text:
    Benjamin H. Roth et al., Copartners Doing Business under the Name of B. H. Roth & Co., Appellants and Respondents, v. Milton Zaidenberg, Respondent and Appellant.
    Argued November 23, 1948;
    decided January 6, 1949.

      Lloyd B. Kanter and Oscar A. Lewis for plaintiffs, appellants and respondents.

      Henry Cohen and Jonathan B. Bingham, for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: LougheaN, Ch. J., Lewis, Cokway, DesmoNd, Dye and Fued, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Estate of Emily M. Gallatin, Deceased. State Tax Commission, Appellant; R. Horace Gallatin, as Executor of Emily M. Gallatin, Deceased, Respondent.
    Argued December 1, 1948;
    decided January 6, 1949.

      Mortimer M. Kassell, Francis Kelliher and William J. Roberts for appellant.

      Leslie D. Lawson and Sidney W. Davidson for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Dye and Ftjld, JJ.


text:
    In the Matter of the Claim of Angelo Rosati, Respondent, against Despatch Shops, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted December 2, 1948;
    decided January 6, 1949.

      Myer Braiman for appellants.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy and Boy Wiedersum of counsel), for respondent. '
   Order affirmed, with costs; no opinion.

Concur: LoughkaN, Ch. J., Lewis, CoNWAy, DesmoND, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Emetia Polizio, Appellant.
    Argued October 18, 1948;
    decided January 6, 1949.

      Joseph Lonardo and Charles K. Finch for appellant.

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.
   Judgment affirmed. Upon this appeal the following question was presented and necessarily passed upon, viz.: The appellant contended that the use against Mm upon the trial of evidence acquired by illegal search and seizure violated the due process clause of the Fourteenth Amendment of the Constitution of the United States. This court held that the conviction herein does not deny due process. No opinion.

Concur: Ch. J., Lewis, CoNway, DesmoNd, Dye and JJ.


text:
    Elizabeth Hanley, as Administrtrix of the Estate of Bernard J. Hanley, Deceased, Respondent, v. Erie Railroad Company, Appellant.
    Argued November 24, 1948;
    decided January 6, 1949.

      Theodore Kiendl and William R. Meagher for appellant.

      Harry E. Kreindler, Max J. Wolf and Emanuel Rothstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughrae, Ch. J., Lewis, Conway, Desmond and Dye, JJ. Fuld, J., dissents upon the ground that the record is devoid of any evidence that defendant was guilty of negligence.


text:
    In the Matter of Alex A. Fabricant et al., Appellants, against City of New York, Respondent.
    Argued November 30, 1948;
    decided January 6, 1949.

      Philip Korn and Jacob 8. Spiro for appellants.

      John P. McGrath, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: LoughraN, Ch. J., Lewis, DesmoND, Dye and Fuld, JJ.


text:
    Bradley Delehanty, as Surviving Trustee for Certificate Holders of Guarantee No. 171,038 of the Bond and Mortgage Guarantee Company under a Declaration of Trust Dated the 1st Day of June, 1936, Appellant, v. Morris Walzer et al., Respondents.
    Argued November 22, 1948;
    decided January 6, 1949.

      Frederick A. Keck, Otho S., Bowling and Andrew F. Van-Thun, Jr., for appellant.

      Charles H. Tuttle for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, CoNway, Desmond, Dye and Fuld, JJ.


text:
    In the Matter of Augustus Studer, as Trustee of New Jersey Midland Railway Company, Appellant, against Frank C. Moore, as Comptroller of the State of New York, Respondent.
    Argued November 30, 1948;
    decided January 6, 1949.

      Robert P. Beyer, 'Bernard Cowen and Harry Green for appellant.

      Nathaniel L. Goldstein, Attorney-General (A. W. Feinberg, Wendell P. Brown and Thomas Burhe of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: LoughraN, Ch. J., Lewis, CoNway, DesmoNd, Dye and Fttld, JJ.


text:
    New York Casualty Company, Respondent, v. Peter R. Kuhn et al., Appellants.
    Argued December 2, 1948;
    decided January 6, 1949.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, CoNway, DesmoND, Dye and Fuld, JJ.


text:
    In the Matter of the Claim of Department of Taxation and Finance, Arising out of the Death of Anthony Thomas, Respondent, against Estate of Kallman Cohen et al., Appellants, and Anne Richards, Respondent. Workmen’s Compensation Board, Respondent.
    Argued December 2, 1948;
    decided January 6, 1949.

      Bernard Kat sen, General Attorney (Victor Fiddler and George J. Hayes of counsel), for State Insurance Fund and another, appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel PolansTcy and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, CoNway, Desmond, Dye and FuliD, JJ.


text:
    Joanette Juniors, Inc., Appellant, v. Board of Home Missions of the Congregational and Christian Churches, Respondent.
    Argued January 3, 1949;

      Harry Bijur for appellant.

      John J. Morris and Truman H. Luhrman for respondent.
   Judgment affirmed, with costsno opinion.

Concur: LoitghraN, Ch. J., Lewis, CoNway, Dye and Field, JJ.


text:
    In the Matter of the Arbitration between Mary Hunter, Respondent, and Monte Proser et al., Appellants.
    Argued December 3, 1948;
    decided January 13, 1949.

      Milton R. Weir, William Klein and Adolph' Lund for appellants.

      Floria V. Lasky for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, CoNWay, DesmoND, Dye and Ftjld, JJ.


text:
    New York Connecting Railroad Company, Respondent, Queens Used Auto Parts, Inc., Appellant.
    Argued January 3, 1949;
    decided January 13, 1949.

      Henry Amster and Milton IApson for appellant.

      Robert M. Peet and Edward R. Brumley for respondent.
   Judgment affirmed, with costs; no opinion.

Ch. J., Lewis, Couway, DesmoND, Dye and Fule, JJ.


text:
    In the Matter of Gertrude E. Appellant, against Board of Appeals on Zoning of the City of New Rochelle, Respondent.
    Argued January 4, 1949;
    decided January 13, 1949.

      Terence J. McMcmus and Walter E. Ernst for appellant.

      Aaron Simmons, Corporation Counsel (John A. Bodmer and Murray C. Fuerst of counsel), for respondent.

      Leonard I. Schreiber for Edna D. Miller and others, amici curies, in support of respondent’s position.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, DesmoND, Dye and Fuld, JJ.


text:
    Lansing H. Keeler, as Administrator of the Estate of J. Keeler, Deceased, Appellant, v. Long Island Rail Road Company, Respondent.
    Argued October 13, 1948;
    reargument ordered January 13, 1949.
   Reargument ordered and case set down for reargument during the next session.


text:
    Carol M. Garvey, an Infant, by Justin C. Garvey, Her Guardian ad Litem, et al., Appellants, v. A. O. Fridelson, Inc., Respondent, et al., Defendants.
    Argued January 3, 1949;
    decided January 13, 1949.

      Michael A. Petroccia and Louis A. Ouarino for appellants.

      William F. McNulty and John McKim Minton for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LoughraN, Ch. J., Desmoud, Dye JJ.; Lewis and CoNway, JJ., dissent and vote for reversal and a new trial on the ground that the record presents questions of fact requiring submission to the jury.


text:
    In the Matter of the Estate of Veronica C. Laney, Deceased. Thomas Respondent; Clarence Laney, as Administrator of the Estate of Veronica C. Laney, Deceased, Appellant.
    Argued January 4, 1949;
    decided January 13, 1949.

      Manly Fleischmaim, Albert R. Mugel and Harold P. Kelly for appellant.

      Charles F. Boine and Thomas E. Delahimt for respondent.
   Order affirmed, with costs to respondent payable by appellant' individually; no opinion.

Concur: LougheaN, Ch. J., Lewis, CoNway, DesmoNd, Dye and Fuld, JJ.


text:
    Hetty S. Phillips, Appellant, v Abraham L. Oltarsh, Respondent.
    Argued January 5, 1949;
    decided January 13, 1949.

      Max Herschaft for appellant.

      Herbert G. Friedgen, John A. Pateracki, Jr., and William R. Geiler for respondent.
   Order affirmed, with costs and judgment absolute directed against appellant in accordance with the stipulation. No opinion. [See 298 N. Y. 922.]

Concur: Lottghean, Ch. J., Lewis, Desmond, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Benjamin Feldman, Appellant.
    Argued October 6, 1948;
    reargument ordered January 13, 1949.
   Reargument ordered and case set down for reargument during the next session.


text:
    The People of the State of New York, Respondent, v. Stephen J. Sanzone, Appellant.
    Argued October 13, 1948;
    decided January 13, 1949.

      James A. Fits Patrick for appellant.

      Charles P. Sullivan, District Attorney (Howard R. Lonergcm of counsel), for respondent.
   On this meager record the sentencing conrt was not justified in sentencing the defendant as a second offender. Judgment modified hy remitting case to County Conrt of Queens County for resentenee, and as so modified affirmed. No opinion.

Concur: Loughraw, Ch. J., Lewis, CoNWay, DesmoNd, Dye and Ftjld, JJ.


text:
    The People of the State of New York ex rel. Leo J. Lewis, Appellant, against John F. Foster, as Warden of Auburn State Prison, Respondent. The People of the State of New York, Respondent.
    Argued December 2, 1948;
    decided January 13, 1949.

      Harris B. Steinberg for appellant.

      Nathaniel L. Goldstein, Attorney-General (William S. Elder, Jr., Wendell P. Brown and Herman N. Harcourt of counsel), for respondents.
   Order affirmed; no opinion.

Concur: LoixgheaN, Ch. J., Lewis, CoNway, Dye and Fuld, JJ.


text:
    Sam Kruter, Respondent, v. Sunnydale Farms, Inc., Appellant.
    Argued January 3, 1949;
    decided January 13, 1949.

      William L. Shumate for appellant.

      Bernard 1. Scherer, Jacob B. Fuchsberg and Arthur S. B-irsch for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LoughRAN, Ch. J., Lewis, CoNway, Desmoud, Dye and Fuld, JJ.


text:
    Frances M. Orth et al., Respondents, v. Kane Construction Company, Appellant, et al., Defendants.
    Argued January 5, 1949;
    decided January 13, 1949.

