text:
    Thomas Tully, Respondent, v. Edith Lewis, Appellant.
    Argued October 19, 1937;
    decided November 16, 1937.

      Clarence S. Zipp, Daniel R. Harvey and Daniel Miner for appellant.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    Intra-State Investors Corporation, Respondent, v. New York Trust Company, Appellant.
    Argued October 21, 1937;
    decided November 16, 1937.

      Melber Chambers for appellant.

      Joseph K. Inness for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. County of Saratoga et al., Appellants, against State Tax Commission et al., Respondents.
    Argued October 21, 1937;
    decided November 16, 1937.

      Arthur H. Vinett, Edward W. Barrett, Patrick J. Keniry, Benjamin B. Rogers, Frank A. Tate, Thomas O’Connor, George E. O’Connor and George Toomey for appellants.

      Sheridan P. Wait for city of Saratoga Springs et al., respondents.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and James R. Creary of counsel), for State Tax Commission, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Nathan Tilem, Respondent, v. Alon Holding Corporation, Appellant, Impleaded with Another.
    Submitted October 22, 1937;
    decided November 16, 1937.

      Dickinson S. Talley for appellant.

      J. George Levy for respondent.
   Judgments reversed and complaint dismissed, with costs in all courts, on authority of Kirby v. Newman (239 N. Y. 470). No opinion.

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


text:
    Jack Schoenbaum, Doing Business under the Name of Flatiron Window Cleaning Company, Respondent, v. Steve Bobaluc, Individually and as President of Window Cleaners Protective Union, Local No. 2, et al., Appellants.
    Submitted November 15, 1937;
    decided November 16, 1937.

      Milton C. Weisman for motion.

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


text:
    National House Cleaning Contractors, Inc., Respondent, v. Steve Bobaluc, Individually and as President of Window Cleaners Protective Union, Local No. 2, et al., Appellants.
    Submitted November 15, 1937;
    decided November 16, 1937.

      Milton C. Weisman for motion.

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


text:
    The People of the State of New York ex rel. Buffalo and Fort Erie Public Bridge Authority, Respondent, against Jacob L. Davis et al., as Assessors of the City of Buffalo, Appellants.
    Argued November 15, 1937;
    decided November 16, 1937.

      Selby G. Smith for motion.

      Gregory U. Harmon, Corporation Counsel (Frank G. Raichle and Carlos C. Alden of counsel), opposed.
   Motion denied, without costs.


text:
    In the Matter of Ira Fink, Appellant, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Submitted November 15, 1937;
    decided November 16, 1937.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 591.)


text:
    In the Matter of William McGowan, Appellant, against Henry E. Bruckman et al., Constituting the State Liquor Authority, Respondents.
    Submitted November 15, 1937;
    decided November 16, 1937.

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


text:
    In the Matter of West Publishing Company, Respondent, against Frank J. Taylor, as Comptroller of the City of New York, Appellant.
    Argued October 12, 1937;
    decided November 23, 1937.

      Paul Windels, Corporation Counsel (Oscar S. Cox, Edmund B. Hennefeld, Robert Granville Burke and Meyer Bernstein of counsel), for appellant.

      Chester Bordean, Henry Mannix and Francis L. Casey for respondent.
   Order affirmed, with costs, on authority of Matter of National Cash Register Co. v. Taylor (276 N. Y. 208). No opinion.

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


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, for an Order to Take Possession of the Property and Liquidate the Business of the Southern Surety Company of New York. Lillian Kojchich et al., Appellants; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Southern Surety Company of New York, Respondent.
    Argued October 5, 1937;
    decided November 23, 1937.

      Carroll G. Walter and Artur Nikoloric for appellants.

      Irvin Waldman and Alfred C. Bennett for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Brownie Wilson, Appellant.
    Argued October 13, 1937;
    decided November 23, 1937.

      Frederick J. Sullivan and Edward F. Boyle for appellant.

      William Copeland Dodge, District Attorney (Felix C. Benvenga of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Virginia S. Bonham, Appellant, v. Cosmo Coe et al., Respondents, and Jacob Katz et al., Appellants.
    Argued October 14, 1937;
    decided November 23, 1937.

      Manly E. King for plaintiff, appellant.

      Frederick Wiedman for Jacob Katz et al., defendants, appellants, and for Zeekay Apartment Corporation, defendant, respondent.

      Herbert R. Reif and Lathrop D. Marsland for National Bank of Rochester et al., respondents.

      William V. R. Erving for Albany Savings Bank, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Employees’ Liability Assurance Corporation, Ltd., of London, England, Respondent, v. Hudson River Trust Company, Appellant. Herbert Hall, as Receiver of Germantown National Bank, Appellant, v. Hudson River Trust Company, Respondent.
    Argued October 19, 1937;
    decided November 23, 1937.

      Robert E. Whalen and JohnV. Whitbeck, Jr., for Hudson River Trust Company, appellant and respondent.

      Stuart G. Gibboney and James L. Duncanson for Herbert Hall, as receiver, appellant.

      Charles B. Sullivan and Warner M. Bouck for Employers’ Liability Assurance Corporation, Ltd., respondent.
   Judgment in favor of the Employers’ Liability Assurance Corporation, Ltd., modified by reducing the recovery from $17,720.32 to $16,229.98, and as so modified affirmed, with costs.

Judgment against Hall, as receiver, etc., affirmed, with costs. No opinion.

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


text:
    Thomas F. Halpin, an Infant, by Thomas M. Halpin, his Guardian ad Litem, et al., Appellants, v. New York Railways Corporation, Respondent.
    Argued October 20, 1937;
    decided November 23, 1937.

      Sidney J. Feltenstein for appellants.

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

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


text:
    Isidor Mintz, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.
    Argued October 21, 1937;
    decided November 23, 1937.

      James D. Ewing and William G. Birmingham for appellant.

      Ellsworth Baker and Hyman E. Mints, for respondent.
   Judgment affirmed, with costs. Even if there were error in the form of the two specific questions submitted to the jury such error does not constitute reversible error when the charge as a whole is considered. No opinion.

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


text:
    Frances R. McEwen, Respondent, v. Alfred McEwen et al., Appellants.
    Argued October 21, 1937;
    decided November 23, 1937.

      William St. John Tozer and Roger M. Blough for appellants.

      Joseph R. Kelley for respondent.
   Judgment affirmed, with costs; no opinion. (See 276 N. Y. 610.)

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


text:
    Leo DiTomasso, Appellant and Respondent, v. Vito Loverro et al., Respondents, and Samuel Rubel et al., Respondents and Appellants.
    Argued October 21, 1937;
    decided November 23, 1937.

      Jacob Krisel, Herman Mendes and George Lessall for plaintiff, appellant and respondent.

      Walter H. Pollak, Samuel J. Silverman, Leslie Handler and Nathan Friedman for defendants, respondents and appellants.

      Frank W. Holmes for defendants, respondents.
   On plaintiff’s appeal from order granting a new trial as to the defendants Loverro et al., order affirmed and judgment absolute ordered against plaintiff, appellant, on the stipulation, without costs.

On plaintiff’s appeal from judgment, judgment affirmed, without costs.

On defendants’ appeals, judgment affirmed, without costs; no opinion. (See 276 N. Y. 610, 681.)

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


text:
    Eugene A. Perkins, Respondent, v. Guaranty Trust Company of New York, Defendant, and Idonah S. Perkins, Appellant.
    Reargued October 22, 1937;
    decided November 23, 1937.

      George A. Ferris and Bartholomew A. Moynahan for appellant.

      Martin Taylor, Henry A. Stickney and M. W. Belcher, Jr., for respondent.
   Remittitur amended to read as follows: Judgment of Appellate Division and that of Special Term dismissing third counterclaim affirmed, without costs. Otherwise, judgment of Appellate Division and that of Special Term reversed and judgment directed for the defendant-appellant in accordance with the opinion herein (274 N. Y. 250), with costs in all courts. No opinion.

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


text:
    George B. Reynolds, Respondent, v. James S. Graham, as Receiver of No. 284 Fulton Street, Brooklyn, New York, Appellant.
    Submitted October 22, 1937;
    decided November 23, 1937.

      Eugene T. O’ Neill and James E. Turner for appellant.

      Edmond J. d’Angio and Hugo P. Dreher for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Percy C. Reed et al., Respondents.
    Argued October 18, 1937;
    decided November 23, 1937.

      George Morton Levy and Charles R. Weeks for motion.

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), opposed.
   Motion denied.


text:
    In the Matter of the Will of John W. Clark, Deceased. Sidney J. Loeb et al., as Executors and Trustees under the Will of John W. Clark, Deceased, Appellants; Mary M. Clark, Respondent.
    Submitted November 15, 1937;
    decided November 23, 1937.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. I.)


text:
    Minnie Meyer, Respondent, v. New York Life Insurance Company, Appellant.
    Submitted November 15, 1937;
    decided November 23, 1937.

      Kenneth de F. Carpenter for motion.

