text:
    The People of the State of New York, Respondent, v. Jacob J. Schlund, Appellant.
    Argued January 24, 1946;
    decided April 18, 1946.

      Robert E. Noonan and William J. Darch for appellant.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Orrin G. Judd and Charles F. Steele of counsel), for respondent.
   Judgments reversed and information dismissed upon the ground that the evidence does not establish the appellant’s guilt beyond a reasonable doubt. We pass upon no other question. No opinion.

Concur: Lottghban, Ch. J., Conway, Thacheb and Dye, JJ. Dissent: Lewis and Desmond, JJ. Medalie, J., deceased.


source: Caselaw Access Project

license: Public Domain

text:
    Dorothy Clarke, as Administratrix of the Estate of George P. Clarke, Deceased., Appellant, v. City of New York, Respondent.
    Argued February 28, 1946;
    decided April 18, 1946.

      Doris I. Byrne, Samuel J. Sussman and Herman E. Hoberman for appellant.

      John J. Bennett, Jr., Corporation Counsel (Joseph F. Mulqueen, Jr., of counsel), for respondent.
   • Judgments reversed and a new trial granted, with costs to abide the event upon the ground that the record presents questions of fact as to negligence and contributory negligence; no opinion.

Concur: Loegeban, Ch. J., Lewis, Conway, Desmond and Dye, JJ. Taking no part: Teacher, J. Medalie, J., deceased.


text:
    Martha Cross, as Administratrix of the Estate of Phyllis A. Cross, Deceased, Respondent, v. Stibbs Transportation Lines, Inc. et al, Appellants.
    Argued March 1, 1946;
    decided April 18, 1946.

      Kenneth J. Dugan for appellants.

      Daniel E. Prior and W. Joseph Shanley for respondent.
   Judgment affirmed, with costs'; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ. Medalie, J., deceased.


text:
    Florence Nelson, as Administratrix of the Estate of Le Roy Nelson, Deceased, Appellant, v. Central Greyhound Lines, Incorporated, of New York et al., Respondents.
    Argued March 4, 1946;
    decided April 18, 1946.

      Frederic G. Barns for appellant.

      Barile Gorman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loitghran, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ. Medalie, J., deceased.


text:
    The People of the State of New York ex rel. John Mucciolo, Appellant, against William E. Snyder, as Warden of Sing Sing Prison, Respondent.
    Argued March 5, 1946;
    decided April 18, 1946.

      Lester Samuels and Maxwell V. Lovins for appellant.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Saul A. Shames and Howard F. Danihy of counsel); Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
   Order affirmed. A commitment to the institution at Napanoch under section 438 of the Correction Law constitutes a prior conviction within the meaning of section 1941. of the Penal Law. No opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Thacher and Dye, JJ. Med’alie, J., deceased.


text:
    W. Stanley Brown et al., Appellants, v. J. P. Morgan & Co., Incorporated, Respondent.
    Argued March 7, 1946;
    decided April 18, 1946.

      Paul E. Kern and E. E. Burns for appellants.

      Russel 8. Coutant, William G. Cannon and Frederick G. Watson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Staten Island Edison Corporation, Respondent, v. Staten Island Rapid Transit Railway Company et al., Respondents, and Public Service Commission of the State of New York et al, Appellants.
    Argued January 22, 1946;
    decided April 18, 1946.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Irving Galt of counsel), for Frank O. Moore, as State Comptroller, appellant.

      Philip Ealpern, Frank G. Boivers and George E. Kenny for Public Service Commission, appellant.

      George Foster, Jr., and Edmund B. Naylon for plaintiff-respondent.

      Jesse C. Millard for Staten Island Rapid Transit Railway Company and Staten Island Railway Company, defendants-respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ. Medalie, J., deceased.


text:
    Michael Myerberg, Appellant, v. Edwin S. Webster, Jr. et al., Copartners Under the Firm Name of Kidder Peabody & Co., et al., Respondents.
    Argued February 27, 1946;
    decided April 18, 1946.

      Emil K. Ellis, Jonas Ellis and Myron A. Ellis for appellant.

      Frank J. Berberich, Arthur D. Dean and William Piel, Jr., for Kidder Peabody & Co., respondent.

      J ames V. Rayes, John A. Morhous, George P. Lane and Franklin Waldheim for Walt Disney Productions, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ. Medalie, J., deceased.


text:
    Katherine K. Lynch, Appellant, v. City of Beacon, Respondent.
    Submitted March 4, 1946;
    decided April 18, 1946.

      Normington Schofield for appellant.

      John Palisi for respondent.
   Judgment affirmed, with costs;'no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thaoheb and Dye, JJ. Medalie, J., deceased.


text:
    Laurietta E. Yehle, Appellant, v. New York Central Railroad Company, Respondent. Joseph C. Yehle, Appellant, v. New York. Central Railroad Company, Respondent.
    Argued March 5, 1946;
    decided April 18, 1946.

      Salvador J. Capecelatro and Stephen L. Waszkieivicz for appellants.

      Warnick J. Kernan for respondent.
   Judgments affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thaoher and Dye, JJ. Medalie, J., deceased.


text:
    In the Matter of the Claim of Raymond Comstock, Respondent, against C. William Grastorf, Appellant. Workmen’s Compensation Board, Respondent.
    Submitted March 6, 1946;
    decided April 18, 1946.

      Francis B. O’Connor for appellant.

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum, Orrin G. Judd and Emmeline E. Ferris of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ.


text:
    Continental Bank & Trust Company of New York, as Successor Trustee under a Mortgage Made by W. A. R. Realty Corporation, Respondent, v. W. A. R. Realty Corporation et al., Defendants. Lloyd E. Lubetkin, Appellant; Midtown Enterprises, Inc., et al., Respondents.
    Argued April-17, 1946;
    decided April 18, 1946.

      Paul O’Dwyer for appellant.

      Abraham J. Halprin and Sidney R. Rossiter for Midtown Enterprises, Inc., and others, respondents.

      Martin Lippman for A. S. Kirkeby, Inc., respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Francis V. Zieba, Appellant, v. Pepsi-Cola Company, Respondent.
    Submitted March 4, 1946;
    decided April 18, 1946.

      Sidney Paymer for appellant.

      Joseph J. Brophy, William P. Cotter and Clarence B. Tippett for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ. Medalie, J., deceased.


text:
    Annie Mills et al., Respondents, v. City of New York et al., Respondents, and Isaac Lefkowitz, Appellant, et al., Defendants.
    Argued March 4, 1946;
    decided April 18, 1946.