      ■Sidney S. Levine for appellant.

      Joseph Feinstein for respondents.
   Appeal dismissed, with costs; no opinion.

Concur: LoughraN, Cb. J., Lewis, CoNway, DesmoNd, Dye and Fuld, JJ.


text:
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Opening and Extending of East River Drive, and Approaches Thereto, in the Borough of Manhattan. Guy Cary et al., as Ancillary Executors of Robert W. Goelet, et al., Respondents.
    Argued November 30, 1948;
    decided January 13, 1949.

      John P. McGrath, Corporation Counsel (Reuben Levy, Harry E. O’Donnell and Benjamin Offner of counsel), for appellant.

      Charles Lamb, Louis W. Dawson, Vincent Kerne and Walter L. Hophins for G-uy Cary and others, respondents.

      Edward E. Clark and Leonard J .Reynolds for George Y. R. J. Innes-Ker, respondent.
   Order affirmed, with costs to each respondent; no opinion.

Concur: Loughrah, Ch. J., Lewis, DesmoND, Dye and Fuld, JJ.


text:
    In the Matter of the Application of Catherina Lauro, Appellant. Register of the City of New York, Respondent.
    Argued December 1, 1948;
    decided January 13, 1949.

      Thomas T. McVann and Robert E. Barnes for appellant.

      John P. McGrath, Corporation Counsel (Morris R. Weitser, Harry E. O’Donnell and Reuben Levy of counsel), for respondent.
   Orders reversed, with costs in all courts, and petition granted, upon the ground that, under the circumstances here presented, the register was required to accept and record the satisfaction of the mortgage in question and to cancel and discharge that mortgage' (Administrative Code, § 1052-9.0, subd. k). Section 321 of the Real Property Law, which became effective on September 1, 1948, has no application to the present case. No opinion.

Concur: LottgheaN, Ch. J., Lewis, Costway, Desmowd and Ftjed, JJ. Dye, J., dissents and votes to affirm.


text:
    In the Matter of the Claim of Charles W. Paul, Respondent, against National Savings Bank et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued December 3, 1948;
    decided January 13, 1949.

      Paul F. Donohue and George B. Farrington for appellants.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed; with costs; no opinion.


text:
    Sylvia Benintendi, Respondent, v. Marie Benintendi, as Administratrix of the Estate of James V. Benintendi, Appellant.
    Argued January 5, 1949;
    decided January 13, 1949.

      George J. Todaro for appellant.
   Judgment affirmed, with, costs; no opinion.

Concur: LoughbaN, Ch. J.,. Lewis, CoNWay, DesmoND, Dye and Ftjld, JJ.


text:
    In the Matter of the Claim of Charles A. Wilson, Respondent, against General Motors Corporation, Chevrolet Motor Axle Division, Appellant. Workmen’s Compensation Board, Respondent.
    Argued May 20, 1948;
    reargument ordered January 13, 1949.
   Reargument ordered, and case set down for reargument during the first week of the next session.


text:
    Ella Sanders, Respondent, State of New York, Appellant.
    (Claim No. 28116.)
    Argued November 30, 1948;
    decided January 13, 1949.

      Nathaniel L. Goldstein, Attorney-General (Wortley B. Paul and Wendell P. Brown of counsel), for appellant.

      John W. Miles for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LottghraN, Ch. J., Lewis, CoNWay, DesmoND, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. John G. Maler, Appellant.
    Submitted December 3, 1948;
    decided January 13, 1949.

      Clinton P. Sheehy for appellant.

      James N. Gehrig, District Attorney (Philip Huntington of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, CoNway, Dye and Fuld, JJ.


text:
    Charles W. Russell, Appellant, v. Board of Education of Union Free School District No. 2, Town of Geddes, Onondaga County, Respondent.
    Submitted January 3, 1949;
    decided January 13, 1949.

      Wilfreda B. Stone and William Mangin for motion.

      Helen McCarthy Bivette opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Charles W. Russell, Appellant, v. Board of Education of Union Free School District No. 2, Town of Geddes, Onondaga County, Respondent.
    Submitted November 22, 1948;
    decided January 13, 1949.

      Wilfreda B. Stone and William Mcmgin for motion.

      Helen McCarthy Rivette opposed.
   Motion denied without prejudice to a renewal of the motion upon argument of the appeal.


text:
    The of the State of New York ex rel. Michael Monaco, Appellant, against John F. McNeill, as Director of Matteawan State Hospital, Respondent.
    Submitted January 3, 1949;
    decided January 13, 1949.

      Nathaniel L. Goldstein, Attorney-General (George A. Bads of counsel), for motion to dismiss appeal.

      Samuel Brill and Michael P. Direnso for motion to dispense with undertaking and in opposition to motion to dismiss.
   Motion to dismiss appeal on the ground that no constitutional question is presented, denied. Motion to dismiss appeal for failure to file a return granted and appeal dismissed, unless appellant files his return within thirty days, in which event motion denied. Motion to dispense with undertaking on appeal granted.


text:
    The People of the State of New York ex rel. Alphonse L. Harrison, Appellant, against J. V. Jackson, as Warden of Clinton Prison, et al., Respondents.
    Submitted January 3, 1949;
    decided January 13, 1949.
   Motion by appellant for reargument denied. [See 298 N. Y. 219].


text:
    Mollie Eagle, Appellant, v. Benjamin Cherney et al., Respondents.
    Submitted January 3, 1949;
    decided January 13, 1949.
   Motion for reargument denied. [See 294 N. Y. 818.]


text:
    The People of the State of New Respondent, v. Belcher, Appellant.
    Submitted January 3, 1949;
    decided January 13, 1949.

      Earle J. Wiley, District Attorney (Edward J. Poland of counsel), for motion.

      John P. Judge opposed.
   Motion denied.


text:
    Ib Chr Sonnesen, Appellant, v. Panama Transport Company, Respondent.
    Submitted January 3, 1949;
    decided January 13, 1949.


text:
    Long Park, Inc., Suing for Itself and All Other Stockholders of Trenton-New Brunswick Theatres Company Similarly Situated, Appellant, v. Trenton-New Brunswick Theatres Company et al., Defendants, and B. F. Keith Corporation, Respondent.
    Submitted January 3, 1949;
    decided January 13, 1949.
   Motion by appellant to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 174.]


text:
    In the Matter of the Application of Milton Gladstone, for Reinstatement as an Attorney, Petitioner. Association of the Bar of the City of New York, Respondent.
    Submitted January 3, 1949;
    decided January 13, 1949.

      Milton Gladstone, in person, for motion.

      Einar Chrystie and James T. Gallagher opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v. Henry P. Clark, Respondent.
    Submitted January 3, 1949;
    decided January 13, 1949.

      Harry S. Travis for motion.

      Herbert H. Smith, District Attorney, opposed.
   Motion granted and appeal dismissed (see Code Crim. Pro., § 520, subd. 3; People v. Hatzis, 297 N. Y. 163).


text:
    The People of the State of New York, Appellant, v. David R. Snyder, Respondent.
    Submitted January 3, 1949;
    decided January 13, 1949.

      Harry 8. Travis for motion.

      Herbert H. Smith, District Attorney, opposed.
   Motion granted and appeal dismissed (see Code Crim. Pro., § 520, subd. 3; People v. Hatzis, 297 N. Y. 163).


text:
    Wendelin Brust et al., Respondents, v. Margaret Asselta, as Administratrix of the Estate of Edward J. Asselta, Deceased, Appellant.
    Submitted January 3, 1949;
    decided January 13, 1949.

      James Dempsey for motion to withdraw appeal and in opposition to motion to dismiss appeal.

      Sidney 0. Sparrow for motion to dismiss appeal and in opposition to motion to withdraw appeal.
   Motion to withdraw appeal granted. Motion to dismiss appeal denied.


text:
    In the Matter of Richard Kapf, Appellant, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
    Submitted January 3, 1949;
    decided January 13, 1949.

      Robert Q. Blabey and Donald L. Brush for motion to dismiss appeal and in opposition to appellant’s motion for leave to appeal.

      Julius November and Edwin Stephen Schweig for motion for leave to appeal and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion.

Motion for leave to appeal denied, with $10 costs and necessary printing disbursements.


text:
    Guaranty of New York, Respondent, v. State of New York, Appellant.
    (Claim No. 27969.)
    Submitted January 3, 1949;
    decided January 13, 1949.

      Ralph M. Carson, William R. Meagher and Aloysius J. Castellano for motion to dismiss appeal.

      NathamelL. Goldstein, Attorney-General (Wendell P. Brown, Kent E. Brown and John R. Davison of counsel), opposed.
   Motion to dismiss appeal denied. Application [by claimant-respondent] for leave to submit a brief on the merits granted.


text:
    C. Monteith Gilpin et al., Appellants and Respondents, et al., Respondents, v. Mutual Life Insurance Company of New York, Respondent and Appellant, et al., Respondent. Mutual Life Insurance Company of New York, Appellant and Respondent, v. Vincent Fiore et al., Respondents and Appellants, et al., Respondents.
    Submitted January 10, 1949;
    decided January 13, 1949.

      ■ John F. X. Film for motion.

      David Barnet, Louis W. Dawson and Vincent Keane opposed.
   Motion denied, without prejudice to a renewal thereof upon the argument of the appeal.


text:
    Beatrice Selkowitz, Respondent, v. Leo Selkowitz, Appellant.
    Submitted January 3, 1949;
    decided January 13, 1949.

      Otho 8. Bowling for motion.
    No one opposed.
   Motion to dismiss appeal denied, without costs, upon the ground that no appeal is pending in this court.


text:
    The People of the State of New York, Respondent, v. Samuel T. Williams, Appellant.
   LoughbaN, Ch. J., DesmoNd, Dye and Fuld, JJ., concur in the granting of this amendment. Lewis and OoNWay, JJ., dissent as to said amendment of the remittitur.


text:
    Argued January 11, 1949;
    decided February 24, 1949.

