participating in the written test of the standard that he had to reach in that test in order to qualify for admission to the remainder of the examination. The fact that a different standard was originally announced in no way prejudiced him. In Matter of Brady v. Finegan (246 App. Div. 526; affd., 269 N. Y. 571) the standard to be attained was changed after the examination was held. But for the change, the applicant’s name would have been on the eligible list. Nevertheless, relief was denied. The change in the standard here affected every applicant for the position alike. The action of the Commission in this respect was neither arbitrary nor destructive of competition.

Petitioner does not challenge the subjects of the examination or the relative weights given to each. No one doubts that a civil service commission may use several successive tests for a particular position and ascribe to each a reasonable relative weight (Cf. Matter of Cowen v. Reavy, 283 N. Y. 232), that it may, and possibly must, establish a minimum standard to be attained by an applicant in each of the qualities tested, that it may fix a minimum per cent, such as 75 per cent, and that it may require candidates to attain a certain per cent in the first part of an examination in order to qualify to compete in the remaining parts of the examination.

The question presented upon this appeal is whether a civil service commission may in advance set as a minimum standard of proficiency the grade to be attained by a certain number of the candidates taking an examination but which grade shall be not less than a fixed per cent.

By the notice given at the time of the written test, the Commission said that the passing grade would be that grade attained by the thirtieth highest candidate, but, in the event that thirty did not attain a grade higher than 75 per cent, then the passing grade would be 75 per cent. Since petitioner’s grade was lower than that attained by the thirtieth highest candidate, he failed to meet the minimum standard which prevailed. The courts below have viewed the minimum standard of 75 per cent as the passing grade set by the Commission. Actually the passing grade set by the Commission was 77.4 per cent, the grade attained by the thirtieth highest candidate.

Measurement of merit by relative position is not' new. The same method was brought to the attention of this court in Matter of Thomas v. Kern (280 N. Y. 236), although not there commented upon. It is urged as a distinguishing feature that the group in that case was considerably larger than the group which was tested in this case, 33,000 as compared to 449. However, no reason has been advanced why the method of comparative rating violates the principle of competition when applied to a group of several hundred, but does not do so when applied to a group of several thousand. Petitioner claims that the method here used was disapproved in Matter of Bridgman v. Kern (282 N. Y. 375). In that case the examiners were instructed to fail not less than about one-half of the group of candidates for the particular position in a technical-oral examination and to give the unacceptable candidates ratings below 60 per cent. This court held the instruction to be improper. But there merit was not to be measured by objective standards, no minimum standard was established, and there was no way to determine how the candidates were ranked. Here petitioner argues also that although he did not attain the prevailing minimum standard of 77.4 per cent in the written test, he might be so proficient in other parts of the examination as to bring his final average above that of many of the applicants who did attain 77.4 per cent in the written test. The same argument can be made, however the minimum standard is established, in every civil service examination which is divided into several parts.

Here it was announced in advance that the minimum standard would be the mark reached by a certain number of the group, with the added safeguard that this mark must be not less than 75 per cent. Such a standard is no more destructive of competition than the traditional fixed per cent standard, for it affects all candidates alike and, fixed in advance, cannot be used to discriminate against any candidate. There may be instances where a minimum standard based solely on ranking would be inadequate but the size of the group here examined and the presence of a standard of a fixed per cent below which no one could fall and still qualify for the rest of the examination justify its use in this case.

The order of the Special Term and the order of the Appellate Division should be reversed and the petition denied.


text:
    The People of the State of New York, Respondent, v. Lorenzo Celline, Appellant.
    Argued March 6, 1941;
    decided April 17, 1941.

      Abraham J. Gellinoff, Frank R. Galgano, Bernard Reiss and Charles L. Crowley for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Manuel Lee Robbins of counsel), for respondent.
   Judgment of conviction affirmed, under section 542 of the Code of Criminal Procedure. No opinion.

Concur: Finch, Rippey, Lewis and Conway, JJ. Lehman, Ch. J., Loughran and Desmond, JJ., dissent on the ground that the error is too serious to be overlooked.


text:
    James G. Turack, Respondent, v. State of New York, Appellant.
    (Claim No. 24970.)
    Argued March 10, 1941;
    decided April 17, 1941.

      John J. Bennett, Jr., Attorney-General (James H. Glavin, Jr., Harold Greenstein and Henry Epstein of counsel), for appellant.

      David C. Broderick, Solomon Silverstein and Simon Schechter for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dave Haywood, Respondent, v. Rebel Corporation, Appellant.
    Submitted March 12, 1941;
    decided April 17, 1941.

      Sol H. Yéllin and Sanford S. Levy for appellant.