      Jean Nelson Penfield for appellant.

      Harry Lesser for plaintiffs, respondents.

      John J. Bennett, Jr., Corporation Counsel (Samuel K. Handel, Louis M. Weintraub and Reuben Levy of counsel), for defendants-respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond and Dye, JJ. Medalie, J., deceased. Thacher, J., taking no part.


text:
    The People of the State of New York, Respondent, v. Sylvester Sims, Appellant.
    Argued March 5, 1946;
    decided April 18, 1946.

      James F. Ryan for appellant.

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughkan, Ch. J., Lewis, Conway, Desmond, Teacher and Dye, JJ.


text:
    In the Matter of Bertram L. Taylor, Respondent, v. Board of Education of the City of New Rochelle, Appellant.
    Argued March 7, 1946;
    decided April 18, 1946.

      Aarou Simmons, Corporation Counsel (John A. Bodmer of counsel), for appellant.

      Henry Amster for Joseph Peck and others, amici cunee in support of appellant’s position.

      A. Mark Levien for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and'Dye, JJ.


text:
    Continental Bank & Trust Company of New York, as Successor Trustee under a Mortgage Made by W. A. R. Realty Corporation, Plaintiff, v. W. A. R. Realty Corporation et al., Defendants. Jack S. Strauss, Individually, and on Behalf of All Other Stockholders Similarly Situated, Appellant; Midtown Enterprises, Inc., Respondent.
    Counsel appeared April 17, 1946;
    decided April 18, 1946.

      Abraham J. Halprin for motion.'

      Paul O’Dwyer opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York ex rel. Louis Bergman, Appellant, against Vernon A. Morhous, as Warden of Great Meadow Prison, Respondent.
    Submitted October Í, 1945;
    decided April 18, 1946.

      Nathaniel L. Goldstein, Attorney-General (John W, Barnett, Orrin G. Judd and Patrick H. Clune of counsel), for motion.
    No one opposed.
   Motion denied.


text:
    Kate Tarlow et al., Respondents, v. J. E. Archbell et al., Defendants; Philip Morris & Co., Ltd., Incorporated, Respondent, and O. H. Chalkley et al., Appellants.
    Submitted March 11, 1946;
    decided April 18, 1946.

      Morris Gottlieb for motion.

      Harold F. McGuire opposed.
   Motion denied.


text:
    Mary M. Caruthers et al., Respondents, v. Title Guarantee and Trust Company, as Trustee, et al., Appellants and Respondents, et al., Defendants. (2 Actions.)
    Submitted March 4, 1946;
    decided April 18, 1946.

      Louis J. Merrell, William F. Bleakley, Rosivell P. G. May and George Franklin Muth for motions.

      Catherine Noyes Lee, Hampton D. Ewing, J.r., Thomas B. Gilchrist and Michael J. Larkin opposed.
   Motions dismissed, with $10 costs and necessary printing disbursements upon the ground that neither judgment finally determines the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. James E. Brackett, Appellant, against Walter B. Martin, as Warden of Clinton Prison, Respondent.
    Submitted April 8, 1946;
    decided April 18, 1946.

      Nathaniel L. Goldstein, Attorney-General (Henry J. Ziemba of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed on the' ground that no substantial constitutional question is involved and that no appeal lies as of right.


text:
    Mount Kisco National Bank and Trust Company, as Trustee under a Trust Agreement between James A. Benedict, Kittie D. Benedict and Mount Kisco National Bank and Trust Company, Respondent v. James A. Benedict, Appellant.
    Submitted April 8, 1946;
    decided April 18, 1946.

      Louis F. Euttenlocher and Caleb A. Earding for motion.

      Ralph A. McClelland 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:
    Irene J. Roberts, Respondent, v. Arthur Hardoncourt, Appellant.
    Submitted April 8, 1946;
    decided April 18, 1946.

      Arthur Hardonoourt, in person, for motion.

      Irene Roberts Hardoncourt, in person, 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:
    Dottie Ward, as Administratrix de Bonis Non of Noah D. Palmitier, Deceased, Respondent, v. Newburgh Savings Bank, Appellant.
    Submitted April 8, 1946;
    decided April 18, 1946.
   Motion by respondent for reargument or to.amend remittitur denied, with $10 costs- and necessary printing disbursements. [See 295 N. Y. 766.]


text:
    In the Matter of the Arbitration between Morris White Fashions, Inc., Appellant, and Susquehanna Mills, Inc., Respondent.
    Submitted April 15, 1946;
    decided April 18, 1946.

      Daniel E. Woodhull for motion.

      Archibald Palmer opposed.
   Motion denied, with leave to renew upon the argument. In addition to the question of finality, counsel are requested to brief and discuss the constitutionality of paragraph (c) of subdivision 1 of section 588 of the Civil Practice Act (L. 1942, ch. 297).


text:
    Joseph Gurreri et al., Appellants, v. Municipal Housing Authority for the City of Yonkers, Respondent.
    Submitted April 8, 1946;
    decided April 18, 1946.

      Sylvester W. Del Bello for motion.

      Joseph P. Carey opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that no appeal may be taken to this court except by permission of the Appellate Division (Civ. Prac. Act, § 589, subd. 1, par. [b]).


text:
    In the Matter of Harlem Check Cashing Corporation, Appellant, against Elliott V. Bell, as Superintendent of Banks of the State of New York, Respondent.
    Submitted April 15, 1946;
    decided April 18, 1946.

      Nathaniel L. Goldstein, Attorney-General (John P, Powers of counsel), for motion.

      Neilson Olcott opposed.
   Motion denied.


text:
    The People of the State of New York ex rel. Alvin Untermyer et al., as Executors of and Trustees under the Will of Samuel Untermyer, Deceased, et al., Appellants, against Arthur J. McGregor, as Acting Commissioner of Assessment and Taxation of the City of Yonkers, Respondent. (1942 Assessment.) The People of the State of New York ex rel. Samuel Untermyer Park & Gardens, Appellant, against Arthur J. McGregor, as Acting Commissioner of Assessment and Taxation of the City of Yonkers, Respondent. (1943 Assessment.)
    Submitted April 8, 1946;
    decided April 18, 1946.
   Motion by respondent for reargument denied, with $10 costs and'necessary printing disbursements. [See 295 N. Y. 237.]


text:
    Catherine Myers, Respondent, v. Albany Savings Bank, Appellant.
    Submitted April 8, 1946;
    decided April 18, 1946.