      Victor Whitehorn opposed.
   Motion granted on payment of costs and disbursements not including argument fee.


text:
    Regina Dieffenbach, Respondent, v. Sylvan Dwellings, Inc., et al., Defendants, and The People of the State of New York, Appellant.
    Argued November 15, 1937;
    decided November 23, 1937.

      Alicia R. O’Connor and Eugene L. Flanagan for motion.

      John J. Bennett, Jr., Attorney-General (Edward E. Brogan and Timothy F. Cohan of counsel), opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Western Electric Company, Inc., Appellant, against Frank J. Taylor, as Comptroller of the City of New York, Respondent.
    Argued November 15, 1937;
    decided November 23, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for motion.

      Homer H. Breland, Craddock M. Gilmour and T. Brooke Price opposed.
   Motion denied.


text:
    In the Matter of Anna Curry, Respondent, against John Curry, Appellant.
    Submitted November 15, 1937;
    decided November 23, 1937.
   Motion for reargument or to amend the remittitur denied. (See 275 N. Y. 553.)


text:
    In the Matter of the Will of Thomas Richards, Deceased. Marion Kinzel et al., Appellants; Carmie A. Richards, Respondent.
    Argued November 15, 1937;
    decided November 23, 1937.

      John H. Little for motion.

      Frank G. Baichte opposed.
   Motion denied, without costs.


text:
    In the Matter of the Accounting of James F. Nugent, as Executor of Joseph Fox, Deceased. James F. Nugent, as Executor, et al., Appellants; Mortimer May, as Special Guardian for Helen G. Fox, an Incompetent Person, et al., Respondents.
    Submitted November 15, 1937;
    decided November 23, 1937.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 604.)


text:
    In the Matter of Alton C. O’Hara et al., Respondents, against K. Leonard Harwood et al., Constituting the Town Board and Board of Audit of the Town of Inlet, Appellants.
    Submitted November 15, 1937;
    decided November 23, 1937.

      Frederick C. Kronmiller for motion.

      James G. Tormey opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground an appeal lies as matter of right.


text:
    Nassau County Trust Company, as Administrator of the Estate of Shaheenie Saleeby, Deceased, et al., Appellants, v. Nazura D. Saleeby et al., Respondents. Nazura Saleeby, Respondent, v. Nassau County Trust Company, as Administrator of the Estate of Shaheenie Saleeby, Deceased, Appellant.
    Argued October 18, 1937;
    decided November 30, 1937.

      Vito F. Lanza and Walter F. Forster for plaintiffs, appellants.

      Pierre Baert for Nassau County Trust Company, plaintiff-appellant.

      Walter E. Warner, John R. Jones and Alfred A. Duffy for Nazura D. Saleeby, respondent.
   Appeals dismissed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Philip B. Kohut, Respondent, v. Henry K. Hendrickson, as Sheriff of Nassau County, Respondent. The People of the State of New York, Appellant.
    Argued November 15, 1937;
    decided November 30, 1937.

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), for appellant.

      Jerome M. Hirsch and Bernard Reich for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Thomas Moore, Respondent, v. Henry K. Hendrickson, as Sheriff of Nassau County, Respondent. The People of the State of New York, Appellant.
    Argued November 15, 1937;
    decided November 30, 1937.

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), for appellant.

      Lorenzo C. Carlino for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Thomas McGowan, Respondent, v. Henry K. Hendrickson, as Sheriff of Nassau County, Respondent. The People of the State of New York, Appellant.
    Argued November 15, 1937;
    decided November 30, 1937.

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), for appellant.

      Charles C. Clark and Morris Alfred Vogel for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Alexander D. Walker, Appellant, against Commodity Exchange, Inc., Respondent.
    Argued November 15, 1937;
    decided November 30, 1937.

      A. Donald MacKinnon for appellant.

      Donald Marks, Julius B. Baer and Arthur Karger for respondent.

      J. Alvin Van Bergh and Eugene Eisenmann for H. Hentz & Co. et al., amici curise.

   Order affirmed, with costs; no opinion.

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


text:
    City of Buffalo, Appellant, v. Eastern Steamship Company, Limited, Respondent.
    Argued November 15, 1937;
    decided November 30, 1937.

      Gregory U. Harmon, Corporation Counsel (Frank C. Westphal of counsel), for appellant.

      Laurence E. Coffey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Bertha Hoff, Appellant, v. William A. Hoff, Respondent.
    Argued November 16, 1937;
    decided November 30, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair and Alice E. Trubin of counsel), for appellant.

      Noah Seedman for respondent.
   Order affirmed, without costs. This affirmance is without prejudice to a renewal of the application in the Domestic Relations Court if the mother be so advised. No opinion.

Concur: Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.; Crane, Ch. J., dissents and votes to sustain the order of allowance of fifteen dollars a week to the children on the ground the court had jurisdiction of that proceeding.


text:
    In the Matter of Empire Trust Company, Appellant, v. Gene Buck, Respondent.
    Argued November 16, 1937;
    decided November 30, 1937.

      Charles Green Smith for appellant.

      Louis D. Frohlich and Herman Finkelstein for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Umberto Politano, Appellant. Fidelity and Deposit Company of Maryland, Respondent.
    Argued November 16, 1937;
    decided November 30, 1937.

      Jack J. Katz and Charles Rothenberg for appellant.

      Reginald S. Hardy and Gardiner Conroy for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    Larme Estates, Inc., Respondent, v. Omnichrome Corporation, Appellant.
    Submitted November 22, 1937;
    decided November 30, 1937.
   Motion for a reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 426.)


author: Finch, J.

text:
    In the Matter of the City of New York, Appellant, against William G. Fullen et al., Constituting the Transit Commission, et al., Respondents.
    Argued November 17, 1937;
    decided December 7, 1937.

      Paul Windels, Corporation Counsel (Robert W. Lishman and William G. Mulligan, Jr., of counsel), for appellant.

      Edward M. Deegan, George H. Stover and Wallace A. Kroger for Transit Commission, respondent.

      John Holley Clark, Jr., for Bee Line, Inc., intervener, respondent.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Rippey, JJ.; Finch, J., dissents in the following opinion:

Finch, J.

(dissenting). I am unable to concur. The effect of this decision is to give the Transit Commission in the city of New York the power to annex conditions to certificates of convenience and necessity for the use of city streets without the consent of the city, thus amounting in effect to a franchise, a grant of power against which the cities of the State have long and up to now successfully contended.

The precise question this appeal presents is, whether under the Public Service Law the Transit Commission has been given the power, express or implied, to attach conditions to the issuance of a certificate of convenience and necessity where for ninety days the authorities of the city have failed to grant or refuse consent.

Nowhere in the statute is the Commission expressly given the power to attach conditions in granting a certificate to use the streets of a city. The section cited as authority by the court below, section 63-d, subdivision 4, of the Public Service Law (Cons. Laws, ch. 48), reads: “ The commission * * * may revoke or suspend a certificate of public convenience and necessity theretofore issued for noncompliance with any condition prescribed * * * or for violation of any provision of law * * * ." (Italics added.)

Certainly this section does not expressly grant to the Commission the power to issue a certificate of convenience and necessity and attach conditions thereto.

Nor is the power to annex conditions granted by implication. Subdivisions 1, 3 and 4 of section 63-e which expressly allow the attaching of conditions, also expressly limit their applicability to towns and villages. Subdivision 2 alone refers to cities ” and this subdivision, as distinguished from the others, merely gives the power to issue a certificate and does not refer to the attaching of conditions. The power to issue such a certificate does not imply the power to attach conditions. This question is not novel. In People ex rel. P. S. I. Transportation Co. v. Public Service Commission (262 N. Y. 39) this court held that the power to issue a certificate did not imply the power to issue a certificate and attach conditions thereto. The court said (p. 43): “ This body possesses no implied power. * * * Its jurisdiction in relation to such a certificate was apparently then confined to granting or refusing an application. * * * The statute did not recognize a limited or qualified certificate. After issue the Commission was functus officio in respect to the certificates * * * but it could exert its power to compel adequate service by the common carrier in the manner provided by law.” Unless, therefore, the amendment to the Public Service Law in 1931 (Laws of 1931, ch. 531) created an implication where none previously existed, the power to issue the certificate does not imply the power to attach conditions thereto. But the circumstances under which this statute was passed and its phrasing lead to precisely the opposite conclusion.

In 1931 when the Committee on the Revision of the Public Service Law presented its bill to the Legislature, the proposed provisions allowed the Commission to attach conditions to the granting of certificates where cities as well as towns and villages were concerned. Thus section 63-e, subdivision 1, of this proposed act read: '' The Commission shall have power to issue a certificate of public convenience and necessity to any omnibus corporation * * * without the consent of local authorities, if such consent is unreasonably refused or withheld, or if unjust or unreasonable conditions are attached to the granting of any such local consent, and may modify any such conditions, or attach new conditions as it shall determine to be just and reasonable.” (Italics added.) But before the proposed act became a law there was struck out of every section that pertained to the attaching of conditions, the words local authorities ” and inserted instead local authorities of such towns and villages.” Thus the Legislature showed unmistakeably its intent that the cities of the State should retain the undisputed control of their streets.