      Saul B. Bradie and William F. Wund for appellant.

      Abraham Botwein for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

Concur: Loughrah, Ch. J., Lewis, DesmoNd, Dye and Field, JJ.


text:
    The People of the State of New York, Respondent, v. John M. and alias Danny Brooks, Appellants.
    Reargued December 1, 1948;
    decided February 24, 1949.

      Bernard Hershkopf and Hyman Barshay for John M. Dunn, appellant.

      Harry G. Anderson and Vincent Tese for Daniel Gentile, appellant.

      Frank &'. Hogan, District Attorney (Whitman Knapp and William Hoppen of counsel), for respondent.
   Upon reargument of appeals by appellants John M. Dunn and Daniel Gentile: Judgments of conviction affirmed. No opinion.

Concur: LoughbaN, Ch. J., Lewis, CoNway and Fuld, JJ. DesmoNd and Dye, JJ., dissent, and vote to reverse and order a new trial on the ground that the newly discovered evidence could well change the result if presented to a jury and, accordingly, should he so presented. [See 298 N. Y. 564, 706, 929.]


text:
    In the Matter of Rochester Gas and Electric Corporation, Respondent, and General Public Utilities Corporation, Intervener, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Appellants.
    Argued December 2, 1948;
    decided February 24, 1949.

      Sherman G. Ward, George H. Kenny, Joseph J. Doran and Samuel B. Madison for appellants.

      Edmund B. Naylon, T. Carl Nixon, Earl L. Dey and George Foster, Jr., for petitioner-respondent.

      Allen E. Throop and James B. Liberman for intervener, respondent.
   Order affirmed and order absolute ordered against appellants on the stipulation, with costs in all courts. No opinion.

Concur: LoughraN, Ch. J., Lewis, CoNway, DesmoN», Dye and Ful», JJ.


author: Per Curiam.

text:
    In the Matter of Biagio Battaglia, Respondent, against Ferdinand Q. Morton et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued January 6, 1949;

      John P. McGrath, Corporation Counsel (Robert E. Hugh and Seymour B. counsel), for appellants.

      George Langberg, Nathan Ringel and Manuel A. Ytuarte for respondent.
   Per Curiam.

In tbe absence of an order by tbe Appellate Division or by this court appellants leave to appeal, we may not review tbe order of tbe Appellate Division dated June 14, 1948, which affirmed unanimously tbe order of Special Term where — in accord with tbe direction contained in tbe prior intermediate order of tbe Appellate Division dated June 24, 1947 — certain issues of fact were tried and determined. (Civ. Prac. Act, § 588, subd. 2; § 589, subd. 2, cls. [a], [b].)

Tbe appeal should be dismissed with costs.

LotjgheaN, Cb. J., Lewis, DesmoNd, Dye and Fuld, JJ., concur.


text:
    Frieda Brunstein, Respondent, v. Israel A. Brunstein, Appellant.
    Argued January 10, 1949;
    decided February 24, 1949.
   Judgment affirmed, costs; no opinion.

Concur: Lougheau, Ch. J., Lewis, CoNway, DesmoND, Dye and Fuld, JJ.


text:
    Julia D. Smith, Appellant, v. Roy A. Smith, Respondent.
    Submitted January 7, 1949;
    decided February 24, 1949.

      John J. Leonard for appellant.

      Robert W. Cauldwell for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: LouohbaN, Ch. J., Lewis, CoNway, Desmoed, Dye and Fuld, JJ.


text:
    Lois S. Goodwin, Respondent, v. State of New York, Appellant.
    (Claim No. 28470.)
    Argued January 12, 1949;
    decided February 24, 1949.

      Nathaniel L. Goldstein, Attorney-General (Sidney B. Gordon and Wendell P. Brown of counsel), for appellant.

      Lewis B- Parmerton, Robert V. B. Bassett and James 8. Truman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LotjgheaN, Ch. J., Lewis, CoNway, DesmoND, Dye and Fttld, JJ.


text:
    Benjamin Saglimbeni, by Carmela Saglimbeni, His Guardian ad Litem, Respondent, v. West End Brewing Company, Appellant. Carmela Saglimbeni, Respondent, v. West End Brewing Company, Appellant.
    Argued January 10, 1949;
    decided February 24, 1949.

      Warnich J. Kernan and James S. Kernan, Jr., for appellant.

      H. E. Blodgett for respondents.
   In each action: Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, CoNway, Desmoxd, Dye and Fuljo, JJ.


text:
    Central Greyhound Lines, Inc., of New York, Appellant, v. Carroll E. Mealey et al., Constituting the State Tax Commission, Respondents.
    Reargued January 12, 1949;
    decided February 24, 1949.

      Tracy H. Ferguson for appellant.

      Nathaniel L. Goldstein, Attorney-General (John G. Grary, Jr., Wendell P. Brown and Irving I. Waxman of counsel), for respondents.
   Upon reargument: Order of Appellate Division and determination of State Tax Commission modified by annulling the determination of the State Tax Commission to the extent of 42.53% of the tax involved and, as so modified, affirmed, with costs in this court and in the Appellate Division. No opinion.

Concur: Loughrast, Ch. J., Lewis, DesmoND, Dye and JJ.


text:
    In the Matter of the Probate of the Will of John L. Reid, Deceased. Robert Garrow, Appellant; Margaret M. Euller et al., Respondents.
    Argued January 11, 1949;
    decided February 24, 1949.

      Ralph Saft for appellant.

      Louis W. Manchester and George M. Raikin for respondents.
   Order of Appellate Division and decree of Surrogate’s Court reversed, with costs in all courts payable out of the estate, and matter remitted to Surrogate's Court with directions to admit the will to probate. On this record there is no evidence presented requiring the submission of the case to the jury, and the proponent’s motion for a direction of a verdict should have been granted. No opinion.

Concur: LoughraN, Ch. J., Lewis, Dye and Fuld, JJ.


text:
    Joseph V. Daley, as Administrator of the Estate of John E. Daley, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 27916.)
    Argued January 7, 1949;
    decided February 24, 1949.

      Nathaniel L. Goldstein, Attorney-General {John B. Davison, Wendell P. Brown and Ronald E. Coleman of counsel), for appellant.

      Joseph J. Casey for respondent.
   Judgment affirmed, wdth costs; no opinion.

Concur: LottgheaN, Ch. J., Lewis, CoNway, Dye and Fuld, JJ.


text:
    Hagadorn, Respondent, v. Socony-Vacuum Oil Company, Inc., Appellant.
    Argued December 2, 1948;
    decided February 24, 1949.

      S. J. Mauhs for appellant.

      Marcus L. Fillet/ for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkam, Cb. J., Lewis, CoNway, Desmoed, Dye and Fuld, JJ.


text:
    In the Matter of 54 Cafe & Restaurant, Inc., Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Argued January 13, 1949;
    decided February 25, 1949.

      Alvin McKinley Sylvester for appellants.

      Melvin Howard Osterman and Frank I. Tashher for respondent.
   Order affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, CoNway, DesmoND, Dye and Fuld, JJ.


text:
    Morris Aks, Appellant, v. Buffalo Savings Bank, Respondent.
    Argued January 10, 1949;
    decided March 3, 1949.

      Samuel Gellman for appellant.

      John H. Little for respondent.
   Order affirmed, with costs. Questions certified answered in the affirmative. No opinion.

Concur: LottgheaN, Ch. J., Lewis, CoNway, Desmond, Dye and Ftjld, JJ.


text:
    Alice M. Skakandy, Individually and as Administratrix of the Estate of John Skakandy, Deceased, et al., Appellants, v. State of New Respondent.
    Argued January 12, 1949;
    decided March 3, 1949.

      Morris Zweibel, Robert X. Kusmier and Francis E. Garberry for appellants.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Wendell P. Rrown of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, CoNway, DbsmoND, Dye and Ful», JJ.


text:
    In the Matter of the Claim of Alice Skakandy et al., Appellants, against Wreckers and Excavators, Inc., et al., Respondents. Compensation Board, Respondent.
    Argued January 12, 1949;
    decided March 3, 1949.

      Morris Zweibel, Robert X. Kuzmier and Frcmcis E. Garberry for appellants.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Wendell P. Rrown of counsel), for Workmen’s Compensation Board, respondent.

      Bernard Katzen, General Attorney (Victor Fiddler and George J. Hayes of counsel), for State Insurance Fund and another, respondents.
   Order affirmed, without costs; no opinion.

Concur: LoughraN, Ch. J., Lewis, CoNway, DesmoNd, Dye and Fuld, JJ.


text:
    In the Matter of Mary F. Daley, Appellant, against William O’Dwyer et al., as Members of the Board of Estimate of the City of New York, Constituting the Trustees of the New York City Employees’ Retirement System, Respondents.
    Argued January 13, 1949;
    decided 3, 1949.

      John, F. X. Browne and Cornelius J. Barry, Jr., for appellant.

      John P. McGrath, Corporation Counsel (Helen B. Cassidy, Seymour B. Quel and Henry J. Shields of counsel), for respondents.
   Order affirmed; no opinion.

Concur: LoughraN, Ch. J., Lewis, CoNway, DesmoNd, Dye and Fuld, JJ.


text:
    In the Matter of Seymour L. Beekman, on Behalf of Himself and Others Similarly Situated, Appellant, against Paul Ross et al., Constituting the Temporary City Housing Rent Commission of the City of New York, et al., Respondents.
    Argued February 21, 1949;
    decided March 3, 1949.

      Leonard Kommel and M. Walter Solomon for appellant.

      Seymour B. Thaler, Joseph Jay, Alfred Weinstein and Nathan W. Math for Temporary City Housing Rent Commission, respondent.

      Marvin M. Notldns and Louis Alfred Schwartz for Rothlev Realty Corporation, respondent.
   Order affirmed, without costs; no opinion.

Concur: LoughraN, Ch. J., Lewis, CoNway, DesmoNd, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of Carolyn Silbermann, Appellant, against Ferdinand Q. et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued January 13, 1949;
    decided March 3, 1949.