      Boris Schneeberg for motion.

      Edward 8. Rooney opposed.
   Motion denied, with $10 costs.


text:
    In the Matter of the Probate of the Will of Henry Altmayer, Deceased. Beatrice A. Rodney, Appellant; Emil H. Wasserberger et al., Respondents.
    Submitted April 8, 1946;
    decided April 18, 1946.
   Motion by respondent Emil II. Wasserberger for reargument and to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 295 N. Y. 693.]


text:
    Union Course Holding Corporation, Respondent, v. Tomasetti Construction Company et al., Appellants.
    Submitted April 8, 1946;
    decided April 18, 1946.
   Motion by appellants for reargument denied, with $10 costs and necessary printing disbursements. [See 295 N. Y. 802.]


text:
    Thorne Neale & Co., Inc., et al., Plaintiffs-Respondents, and Baton Coal Company, Plaintiff, v. New York Southern Coal Terminal Corporation et al., Appellants.
    Argued April 8, 1946;
    decided April 18, 1946.

      Samuel Shapiro for motion to dismiss appeal and in opposition to cross motion for leave to appeal.

      Jay Leo Rothschild and Louis Rivhin for cross motion and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed.

Motion for leave to appeal granted.


text:
    Harold Abair, Appellant, v. City of New York, Respondent,
    Submitted April 8, 1946;
    decided April 18, 1946.
   Motion by appellant for reargument denied, with $10 costs and necessary printing disbursements on the ground that the determination of the Appellate Division was authorized by section 584 of the Civil Practice Act. [See 295 N. Y. 789.]


text:
    In the Matter of Pierce-Arrow Motor Corporation et al., Petitioners, against Carroll E. Mealey et al., Constituting the State Tax Commission, Respondents.
    Submitted April 15, 1946;
    decided April 18, 194'6.

      C. 0. Donahue and Thomas A. Purcell for motion.
    No one opposed.
   Motion denied, with $10 costs and necessary printing disbursements on the ground that an appeal lies as of right.


text:
    Kathryn B. Hays, Respondent, v. Edward P. Smith et al., Defendants, and Nellie M. Anderson, Appellant.
    Submitted April 17, 1946;
    decided April 18, 1946.

      Edward F. O’Connor for motion.

      Kenneth 8. MacAffer opposed.
   Motion dismissed on the ground that none of the .orders sought to be appealed from finally determines any matter within the meaning of the Constitution.


text:
    In the Matter of a Plan of Readjustment of the Rights of the Holders of Investments in a Mortgage Covering Premises 310 Riverside Boulevard, City of Long Beach, Guaranteed by Bond and Mortgage Guarantee Company. (Guarantee No. 170,928.) In the Matter of the Brooklyn Trust Company, as Trustee under a Declaration of Trust Dated March 25, 1936, for the Consideration of a Proposed Sale of the Premises Comprising the Trust Estate. Abraham Werman, Appellant; Jesse N. Schiffman et al., Respondents.
    Submitted April 8, 1946;
    decided April 18, 1946.

      Vito J. Guariglia for motion.

      George Sapan opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Hill Packing Company, Respondent, v. City of New York et al., Appellants.
    Submitted May 20, 1946;
    decided May 23, 1946.

      Arnold J. Broch for motion.

      John J. Bennett, Corporation Counsel (Stanley Buehsbaum of counsel), opposed.
   Motion denied, with $10 costs.


text:
    Quaker Oats Company, Respondent, v. City of New York et al., Appellants.
    Submitted May 20, 1946;
    decided May 23, 1946.

      Charles H. Tuttle for motion.

      John J. Bennett, Corporation Counsel (Stanley Buchsbaum of counsel), opposed.
   Motion denied, with $10 costs.


text:
    City Bank Farmers Trust Company, as Successor Trustee under an Agreement made by David Bruhl and Moses Bruhl, et al., Respondents, v. Jeanne P. Heymann et al., Defendants; George A. Seligmann et al., Appellants, and Laurent Davis, Respondent.
    Argued April 15, 1946;
    decided May 29, 1946.

      Harry M. Krdkow for appellants.

      Richard J. Cronan and George Trosh for respondent.
   Judgment affirmed, with costs to all parties appearing separately and filing briefs payable out of the fund; no opinion.

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


text:
    Walter Wasnick, Respondent, v. State of New York, Appellant.
    (Claim No. 26163.)
    Argued April 11, 1946;
    decided May 29, 1946.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley, Orrin G. Judd and Herbert A. Einhorn of counsel), for appellant.

      George M. Simon and Charles B. Sullivan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacher and D'ye, JJ.


text:
    In the Matter of Frank A. De Stasio, Respondent, against Benjamin Fielding, as Commissioner of the Department of Licenses of the City of New York, Appellant.
    Argued April 8, 1946;
    decided May 29, 1946.

      Bernard Jacobson for respondent.

      John J. Bennett, Corporation Counsel (Richard L. Baltimore, Jr., of counsel), for appellant.
   Orders reversed and petition dismissed, with costs, on the . authority of Matter of Arroyo v. Moss (295 N. Y. 754). No opinion.

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


text:
    In the Matter of Malachy G. Feeney et al., Appellants, against Village of Bronxville et al., Respondents.
    Argued April 9, 1946;
    decided May 29, 1946.

      Albert De Boode for appellants.

      Boy P. Monahan for Disabled American Veterans, Department of New York, amicus curice, in support of appellant’s position.

      Barent L. Yisscher, Wilfreda B. Stone and Arnold Frye for Village of Bronxville and its officers, respondents.

      Samuel D. Smoleff for Thomas J. Brennan, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    William J. McEvoy, Appellant, v. (American) Lumbermen’s Mutual Casualty Company of Illinois, Respondent.
    Argued April 10, 1946;
    decided May 29, 1946.

      Frederick H. Koschwitz for appellant.

      Stuart N. TJpdike and Edward M. Maher for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughiian, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ.


text:
    In the Matter of Frank C. Moore, as Comptroller of the State of New York, on Behalf of the New York State Employees’ Retirement System, Respondent, against Village of Depew et al., Appellants.
    Argued April 12, 1946;
    decided May 29, 1946.

      Harold P. Kelly and George Clinton, Jr., for appellants.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Ma/nley and Orrin G. Judd of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ.


text:
    Primo Outfitting Co., Inc., Appellant, v. Glens Falls Insurance Company, Respondent.
    Submitted April 10, 1946;
    decided May 29, 1946.