We have, therefore, a decision of this court holding that the power to issue a certificate of convenience and necessity does not by itself imply the power to attach conditions. We have in addition legislative acts which indicate the intent not to grant such power to the Commission where cities are concerned. We should not hold now that the power is impliedly given.

The respondents argue that if we deny the Commission the power to attach conditions where the city refuses to act, the city may, if it so desires, indefinitely keep the bus company from the city’s streets. It is a complete answer to this contention that it is conceded that the city can, if it so desires, reach the same result by refusing its consent. The respondents also urge that when in People ex rel. P. S. I. Transportation Co. v. Public Service Commission (262 N. Y. 39, 44) this court said: Prior to the enactment of chapter 531 of the Laws of 1931 * * * it possessed no authority to attach such conditions as appear,” that we, therefore, held that the Commission has had this power since 1931. It is obvious that all we passed on in that case was the power of the Commission to attach conditions prior to the passage of the 1931 statute and as heretofore noted no express or implied power, so far as affects cities, was given to the Transit Commission by this law.

In the case at bar the Transit Commission instead of granting a temporary certificate, has imposed as one condition what amounts to a franchise for nine years Comfort may not be taken from the fact that the remaining conditions benefit the city. The proper authorities to determine the extent of the benefits which should flow to the city are none other than the duly elected authorities who should be deprived of this valuable right only by clear legislative mandate.

Order affirmed.


text:
    In the Matter of the Claim of Samuel L. Stout, Respondent, against Prudential Insurance Company of America et al., Appellants. State Industrial Board, Respondent.
    Argued November 17, 1937;
    decided December 7, 1937.

      William B. Davis and E. C. Sherwood for appellants.

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

      Harry J. Engel and Abraham Engelman for claimant, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Salvatore Rizzuto, Respondent, against Prudential Insurance Company et al., Appellants. State Industrial Board, Respondent.
    'Argued November 17, 1937;
    decided December 7, 1937.

      William B. Davis and E. C. Sherwood for appellants.

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

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


text:
    In the Matter of the Claim of August Linkens, Respondent, against Tide Water Oil Sales Corporation et al., Appellants. State Industrial Board, Respondent.
    Submitted November 17, 1937;
    decided December 7, 1937.

      James P. Allen, Jr., and John P. Smith for appellants.

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

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


text:
    In the Matter of the Claim of Louis Goldman against John Hancock Mutual Life Insurance Company et al., Respondents. State Industrial Board, Appellant.
    Argued November 17, 1937;
    decided December 7, 1937.

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

      Charles P. Barre for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of Anna Neu, Respondent, against Van Rees Bookbinding Corporation etal., Appellants. State Industrial Board, Respondent.
    Argued November 17, 1937;
    decided December 7, 1937.

      Frederick Behr for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Appeal dismissed, with costs, the order appealed from not being a final order. No opinion.

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


text:
    In the Matter of the State Tax Commission of the State of New York, Appellant, against Masjoe J. Ison, Respondent.
    Argued November 17, 1937;
    decided December 7, 1937.

      Mortimer M. Kassell and Stuart G. Knight for appellant.

      Sydney A. Hellenbrand, Charles S. Corben and Frank Aranow for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    John J. Jones, Appellant, v. Lewis J. Valentine, as Police Commissioner of the City of New York, etc., Respondent.
    Argued November 17, 1937;
    decided December 7, 1937.

      Sidney Fertig for appellant.

      Paul Windels, Corporation Counsel (Nicholas Bucci, Paxton Blair and Charles E. Hirsimaki of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of Vincent J. O’Callaghan, Appellant and Respondent, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents, and Eugene Johnson, Intervener, Respondent and Appellant.
    Argued November 18, 1937;
    decided December 7, 1937.

      Joseph F. Ryan, Abraham Bernard King and David C. Broderick for petitioner, appellant and respondent.

      Herman E. Cooper for intervener, respondent and appellant.

      John J. Bennett, Jr., Attorney-General, for State of New York.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of City Bank Farmers Trust Company, as Trustee under the Will of Lillia M. Bearns, Deceased, Appellant; Bertram Bearns, Respondent.
    Argued November 18, 1937;
    decided December 7, 1937.

      Edwin W. Cooney and Elmer J. Hoare for appellant.

      James A. Davis and Leon Quat for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Battisto Salvo, Appellant.
    Argued November 18, 1937;
    decided December 7, 1937.

      Louis Susman for appellant.

      Samuel J. Foley, District Attorney (Sol. Boneparth, Herman J. Fliederblum and Edward F. Breslin of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Samuel Altman, Appellant, v. National Dyeing and Printing Company, Respondent.
    Argued November 19, 1937;
    decided December 7, 1937.

      Herman Mendes, Jacob Krisel and George Lessall for appellant.

      Horace S. Manges, Frank L. Weil and Eli M. Spark for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Tenlan Realty Corporation et al., Respondents, against Board of Standards and Appeals of the City of New York et al., Defendants. Treeverse Realty Corporation, Intervener, Appellant.
    Argued November 23, 1937;
    decided December 7, 1937.

      Benjamin H. Trask for appellant.

      Abraham J. Halprin and Irving Barry for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Glen National Bank, Respondent, v. Automobile Insurance Company of Hartford, Appellant. Same, Respondent, v. Com. Union Assur. Co., Appellant. Same, Respondent, v. Continental Ins. Co., Appellant. Same, Respondent, v. Hartford Fire Ins. Co., Appellant. Same, Respondent, v. Home Ins. Co., Appellant. Same, Respondent, v. London Assur. Corp., Appellant. Same, Respondent, v. Nat. B. F. F. Ins. Co., Appellant. Same, Respondent, v. Nat. L. F. Ins. Co., Appellant. Same, Respondent, v. Niagara F. Ins. Co., Appellant. Same, Respondent, v. N. W. Nat. Ins. Co., Appellant. Same, Respondent, v. Phœnix Ins. Co., Appellant. Same, Respondent, v. Providence W. Ins. Co., Appellant. Same, Respondent, v. Springfield F. &M.I.Co., Appellant. Same, Respondent, v. Tokio M. & F. Ins. Co., Appellant. Same, Respondent, v. Westchester F. I. Co., Appellant.
    Argued November 23, 1937;
    decided December 7, 1937.

      C. Addison Keeler for appellants.

      David F. Lee for respondent.
   Judgment affirmed, with one bill of costs; no opinion.

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


text:
    Interborough Rapid Transit Company, Appellant, v. City of New York, Respondent.
    Argued November 23, 1937;
    decided December 7, 1937.

      A. H. Cole and Louis S. Carpenter for appellant.

      Paul Windels, Corporation Counsel (William G. Mulligan, Jr., and Robert W. Lishman of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bertha Carroll et al., Appellants and Respondents, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company, Respondent and Appellant.
    Submitted November 19, 1937;
    decided December 7, 1937.

      Frederick E. Klein, Solomon Hirschhorn and Samuel Block for plaintiffs, appellants and respondents.

      A. L. Wilbur and James L. Quackenbush for defendant, respondent and appellant.
   Judgment of the Appellate Division and that of the Trial Term reversed and complaint dismissed, with costs in all courts. We can find no evidence of negligence. No opinion. (See 276 N. Y. 682.)

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


text:
    George S. Powers, as Administrator of the Estate of Anna V. Powers, Deceased, Appellant, v. Montgomery Ward & Co., Incorporated, Respondent.
    Argued November 23, 1937;
    decided December 7, 1937.

      Bayard J. Stedman for appellant.

      James L. Kelly and George W. Watson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of John W. Remer, as Committee of Jens T. Erlandsen, an Incompetent Person, Respondent. United States Veterans Administration, Appellant.
    Submitted November 29, 1937;
    decided December 7, 1937.
   Motion to amend remittitur denied. (See 265 N. Y. 155.)


text:
    Helen Morton et al., Respondents, v. American Security and Trust Company, as Trustee under the Will of Anna L. Morton, Deceased, et al., Respondents, and Lewis P. Morton et al., Appellants.
    Submitted November 29, 1937;
    decided December 7, 1937.
   Motion granted. Return of remittitur requested, and when returned it will be amended by striking out the provision for costs. (See 276 N. Y. 475.)

Applications for compensation in accordance with section 207 of the Civil Practice Act and rule 43 of the Rules of Civil Practice should be made in the Supreme Court, and denial by this court is without prejudice to such an application. (Livingston v. Ward, 248 N. Y. 193.)


text:
    Thyrza B. Fowler et al., Appellants, v. Montauk Beach Development Corporation et al., Defendants, and Thomas E. Ringwood, as Trustee of Montauk Beach Development Corporation, Respondent.
    Submitted November 29,1937;
    decided December 7, 1937.
   Motion to amend remittitur granted on consent. Return of remittitur requested, and when returned it will be amended so as to provide that the judgment heretofore entered be amended as set forth in the motion papers. (See 271 N. Y. 575.) The amendments set forth in the motion papers related principally to the description of the real property involved in the action.


text:
    Corn Exchange Bank Trust Company, Respondent, v. Island Park-Long Beach, Inc., et al., Defendants, and Leslie J. Ekenberg, as Trustee in Bankruptcy of Island Park-Long Beach, Inc., Appellant.
    Submitted November 29, 1937;
    decided December 7, 1937.