      Leonard M. Wallstein, Harold J. Silbermann and Joseph J. Einhorn for appellant.

      John P. McGrath, Corporation Counsel (James J. Thornton, Seymour B. Quel and Fred Iscol of counsel), for respondents.
   Order of Appellate Division insofar as it reverses the order of the Special Term of May 5, 1948, and denies the motion affirmed, and first question certified answered in the negative. Appeal from so much of the order of the Appellate Division as reversed the order of Special Term of June 21, 1948, adjudging respondents guilty of contempt dismissed on the ground that the question certified is not determinative of the appeal. (See Civ. Prac. Act, § 603.) No opinion.

Concur: LougheaN, Ch. J., Lewis, CoNWAY, Dye and Ftjld, JJ.


text:
    In the Matter of the Claim of Susan Scott, Respondent, against U. S. O. Camp Shows, Inc., et al., Appellants. Workmen's Compensation Board, Respondent.
    Submitted January 12,
    decided March 3, 1949.

      Jeremiah F. Connor and George A. Garvey for appellants.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs, upon the ground that there is evidence to support the finding of the hoard that at the time of the accident the claimant had returned to her employment, and was in the course thereof. No opinion.

Concur: LoughraN, Ch. J., Lewis, CoNway, Desmond, Dye and Field, JJ.


text:
    In the Matter of the Claim of Elizabeth M. Lyons, on Behalf of Herself and Another, an Infant, Respondent, against U. S. O. Camp Shows, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted January 12, 1949;
    decided March 3, 1949.
   Order affirmed, with costs, upon the ground that there is evidence to support the finding of the board that at the time of the accident, claimant’s intestate had returned to his employment, and was in the course thereof. No opinion.

Concur: Loughb.AN, Ch. J., Lewis, DesmoNd, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. James Dixon, Appellant.
    Argued January 12, 1949;
    decided March 3, 1949.

      Victor Levine and Nathan H. Blitmcm for appellant.

      William E. Bowers, District Attorney (Arthur M. Beach of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughrah, Ch. J., Lewis, CoNWay, DesmoNd, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Edward Sweetland, Appellant.
    Argued January 13, 1949;
    decided March 3, 1949.

      J. F. X. Sheridan, Harry Silver and Donald White for appellant.

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: LotjgheaN, Ch. J., Lewis, Conway, DesmoND, Dye and JJ.


text:
    In the Matter of the Claim of Paul W. Brown, Respondent, against United Services for Air, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued February 21, 1949;
    decided March 3, 1949.

      Reid 8. Mottle and Raymond T. Miles for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky and Roy Wiedersum of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Accounting of Central Hanover Bank Trust Company, as Trustee, Respondent. Kenneth J. Mullane, as Special Guardian and Attorney for Infants and Others, Appearing Specially, Appellant; James N. Vaughan, as Special Guardian and Attorney for Infants and Others, Respondent.
    Argued January 4, 1949;
    decided March 3, 1949.

      Kenneth J. Múlleme, as special guardian for infants and others having interest in income of trust fund, appellant.

      James N. Vaughan, as special guardian for infants and others having interest in principal of trust fund, respondent.

      Albert B. Maginnes, J. Quincy Hunsicher, 3d, and William D. Seidler for Central Hanover Bank and Trust Company, respondent.

      Peter Keber and G. Alexander Gapron for New York State Bankers Association, amicus curies, in support of respondents’ position.
   Appeals dismissed, with costs to the respondent trustee payable out of the fund, upon the following grounds:

As to the appeal taken directly to this court from so much of the final decree of voluntary accounting (entered in Surrogate’s Court, August 12,1948) as overrules objections interposed by the appellant, sncli decree may not be the subject of direct appeal to this court because the determination thereby made was not one which the Surrogate “ must grant ” upon a motion for judgment or order (Civ. Prac. Act, § 590, cl. [bj).

As to the appeal from the order of the Appellate Division (entered June 21,1948) affirming an intermediate decree of Surrogate’s Court (entered November 26, 1947) in a voluntary accounting proceeding, such a ruling upon objections in the nature of pleadings (Surrogate’s Ct. Act, § 49) —is intermediate in character and does not finally determine the proceeding within the meaning of the Constitution.

As to the appeal taken directly to this court from an order of Surrogate’s Court (entered August 12, 1948) upon the remit-titur of the Appellate Division — such order is intermediate in character and does not finally determine the proceeding within the meaning of the Constitution and may not be the subject of direct appeal to this court under clause (b) of section 590 of the Civil Practice Act. No opinion.

Concur: Loughran, Ch. J., Lewis, CoNway, Desmond, Dye and Fuld, JJ.


text:
    Elizabeth Chudnowsky, Appellant, v. Re-Mo Holding Corporation et al., Respondents.
    Argued January 5, 1949;
    decided March 3, 1949.

      Murray A. Gordon and Herbert J. Fabricant for appellant.

      Louis Gusman and Harold A. Diamond for respondents.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that the evidence presents an issue of fact-as to whether the agreement, by which the plaintiff purchased the apartment building in suit, was induced by fraudulent representations of the defendant. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, DesmoNd, Dye and Fuld, JJ.


text:
    In the Matter of the Claim of Charles Cawein, Respondent, against Orange County Telephone Company et al., Appellants, and Special Fund for Reopened Cases, Respondent.
    Argued January 12, 1949;
    decided March 3, 1949.

      Urban 8. Mulvehill and E. C. Sherwood for appellants.

      Nathaniel L. Goldstein, Attorney-General (Theodore M. Schwartz, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, CoNway, DesmoNd, Dye and Fuld, JJ.


text:
    H. Edgar Respondent, v. Board of of the City of New York, Appellant, et al., Defendants.
    Argued January 13, 1949;
    decided March 3, 1949.

      John P. McGrath, Corporation Counsel (Michael A. Castaldi, Seymour B. Quel and Morris Weissherg of counsel), for appellant.

      Edward J. Freeman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, Dye and Fuld, JJ.


text:
    Michael Plaintiff, v. Pennsylvania Railroad Comet al., Defendants. Brooklyn Eastern District Terminal, Third Party Plaintiff, v. Canadian National Railroad, Third Party Defendant. Brooklyn Eastern District Terminal, Third Party Plaintiff-Respondent, v. Maine Central Railroad Company, Third Party Defendant - Appellant. Brooklyn Eastern District Terminal, Third Party Plaintiff, v. Wheeling and Lake Erie Railway Company, Third Party Defendant.
    Argued February 21, 1949;
    decided March 3, 1949.

      Winslow M. Lovejoy and Patrióle M. Casey for appellant.

      Robert E. Curran for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Loughean, Ch. J., Lewis, Conway, DesmoNd, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Claim of David Greenberg, Respondent, against Jacob H. Solomonick, Doing Business as Melrose Decorators, et al., Appellants, and Central Islip State Hospital, by Frederick as Commissioner of the Department of Mental Hygiene, Respondent. Workmen’s Compensation Board, Respondent.
    Argued January 12, 1949;
    decided March 3, 1949.

      Charles P. Barre for appellants.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Wendell P. Brown of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: LougheaN, Ch. J., Lewis, CoNway, DesmoND, Dye and Ftjld, JJ.


text:
    In the Matter of Daniel De Marco, on Behalf of Himself and Others Similarly Situated, Respondent, against J. Edward Conway et al., Constituting the Civil Service Commission of the State of New York, et al., Appellants.
    Argued November 19, 1948;
    decided March 3, 1949.

      Nathaniel L. Goldstein, Attorney-General (JohnC. Grary, Jr., and Wendell P. Brown of counsel), for appellants.

      John T. De Graff and John E. Jr., for respondent.
   Order affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, CoNway, DesmoNd, Dye and Ftjld, JJ.


text:
    American Reserve Insurance Company, Appellant, v. China Insurance Company, Limited, Respondent.
    Submitted January 3, 1949;
    decided March 3, 1949.

      Arnold T. Koch for motion.

      James B. Burhe and J. Frederic Taylor opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Mollie Russin, Respondent, v. Samuel H. Russin, Appellant.
    Submitted January 14, 1949;
    decided March 3, 1949.

      David Goldstein and Lawrence Kovalshy for motion.

      Samuel A. Bloom and Bertha Schwarts opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    Sam Scarnato, Appellant and Respondent, v. State of New
    (Claim No. 28192.)
    Submitted February 21, 1949;
    decided March 3, 1949.
   Motion for reargument or to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 298 N. Y. 376.]


text:
    Jane E. Betzag, as Administratrix of the Estate of John A. Betzag, Deceased, et al., Appellants, v. Gulf Oil Corporation, Respondent.
    Submitted February 21, 1949;
    decided March 3, 1949.
   Motion to amend remittitur and motion for reargument denied, with $10 costs and necessary printing disbursements. [See 298 N. Y. 358.]


text:
    Condur Affiliates, Inc., Respondent, v. Ronnie, Inc., Appellant.
    Submitted February 21, 1949;
    decided March 3, 1949.

      Joseph L. Greenberg for motion.

      Alvin I. Perlmutter opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    Irving S. Marks, Appellant, v. Provident Mutual Life Insurance Company of Philadelphia et al., Respondents.
    Submitted February 21, 1949;
    decided March 3, 1949.

      Harry A. Gottlieb for motion.

      Kenneth 8. MacAffer, Edmund A. Koblenz and Sol Buben-stein, opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    In the Matter of Leonard Little, Respondent, v. John C. Young, as Chief Building Inspector of the Town of Hempstead, Appellant.
    Submitted February 21, 1949;
    decided March 3, 1949.

      George B. Brennan for motion.