      Joseph M. Sand and Milton Berelson for appellant.

      Joseph F. Murray and Edward L. Johnson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Cost way, Desmond, Thacher and Dye, JJ.


text:
    In the Matter of the Application of Edward A. Richards, as Executor of Vito Giglio, Deceased, Appellant. Joseph Kirsch, Respondent.
    Argued April 8, 1946:
    decided May 29, 1946.

      John P. McGrath and Reginald 8. Hardy for appellant.

      Herman 8. Bachrach and Clarence G. Bachrach for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Teacher and Dye, JJ.


text:
    In the Matter of Roseland Amusement Co., Inc., Appellant. Edward Corsi, as Industrial Commissioner of the State of New York, Respondent.
    Argued April 15, 1946;
    decided May 29, 1946.

      Michael Halperin and Solomon Granett for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran, Orrin G. Judd and Otto W. G. Marquard of. counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Vincent Mummiani, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Argued April 10, 1946;
    decided May 29, 1946.

      August Zolotorofe and Vincent Mummiani, in person, for appellant.

      Nathaniel L. Goldstein, Attorney-General (Charles F. Steele, Orrin G. Judd, Wendell P. Brown, Patrick H, Clune and George A. Bads of counsel), for respondent.
   Order affirmed; no opinion. [See 296 N. Y. 630.]

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


text:
    In the Matter of the Estate of James Cardwell, Deceased. James F. Egan, as Public Administrator of New York County, Appellant; Robert Cardwell, Respondent.
    .Argued April 9, 1946;
    decided May 29, 1946.

      Joseph T. Arenson and Joseph A. Cox for appellant.

      Joseph E. Waclcerman and Murty J. O’Connor for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of New York State Labor Relations Board, Appellant, against Union Club of the City of New York, Inc., Respondent.
    Argued March 4, 1946;
    decided May 29, 1946.

      William. E. Grady, Jr., Philip Feldblum and Louis E. Gold-stein for appellant.

      Edward G. Bathon and Charles B. Barrett for respondent.
   Order of the Appellate Division reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the ground that there is evidence sufficient to support the finding of the Labor Relations Board that the employer’s dismissal of the employees McTeague and Jacobs was motivated by their concerted union activities. We pass upon no other question. No opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond and Dye, JJ. Taking no part: Thacher and Medalie, JJ.


text:
    The People of the State of New York ex rel. Herman Barmore, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted April 8, 1946;
    decided May 29, 1946.

      Herman Barmore, appellant in person.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Wendell P. Brown, P. H. Clime, Charles F. Steele and Irving I. Waaman of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thagher and Dye, JJ.


text:
    Immaculate Varrichio, Appellant, v. G. Phillip Schmitt, Respondent.
    Argued April 9, 1946;
    decided May 29, 1946.

      Thomas F. English, Jr., for appellant.

      T. Carlyle Jones and Daniel Miner for respondent.
   Order affirmed, with costs. Question certified in the negative. No opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ.


text:
    Nick Soporito, Respondent, v. Hetzler Foundries, Inc., Appellant.
    Argued April 10, 1946;
    decided May 29, 1946.

      Gasper V. Baltemperger, Patrióle 8. Mason and Bernard Kaizen for appellant.

      William L. Clay for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thaoheb and Dye, JJ.


text:
    Dominic F. Surace, Respondent, v. Pfaudler Company, Appellant.
    Argued April 10, 1946;
    decided May 29, 1946.

      Gasper V. Balténsperger, Patrick S. Mason and Bernard Katzen for appellant.

      Frank D. Pappalardo for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    William Hegierski, as Administrator of the Estate of John Hegierski, Deceased, Respondent, v. United States Gypsum Company, Appellant.
    Argued April 10, 1946;
    decided May 29, 1946.

      Casper V. Baltensperger, Everest A. Judd, Wallace J. Stalcel and Wendell J. Brown for appellant.

      William L. Clay for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    The People of the State of New York ex rel. Frank Palumbo, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Submitted April 11,1946;
    decided May 29,1946.

      Allen M. Light for appellant.

      Nathaniel L. Goldstein, Attorney-General (George A. Bads, Orrin G. Judd, Wendell P. Brown and Patrick H. Glune of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    J. Freeman Dixon et al., Respondents, v. New York Trap Rock Corporation, Appellant.
    Argued April 15, 1946;
    decided May 29, 1946.

      Joseph Diehl Fackenthal and M. Glenn Folger for appellant.

      Elijah T. Bussell for respondents.
   Order affirmed, with costs. Question certified answered in the' affirmative. No opinion.

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


text:
    The People of the State of New York ex rel. Abraham H. Elkind et al., Appellants, against Abraham Rosenblum et al., Respondents.
    Argued April 15, 1946;
    decided May 29, 1946.

      Nathaniel L. Goldstein, Attorney-General (Theodore Kiendl and Francis W. Phillips of counsel), for appellants.

      Oliver G. •Carpenter, Corporation Counsel of the City of Yonkers, amicus curies, in support of appellants’ position.

      Morris L. Bósenwasser for Abraham Rosenblum, respondent.

      William J. Wallin for William Crocker, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond and Thachbr, JJ. ' Dissenting: Dye, J.


text:
    Aurora Koblack, Appellant, v. Henry D. Croteau, Respondent.
    Argued April 16, 1946;
    decided May 29, 1946.

      Edward T. Kruglak for appellant.

      Thomas P. O’Malley for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that the evidence presented an actual issue of fact in respect to the ownership of the vehicle. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway and Dye, JJ. Dissenting: Desmond and Thacher, JJ.


text:
    Albert H. Emerich, as Administrator of the Estate of Norman J. Emerich, Deceased, Appellant, v. New York Central Railroad Company, Respondent.
    Argued April 9, 1946;
    decided May 29, 1946.

      Bartle Gorman and J. Walter Augar for appellant.

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

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


text:
    Elmer E. Bogart et al., Appellants, v. County of Westchester et al., Respondents.
    Submitted April 8, 1946;
    decided May 29, 1946.

      Leo T. Kissam and Charles E. Powers for motion.