      Harold E. Brennan for motion.

      Nathan April opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of Hudson-Harlem Valley Title and Mortgage Company, Appellant, against William R. White, as Superintendent of Banks of the State of New York, et al., Respondents.
    Submitted November 29, 1937;
    decided December 7, 1937.

      A. Donald MacKinnon for motion.

      James F. Donnelly opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Frank P. Cox, Appellant, v. John J. McElligott, as Fire Commissioner and Treasurer of New York Fire Department Relief Fund, Respondent.
    Argued November 17, 1937;
    decided December 10, 1937.

      W. H. K. Davey and Edward H. Burger for appellant.

      Paul Windels, Corporation Counsel (Nicholas Bucci, Paxton Blair and Charles E. Hirsimaki of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    William J. Kelley, Respondent, v. Indemnity Insurance Company of North America, Appellant.
    Argued November 24, 1937;
    decided December 10, 1937.

      Gerald W. O’Connor, Thomas O’Connor, George E. O’Connor and Philip J. Fitzgerald for appellant.

      Samuel E. Goldstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Francisco Del Moral, Sr., et al., Copartners Doing Business as Moral & Company, Appellants, v. United States Fidelity and Guaranty Company, Respondent.
    Submitted November 24, 1937;
    decided December 10, 1937.

      Jacob E. Heller and William P. Thomas for appellants.

      Robert Gray and William J. McArthur for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Agnes Curcio, as Administratrix of the Estate of John A. Curcio, Deceased, Respondent, v. The City of New York, Appellant.
    Submitted December 6, 1937;
    decided December 10, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 20.)


text:
    Frances R. McEwen, Respondent, v. Alfred McEwen et al., Appellants.
    Submitted December 6, 1937;
    decided December 10, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 548.)


text:
    Patrick J. Farrell, Appellant, v. Jacob Waldman et al., Doing Business under the Name of Concourse Baking Company, et al., Respondents.
    Submitted December 6, 1937;
    decided December 10, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 491.)


text:
    Leo Di Tomasso, Individually and as a Stockholder, etc., of Paramount Ice Corporation, on Behalf of Himself and Others, Appellant and Respondent, v. Vito Loverro et al., Respondents, and Samuel Rubel et al., Respondents and Appellants.
    Submitted December 9, 1937;
    decided December 10, 1937.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 551, 681.)


text:
    The People of the State of New York, Respondent, v. Commonwealth Bond Corporation, Clark G. Kuney and Edward A. Sauter, Appellants.
    Argued October 20, 1937;
    decided January 4, 1938.

      James F. Donnelly and Merwin Lewis for appellants.

      William Copeland Dodge, District Attorney (Arthur Markewich, Robert S. Rubin andLeRoy Mandle of counsel), for respondent.
   Judgments affirmed; no opinion.

Concur: Lehman, O’Brien, Hubbs, Finch and Rippey, JJ.; Crane, Ch. J., and Loughran, J., dissent and vote for reversal of the judgment of conviction.


text:
    The People of the State of New York, Respondent, v. Joseph Murphy, Michael Kane, John Ryan, Albert Ackalities, Frank Campbell, Joseph Devine, Jean Martin, Mary Daley and Madeline Tully, Appellants.
    Argued November 15, 1937;
    decided January 4, 1938.

      Harry G. Anderson and Charles Gertler for Joseph Murphy et al., appellants.

      Harry G. Anderson and Charles Conway for John Ryan, appellant.

      Osmond K. Fraenkel for Madeline Tully, appellant.

      William Copeland Dodge, District Attorney (Felix C. Benvenga, Abraham J. Gellinoff and Charles Pilatsky of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. James Dixon, Respondent, v. Richard J. Lewis, as Sheriff of Albany County, Appellant. The People of the State of New York ex rel. James Latham, Respondent, v. Richard J. Lewis, as Sheriff of Albany County, Appellant.
    Argued November 17, 1937;
    decided January 4, 1938.

      John T. Delaney, District Attorney (Henry S. Kahn of counsel), for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig and Wendell P. Brown of counsel), for State of New York.

      Edward F. O’Connor for James Dixon, respondent.

      George H. Barber for James Latham, respondent,
   Orders affirmed. The orders sustaining the writs are affirmed. We do not, however, pass upon the constitutionality of section 1898-a of the Penal Law for the reason .that the question cannot be reached on this appeal. -The information fails to state a crime. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Charles J. Brown, Appellant.
    Argued November 23, 1937;
    decided January 4, 1938.

      Harry H. Flemming, J. Edward Conway and Robert G. Groves for appellant.

      Cleon B. Murray, District Attorney (N. LeVan Haver of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Scott M. Loftin, as Receiver of Florida East Coast Railway Company, Appellant, v. William R. Kenan, Jr., et al., as Trustees under the Will of Mary L. Bingham, et al., Respondents, Impleaded with Others.
    Argued November 29, 1937;
    decided January 4, 1938.

      John W. Davis, Allen Wardwell, Ralph M. Carson and Edward C. McLean for appellant.

      Elihu Root, Jr., John M. Harlan, Vincent R. Smalley and Rupert Warren for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sutton Studios, Inc., Appellant, v. Lawyers Title and Guaranty Company et al., Defendants, and Henry Phipps Estates, Respondent.
    Argued November 29, 1937;
    decided January 4, 1938.

      Osmond K. Fraenkel, Arnold J. Brock and Charles H. Levitt for appellant.

      George M. Welch and Philip S. Dean for respondent.
   Order affirmed and judgment absolute ordered against appellant' on the stipulation, with costs in all courts; no opinion. \

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


text:
    Young Men’s Christian Association of the City of New York, Respondent, v. City of New York et al., Appellants.
    Argued November 29, 1937;
    decided January 4, 1938.

      Paul Windels, Corporation Counsel (Robert C. Rand, Sol Charles Levine, Edmund B. Hennefeld and Robert Granville Burke of counsel), for appellant.

      George L. Allin and Yorke Allen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of New York University, Respondent, against Frank J. Taylor, as Comptroller of the City of New York, Appellant.
    Argued November 29, 1937;
    decided January 4, 1938.

      Paul Windels, Corporation Counsel (Robert C. Rand, Sol Charles Levine, Edmund B. Hennefeld and Robert Granville Burke of counsel), for appellant.

      Chester Bordeau and Adrian L. Foley for respondent.

      John Godfrey Saxe and Raymond D. O’Connell for Trustees of Columbia University et al., amici curiæ.

      George H. Porter and Charles W. Root for Teachers College, amicus curiæ.

   Order affirmed, with costs; no opinion.

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


text:
    Ellen Johnson, as Administratrix of the Estate of John Johnson, Deceased, Appellant, v. Stromberg-Carlson Telephone Manufacturing Company, Respondent.
    Argued November 30, 1937;
    decided January 4, 1938.

      William L. Clay for appellant.

      Charles W. Green and Clarence L. Burton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick J. Baumann, Appellant, v. Citizens Trust Company of Binghamton et al., Respondents. Albert C. Crossley, Appellant, v. Citizens Trust Company of Binghamton et al., Respondents. Norman G. Keiser, Appellant, v. Citizens Trust Company of Binghamton et al., Respondents. William C. King, Appellant, v. Citizens Trust Company of Binghamton et al., Respondents. Benjamin G. Kroehler, Appellant, v. Citizens Trust Company of Binghamton et al., Respondents. Jesse E. Truitt, Appellant, v. Citizens Trust Company of Binghamton et al., Respondents. Helen S. W. Blewer et al., as Executors of Archibald Whitelaw, Deceased, Appellants, v. Citizens Trust Company of Binghamton et al., Respondents. Frank J. Mangan et al., Copartners under the Firm Name of Mangan & Mangan, Appellants, v. Citizens Trust Company of Binghamton et al., Respondents.
    Argued November 30, 1937;
    decided January 4, 1938.

      Morris Gitlitz for Frederick J. Baumann et al., appellants.

      Clayton R. Lush for William C. King, appellant.

      Thomas J. Mangan, in person, and for Charles J. Mangan et al., appellants.

      David Levene for respondents.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Neboh Kosher Provision Co., Inc., Appellant.
    Argued December 1, 1937;
    decided January 4, 1938.

      Stanley Garten for appellant.

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

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


text:
    H. C. Schroeder, Appellant, v. The State of New York, Respondent.
    (Claim No. 24327.)
    Argued December 1, 1937;
    decided January 4, 1938.

      Hugh J. O’Brien for appellant.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden and Owen M. Begley of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hilda Greenberg, Appellant, v. Modernage Furniture Co., Inc., et al., Respondents.
    Argued December 1, 1937;
    decided January 4, 1938.

      Samuel J. Sussman and Isadore Siegel for appellant.