      Ferdinand I. Haber opposed.
   Motion denied, with $10 costs and necessary printing disbursements on the ground that an appeal lies as of right. (See Civ. Prac. Act, § 588, subd. 1, cl. [a].)


text:
    The People of the State of New York ex rel. Hotel Paramount Corp., Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Submitted February 21, 1949;
    decided March 3, 1949.
   Motion to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 298 N. Y. 372.]


text:
    Wincenta Leszczynski et al., as Administratrices of the Estate of Kazimer Leszczynski, Deceased, Respondents, v. Pennsylvania Railroad Company, Appellant.
    Submitted February 21, 1949;
    decided March 3, 1949.
   Motion denied, with $10 costs and necessary printing disbursements, on the ground that an appeal lies as of right. (See Civ. Prac. Act, § 588, subd. 1, cl. [c].)


text:
    The People of the State of New York, Respondent, v. Cohen, Appellant.
    Submitted February 21, 1949;
    decided March 3, 1949.
   Motion for reargnment denied. [See 298 N Y. 243.]


text:
    The People of the State of New York ex rel. John A. Sadowy, Appellant, against J. Vernel Jackson, as Warden of Clinton State Prison, Respondent.
    Submitted February 21, 1949;
    decided March 3, 1949.

      John A. Sadowy, appellant in person.

      Nathaniel L. Goldstein, Attorney-General {Wendell P. Brown, Herman N. Harcourt and George A. Bads of,counsel), for respondent.


text:
    In the Matter of Mathiasen Shipping Company, Inc., et al., Appellants. Edward Corsi, as Industrial Commissioner, Respondent.
    Submitted February 21, 1949;
    decided March 3, 1949.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran of counsel), for motion.

      Thomas A. McDonald and James 8. Tobin opposed.
   Motion granted and appeals dismissed, with costs and $10 costs of motion upon the ground that no substantial constitutional question is directly involved.


text:
    Sophie Szatmary, Respondent, v. Brick Supply and Contracting Company, Inc., et al., Appellants, et al., Defendants.
    Submitted February 21, 1949;
    decided March 3, 1949.


text:
    Hetty S. Appellant, v. Abraham L. Oltarsh, Respondent.
    Submitted February 21, 1949;
    decided March 3, 1949.
   Motion for reargument denied, with $10 costs and necessary-printing disbursements. [See 298 N. Y. 835.]


text:
    In the Matter of Fred Mouakad, Individually and on Behalf of Other Tenants of Hotel Martinique, Inc., Similarly Situated, Appellant, against Paul L. Ross et al., Constituting the Temporary City Housing Rent Commission, et al., Respondents.
    Submitted February 21, 1949;
    decided March 3, 1949.

      Myles B. Amend for motion.

      David G. Lewis opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days from the date of the order appellant serves and files the required undertaking on appeal and pays $10 costs, and within twenty days from the date of the order appellant files the required record on appeal, in which events the motion is denied.


text:
    Louis A. Bunim, Appellant, v. Ethel Bunim, Respondent.
    Submitted February 28, 1949;
    decided March 3, 1949.
   Motion for reargnment denied, with. $10 costs and necessary printing disbursements. [See 298 N. Y. 391.]


text:
    In the Matter of the Estate of Murry Miller, Deceased. Samuel Miller, Appellant, and Amalia M. Miller, Respondent.
    Submitted February 28, 1949;
    decided March 3, 1949.

      Louis Stone for motion.

      Joseph F. Kosman and Harry Geist opposed.
   Motion granted on payment of $10 costs. Appellant granted an additional ten days to file his return and case set down for argument for April, 1949, session.


text:
    The People of the State of New York, Respondent, v. Joseph Sanchez, Appellant.
    Submitted February 28, 1949;
    decided March 3, 1949.

      Frank 8. Hogan, District Attorney (Whitman Knapp of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    The Liverpool & London & Globe Insurance Company Limited, Appellant, v. Federal Commerce & Navigation Company Limited, Respondent.
    Argued February 24, 1949;
    decided March 4, 1949.

      Edward Jerome, Richard T. Graham and Seymour Simon for appellant.

      Harriet L. Garofalo for respondent.
   Appeal dismissed upon the ground that the case is not one ‘1 where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States ”. (N. Y. Const., art. VI,. § 7, subd. 2.) No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Nellie Johnson, as Administratrix of the Estate of Clayton Johnson, Deceased, Appellant, v. Harry J. Thomas, Respondent.
    Counsel appeared March 2, 1949;
    decided March 4, 1949.

      George D. Newton and Angelo P. Spezsano for appellant.

      Austin W. Erwin and Austin W. Erwin, Jr., for respondent.
   Application granted upon condition that appellant pay respondent’s disbursements in this court. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Mae Dolson et al., Respondents, v. B. Gertz, Inc., Appellant.
    Submitted February 24, 1949;
    decided March 4, 1949.

      Albert P. Thill and John P. Smith for appellant.

      Gabriel Bubino for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, CoNway, DesmoNd, Dye, Fuld and Bbomley, JJ.


text:
    The People of the State of New York ex rel. Ronald C. Blauvelt, Appellant, against J. Jackson, as Warden of Clinton Prison, Respondent.
    Submitted February 24, 1949;
    decided March 4, 1949.

      Ronald G. Blauvelt, appellant in person.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Herman N. Harcourt and Thomas F. Saccoman of counsel), for respondent.
   Appeal dismissed upon the ground that the case is not one where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States ”. (N. Y. Const., art. VI, § 7, subd. 2; see People ex rel. Morriale v. Branham, 289 N. Y. 813, 815.) No opinion.

Concur: Ch. J., Lewis, Conway, Desmoto, Dye, Fuld and Bromley, JJ.


text:
    The People of the State of New York, Respondent, v. John M. Dunn and Daniel Gentile, alias Danny Brooks, Appellants.
    Submitted March 4, 1949;
    decided March 4, 1949.
   Application to amend remittitur granted. Recall of remittitur requested and when returned it will he amended by adding thereto the following: “ Upon this appeal there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: The defendants argued that the denial of the motion for a new trial deprived them of due process of law under the Fourteenth Amendment of the Constitution of the United States. This court held that the denial of the motion did not violate any rights guaranteed to the defendants by said provision of the United States Constitution.” [See 298 N. Y. 865.]


author: Desmond, J.

text:
    Bernard H. Stecker, Doing Business as B. H. Stecker Co., Appellant, v. American Home Fire Assurance Co., Respondent.
    Argued January 6, 1949;
    decided March 3, 1949.

      Abraham Streifer, Benjamin L. Tell and Solomon M. Cheser for appellant.
    I. Under the ordinary rule, which is here applicable, the defense must fail. (Merchants & Shippers Ins. Co. v. St. Paul Fire & Marine Ins. Co., 219 App. Div. 636, 246 N. Y. 616; Browning v. Home Ins. Co., 71 N. Y. 508; Sebring v. Fidelity Phenix Fire Ins. Co., 255 N. Y. 382; Davis Yarn Co. v. Brooklyn Yarn Dye Co., 293 N. Y. 236; Blair v. National Security Ins. Co., 126 F. 2d 955; Sun Ins. Office, Ltd., v. Mallick, 160 Md. 71; Northwestern Nat. Ins. Co. v. Mortensen, 230 Wis. 377; Soelberg v. Western Assur. Co., 119 F. 23; New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. [U. S.] 1; City of Detroit v. Grummond, 121 F. 963; Hansen v. Continental Ins. Co., 262 N. Y. 136; Penn Mut. Life Ins. Co. v. Mechanics’ Sav. Bank & Trust Co., 72 F. 413.) II. The facts were known to the insurer prior to the loss.

      Joseph Bleich and Henry H. Abrams for General Brokers Association of Metropolitan District, Inc., and others, amici curiæ, in support of appellant’s position.
    I. No historical or factual basis exists to extend the marine rule of disclosure to inland marine insurance. II. The extension of the marine rule to other branches of insurance is contrary to common law and judicial precedent. (Hartford Protection Ins. Co., v. Harmer, 2 Ohio St. 452; Gates v. Madison County Mut. Ins. Co., 5 N. Y. 469; Rawls v. American Mut. Life Ins. Co., 27 N. Y. 283; Mallory v. Travelers’ Ins. Co., 47 N. Y. 52; Browning v. Home Ins. Co., 71 N. Y. 508; Louis v. Connecticut Mut. Life Ins. Co., 58 App. Div. 137, 172 N. Y. 659; Sebring v. Fidelity-Phenix Fire Ins. Co., 255 N. Y. 382; Blair v. National Security Ins. Co., 126 F. 2d 955; Sun Ins. Office, Ltd., v. Mallick, 160 Md. 71; Northwestern Nat. Ins. Co. v. Mortensen, 230 Wis. 377; Eagle Star & British Dominions Ins. Co. v. Moore & Co., 9 F. 2d 296; Hanover Fire Ins. Co. of N. Y. v. Merchants’ Transp. Co., 15 F. 2d 946, 273 U. S. 758.) III. There is no statutory enactment extending to other branches of insurance the definition of what constitutes marine insurance as established under common law and by judicial precedent. (Blair v. National Security Ins. Co., 126 F. 2d 955; Davis Yarn Co. v. Brooklyn Yarn Dye Co., 293 N. Y. 236.)

      Alfred B. Nathan for respondent.
    I. The finding that defendant had no knowledge of plaintiff’s criminal record prior to the alleged loss of September 14, 1946, is sustained by the overwhelming weight of the credible evidence. (Aerated Products Co. v. Godfrey, 290 N. Y. 92; Baer v. American Credit Ind. Co., 116 App. Div. 233, 191 N. Y. 540; Butler v. Michigan Mut. Life Ins. Co., 184 N. Y. 337; McCormack v. Security Mut. Life Ins. Co., 220 N. Y. 447; Guy v. Mead, 22 N. Y. 462; Duryea v. Zimmerman, 143 App. Div. 60; Jackson v. Loomis, 12 Wend. 27.) II. The trial court erred in holding, as matter of law, that the “ ordinary ” and not the marine rule as to concealment was applicable to the policy in suit. (Kratzenstein v. Western Assur. Co., 116 N. Y. 54; Matter of Ryan, 291 N. Y. 376; Bertles v. Nunan, 92 N. Y. 152; Chute v. Insurance Co., 172 Minn. 13; Clarkson v. Western Assur. Co., 33 App. Div. 23; Hare & Chase, Inc., v. National Sur. Co., 60 F. 2d 909, 287 U. S. 662.) III. Even under the “ ordinary ” rule, there was a fraudulent concealment. (Sebring v. Fidelity-Phenix Fire Ins. Co., 255 N. Y. 382; Mallory v. Travelers’ Ins. Co., 47 N. Y. 52; Louis v. Connecticut Mut. Life Ins. Co., 58 App. Div. 137, 172 N. Y. 659; Polachek v. New York Life Ins. Co., 147 Misc. 16, 240 App. Div. 1028; Hare & Chase, Inc., v. National Sur. Co., 60 F. 2d 909, 287 U. S. 662; 3 Couch on Insurance, p. 2518; Patterson, Essentials of Insurance Law, p. 400.)
   Desmond, J.