      William A. Davidson, County Attorney, opposed.
   Motion denied, with $10 costs and necessary printing disbursements. If there be a constitutional question, appeal as of right has already' been properly ' taken. All questions of law may be considered on that appeal.


text:
    In the Matter of the Accounting of New York Trust Company, as Committee of Walter Lewisohn, an Incompetent Person, Now Deceased. Selma Farr, Individually and as Executrix of Walter Lewisohn, Deceased, et al., Appellants; New York Trust Company, Respondent.
    Submitted April 8, 1946;
    decided May 29, 1946.
   Motion by appellants to amend the remittitur, etc., denied, with $10 costs and necessary printing disbursements. [See 294 N. Y. 596.]


text:
    Marcus Schwartz et al., Appellants, v. Serutan Co. et al., Respondents.
    Submitted April 15, 1946;
    decided May 29, 1946.

      Milton S. Marks and Sidney Solway Miller for motion.

      Harold Epstein, Osmond K. Fraenkel and Arthur Garfield Hays 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:
    Eva Nathan et al., Appellants, v. Stratford Holding Corporation et al., Respondents.
    , Submitted May 20, 1946;
    decided May 29, 1946.

      Jerome A. Strauss for motion.

      Robert Moers qpposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the papers were not filed within the time fixed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    In the Matter of the Probate of the Will of Elizabeth M Miller, Deceased. Robert E. Swezey, Appellant; Clara L. Miller, Respondent.
    Submitted May 20, 1946;
    decided May 29, 1946.

      Irving G. Kennedy for motion.
    No one opposed.
   Motion denied, with $10 costs and necessary printing disbursements, upon the ground that an appeal lies as of right.


text:
    Courtney M. Mabee et al., Appellants, v. White Plains Publishing Company, Inc., Respondent.
    Submitted May 20, 1946;
    decided May 29, 1946.

      Stephen B. J. Roach for appellants.

      Elisha Hanson, William K. Van Allen, Letitia Armisteacl and Frances K. Marlatt for respondent.
   Motion granted to the extent that reargument is- ordered. Reargument to be had during week commencing June 10, 1946.


text:
    Central Hanover Bank and Trust Company, as Trustee of a Trust Agreement made by Simon Ascher, Deceased, to Central Union Trust Company of New York, Respondent, v. Ruth A. Caro et al., Appellants, et al., Defendants.
    Submitted May 20, 1946;
    decided May 29, 1946.

      David J. Brown for motion.

      Albert Stickney and Geórge M. Duff, Jr., 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:
    In the Matter of a Plan of Readjustment of the Rights of the Holders of Investments in a Mortgage Covering Premises 310 Riverside Boulevard, City of Long Beach, Guaranteed by Bond and Mortgage Guarantee Company. (Guarantee No. 170,928.) In the Matter of the Brooklyn Trust Company, as Trustee under a Declaration of Trust Dated March 25, 1936, for the Consideration of a Proposed Sale of the Premises Comprising the Trust Estate. Abraham Werman, Appellant; Jesse N. Schiffman et al., Respondents.
    Submitted May 20, 1946;
    decided May 29, 1946.
   Motion for reargument of motion to dismiss appeal denied, with $10 costs and necessary printing disbursements. The order of reversal by the Appellate Division was not an interlocutory order within section 590 of the Civil Practice Act. [See 295 N. Y. 897.]


text:
    The People of the State of New York ex rel. Charles Von Glahn, Appellant, against Walter B. Martin, as Warden of Attica State Prison, Respondent.
    Submitted May 20, 1946;
    decided May 29, 1946.

      Charles Von Glahn, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (George A. Bads of counsel), opposéd.
   Motion dismissed on ground no- appeal lies to this court.


text:
    The People of the State of New York ex rel. Harley Stewart, Appellant, against Walter B. Martin, as Warden of Attica State Prison, Respondent.
    Submitted May 20, 1946;
    decided May 29, 1946.

      Harley Stewart, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (Emil L. Cohen of counsel), opposed;
   Motion dismissed and appeal dismissed upon the grounds (1) that no substantial constitutional question is involved; and (2) that a direct appeal from the order of the County Court to this court is unauthorized.


text:
    Josiah H. Bronson, Respondent, v. Francis H. Robinson et al., Defendants, and Walter J. Ellison, Appellant.
    Submitted May 20, 1946;
    decided May 29, 1946.

      Charles J. Herson and Morris L. Strauss for motion.

      Julius L. Neidle 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:
    Edward C. La Vaud, as Executor of Ellen F. Murphy, Deceased, Appellant, v. Mae M. Reilly, Respondent.
    Submitted May 20, 1946;
    decided May 29, 1946.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 295 N. Y. 280.]


text:
    G. Wellington Douglas, Appellant, v. State of New York, Respondent.
    (Claim No. 27822.)
    Argued May 20, 1946;
    decided May 29, 1946.

      Nathaniel L. Goldstein, Attorney-General (John B. Davison of counsel), for motion.

      Albert Jalcobson opposed.
   Motion denied upon condition that appellant’s administrator be substituted for appellant, and that he be ready to argue the appeal during the fourth week of the present session; otherwise motion to dismiss appeal granted and appeal dismissed,-with costs and $10 costs of motion.


text:
    Mohawk Carpet Mills, Inc., Respondent, v. State of New York, Appellant.
    (Claim No. 25201;)
    Submitted June 3, 1946;
    decided June 4, 1946.

      William H. Bennison and Coleman Taylor for motion.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Edward L. B,yan and John B. Davison of counsel), opposed.
   Motion denied, with $10 costs.


text:
    Maude Crellin, Respondent, v. Benjamin F. Van Duzer, Defendant, and Prudential Insurance Company of America, Appellant. (Action No. 1.) Ralph E. Crellin, Respondent, v. Benjamin F. Van Duzer, Defendant, and Prudential Insurance Company of America, Appellant. (Action No. 2.)
    Argued April 17, 1946;
    decided June 6, 1946.

      Dallas G. Newton for appellant.

      Melvin M. Zurett for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond and Thacheb, JJ. Taking no part: Dye, J.


text:
    Elise S. Lee, Respondent, v. Corn Exchange Bank Trust Company, Appellant.
    Argued April 16, 1946;
    decided June 6, 1946.

      James H. Halpin, William Selniclc and Rhoda E. Leshinc for appellant.

      Peter Keber, Leo P. Dorsey and Charles H. Willard for New York State Bankers Association, amicus curiae, in support of appellant’s position.