      Sol A. Hyman for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob Ruppert Realty Corporation, Appellant, v. Bank of United States et al., Respondents.
    Argued December 1, 1937;
    decided January 4, 1938.

      Martin A. Schenck and Byron Clark, Jr., for appellant.

      Edward Feldman and Carl J. Austrian for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    City Bank Farmers Trust Company, as Trustee under Trusts Made by William W. Astor, Appellant, v. Bank of United States et al., Respondents.
    Argued December 1, 1937;
    decided January 4, 1938.

      C. Alexander Capron and David Kelly for appellant.

      Edward Feldman and Carl J. Austrian for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Helen W. Catchings et al., Appellants and Respondents, v. Arthur Sachs et al., Individually and as Copartners under the Name of Goldman, Sachs & Co., Respondents and Appellants.
    Argued December 1, 1937;
    decided January 4, 1938.

      Lloyd Paul Stryker, Harold Shapero and Raymond C. Murphy for Helen W. Catchings, plaintiff, appellant and respondent.

      James F. Donnelly and Samuel Michelman for Waddill Catchings, plaintiff, appellant and respondent.

      David W. Peck, Edward H. Green and John F. Dooling, Jr., for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

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


text:
    John K. Ayew, as President of Gold Coast Farmers Association, Respondent, v. Willard Hawes & Co., Inc., et al., Appellants, Impleaded with Others.
    Argued December 2, 1937;
    decided January 4, 1938.

      Jay Leo Rothschild, Bernard Gordon, Joseph B. Cotton, Howard W. Fensterstock, Samuel Brenner and Roy F. Wrigley for appellants.

      Sidney S. Bobbé, Alexander Slater and A. F. Sackheim for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

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


text:
    Maria Rohrs, Appellant, v. Continental Bank and Trust Company of New York, Respondent, Impleaded with Others.
    Argued December 3, 1937;
    decided January 4, 1938.

      L. E. Schlechter and Charles D. Hoffman for appellant.

      John W. Kelly, Frank J. Podesta and Benjamin Rockmore for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Elmer C. Hansen et al., Appellants, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Submitted December 3, 1937;
    decided January 4, 1938.

      Samuel Morganroth and Cornelius Bregoff for appellants.

      Paul Windels, Corporation Counsel (Paxton Blair, Arthur Bainbridge Hoff and Robert H. Schaffer of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Sophronia Thompson, Appellant.
    Submitted December 3, 1937;
    decided January 4, 1938.

      Samuel B. Stewart, Jr., for appellant.

      William Copeland Dodge, District Attorney (Edwin J. Talley of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Esther Winarsky, Respondent, v. Frances Perlmutter et al., Appellants, Impleaded with Another.
    Submitted December 3, 1937;
    decided January 4, 1938.

      Albert Adams and Henry I. Perlin for appellants.

      Samuel Rubin for respondent.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts; no opinion.

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


text:
    George A. Spennichia, an Infant, by Mary Spennichia, His Guardian ad Litem, et al., Respondents, v. Fredland Realty Corporation, Appellant.
    Argued December 6, 1937;
    decided January 4, 1938.

      Joseph F. Hanley and Leo M, Brimmer for appellant.

      Henry S. Miller and Herbert Kaufman for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lougeran, Pinch and Rippey, JJ.


text:
    T. J. W. Corporation, Appellant, v. Board of Higher Education of the City of New York et al., Respondents.
    Argued December 6, 1937;
    decided January 4, 1938.

      Charles R. Barrett and Edward G. Bathon for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair, Oren Clive Herwitz and Nelson Rosenbaum of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Max Warmbrand, Appellant.
    Argued December 6, 1937;
    decided January 4, 1938.

      Louis J. Gribetz and Lester Lyons for appellant.

      John J. Bennett, Jr., Attorney-General (Sol Ullman of counsel), for respondent.
   Judgments reversed and informations dismissed on the ground that the evidence is insufficient to prove the defendant guilty beyond a reasonable doubt; no opinion.

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


text:
    In the Matter of Joseph A. Solovei, an Attorney, Respondent; Adolph Feldblum et al., Appellants.
    Argued December 6, 1937;
    decided January 4, 1938.

      Adolph Feldblum and Charles J. Buchner, in person, for appellants.

      Harold H. Corbin and Mark F. Hughes for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Sadye Kerr, Appellant, v. New Amsterdam Casualty Company, Respondent.
    Argued December 6, 1937;
    decided January 4, 1938.

      M. James Coriboy and J. S. Carter for appellant.

      P. C. Dugan and Del. B. Salmon for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Barclay Ball, as Assignee of Swift Canadian Company, Limited, Appellant, v. Canadian Pacific Steamships, Ltd., Respondent.
    Argued December 7, 1937;
    decided January 4, 1938.

      Emanuel Thebner and Lester Weil for appellant.

      Charles It. Hickox and Clement C. Rinehart for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Westchester Trust Company, Respondent, v. Jacob Williamson et al., Appellants.
    Submitted December 7, 1937;
    decided January 4, 1938.

      William R. Hogan for appellants.

      John Preston Phillips and Gerald Donovan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance of the State of New York, Respondent, for an Order to take Possession of the Property and Liquidate the Business of the New York Indemnity Company. Industrial Commissioner of the State of New York et al., Appellants.
    Argued December 7, 1937;
    decided January 4, 1938.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin and Paul Balsam of counsel), for Industrial Commissioner of State of New York, appellant.

      Jacob W. Friedman for David E. Wolf, claimant, appellant.

      Irvin Waldman and Edmund B. Ganley for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Samuel K. Nester, Appellant.
    Submitted December 10, 1937;
    decided January 4, 1938.
   Motion for reargument denied. (See 275 N. Y. 628.)


text:
    Erna Schneider, Appellant, v. New York Telephone Company, Respondent, Impleaded with Another.
    Argued November 18, 1937;
    decided January 11, 1938.

      Herman A. Gray and Maxwell M. Booxbaum for appellant.

      Irving W. Young, Jr., N. H. Egleston, Hugh N. Wells and Charles T. Russell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York Respondent, v. A. Allen Galerston, Appellant.
    Argued November 22, 1937;
    decided January 11, 1938.

      I. Maurice Wormser and John D. Mithertz for appellant.

      William Copeland Dodge, District Attorney (Felix C. Benvenga, Bernard Botein and Richard H. Weis of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Frederick Bedell, Respondent, v. Dictograph Products Company, Inc., Appellant.
    Argued December 3, 1937;
    decided January 11, 1938.

      Stanley Osserman, Walter H. Free and Theodore F. Tonkonogy for appellant.

      Charles H. Newman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Barbara C. Davis, Respondent, v. Vanwy P. Musil, Appellant.
    Argued December 7, 1937;
    decided January 11, 1938.

      Edwin L. LaCrosse and John A. Bolles for appellant.

      Mahlon A. Freeman and Norman C. Conklin for respondent.
   Appeal dismissed, with costs; no opinion. i

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


text:
    Bayork Realty Corporation, Appellant, v. State of New York, Respondent.
    (Claim No. 24349.)
    Argued December 7, 1937;
    decided January 11, 1938.

      Philip E. Barnard for appellant.

      John J. Bennett, Jr., Attorney-General (G. Frank Dougherty and Ruth I. Wilson of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hilda Dreyspool Respondent, v. Thomas E. Murray. Jr., as Receiver of Interborough Rapid Transit Company, Appellant.
    Submitted December 8, 1937;
    decided January 11, 1938.

      A. L. Wilbur and James L. Quackenbush for appellant.

      Thomas J. Stapleton, George Rosling and Emil Katska for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Stella Weiner, as Administratrix of the Estate of Samuel Weiner, Deceased, Appellant, v. J.I. Hass, Inc., et al., Respondents.
    Argued December 8, 1937;
    decided January 11, 1938.

      Sidney J. Feltenstein for appellant.

      Harold L. Grossman and Ralph Weller for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    James A. Tillman et al., Appellants, v. National City Bank of New York, Defendant, and Guaranty Trust Company of New York, Respondent.
    Argued December 8, 1937;
    decided January 11, 1938.

      Bonis M. Komar for appellants.

      Samson Selig, Abraham J. Multer and William F. Roche for Julia L. Friede, amicus curiæ.

      Joseph Day Lee and Samuel L. Scholer for Jesse C. Millard et al., amici curiæ.

      Ralph M. Carson, Francis W. Phillips and J. Paschall Davis for respondent.

      Philip A. Carroll and Otey McClellan for National City Bank of New York, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret A. Kane, Respondent, v. Ricoro Estates, Inc., et al., Defendants, and Aaron B. Salant, Appellant.
    Argued December 8, 1937;
    decided January 11, 1938.

      Louis Salant and Elwood G. Feldstein for appellant.

      Harold E. Brennan and Frank C. Laughlin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Christie B. Garlasco, Respondent, v. Gilbert M. Smith et al., as Liquidating Trustees of Manhattan Brass Company, et al., Defendants, and Wertshore Realty Corporation et al., Appellants.
    Argued December 8, 1937;
    decided January 11, 1938.

      Myron Butler and Isidore Siegeltuch for appellant.