      Louis Weil and Barnett Schiff for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Robert E. Bergman, as Guardian of George R. Bunting, an Infant. In the Matter of the Accounting of Robert E. Bergman, as Executor of Katherine L. Bunting, Deceased. In the Matter of the Accounting of Robert E. Bergman, as Trustee under the Will of Harry F. L. Bunting, Deceased. Emma J. Bergman, as Administratrix of the Estate of Robert E. Bergman, Deceased, et al., Appellants; George R. Bunting, Respondent.
    Argued April 7, 1941;
    decided April 17, 1941.

      Walter A. Donnelly for motion.

      Hartwell Cabell and William Richards opposed.
   Motion denied with leave to renew on the argument.


text:
    Anne Turner, Respondent, v. Hawley Turner, Appellant.
    Submitted April 7, 1941;
    decided April 17, 1941.

      Albert Paul Wallheim for motion.

      William J. Rapp opposed.
   Motion for leave to appeal from order dismissed on the ground the order is not a final order and as to judgments motion denied, with ten dollars costs and necessary printing disbursements.


text:
    In the Matter of Kathleen E. Brennan et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants. In the Matter of Charles A. Albanese et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Submitted. April 7, 1941;
    decided April 17, 1941.
   Motions to amend the remittiturs denied, without costs. (See 284 N. Y. 810, 812.)


text:
    In the Matter of Torpedo Dress Corporation. City of New York, Appellant; State of New York et al., Respondents.
    Submitted April 7, 1941;
    decided April 17, 1941.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 626.)


text:
    In the Matter of the Estate of Eugene V. R. Thayer, Deceased. State Tax Commission, Appellant; Carl J. Schmidlapp et al., as Executors of Eugene V. R. Thayer, Deceased, Respondents.
    Argued April 7, 1941;
    decided April 17, 1941.

      Thomas A. Ryan, Daniel G. Tenney, Jr., and Willard A. Mitchell for motion.

      Mortimer M. Kassell, Harry T. O’Brien, Jr., and Jerome M. Hirsch, opposed.
   Motion-denied, with ten dollars costs.


text:
    Alexander A. Lowande, Appellant, v. Eisenberg Farms, Inc., et al., Respondents.
    Submitted April 7, 1941;
    decided April 17, 1941.

      Arthur Weiss and Max Rothenberg for motions.

      Joseph J. Nista opposed.
   Motion by Five Boro Milk Can Exchange denied on the ground that no exceptions to the sureties were served as required by section 151 of the Civil Practice Act. Motion by other respondents granted and appeal dismissed, with costs and ten dollars costs of motion, unless a new undertaking is filed and appellant pays ten dollars costs within ten days in which event the motion is denied. (Sundail Constr. Co. v. Liberty Bank, 274 N. Y. 464.)


text:
    Julian N. Feir, Appellant, v. Maritime Milling Co., Inc., Respondent.
    Submitted April 7, 1941;
    decided April 17, 1941.

      David S. Jackson for motion.
    No one opposed.
   Motion granted and appeal dismissed, without costs.


text:
    Josephine Parkas, Appellant, v. Peter Parkas, Respondent.
    Submitted April 7, 1941;
    decided April 17, 1941.
   Motion to amend the remittitur denied. (See 285 N. Y. 155.)


text:
    Clarence E. Bennett, Respondent, v. Samuel Piscitello et al., Appellants.
    Submitted April 7, 1941;
    decided April 17, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 584.)


text:
    In the Matter of Linley Merritt, Respondent, against Thomas W. Merritt, Appellant.
    Submitted April 7, 1941;
    decided April 17, 1941.
   Motion for reargument or for an order that the Appellate Division resettle its order certifying a question, denied. (See 285 N. Y. 561.)


text:
    John Donohue, by Myles Donohue, His Guardian ad Litem, Appellant, v. Erie County Savings Bank, Respondent. Myles Donohue, Appellant, v. Erie County Savings Bank, Respondent.
    Submitted April 7, 1941;
    decided April 17, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 24.)


text:
    Ethel M. Waddey, Appellant, v. Everett Waddey, Jr., Respondent.
    Submitted April 7, 1941;
    decided April 17, 1941.
   Motion to resettle order denying motion for leave to appeal granted to the extent of striking therefrom the provision for costs and necessary printing disbursements against the appellant and leave to submit upon the appeal now pending four printed copies of record on appeal in the Appellate Division, with additional necessary papers, in lieu of prescribed number of complete printed records, granted.

. Motion for reargument of motion for leave to appeal denied. (See 285 N. Y. 609.)


text:
    Sadie Goldman, Appellant, v. Anna Sontag et al., Respondents.
    Submitted April 7, 1941;
    decided April 17, 1941.

      John D. Lyons for motion.