      George W. Hers for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond and Thachee, JJ. Taking no part: Dye, J.


text:
    Willard Adams, Respondent, v. State of New York, Appellant.
    (Claim No. 27117.)
    Argued February 2G, 194G,;
    decided June 6, 1946.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Harold 8. Coyne, Charles F. Steele and Kenneth J. Dugan of counsel), for appellant.

      Ernest B. Morris and Edward G. Dillon for respondent.
   Judgment of Appellate Division reversed and matter remitted to that court for compliance with section 602 of the Civil Practice Act, without costs. (People ex rel. Sheffield Farms Co. v. Lilly, 295 N. Y. 354.) We do not pass on the merits. No opinion.

Concur: Lotjghkan, Ch. J., Lewis, Conway, Desmond, Thachek and Dye, JJ.; Medalie, J., deceased.


text:
    Howard T. May, an Infant, by David T. May, His Guardian ad Litem, et al., Appellants, against Board of Education, Union Free School District No. 1, Town of Mamaroneck, Respondent.
    Argued April 11, 1946;
    decided June 6, 1946.

      Sidney H. Reich and Leon Shalov for appellants.

      Walter L. Olenney for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Thacher and Dye, JJ; Conway, J., dissents in the following memorandum in which Desmond, J., concurs: Questions of fact were presented on this record as to the negligence of the defendant in improperly constructing and maintaining its schoolyard, which questions should have been submitted to the jury. (Noreck v. Fronczak, 294 N. Y. 751; Popow v. Central School District, 277 N. Y. 538; Miller v. Board of Education, 291 N. Y. 25; Lessin v. Board of Education, 247 N. Y. 503, 509; Carlock v. Westchester Lighting Co., 268 N. Y. 345, 350.)


text:
    The People of the State of New York, Respondent, v. Harvey Stemmer, Appellant.
    Argued April 18, 1946;
    decided June 6, 1946.

      Edward H. Levine for appellant.

      Miles F. McDonald, District Attorney (Solomon A. Klein of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Edward Wiederspiel, Respondent, v. Adirondack Transit Lines, Inc., et al., Appellants, et al., Defendants.
    Submitted April 15, 1946;
    decided June 6, 1946.

      David Tepp for appellants.

      Harry J. Halperin, Samuel L. Scholer and Oscar S. Mann for respondent.
   Judgments reversed and complaint dismissed, with costs in all courts, upon the ground that there is no evidence of the negligence of the defendants. No opinion.

Concur: Loughran, Ch. J., Conway, Thacheb and Dye, JJ. Lewis and Desmond, JJ., dissent and vote to affirm.


text:
    Elizabeth W. Smith, Appellant, v. Guaranty Trust Company of New York, as Trustee under the Will of Elizabeth W. Bates, Deceased, et al., Respondents, and Elizabeth W. Smith, Jr., et al., Appellants.
    Argued April 17, 1946;
    decided June 6, 1946.

      Walter E. Warner, Jr., and Frank W. Chambers for plaintiff-appellant.

      Anthony J. Romagna, guardian ad litem for Elizabeth W. Smith, Jr., and another, defendants-appellants.

      Otis T. Bradley and Patrick J. Kearney for Guaranty Trust Company of New York, as trustee, respondent.

      Frederick Zorn, as guardian ad litem, for Emily Prances Rees and others, respondents.
   Judgment affirmed, with costs to all parties appearing separately and filing briefs payable out of the fund; no opinion.

Concur: Loughran, Chi J., Lewis, Conway, Desmond and Thacher, JJ. Taking no part: Dye, J.


text:
    Helen Grivas, as Administratrix of the Estate of John M. Grivas, Deceased, Appellant, v. City of New York, Respondent.
    Argued March 5, 1946;
    decided June 6, 1946.

      Seymour L. Colin, Arthur L. Obre, Robert R. Bauman and George A. Grabow for appellant.

      John J. Bennett, Corporation Counsel (Aaron B. Coleman and Joseph F. Mulqueen, Jr., of counsel), for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that the evidence presented the following questions of fact for the jury: whether the defendant was negligent in failing (a) to keep the viaduct sanded, (b) to post a sign warning drivers that the road was slippery when wet, and (c) to provide an adequate barrier. No opinion.

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


text:
    County of Erie, Appellant, v. Continental Casualty Company, Respondent.
    Argued April 11, 1946;
    decided June 6, 1946.

      Edward D. Siemer and Ralph A. Lehr for appellant.

      Frank Gibbons for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward McCabe, Respondent, v. James M. Smith, Appellant.
    Argued April 16, 1946;
    decided June 6, 1946.

      James Conboy for appellant.

      Wilford A. Le Forestier for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond and T'hacher, JJ. Taking no part: Dye, J.


text:
    Louise Guilden, Respondent, v. Ira Guilden, Appellant.
    Argued April 18, 1946;
    decided June 6, 1946.

      Emil K. Ellis, Jonas Ellis and Abraham J. Heller for appellant.

      Samuel Gottlieb, I. Gainsburg and Sanford II. Cohen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkax, Ch. J., Lewis, Coxway, Desmoxd, Thachek and Dye, JJ.


text:
    In the Matter of Genesee Valley Trust Company, Judgment-Creditor-Respondent, against Hannah Glazer, Judgment-Debtor-Appellant.
    Submitted May 27, 1946;
    decided June 6, 1946.
   Motion by respondent for reargument denied, with $10 costs . and necessary printing disbursements. [See 295 N. Y. 219.]


text:
    The People of the State of New York, Respondent, v Irving D. Pangburn, Appellant. The People of the State of New York, Respondent, v Ernest Johnson, Appellant. The People of the State of New York, Respondent, v Carmen Vinci, Appellant. The People of the State of New York, Respondent, v Elizabeth Randolph, Appellant.
    Submitted June 3, 1946;
    decided June 6, 1946.

      William M. Nicoll, District Attorney (Emmet J. Lynch of counsel), for motions to dismiss appeals.

      Samuel Levy for cross motions.
   Motions to dismiss appeals denied.

Motions for enlargement of time granted and cases set down for argument during second week of first autumn session of 1946.


text:
    In the Matter of Richard Welling, Respondent, against Patrick Walsh, as Commissioner of the Fire Department of the City of New York, et al., Appellants, and James W. O. Wood, et al., Interveners, Appellants, Impleaded with Another.
    Reargued January 15, 1946;
    decided June 13, 1946.

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel and Harry Hollander of counsel), for defendants-appellants.

      Edward G. Bathon for interveners, appellants.