Plaintiff, a fur merchant, procured from defendant a so-called “ salesmen’s floater policy ” insuring plaintiff against loss or damage to his furs while being transported around the country, for sale to plaintiff’s customers. During the term of the policy, some furs were reported by insured to have been stolen from him, and he then brought this suit on the policy, for the amount of his loss. As one of several defenses and counterclaims, defendant pleaded that plaintiff had concealed from it the fact, claimed by defendant to be material to the risk, that plaintiff, six years- before purchasing this policy, had been convicted, in a Federal court, of the crime of concealing assets from his trustee in bankruptcy.. That counterclaim, which prayed for the cancellation of the policy as void from its inception, was the subject of a separate trial before a Supreme Court Justice without a jury. The trial court, on conflicting evidence, found as fact that the insured had disclosed his criminal record to defendant, and, accordingly, made an order dismissing that counterclaim on the merits.

. When defendant appealed to the Appellate Division, that court, reversing the order below- on the facts and the law, took a different view of the fact principally in controversy. Its finding was that there had been no disclosure at all to defendant by plaintiff, of the 1938 criminal judgment. We, stating the result and not the details of our own review of. that fact question, conclude that the weight of evidence favors the factual determination of the Appellate Division, that is, that no disclosure was made. That brings us to the question of law in the case.

Plaintiff, taking out this insurance, was asked no questions, signed no application,' and furnished no information on this subject. If the so-called “ ordinary rule ” as to concealments by applicants for insurance, be the one here to be applied, then plaintiff’s failure voluntarily to come forward with the story of his past would not void the policy. So held both courts below, citing the leading case of Sebring v. Fidelity-Phenix Fire Ins. Co. (255 N. Y. 382), where Judge O’Bkiek wrote for this court (at p. 386): “ Concealment is the designed and intentional withholding of any fact material to the risk which the assured in honesty and good faith ought to communicate to the underwriter. * * * If fraud be absent, the assured may remain silent in respect to many matters concerning which the underwriter fails to question him.” As we understand the opinions below, both courts decided that plaintiff, even if he failed to bring the matter to defendant’s attention, had been guilty of no actual or active concealment and no fraud — indeed, in procuring a previous similar policy from defendant, plaintiff had mentioned to his own broker the conviction, which was, of course, a matter of public record and mentioned in reports readily available to defendant’s broker; also the conviction was, as aforesaid, of public record in New York City, where the policies were issued; also some credit agency reports, subscribed to by defendant, showed it. Such being the facts, nondisclosure would not void this policy if, as the trial court held, the ordinary rule ” was the right one for this type of insurance (Browning v. Home Ins. Co., 71 N. Y. 508, 512). (Merchants & Shippers Ins. Co. v. St. Paul Fire & Marine Ins. Co., 219 App. Div. 636, affd. 246 N. Y. 616, and Hanover Fire Ins. Co. v. Morse Dry Dock & Repair Co., 152 Misc. 111, affd. 244 App. Div. 780, affd. 270 N. Y. 86, were fraud cases and dealt with as such.)

Besides the ordinary rule ”, however, there is, as this court pointed out in the Sebring case (supra), and had similarly pointed out many years earlier in Gates v. Madison County Mut. Ins. Co. (5 N. Y. 469), a “ marine rule ”. In marine insurance, the insured is bound, although no inquiry be made, to disclose every fact material to the risk, within his knowledge ” (Gates v. Madison County Mut. Ins. Co., supra, at p. 474). In other words, an applicant for marine insurance must state all material facts which are known to ,him and unknown to the insurer (Alexander, Ramsey & Kerr v. National Union Fire Ins. Co., 104 F. 2d 1006, 1008). In the Sebring case (255 N. Y. 382, 386, supra) this court said that such was the rule, in New York as elsewhere, as to marine risks ”. But there was nothing “ marine ” about this policy or the risk insured against, as men ordinarily use the word “ marine ”. It was, in insurance men’s language, a dry ”, not a wet ”, risk. It was, essentially, the same kind of policy a householder buys to cover his wife’s furs or jewelry on a vacation trip, by land, from one. part of the United States to another. Yet the Appellate Division has here ruled that this policy, and this case, are subject to the “ marine rule ”, because this kind of policy, with many similar policies, has been, in the insurance trade’s parlance, lumped, for convenience and for want of a better label, under the descriptive term: “ inland marine insurance ”. We find no New York case, other than this one, applying the much stricter marine rule ” to any but true marine policies. On the other hand, there is a case in the Third Circuit Court of Appeals (a court not without experience and authority in matters maritime) which squarely holds that the marine rule ” has nothing to do with so-called inland marine ” policies (Blair v. National Security Ins. Co., 126 F. 2d 955). The reasons which brought into being the strict marine insurance law doctrine as to disclosures, go far back into the early days of marine insurance, when sailing ships in faraway seas were insured in London by underwriters who could get no information except from the shipowners. True, these so-called ‘1 inland marine ” risks are, in New York, permitted by statute to be written by marine insurance companies, and, to accomplish that statutory grant of authority, the Legislature, in paragraph (a) of subdivision 20 of section 46 of the Insurance Law, has expanded its definition of “ marine insurance ” to cover “ all personal property floater risks ”. But that same statutory definition includes such diverse matters as insurance on automobiles, aircraft, bullion, precious stones, evidences of debt, not being transported by water. It seems entirely clear to us that, in listing all that as “ marine insurance ”, the Legislature never intended to import, into the policies issued thereon, the whole law of marine insurance, including rules having no reasonable reference to those subjects of insurance. As Judge Conway, writing for the court in Davis Yarn Co. v. Brooklyn Yarn Dye Co. (293 N. Y. 236, 247-248), remarked: Sometimes that which is included by the Legislature within the writing powers of a marine company is purely arbitrary and has nothing to do with what would popularly be thought to be either ocean marine or inland marine risks.” The Davis opinion (supra) went on, immediately after the sentence just quoted, to state briefly the historical reason why these additional writing powers had been granted to marine insurance companies, that is, because those companies had, traditionally, “ had to do with the carrying of goods and it was natural to enable and permit them to insure goods in transit on land.” Judge Conway then suggested that “ inland marine ” insurance might better be called transportation ” insurance. The Davis case did not at all involve our question here, since in the Davis case no one suggested the applicability of distinctive marine insurance law. So what was said in the Davis case does not point out the decision here, but it helps to show that the label inland marine ” on a policy is a label only. It cannot be denied that, historically as well as logically, marine insurance always involved some sort of vessel, and so a marine insurance policy always involved a maritime risk and for that reason suits thereon were within the jurisdiction of courts of admiralty (see New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. [U. S.] 1, 35-36; Jeffcott v. Aetna Ins. Co., 129 F. 2d 582, 584). Apparently, it was not until the time of World War I that the phrase “ inland marine ” was coined “ to include risks of actual or technical transportation on land ” (see Northwestern Nat. Ins. Co. v. Mortensen, 230 Wis. 377, 383). But the mere use of that label is not, we hold, sufficient warrant for the imposition, on ordinary everyday nonmarine insurance, of any drastic and unique rule of marine insurance law. So heavy a penalty should not, without better warrant, be visited on unsuspecting — and innocent — policyholders. Until the Legislature says otherwise, we hold that the “ ordinary ” rule, as to nondisclosure, is the one to apply in respect to policies like the one in suit, and that, as to such policies, if the insurer makes no inquiry, and the insured no representation, as to the fact in question, then concealment, short of actual fraud, in respect to such a fact, does not void the policy.

The judgment of the Appellate Division should be reversed, and the order of the Trial Term affirmed, with costs in this court and in the Appellate Division. [See 299 N. Y. 629.]

Loughran, Ch. J., Lewis, Conway, Dye and Fuld, JJ., concur.

Judgment reversed, etc.


author: Conway, J.

text:
    In the Matter of Dennis M. Breen, Appellant, against Board of Trustees of the New York Fire Department Pension Fund, et al., Respondents. In the Matter of John P. Cronin, Appellant, against Board of Trustees of the New York Fire Department Pension Fund, et al., Respondents.
    Submitted January 13, 1949;
    decided March 3, 1949.

      Bernard Dubin for appellants.
    . I. Subdivision b of the statute is not applicable in any case to a member who sustains a disability caused in or induced by the actual performance of the duties of his position. (People ex rel. Knoblauch v. Warden, 216 N. Y. 154; Wormser v. Brown, 149 N. Y. 163; Hoey v. Gilroy, 129 N. Y. 132; Schieffelin v. Craig, 183 App. Div. 515; People ex rel. Washburn v. French, 52 Hun 464; People ex rel. Burhans v. City of New York, 198 N. Y. 439; City of New York v. Citizens Water Supply Co., 204 App. Div. 783; People v. Ryan, 274 N. Y. 149.) II. Assuming, but not conceding that subdivision b can be applied to one whose disability is caused in or induced by the actual performance of the duties of his position, said section is not applicable to petitioners on the admitted facts of this case, for the medical certificate is insufficient. (People ex rel. Young v. Sturgis, 85 App. Div. 20; People ex rel. Cunningham v. Hayes, 66 Misc. 531; People ex rel. Bridges v. Adamson, 173 App. Div. 773, 219 N. Y. 570.)