      Samuel Robert Weltz and Benjamin M. Franklin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: O’Brien, Hubbs, Loughban, Finch and Rippey, JJ.,; Crane, Ch. J., and Lehman, J., dissent as to the personal judgment against defendant Paltrowitz.


text:
    Rose Sacks et al., Appellants, v. Sunset Hill Realty Corporation, Respondent, Impleaded with Another.
    Submitted December 9, 1937;
    decided January 11, 1938.

      Monroe J. Cahn and Warren W. Wells for appellants.

      Alfred M. Bailey, George P. Forbes, Jr., and William A. Earl for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hose-McCann Corporation, Appellant and Respondent, v. Carl Pauluhn et al., Respondents and Appellants.
    Argued December 9, 1937;
    decided January 11, 1938.

      Daniel Handler for plaintiff, appellant and respondent.

      Lewis Ginsburg for defendants, respondents and appellants.
   ■ Judgment of the Appellate Division modified by striking therefrom the award of damages on the finding of fraud, and as so modified affirmed, with costs to defendant-appellants. We fail to find in this record any evidence to charge the defendants with knowledge or notice of the fraud or deception of Wieman in obtaining possession of the plaintiff’s monophone box or device. The damages awarded by the Appellate Division on the finding of fraud must be reversed, and its judgment, as so modified, affirmed, with costs to defendant-appellants. No opinion.

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


text:
    James A. McGraw, Respondent, v. George Selkis et al., Appellants, Impleaded with Others.
    Argued December 9, 1937;
    decided January 11, 1938.

      James G. Heffernan for appellants.

      Patrick J. Keniry for respondent.
   Each order affirmed, with costs; no opinion.

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


text:
    Nathan Steingart, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    Argued December 9, 1937;
    decided January 11, 1938.

      Howard Hilton Spellman, Benjamin F. Spellman, Nathan Frank and Sidney M. Goetz for appellant.

      Frederick C. Tanner and Herbert F. Garrick for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Julius L. Rosenthal, an Attorney, Appellant; Charles J. W. Meisel et al., Respondents.
    Argued December 9, 1937;
    decided January 11, 1938.

      Irving I. Goldsmith for appellant.

      Charles J. W. Meisel and Bernard J. Ferguson, petitioners, respondents.
   Order affirmed. Any application for mitigation of the rigor of the punishment must be addressed to the exclusive jurisdiction of the Appellate Division. No opinion.

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


text:
    In the Matter of the Claim of Mary E. Mundt, Appellant and Respondent, against William Spencer & Sons, Respondents and Appellants. State Industrial Board, Respondent.
    Submitted December 10, 1937;
    decided January 11, 1938.

      Henry J. Farrell for claimant, appellant and respondent.

      William B. Davis and E. C. Sherwood for William Spencer & Sons et al., respondents and appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order of Appellate Division modified by striking out the allowance of $100 for funeral expenses awarded to the widow, and, as so modified, affirmed, without costs. No opinion.

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


text:
    H. A. Roose, Respondent, v. Walter G. Hamilton, as Treasurer of County of Rockland, Defendant, and Walter G. Hamilton, Individually, Appellant.
    Submitted December 10, 1937;
    decided January 11, 1938.

      Walter A. McDermott and E. W. Hofstatter for appellant.

      Leo Fassberg and Louis Etelson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Jack Gold, Appellant.
    Submitted January 3, 1938;
    decided January 11, 1938.

      Samuel J. Foley, District Attorney (George Tilzer of counsel), for motion.

      Lewis Nadel opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of the Claim of Joseph Humienski, Appellant, against C. Milton Foreman et al., Respondents. State Industrial Board, Respondent.
    Submitted January 3, 1938;
    decided January 11, 1938.

      Jeremiah F. Connor for motion.

      Bernard H. Fitzpatrick opposed.
   Motion granted and appealed dismissed, with costs and ten dollars costs of motion.


text:
    Leo Di Tomasso, Appellant and Respondent, v. Vito Loverro et al., Respondents, and Samuel Rubel et al., Respondents and Appellants.
    Submitted January 3, 1938;
    decided January 11, 1938.
   Motion to amend remittitur denied. The use of the words “ without costs ” mean without costs in this court. (See 276 N. Y. —.)


text:
    Ida Sachs, Appellant, v. Commercial Travelers Mutual Accident Association of America, Respondent.
    Submitted January 10, 1938;
    decided January 11, 1938.

      Charles J. Nehrbas for motion.

      Irving Mariash opposed.
   Motion granted and appeal dismissed, with costs and ,en dollars costs of motion.


text:
    Calvin D. Palmer, Appellant, v. Board of Education of Union Free School District No. 2, Town of Geddes, Respondent.
    Submitted January 3, 1938;
    decided January 11, 1938.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 222.)


text:
    Bertha Carroll et al., Appellants and Respondents, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company, Respondent and Appellant.
    Submitted January 3, 1938;
    decided January 11, 1938.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 276 N. Y. 598.)


text:
    Louis Danzis, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Submitted January 3, 1938;
    decided January 11, 1938.

      Abraham Harris for motion.

      Herbert F. Garrick opposed.
   Motion denied.


text:
    Antonio Pasquale et al., Copartners, Trading as Antonio Pasquale & Son, Appellants, v. State of New York et al., Defendants; Patrick T. Coulter, Appellant, and Chas. Shutrump & Sons Company, Respondent.
    Submitted January 3, 1938;
    decided January 11, 1938.

      Mack W. Terry for motions.
    No one opposed.
   Motions granted and appeals dismissed, with costs and ten dollars costs of motions, unless appellants file and serve undertakings on appeals and pay ten dollars costs within ten days, in which event the motions are denied.


text:
    Locomotive Engineers Mutual Life and Accident Insurance Association, Plaintiff, v. Melissa I. Locke, Respondent, and Georgina Putnam, Appellant.
    Submitted January 10, 1938;
    decided January 11, 1938.

      Walter F. Hofheins 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:
    Charles Williams et al., Appellants, v. Michael J. Quill, as President of Transport Workers Union of America, et al., Respondents.

      Argued January 5, 1938;
    decided January 18, 1938.

      Nathan W. Math for appellants.
    A “ closed shop ” provision generally is valid, but when it deprives one not only of his employment for refusal to join a particular labor union, but also all likelihood of obtaining similar employment in a particular community, then it becomes the exception and is invalid and against public policy. (Curren v. Galen, 152 N. Y. 33; McCord v. Thompson-Starrett Co., 129 App. Div. 130; 198 N. Y. 587; Jacobs v. Cohen, 183 N. Y. 208; American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184; Peekskill Theatre, Inc., v. Advance Theatrical Co., 206 App. Div. 138.) Subdivision 2 of section 340 of the General Business Law (Cons. Laws, ch. 20), as interpreted by the court below, is in violation of and repugnant to the Constitution of the United States. (Duplex Co. v. Deering, 254 U. S. 443; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; American Steel Foundries v. Tri-City C. T. Council, 257 U. S. 184.) Paragraph 5 of section 704 of the Labor Law (Cons. Laws, ch. 31) does not approve or sanction a closed shop agreement between a union and a company employer monopolistic in character, to deprive an individual of his right to labor. (National Labor Rel. Bd. v. Jones & Laughlin S. Corp., 299 U. S. 533; Virginian Ry. Co. v. System Federation, 299 U. S. 529.)

      Harry Sacher for Michael J. Quill, as President of Transport Workers of America, respondent.
    A closed shop agreement embracing an entire trade or business whose primary object is not the discharge of non-union members but the advancement of the interests of all employees is lawful. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Kissam v. United States Printing Co., 199 N. Y. 76; Mills v. United States Printing Co., 99 App. Div. 605; Grassi Contracting Co. v. Bennett, 174 App. Div. 244; National Protective Assn. v. Cumming, 170 N. Y. 315.) The employees can achieve equality of bargaining power with their employers only through the closed shop. (Interborough Rapid Transit Co. v. Lavin, 247 N. Y. 65.) The agreement is sanctioned by paragraph 2 of section 340 of the General Business Law, which expressly exempts agreements made by labor unions from the prohibitions against monopoly; and that exemption is constitutional. (American Fur Mfrs. Assn. v. Assoc. F. C. & T. Mfrs., 161 Misc. Rep. 246; 251 App. Div. 708; International Harvester Co. v. Missouri, 234 U. S. 199; Barns v. Dairymen’s League Co-operative Assn., Inc., 220 App. Div. 624.)

      Sigourney B. Olney, W. Harry Sefton and George D. Yeomans for New York Rapid Transit Corporation et al., respondents.
    Section 340 of the General Business Law, forbidding monopolies and restraints of trade, expressly exempts labor unions from the provisions of the act. (National Protective Assn., Inc., v. Cumming, 170 N. Y. 315; Jacobs v. Cohen, 183 N. Y. 207; American Fur Mfrs. Assn. v. Assoc. F. C. & T. Mfrs., 161 Misc. Rep. 246; 251 App. Div. 708; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Mills v. United States Printing Co., 99 App. Div. 605.) The “ closed shop ” provision is authorized by chapter 443 of the Laws of 1937, enacting article 20 of the Labor Law (Cons. Laws, ch. 31). (Sherman v. Abeles, 265 N. Y. 383.)
   Crane, Ch. J.