      H. Eliot Kaplan for respondent.
   Order affirmed, with costs, on the authority of Matter of Broderick v. City of New York, decided herewith; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway and Medalie. JJ. Dissenting: Thacheb, Desmond and Dye, JJ.


text:
    In the Matter of the Accounting of Gertrude V. Whitney et al., Deceased, as Executors of Alice G. Vanderbilt, Deceased. Gloria V. Stokowska et al., Appellants; Horace R. Lamb, as Executor of Cathleen V. Arostegui, et al., Respondents.
    Argued May 20, 1946;
    decided June 13, 1946.

      Arthur A. Ballantine, John L. Gray, Jr., and Bichard C. Malone for Gladys Szechenyi, appellant. . •

      Thomas B. Gilchrist and Hampton H. Ewing, Jr., for Gloria Vanderbilt Stokowska (formerly Gloria Laura Morgan Vanderbilt, infant), appellant.

      Boland L. Bedmond and McDonald E. Wrenn for Guaranty Trust Company of New York, respondent.

      Gertrude M. Glennon, as Special Guardian for infant respondents, respondents.

      Boy G. Gasser for Gladys Szechenyi, as Successor Executor, respondent.
   Order affirmed, with costs to all parties appearing separately and filing briefs payable out of the estate of Alice G. Vanderbilt, deceased; no opinion.

Concur: Loughrax, Ch. J., Lewis, Coxway, Desmoxd, Thaoher, Dye and Fuld, JJ.


text:
    In the Matter of Mortgage Commission of the State of New York in Relation to Mortgage Investments Guaranteed by Bond and Mortgage Guarantee Company. (Guarantee No. 186,129.) Selma Schlang, Appellant and Respondent; Robert E. Dineen, Superintendent of Insurance of the State of New York, as Liquidator of Bond and Mortgage Guarantee Company and as Successor to the Mortgage Commission of the State of New York, et al., Respondents and Appellants, and Bureau of Trust Supervision et al., Respondents.
    Argued May 20, 1946;
    decided June 13, 1946.

      Hyman R. Shapiro, Isidor Enselman and Myron Sulzberger for Selma Schlang, appellant-respondent.

      Lewis F. X. Cotignola, Thomas D. Austin, J. Francis Lynch and Almeih W. Hoff for State Superintendent of Insurance and State Comptroller, respondents-appellants.

      George 0. Lehmann and Walter F. O’Malley for respondent.
   Order affirmed, without costs. We agree with all the conclusions stated in the Appellate Division’s opinion. Certified questions not answered since the order appealed from is a final order in a special proceeding. No opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.'


text:
    In the Matter of David Durinsky, as President of International Ladies’ Garment Workers’ Union, Petitioner, against Joseph Love, Inc., Respondent. In the Matter of Joseph Love, Inc., Respondent, against David Durinsky, as President of International Ladies’ Garment Workers’ Union, Respondent. Bernard Hershkopf, Arbitrator, Appellant.
    Argued May 22, 1946;
    decided June 13, 1946.

      Bernard Hershlcopf, appellant in person.

      Edmond B. Butter for respondent.
   Judgment of Appellate Division so far as appealed from reversed and that of Special Term in favor of appellant Hershkopf affirmed, with costs in this court and in the Appellate Division on the ground that the allowance made by the Special Term to the arbitrator was lawful under sections 1457 and 1545 of the Civil Practice Act. No opinion.

Concur: Lewis, Conway, Desmond and Ftjld, JJ. Lotjghran, Ch. J., and Thacher, J., dissent on the ground that the Appellate Division, correctly construed sections 1457 and 1545 of the Civil Practice Act. Taking no part: Dye, J.


text:
    Milton Solomon, Respondent, v. Fiorello H. La Guardia et al., Appellants, et al., Defendants.
    Argued April 11, 1946;
    decided June 13, 1946.

      John J. Bennett, Corporation Cowisel (Morris Shapiro of counsel), for appellants.

      Gilbert J. Fortgang and Louis B. Brodsky for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond and Dye, JJ. Dissenting: Thacher, J.


text:
    Frank C. Campbell, Respondent, v. Frederick W. Marquand et al., Appellants.
    Argued May 21, 1946;
    decided June 13, 1946.

      Harold B. Medina, William Gilbert and Frederick W. Marquand, in person, for Frederick W. Marquand and another, appellants.

      Jay Leo Bothschild and Carl Shermcm for respondent.
   Judgment affirmed, with costs, no opinion.

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


text:
    Elsie B. Spaulding, Appellant, v. John P. Christakos et al., Individually and as Copartners Under the Name of French Pastry Shop, Respondents.
    Reargued May 28, 1946;
    decided June 13, 1946.

      William A. Mulvey and Allen J. IF cisman for appellant.

      John R. Schwartz and M. Glenn Folger for respondents.
   Judgment affirmed, with costs'; no opinion.

Concur; Loughran, Ch. J., Desmond, Teacher and Fuld, JJ.; Lewis, Conway and Dye, JJ., dissent upon the ground that the evidence presented questions of fact for the jury.


text:
    In the Matter of the Accounting of Title Guarantee and Trust Company, as Trustee under the Will of Thomas F. Balfe, Deceased, Respondent. Lorna D. DeMott, an Infant, by Norma L. DeMott, Her Mother, Acting in Her Behalf, et al., Appellants.
    Argued May 20, 1946;
    decided June 13, 1946.

      William F. Bleakley, Alexander U. Zinke, Arthur C. Patterson, Charles W. Silver, Arthur P. West and George M. Northrop, special guardian, for appellants.

      Joseph V. McKee and William T. Griffin for respondent.
   Order affirmed, with costs, to all parties appearing separately and filing briefs payable out of the estate; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    Thorne Neale & Co., Inc., et al., Respondents, et al., Plaintiffs, v. New York Southern Coal Terminal Corporation et al., Appellants.
    Argued May 21, 1946;
    decided June 13, 1946.

      Jay Leo Rothschild and Louis Rivkin for appellants.

      Samuel Shapiro for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Füld, JJ.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Robert W. Barnes, Appellant.
    Submitted May 20, 1946;
    decided June 13, 1946.
   Per Curiam.

We did not consider the constitutional question involved in the admission of the defendant’s confession, because under our rules of practice the question was not subject to review in the absence of an exception, and no exception had been taken to the admission of the confession. (Pontius v. People of the State of New York, 82 N. Y. 339, 346-347; People v. Cummins, 209 N. Y. 283; People v. Pindar, 210 N. Y. 191.)