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


text:
    In the Matter of David Brown Printing Co., Inc. City of New York, Appellant; New York State Department of Labor et al., Respondents.
    Submitted April 7, 1941;
    decided April 17, 1941.
   ' Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 47.)


text:
    In the Matter of the Claim of Savery Shamroy against Pennsylvania Railroad Company, Respondent. State Industrial Board, Appellant.
    Argued April 9, 1941;
    decided April 24, 1941.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for appellant.

      G. Hunter Merritt and Ray Rood Allen for respondent.
   Order affirmed, with costs against the State Industrial Board. No opinion.

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


text:
    100 Parkway Road, Inc., Appellant, v. Johns-Manville, Inc., Respondent.
    Argued April 14, 1941;
    decided April 24, 1941.

      Joel Mencher and Sidney Goldstein for appellant.

      John D. Hyde and Francis W. Phillips for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    H. V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v. Arthur E. Landel, Doing Business as Williamsville Dairy, et al., Appellants. H. V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v. Sterling Amherst Farms Dairy, Inc., et al., Appellants.
    Argued December 3, 1940; decided December 31, 1940; reargued February 27, 1941;
    decided April 24, 1941.

      Irving G. Hubbs, Merritt A. Switzer and Henry S. Manley for appellants.

      Robert G. Blabey, Louis S. Wallach and Milo R. Kniffen for respondent.
   Judgments affirmed, with costs; no opinion.

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


text:
    Amelia Schuck, Appellant, v. Kings Realty Company, Respondent, Impleaded with Others.
    Submitted April 7, 1941;
    decided April 24, 1941.

      Isidor Neuwirth for appellant.

      Joseph M. Creamer and Starr Corey for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Orange Pulp and Paper Mills, Inc., Appellant. Pulp Sales Corporation, Respondent.
    Argued April 7, 1941;
    decided April 24, 1941.

      Frederick E. Crane and Jacob Krisel for appellant.

      Lionel S. Popkin, Mortimer H. Hess and Abraham S. Guterman for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Borough Housing Corporation, Appellant and Respondent, against James J. Sexton et al., Constituting the Board of Taxes and Assessments for the City of New York, Respondents and Appellants. (Taxes for 1933.) The People of the State of New York ex rel. Borough Housing Corporation, Appellant and Respondent, against William S. Miller et al., Constituting the Board of Taxes and Assessments of the City of New York, Respondents and Appellants. (Taxes for 1934.)
    Argued April 8, 1941;
    decided April 24, 1941.

      Julius Zizmor and Newton G. Avrutis for relator, appellant and respondent.

      William C. Chanler, Corporation Counsel (Hyman W. Kehl and Arthur A. Segall of counsel), for defendants, respondents and appellants.
   Order of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division upon the ground that the weight of the evidence sustains the findings of the Special Term. No opinion.

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


text:
    In the Matter of George P. O’Rourke, Respondent, against William L. Graul, as Commissioner of Public Works of the City of Saratoga Springs, et al., Appellants.
    Argued April 9, 1941;
    decided April 24, 1941.

      Francis E. Dorsey for appellants.

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

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


text:
    In the Matter of Dorothy Wegener, Appellant, against Kenneth Dayton, as Budget Director of the City of New York, et al., Respondents.
    Argued April 10, 1941;
    decided April 24, 1941.

      Henry J. Wegener for appellant.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and George G. Gallants of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Estate of Grace Danielson, an Incompetent Person. Charles J. Dodd, Jr., as Committee, Appellant Donato Zappa, Respondent.
    Submitted April 7, 1941;
    decided April 24, 1941.

      Lyman Sessen for appellant.

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer and Henry Epstein of counsel), for Central Islip State Hospital.

      Charles Maiorana for respondent.
   Order affirmed, with costs payable out of the incompetent’s estate. No opinion.

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


text:
    In the Matter of Clarence Scott et al., Appellants; Frieda S. Miller, as Industrial Commissioner, Respondent.
    Argued April 9, 1941;
    decided April 24, 1941.

      Colman Taylor for appellants.

      John J. Bennett Jr., Attorney-General (W. Gerard Ryan, Francis R. Curran and Henry Epstein of counsel), for respondent.
   Order affirmed, with costs; no opinion. (See 285 N. Y. 847.)

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


text:
    Edgar S. Knox, Appellant, v. Elizabeth F. Beckford, Respondent.
    Argued April 7, 1941;
    decided April 24, 1941.

      Milton B. Knox for appellant.

      Ellis J. Staley, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of Christy Fahrenbach, Deceased. Louise M. McManus et al., Appellants; Russell A. Gillette et al., as Executors of Christy Fahrenbach, Deceased Respondents.
    Argued April 8, 1941;
    decided April 24, 1941.

      Lazarus I. Levine and Henry Temes for appellants

      EV.sworth Baker for respondents.
   Order affirmed, with costs to the respondents payable out of the estate; no opinion.

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