The counsel in this case, with commendable frankness, have narrowed the question to be decided to a single point. The contract which the defendants entered into, pursuant to section 704, subdivision 5, of the Labor Law (Cons. Laws, ch. 31), is conceded to be legal, except as to the New York Rapid Transit Corporation and the other defendants, and only illegal as to them because they furnish the only labor market locally for the plaintiffs.

After an election held among the employees of the defendant corporations on July 31, 1937, pursuant to the said Labor Law, the Labor Board certified that the defendant Transport Workers Union of America was selected as representative for collective bargaining in the eleven groups of the defendant corporations' employees covered by the contract thereafter made. After long negotiations and threatened strikes the said Transport Workers Union and the defendant corporations made a contract which in this case has been attacked as being illegal because of provision No. 6. It reads:

“ 6. The parties of the first part will not, during the term of this agreement, employ any employe in the groups represented by the parties of the second part to which this agreement applies who is not, or who does not, within one month after his employment, become and remain a member in good standing of the Transport Workers Union of America: and all present employes of the groups to which this agreement applies who are not now members of the Transport Workers Union of America shall become members within thirty (30) days of the date of this agreement and remain members in good standing.”

It is conceded by the defendants that they do not desire in any way to interfere with the employment of the plaintiffs or those who are not members of the union, except in so far as to ask and require them to join in compliance with this contract. Section 704 of the Labor Law, entitled “ Unfair labor practices,” states:

It shall be an unfair labor practice for an employer * * *

“ 5. To encourage membership in any company union or discourage membership in any labor organization, by discrimination in regard to hire or tenure or in any term or condition of employment: Provided that nothing in this article shall preclude an employer from making an agreement with a labor organization requiring as a condition of employment membership therein, if such labor organization is the representative of employees as provided in section seven hundred five.”

The Transport Workers Union of America is the representative of the defendants’ employees, selected and elected pursuant to said section and said Labor Law. The contract referred to was made pursuant to the terms and conditions of this law, so the only question presented is whether or not the contract is legal. Section 704 is new, added-by chapter 443 of the Laws of 1937, taking effect July first of that year. Before the passage of this act this State at least recognized the rights of labor to combine and to strike for the purpose of procuring employment for its own workmen and to advance their interests; also the right to invite or solicit other workmen to join their union and to enforce by legal measures their demands. (National Protective Assn. v. Cummings, 170 N. Y. 315.) The case was decided in 1902, the court saying through Chief Judge Parker: “ Workingmen have the right to organize for the purpose of securing higher wages, shorter hours of labor or improving their relations with their employers. They have the right to strike; that is, to cease working in a body by pre-arrangement until a grievance is redressed, provided the object is not to gratify malice or inflict injury upon others, but to secure better terms of employment for themselves. A peaceable and orderly strike, not to harm others, but to improve their own condition, is not in violation of law” (p. 321).

As before stated, there is nothing in the present case before us to indicate that any injury was sought or intended to the plaintiffs or non-union members, but that the object of the contract and of the action of the defendant labor union is to advance its own interests and ability of its members through the closed shop, to meet on even terms their employers in present or future negotiations.

In 1927 this court, in Exchange Bakery & Restaurant Inc., v. Rifkin (245 N. Y. 260), stated in the prevailing opinion: “ The purpose of a labor union to improve the conditions under which its members do their work; to increase their wages; to assist them in other ways may justify what would otherwise be a wrong. So would an effort to increase its numbers and to unionize an entire /trade or business. (Htt may be as interested in the wages of those not members, or in the conditions under which they work as in its own members because of the influence vof one upon the otherA) All engaged in a trade are affected by the prevailing rate of wages. All, by the principle of collective bargaining. Economic organization today is not based on the. single shop. Unions believe that wages may be increased, collective bargaining maintained only if union conditions prevail, not in some single factory but generally. That they may prevail it may call a strike and picket the premises of an employer ■ with the intent of inducing him to employ only union labor. And it may adopt either method separately. Picketing without a strike is no more unlawful than a strike without picketing. Both are based upon a lawful purpose. Resulting injury is incidental and must be endured” (p. 263).

This case has become the law of this State and has been followed in other instances. Therefore, we approach this case in the light of the law as it was before section 704 of the Labor Law was adopted, and we find that a labor organization is permitted to combine and to strike in a particular industry for the purpose of obtaining employment for its own people, even to the extent of excluding others from the entire industry who are not union men. The one reservation in this law is that the attempt to accomplish the end shall be carried out in good faith and for the declared purposes, and not through malice or ill-will or a desire to injure non-union employees or simply and solely for the purpose of keeping them out of work.

E all this be lawful, what is there unlawful in negotiating with an employer to accomplish through peaceful negotiations that which the law permits to be done through strikes, which lead so frequently to disruption of business and violence? E the railroads in this instance, acting upon their own initiative, determined to dispense with the services of non-union men, I know of nothing in the law which would prevent them from doing so; or, to put it in a different way, if the defendant employers should come to their decision that, for the good of their enterprises, they would thereafter only employ union men, I do not see how the law could prevent them from doing so, or from discharging the plaintiffs and their non-union employees. It might be an unpleasant situation for all, but, nevertheless, one with which the law could not interfere. Recognizing this, I take it that it would not be unlawful because such a determination had been arrived at by the solicitation or request of the unions or labor organizations. And then, to go one step further, why would iti become illegal if the arrangements and determination were embodied in a contract or a written agreement with the labor organizations? Section 704 of the Labor Law above quoted evidently recognized the existing law and was passed in order to enable the employer to have some representative body with whom to negotiate, and labor, by its own selection, create a committee of representatives through whom contracts and negotiations could be made with authority, and which would hold like other contracts before the law.

In Curren v. Galen (152 N. Y. 33) this court considered a contract similar to the one we are here discussing to be void, but the reason for the decision was later explained in Jacobs v. Cohen (183 N. Y. 207) to be the malice, ill-will and injury intended the employee or plaintiff in the case; that the purpose was to prevent him from obtaining any employment. Such, of course, is not the purpose of this contract. Judge Guay in this Jacobs case went further than merely to explain the ruling in the Curran case, and attempted to lay down for the court the law of this State relating to the relationship of employer and employee. He said: “ * * * This contract was voluntarily entered into by the Cohens and, if it provided for the performance of the firm’s work by those only who were accredited members, in good standing, of an organization of a class of workingmen whom they employed, were they not free to do so? If they regarded it as beneficial to them to do so (and such is a recital of the contract), does it he in their mouths, now, to urge its illegality? That, incidentally, it might result in the discharge of some of those employed, for failure to come into affiliation with their fellow-workmen’s organization, or that it might prevent others from being engaged upon the work, is neither something of which the employers may complain, nor something with which public policy is concerned ” (p. 215).

A case directly in point is Kissam v. United States Printing Co. (199 N. Y. 76). Reference may also be made to Interborough Rapid Transit Co. v. Lavin (247 N. Y. 65).

In American Steel Foundries v. Tri-City Central Trades Council (257 U. S. 184, at p. 209), referring to the recognition which the Clayton Act had given labor unions, Chief Justice Taft, in writing the opinion for the court, said: * * * The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard of wages of their trade in-the neighborhood.”

Duplex Printing Press Co. v. Deering (254 U. S. 443) was a pure case of secondary boycotting, and has no relation to the point here under discussion.

As I have stated at the beginning, the attorney for the plaintiffs has conceded that this contract is valid and that the law is constitutional except in the one particular stated, which is that, as the defendant employers constitute the main transit and railroad lines in the locality stated, there is by this contract a monopoly created; that is, if only union men are to be employed, the plaintiffs, if they refuse to join the union, will be without employment. Upon the argument counsel was led to state that carrying out this doctrine to its logical conclusion all such contracts would be illegal where the employer in a village or town or small community was the only one in that particular line of business. We think that this distinction is not justified, and that if there be an evil in the monopoly of the labor market in a particular industry by labor organizations it is a matter to be considered by legislatures and not by the courts, for the reason that there are two sides to the question — the other side being that the labor organizations, through this means of contracting and negotiating, are enabled to strengthen their representative bodies and to effectuate collective bargaining. Of course, demands on either side- may be carried too far. These, however, are not matters for the courts to consider. Public opinion is soon reflected in legislation. We can simply approach the question and decide it according to principles of law. The wisdom of legislation or the reasonableness of action under legislation are matters which must be put aside by us in considering these questions.

Besides, we find recognition of this rule in paragraph 2 of section 340 of the General Business Law (Cons. Laws, ch. 20), relating to monopolies. Agreements are declared to be void and against public policy which create or maintain a monoply in the manufacture, transportation or the free pursuit of any lawful business, trade or occupation. Paragraph 2, however, says that these provisions shall nob apply to co-operative associations, corporate or otherwise, of farmers, gardeners or dairymen, nor to contracts, agreements or arrangements made by such associations, nor to bona fide labor unions.