      JohnP. McGrath, Corporation Counsel (Thomas W. A. Crowe and Seymour B. Quel of counsel), for respondents.
    It was the mandatory duty of the board of trustees to retire the petitioners, since they had performed duty in the fire department for more than twenty years and were permanently unfit for active duty. (Kuhn v. Knight, 190 N. Y. 339; Matter of Social Investigator Eligibles Assn. v. Taylor, 268 N. Y. 233; Matter of City of New York v. Schoeck, 294 N. Y. 559; People ex rel. Rand v. Craig, 231 N. Y. 216.)
   Conway, J.

This is an application by the two petitioners in an article 78 proceeding for an order (1) directing the Board of Trustees of the Fire Department Pension Fund to rescind a resolution retiring them from all service in the fire department, and (2) directing the fire commissioner to restore them and assign them to light duty at full pay.

The Appellate Division, in reversing Special Term, dismissed the petitions “ on questions of law only, there being no dispute as to the facts herein * *

Petitioner Breen entered the fire department on August 1, 1920, and, on July 1, 1937, attained the rank of battalion chief. On December 14, 1945, he was injured in the discharge of his duties while fighting a fire in Long Island City. The injury was “ smoke narcosis and respiratory congestion ” and necessitated his removal to St. John’s Hospital in a department ambulance. He remained in the hospital until the end of January and was on sick leave until April 12, 1946. He was then assigned to light duties upon the certificate of the medical board of the department, which recited that, by reason of the injury sustained, he was partially permanently disabled and unfit for active duty in the uniformed force but was qualified to perform light duty sedentary in character. He served on light duty until March 31,1947, when he was ordered to appear before the medical board for examination. In Apri^ the fire commissioner wrote informing him that the medical board had reported that you are disqualified, physically, for the performance of your duties in the Uniformed Force due to myocardial infarction and that this is a partial permanent disability which was caused in or induced by the performance of duty. The Medical Board also states that you are unfit for full fire duty.” (Emphasis supplied.) There was no finding as to light duty. There was no question as to the fact that the petitioner Breen had been incapacitated from December 14, 1945, for active fire fighting and that is what “ full fire duty ” means.

The petitioner Breen was thereupon retired on an annual pension of three fourths of his annual salary on the date of his retirement.

Petitioner Cronin, a fireman, entered the department in 1918. On July 15, 1930, while in response to an alarm of fire in the actual performance of his duties, he sustained injuries necessitating amputation of his left foot. The medical board certified that he had sustained a partial permanent disability rendering him incapable of active duty in the uniformed force of the department. He was assigned to light duty by the fire commissioner on January 5, 1932. On April 10, 1947, he was ordered to appear before the medical board which certified that due to the amputation, petitioner was ‘ ‘ unfit for full fire duty. ’ ’ (Emphasis suppliéd.) There was no finding as to light duty and there is no question as to the fact that petitioner had been incapacitated subsequent to 1930, for active fire fighting.

On July 16, 1947, petitioner Cronin was retired pursuant to resolution of the board of trustees at an annual pension of three fourths of his salary on the date of retirement.

No claim is made here that either of the petitioners is incapable of performing the light duty to which each had been assigned. The question of statutory construction presented is whether a member of the fire department who has been certified as having sustained, in the actual performance of duty, a partial permanent disability, disabling him from performing full fire duty, and who has been assigned to light duty ”, a statutory denominated duty (Administrative Code of City of New York, § B19-4.0, subd. a), may after twenty years in service be retired without his consent. In other words, whether petitioners may be retired because they have been more than twenty years in service and are unable to perform “ full fire duty ” and not because of inability to continue to perform the light duties to which they had been assigned and which they had been performing.

The applicable statute is contained in title B of chapter 19 of the Administrative Code of the City of New York and is entitled “ Fiee Department Pension Fund and Belated Funds ”. We are concerned primarily with subdivisions a and b of section B19-4.0. Subdivision a provides, in part:

§ B19-4.0 Payment oe pensions; disability; bbtibement fob sebvice." — ■ a. The board of trustees shall retire any member who, upon an examination, as provided in subdivision d of this section, may be found to be disqualified, physically or mentally, for the performance of his duties. Such member so retired shall receive from such pension fund an annual allowance or pension as provided in this section. In every case such board shall determine the circumstances thereof, and such pension or allowance so allowed is to be in lieu of any salary received by such member at the time of his being so retired. The department shall not be liable for the payment of any claim or demand for services thereafter rendered, and the amount of such pension or allowance shall be determined upon the following conditions:
“1. In case of total permanent disability at any time caused in or induced by the actual performance of the duties of his position, the amount of annual pension to be allowed shall be not less than three-fourths of the annual compensation allowed such member as salary at the date of his retirement.
‘‘ 2. In case of partial permanent disability at any time caused in or induced by the actual performance of the duties of his position, which disqualifies him only from performing active duty in the uniformed force, the member so disabled shall he relieved by the commissioner from active service at fires and assigned to the performance of such light duties as a medical officer of such department may certify him to be qualified to perform, or he shall be retired on his own application at not less than three-fourths of his salary at the date of his retirement from the service, on an examination, as provided by subdivision d of this section, showing that his disability is permanent. ’ ’ (Emphasis supplied.)

Subdivision a contains four more numerical paragraphs defining various disabilities and pensions therefor. Number three relates to a total permanent disability “ not ” caused in or induced by the actual performance of duty and which occurs after ” ten years’ service, in which case the member “ is ” retired on one half of his annual salary.

The fourth relates to partial permanent disability “ not ” caused in or induced by actual'performance of duties and which occurs “ after ten years’ service ” in which case the member may ” be relieved by the commissioner from active service at fires, but shall remain a member of the uniformed force, subject to the rules governing such force, and be assigned to the performance of such light duties as a medical officer of such department may certify him to be qualified to perform, or if such member be ” retired after the expiration of ten years’ service,” the annual allowance shall be one half of his salary.

The fifth relates to total permanent disability “ not ” caused in or induced by actual performance of duties and which occurs “ before the expiration of ten years’ service ”, in which case he shall be allowed one third of his annual salary.

The sixth governs the case of partial permanent disability not ” caused in or induced by the actual performance of duties and which occurs before ten years’ service ” in which case the member ‘ ■ shall ” be relieved by the commissioner from active service at fires, but “ shall ” remain a member of the uniformed force and be assigned to the performance of such light duties as a medical officer may certify him to be qualified to perform, or if such member 1 ‘ be retired before the expiration of ten years’ service,” the annual pension shall be one third of his annual compensation at the date of his retirement.

Subdivision b then follows and provides: “ Any member of such department, who has or shall have performed duty therein for a period of twenty years or upwards, upon a medical examination, as provided in subdivision d of this section, showing that such member is permanently disabled, physically or mentally, so as to be unfit for duty, shall be retired from such force and service, and placed on the roll of the pension fund, and awarded and granted, to be paid from such fund, an annual pension during his lifetime, of a sum not less than one-half his full salary or compensation at the date of his retirement from the service.” (Emphasis supplied.)

The retirement of both petitioners was under the twenty-year provision of subdivision b and not as provided by the partial permanent disability provisions of paragraph-2 of subdivision a. Petitioners argue that, since they, have sustained partial permanent disability in the actual performance of duty and have not been found to be disqualified from performing light duty, paragraph 2 of subdivision a protects them from retirement without their consent — at least until they have been found disqualified from performing “ light duties ”.

We think that the question presented was decided by us in accordance with the contention of petitioners in People ex rel. Bridges v. Adamson (173 App. Div. 773, affd. 219 N. Y. 570).

In that case the relator was a captain in the New York City fire department and sustained permanent injury in the active discharge of his duties at a fire, and by reason thereof, was assigned to perform “ light duties ’ ”. Later without any change in his physical or mental condition, and while he was performing such ‘ light duties,’ and entirely able to perform them ” (219 N. Y. 570, supra), the fire commissioner ordered his compulsory retirement on half pay, by reason of his original injuries. At that time the retirement and disability provisions were contained in section 790 of the Greater New York Charter (L. 1897, ch. 378, as amd. by L. 1901, ch. 466). Section 790 was not divided into subdivisions, but contained, nevertheless, five categories of disabilities which for convenience I shall refer to numerically.

The first, second and fourth (the whole section is quoted at 173 App. Div. 776-777) are the ones material here: In case of total permanent disability, at any time, caused in or induced by the actual performance of the duties of his position, ór which may occur after ten years’ active and continuous service in the said fire department, the amount of annual pension to be allowed shall be one-half of the annual compensation allowed such officer or member as salary at the date of his retirement from the service, or such less sum in proportion to the number of officers and members so retired as the condition of the fund will-warrant. But should permanent disability caused by injuries received in the active discharge of his duties disqualify him only from performing active duty in the uniformed force, he shall be employed at the salary received when such disability occurred in some position in the department not requiring active service as a fireman. * * * In case of partial permanent disability, caused in or induced by the actual performance of the duties of his position, or. which may occur after ten years’ active and continuous service in the said fire department, the officer or member so disabled shall be relieved from active service at fires, but shall remain a member of the uniformed service, subject to the rules governing said force, and to the performance of such light duties as the medical officer of the said fire department may certify him to be qualified to perform; and the annual allowance to be paid such member or officer shall be one-half of the annual compensation allowed as salary at the date of his being so relieved, or such less sum, in proportion to the number of officers and members so retired, as the condition of the fund will warrant. # * #

In the other two categories in the charter (§ 790) which, I arbitrarily call the third and fifth categories, the words ‘1 at any time ” were not used but reference was made to (1) total permanent disability “ not ” occurring during actual performance of duty or which had occurred before ten years’ service and (2) partial disability “ not ” occurring in actual performance of duty or which occurred • before ten years ’ service in which event the officer or member “ shall remain a member of the uniformed force, subject to the rules governing said force, and to the performance of such light duties as the medical officer of said department may certify him to be qualified to perform, and the annual allowance to be paid to such officer or member shall not exceed one-third of the annual compensation allowed as salary at the date of his being so relieved, or such less sum as the fire commissioner may, in his discretion, determine, or as the condition of the fund will warrant. * * * jy

Those provisions become important when we compare them with the categories provided for in the present Administrative Code, subdivision a of section B19-4.0. As we have seen (supra, p. 13) the words “ at any time ” appear only in the first two categories and it is the second category with which we deal here. It is also only in category (2) that there is specific provision for the retirement of the member 11 on his own application at not less than three-fourths of his salary * * * on an examination, as provided by subdivision d of this section, showing that his disability is permanent.” It is evident from the wording of those two categories that the assignment to light duties under paragraph 2 of subdivision a of section B 19-4.0 as recognition for partial permanent disability ‘1 at any time ’ ’ caused in the faithful performance of dangerous duties stands on a very different basis than such assignment under paragraphs 4 and .6 of subdivision a for partial permanent disability not ” caused in or induced by the actual performance of duty. In those latter subdivisions there is contemplation of retirement of the member “ after the expiration of ten years’ service ” or “ before the expiration of ten years’ service ” respectively and, under subdivision b of section B19-4.0, at the end of twenty years in any event.