Upon this appeal a question under the Federal Constitution was presented and necessarily passed upon by this court. The plaintiffs contend that section 340, subdivision 2, of the General Business Law of the State of New York is in violation of, and repugnant to, the Fourteenth Amendment to the Constitution of the United States. This court holds that the law aforesaid does not violate, nor is it repugnant to, the Fourteenth Amendment of the Constitution of the United States.

The order appealed from should be affirmed, without costs, and the question certified answered in the negative.

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

Order affirmed, etc.


author: Rippey, J.

text:
    Williamsburgh Savings Bank, Respondent, v. Dora Bernstein, Appellant, Impleaded with Another.
    Argued January 4, 1938;
    decided January 18, 1938.

      Alexander Berman and Benjamin Koenig for appellant.
    The judgment of appellant against the bank for the amount of the trust account is a vested right which cannot be disregarded. (Rankin Co. v. Langer Printing Co., 237 App. Div. 48; Baker v. Brown, 64 Hun, 627.) The complaint and supporting affidavits are insufficient to sustain the action of interpleader and the order obtained thereunder. (Pouch v. Prudential Ins. Co., 204 N. Y. 281; Dorn v. Fox, 61 N. Y. 264; Baltimore & Ohio R. R. Co. v. Arthur, 90 N. Y. 234.) The order appealed from, restraining the enforcement of a judgment obtained in another action, is contrary to law. (Gilroy v. Everson-Hickok Co., 120 App. Div. 207; Belasco Co. v. Klaw, 98 App. Div. 74.)

      Walter M. Palmer, S. M. Meeker and D. E. Meeker for respondent.
    The complaint and affidavit set forth the necessary facts entitling plaintiff to maintain an action of interpleader with relief by injunction. (Crane v. McDonald, 118 N. Y. 648; Pouch v. Prudential Ins. Co., 204 N. Y. 281.) The judgment is not res adjudícala either in the action brought by the administratrix or injthe present action. (St. John v. Fowler, 229 N. Y. 270.) Equity can restrain the collection of a judgment. (755 7th Ave. Corp. v. Carroll, 266 N. Y. 157.)
   Rippey, J.

Michael Nathan died September 6, 1936, having a deposit with the Williamsburgh Savings Bank in account No. 764166 under the name of Michael Nathan in Trust for Dora Bernstein.”

On October 27, 1936, Fannie Nathan commenced an action in the Supreme Court of Kings county in which she made the bank and Dora Bernstein parties defendant. She alleged that Michael Nathan had, in his lifetime, made a gift to her of the said account and deposit and demanded judgment for the amount thereof. The bank answered and put in issue the allegations of the complaint, disclaimed any beneficial interest in the sum on deposit other than to see that it was paid to the proper party, and offered “ to pay the balance of said account into the court or retain the said sum on deposit ” pending the determination of the rights of the claimants thereto. Dora Bernstein answered denying the allegations in the complaint of a gift of the account to Fannie Nathan, and set up a counterclaim in which she asserted title thereto and demanded judgment against the bank for the amount which stood to the credit of the account. After trial and submission of the issues the jury made a special finding that the account belonged to Dora Bernstein and that there was no gift thereof to Fannie Nathan. The court then directed a general verdict dismissing the complaint and for the amount of the deposit with accrued interest to Dora Bernstein. Thereupon judgment for the amount of such deposit was duly entered on February 26, 1937, in favor of Dora Bernstein and against the bank. From that judgment no appeal has been taken, and the time to appeal has expired.

On March 26,1937, Fannie Nathan commenced another action, this time in the capacity of ancillary administratrix of the estate of Michael Nathan, deceased, in the Supreme Court of New York county, in which she made the bank and Dora Bernstein parties defendant. In that case she alleged that prior to his death Michael Nathan revoked the trust in favor of Dora Bernstein implied by the form of the account, and demanded payment of such account to her as such administratrix. It is unnecessary to refer further to the contents of the pleadings except to say that again the bank asserted lack of beneficial interest and offered to pay the fund into court.

The third and present action was brought by the bank under section 285 of the Civil Practice Act, in which it made Dora Bernstein and Fannie Nathan, in her representative capacity, parties defendant. The bank demanded judgment of interpleader and that it be permitted to pay the amount of the deposit into court and that, upon such payment, it be discharged from any further liability to any of the parties to the last above-mentioned action. It alleged that it had no beneficial interest in the account and deposit except to pay the deposit to the person entitled thereto, that it had no means of ascertaining the rights of the claimants in the action brought by Fannie Nathan as administratrix, that it was in doubt as to the merits of the claims of the respective claimants, and could not pay it to either without hazard to itself. Proceeding as permitted by the provisions of section 286 of the Civil Practice Act, it thereupon moved for an order for the relief demanded in the complaint. Such relief was granted by an order dated July 9, 1937, wherein it was provided among other things that the defendant Dora Bernstein be restrained from proceeding to enforce against the plaintiff or any depository of plaintiff’s funds the certain judgment and order made thereon in the action in which Fannie Nathan was plaintiff and the plaintiff bank and the defendant Bernstein defendants, and that Fannie Nathan, in her representative capacity, be restrained from proceeding with the prosecution of the action then pending in which plaintiff and said Dora Bernstein were parties defendant. On appeal, that order , has been affirmed.

The cause of action which Dora Bernstein had on her counterclaim in the first above-mentioned action arose out of the contract of the bank under which it agreed to pay the amount of the deposit to the one entitled thereto. That cause of action, embracing the claim to the deposit, ripened into and was merged in the judgment procured by her in that action. (Gray v. Richmond Bicycle Co., 167 N. Y. 348.) No longer did the relation between Dora Bernstein and the bank rest upon a contract engagement between the parties or their privies, for the contract relation involving mutuality had ceased. A new and different obligation on the part of the bank arose whereby the law implied a promise on the part of the bank to pay. (Gutta Percha & Rubber Mfg. Co. v. Mayor, 108 N. Y. 276, 278; Anglo-American Provision Co. v. Davis Provision Co., 169 N. Y. 506, 509.) The right of Dora Bernstein to receive payment of an account as a depositor or as a cestui que trust had ceased. Her claim against the bank became that of a judgment creditor. Such rights or obligations upon entry of judgment became final. The substantial rights of either party could not be changed or the legal effect of the judgment limited by the parties or their privies except by appeal or, in a proper case and under proper circumstances, by a motion, to vacate (Matter of Ungrich, 201 N. Y. 415, 418), or, under contingencies and conditions which need not be here discussed, by an action in equity if there was no adequate remedy at law. (34 Corpus Juris, p. 432 et seq.) “ It is well settled that a judgment until reversed is conclusive between the parties to the record upon all matters directly adjudicated. So long as it is in force it must be deemed to have determined their respective rights, and the courts are bound to give effect to its determination.” (Gardner v. Gardner, 87 N. Y. 14, 17.) The judgment creditor might be required to postpone collection of the judgment under conditions specified in section 886 of the Civil Practice Act.

The claim of the estate of Michael Nathan to the account adverse to that of Dora Bernstein was brought to the attention of the bank on October 14, 1936, by a formal notice in writing that the estate of Michael Nathan is claiming the moneys deposited with the above account,” referring to “ Acct. No. 764166 captioned Michael Nathan in trust for Dora Bernstein.” Letters of administration on the estate of Michael Nathan were issued to Fannie Nathan on November 6, 1936. All of that took place long before trial was had or decision made in the action in which it was adjudged that the deposit was the property of and should be paid over to Dora Bernstein. The bank failed to bring to the attention of the court the adverse claim of the estate of Michael Nathan, of which it had notice, and to bring that claim into court in that action for adjudication, and permitted judgment to be entered against it by which the claim of Dora Bernstein to the deposit was established. Under those circumstances the instant action of interpleader cannot be maintained. (Baker v. Brown, 64 Hun, 627.) The court has no power to limit the effect of that judgment to meet some supposed equity subsequently called to its attention. (Stannard v. Hubbell, 123 N. Y. 520, 527; Herpe v. Herpe, 225 N. Y. 323, 327.)

Even though the bank had received no notice of the claim of the estate of Michael Nathan to the account and deposit, it still would be unable to maintain this action. The plaintiff in an action of interpleader must allege positively that conflicting claims to substantially the same thing, fund, debt, or duty are set up by defendants.” (Pouch v. Prudential Ins. Co., 204 N. Y. 281, 284.) It is here alleged that the adverse claims of defendants are to the account and deposit. So far as Dora Bernstein is concerned there is no account or deposit. The subject-matter of the action has disappeared. Plaintiff here is not seeking equitable relief against payment of the judgment. It is not alleged, nor could it be alleged and successfully established, that there are adverse claims to the judgment as between the defendants. Plaintiff overlooks the fact that, as between it and Dora Bernstein, the account and deposit have ceased to exist.

The order of the Appellate Division and that of the Special Term should be reversed, with costs in all courts, and the motion denied, with ten dollars costs.

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

Orders reversed, etc.