Thus it is apparent that while the present provisions of the Code have liberalized the allowances and the qualifications for coverage, the operative effect of the two statutes is substantially the same.

The twenty-year ” provision was also contained in section' 790. It followed category (5) without change in paragraph. It was as follows: “ Any officer or member of the uniformed force of the said fire department of The City of New York, who has or shall have performed duty therein for a period of twenty years or upwards, shall upon his own application, in writing, or upon a certificate of the board of medical officers showing that such member is permanently disabled, physically or mentally, so as to be unfit for duty, be retired and dismissed from said force and service, and placed on the roll of the relief or pension fund, and awarded and granted, to be paid from the said relief or pension fund, an annual pension during his lifetime of a sum not less than.one-half of the full salary or compensation of such member so retired. * * *•” That is substantially the same as under the Code (§ B19-4.0, subds. b, c).

The argument that that category was controlling in a case such as the instant one, was made in this court in the Bridges case (supra). Point II of the corporation counsel’s brief there read: “ Section 790 of the Charter does not contemplate that a member of the force, who' has performed duty for more than twenty years, and who has been certified as being permanently disabled physically or mentally, so as to be unfit for duty, shall simply be relieved from service at fires and assigned to some position not requiring áctive service or the performance of light duties, at the same salary he was receiving; it requires that he shall be retired and dismissed on a pension.” (Emphasis supplied.) That argument, again made here, we rejected.

Bridges had been in the fire department for twenty-three years. The board of medical officers of the fire department had certified that he was “ totally permanently physically disqualified for the performance of his duties ” and that such “ total permanent physical disability was caused in or induced by the actual performance of the duties of his position. ’ ’ (People ex rel. Bridges v. Adamson, 173 App. Div. 773, 774, supra.) The order of retirement contained the same recitations. While the Appellate Division in that case wrote that the question whether Bridges could be retired by the commissioner in any event under the “ twenty-year ” provision was not before it, when the case reached this court that question was squarely presented and all the arguments now presented in the instant case by the respondents were rejected. We held that it was the purpose of section 790 that any member of the uniformed force in the active discharge of his duty at a fire and permanently disabled, but disqualified only from performing active duty in the uniformed force at fires, was entitled to employment at his regular salary at some position not requiring active service as a fireman and we affirmed the order restoring Bridges to light duty and his full salary. This was not a new conception of legislative intent. The same department in People ex rel. Young v. Sturgis (85 App. Div. 20, 23-24) affecting a fireman had held that the ‘ ‘ evident intention of this provision of the charter is to encourage brave and faithful discharge of an active fireman’s dangerous duties, and if, in the discharge of such duties, he receives injuries which do not totally and permanently disqualify him from all duties in the department, he shall be employed in light duties ’ and his salary shall be continued.”

The Bridges case (supra) has never been challenged in our court or in the Appellate Division in the more than thirty years since its decision although section 790 of the charter remained the same in substance, insofar as material here, until the present charter and Administrative Code were adopted. (See Local Laws, 1936, No. 44 of City of New York, § 1; Administrative Code, § Bl9-5,0, subd. a, par. 4, repealed and re-enacted by Local Laws, 1940, No. 3 of City of New York, as Administrative Code, § B19-4.0, subd. a, par. 2).

Disregarding length of service for the moment — which, incidentally, the Legislature did not since it used the phrase “ at any time ” — paragraph 2 of subdivision a of section B19-4.0 creates two absolute rights for those qualifying under it: (1) the right to be placed on light duty; or (2) the right to voluntary retirement at three-quarters pay after physical examination showing permanence of disability. Those rights are valuable ones — so valuable that the Legislature deemed them important enough to leave them in the alternative to the discretion of the individual partially permanently disabled fireman and not to the discretion of the commissioner or to the board of trustees. To hold as respondents urge, however, would, after twenty years of service, penalize the member by destroying both rights and leaving them both to the discretion of the board of trustees — the retirement pay to be as low as one half of the salary of the one retired. Examples of the anomalous results of such construction are discussed in the opinion at Special Term and in the briefs of petitioners and need not be labored here. Suffice it to say that it would permit the retirement forthwith at one half of his salary of a member of the department who was partially permanently disabled after serving for more than twenty years, in direct opposition to the express words at any time ” contained in paragraph 2 of subdivision a of section B19-4.0.

The general rule of statutory construction is that it is always presumed, with reference to a statute, that no unjust or unreasonable result was intended by the Legislature and the statute, unless the language forbids, must be given an interpretation and application consonant with that presumption. (Matter of Meyer, 209 N. Y. 386, 389; People v. Santoro, 229 N. Y. 277, 281, 282; Archer v. Equitable Life Assur. Soc., 218 N. Y. 18, 25.) Especially must that be the case where more than twenty years after the rendition of a decision by this court, a codifying statute is enacted similar, insofar as material here, to the statute earlier construed. (See Greater New York City Charter, § 790; Local Laws, 1936, No. 44 of City of New York, § 1; Administrative Code, § B19-5.0, subd. a, par. 4, repealed and re-enacted by Local Laws, 1940, No. 3 of City of New York, as Administrative Code,.§ B19-4.0, snbd. a, par. 2.)

Moreover the new New York City Charter of 1938 contained the following two applicable sections:

“ § 953. Rights of officers and employees preserved.— Nothing in this charter contained shall affect or impair the rights or privileges of officers or employees of the city or of any agency existing at the time when this charter shall take effect, or any provision of law in force at the time when this charter shall take effect and not inconsistent with the provisions of this charter, in relation to the personnel, appointment, ranks, grades, tenure of office, promotion, removal, pension and retirement rights, civil rights or any other rights or privileges of officers or employees of the city generally or officers or employees of any agency.”
“ § 951. Relation of this charter to existing law.— It is the purpose and intent of this charter to set forth the structure of the city government and the manner in which it is to operate, in accordance with the provisions of chapter eight hundred sixty-seven of the laws of nineteen hundred thirty-four, and to continue in force all provisions of the Greater New York charter and all other provisions of law affecting the city and the counties within the city, not inconsistent with the provisions of this charter, in force at the time when this charter shall take effect, until repealed or amended or until continued in the revision, simplification, consolidation, codification, restatement and annotation thereof now in preparation, to take the form of an administrative code pursuant to chapter four hundred eighty-three of the laws of nineteen hundred thirty-six.”

When the Administrative Code was 'adopted it contained the following section: § 963-1.0. Existing rights and remedies saved.— No existing right or remedy of any kind shall be lost or impaired by reason of any provision of the code.”

It also contained section 982-1.0 which is entitled “ Legislative intent ’ ’ and reads in part as follows: * * * If in this code there shall have been incorporated any provision of law, general, special or local, or a provision of any ordinance, that heretofore shall have been superseded or specifically or impliedly repealed, the incorporation of any such provision shall not revive such superseded or repealed provision, nor shall such incorporation be construed to indicate any legislative determination that such provision had not been theretofore so superseded or repealed. If in this code there shall have been incorporated any new provision, which is not a revision, consolidation, codification, continuance or restatement of the provisions of a statute, local law or ordinance applicable to the city of New York and in .force on the thirty-first day of December, nineteen hundred thirty-seven, except as the same shall have been necessary to harmonize the provisions of this code with the provisions of the New York city charter, such new provision shall not become effective, but shall be deemed an inadvertence or error.”

Matter of City of New York v. Schoeck (294 N. Y. 559), is not apposite. Schoeck voluntarily sought retirement but was continued in office because members of the board of trustees were evenly divided upon the question whether his disability was or was not caused by actual performance of duty. The language of the opinion must be read against the background of the facts. We directed the board to retire Schoeck at one half of his salary until it should by resolution ‘ ‘ determine the cause ’ ” of his disqualification, with the further provision that if later the board fixed the amount of his allowance at more than one half, he was to receive the excess from the date of his retirement. (P. 570.) We refused to countenance his receipt of full pay while performing no duties.

It is clear, in view of the subdivisions of the charter and the Code already discussed, that when the Legislature used the words at any time ” in paragraphs 1 and 2 of subdivision a alone, the intention was to distinguish those two cases of service=incurred disabilities, from all other disabilities which were specifically made compensable upon various periods of service. The use of the phrase at any time ” in paragraphs 1 and 2 of subdivision a, when specific periods of service are carefully mentioned in the other subdivisions, indicates clearly that no time limitation was intended. The clear intent of paragraph 2 of subdivision a is to continue the partially permanently disabled fireman in the same position as a member of the department as he was in prior to his injury in the actual performance of duty with the right to continue such light duties as a medical officer of such department may certify him to be qualified to perform, or within his own sole discretion, to permit him to retire on a pension of three fourths of his salary. Failing to so elect, he may not thereafter be compelled to retire on the basis of his service-incurred disability if he is still qualified to perform such light duties.

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

Loughran, Ch. J., Lewis, Desmond and Dye, JJ., concur; Fuld, J., concurs in result.

Order reversed, etc.