The statute removing the necessity for an exception in such a case does not become effective until September 1, 1946. (L. 1946, ch. 209.)

The motion should be denied.

Loughran, Ch. J., Lewis, Conway, Thacher and Fuld, JJ., concur; Desmond, J., votes tó grant the motion; Dye, J., taking no part.

Motion denied.


text:
    Myrtle Reese, As Executrix of David F. Reese, Deceased, Respondent, v. James Pringle, Defendant, and Miller Place Corporation, Appellant.
    Submitted May 20, 1946;
    decided June 13, 1946.

      Archie H. Brin for motion.

      George A. Rowland opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, but without prejudice to a renewal thereof after a judgment has been entered.


text:
    The People of the State of New York ex rel. Ruth Patterson, Appellant, against Board of Education of the City of Syracuse et al., Respondents.
    Submitted May 27, 1946;
    decided June 13, 1946.
   Motion by appellant to amend reniittitur and to clarify the opinion denied. The phrase less any compensation earned by her ”, as used in our opinion, means less any properly deductible compensation ”. [See 295 N. Y. 313.]


text:
    Hugart F. Norman et al., Individually and as Copartners Practicing Law as Norman & Allen, Appellants, v. David Sullivan, as President of Local 32B of the Building Service . Employees International Union, et al., Respondents.
    Submitted June.10, 1946;
    decided June 13, 1946.

      Hugart F. Norman and Irving Schneider for motion.

      Aaron Benenson, Emanuel Bund and Willard M. Bick opposed.
   Motion dismissed, with $10 costs and necessary- printing disbursements, without prejudice to renewal thereof if and when a judgment has been entered upon the order of the Appellate Division.


text:
    Joseph Hoar, Respondent, v. City of Yonkers et al., Appellants.
    Submitted June 3, 1946;
    decided June 13, 1946.
   Motion by respondent for reargument denied, with $10 costs and necessary printing disbursements. [See 295 N. Y. 274.]


text:
    Marcelino Garcia et al., as Executors of Manuel Diaz, Deceased, et al., Appellants, v. Pan American Airways, Inc., Respondent, et al., Defendants.
    Submitted June 10, 1946;
    decided June 13, 1946.
   Motion by appellants to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 295 N. Y. 852.]


text:
    Marie Rufo et al., Appellants, v. South Brooklyn Savings Bank, Respondent, et al., Defendants.
    Submitted June 10, 1946;
    decided June 13, 1946.

      Joseph F. Murray for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion unless within 10 days from the date of the order appellants file the required undertaking on appeal and pay $10 costs, and within 20 days from the date of said order appellants file their record on appeal, in which events, motion denied.


text:
    Edward Gibbons, as Administrator of the Estate of William Gibbons, Deceased, Appellant, v. City of New York, Respondent.
    Argued May 23, 1946;
    decided June 14, 1946.

      Adolph S. Ziegler and Irving G. Rosenhrantz for appellant.

      John J. Bennett, Corporation Counsel (Seymour B. Quel of counsel), for respondent.
   Judgments modified so as to provide that plaintiff, may have ten days in which to serve an amended complaint, and as so modified, affirmed with costs; no opinion.

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


text:
    Eleanor O’Rourke et al., Appellants, v. A. I. Namm & Son, Inc., et al., Respondents.
    Submitted May 23, 1946;
    decided June 14, 1946.

      Esther R. Brause and Leonard AcTcer for appellants.

      William L. Shumate for respondents.
   Judgment of Appellate Division reversed and that of Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground that there was evidence of negligence proper to be submitted to the jury; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    Frank Nordone Contracting Co., Inc., Respondent, v. City of New York, Appellant.
    Argued May 23, 1946;
    decided June 14, 1946.

      Frank H. Connelly, Jr., for respondent.
    . John J. Bennett, Corporation Counsel (Seymour B. Quel, Stanley Buchsbaum and David M. Fuchs of counsel), for appellant.
   Judgment affirmed, Avith costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, J J. Taking no part: Dye, J.


author: Thacher, J.

text:
    In the Matter of Frank S. Hogan, as District Attorney of New York County, Appellant, against Court of General Sessions of the County of New York, Respondent, and Jacob Shapiro, Intervener, Respondent.
    Argued April 16, 1946;
    decided July 23, 1946.

      Frank 8. Hogan, District Attorney (Whitman Knapp, David Du Vivier and Harold Boland Shapiro of counsel), for appel-" lant.
    I. Upon the conceded facts, the Court of General Sessions is without power to set aside either of the judgments now under attack. A criminal court is empowered to set aside one of its own judgments in coram nobis proceedings only where the judgment was procured by fraud or in violation of a constitutional right and under circumstances making it impossible for the defendant to avail himself of the ordinary remedies provided by the Code of Criminal Procedure. (People v. Gersewitz, 294 N. Y. 163; Matter of Hogan v. N. Y. Supreme Court, 295 N. Y. 92; Matter of Lyons v. Robinson, 293 N. Y. 191; Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131; Matter of Lyons v. Goldstein, 290 N. Y. 19; Bass v. State, 191 Ark. 860; People v. Vernon, 9 Cal. App. 2d 138; Medberry v. People, 107 Col. 15; Chambers v. State, 113 Fla. 786; People v. Bruno, 346 Ill. 449; Sanders v. State, 85 Ind. 318, 326; Dobbs v. State, 63 Kan. 321.) II. Neither of the intervener’s applications before the Court of General Sessions alleged facts sufficient to give that court power to act. A. Nothing contained in the intervener’s application to set aside his 1915 conviction brings it within any recognizable limit of the writ of error coram nobis. (People v. Gersewitz, 294 N. Y. 163; People v. Gilbert, 25 Cal. 2d 422; People v. Murch, 263 N. Y. 285; People ex rel. Kulin v. P. E. House of Mercy, 133 N. Y. 207; People ex rel. Wiegand v. Brophy, 261 App. Div. 877, 286 N. Y. 640; People v. DeBellis, 87 Misc. 459; Estate of Estrem, 16 Cal. 2d 563; Hadley v. Bernero, 103 Mo. App. 549; Baldivin v. Iowa State Traveling Men's Assn., 283 U. S. 522.) B. Defendant’s attack on his 1918 conviction proceeds upon the theory that the allegation — admitted for the purpose of this appeal — that the trial court failed formally to advise bim that he was entitled to be represented by counsel or that if he were without funds to procure representation by counsel that the court would assign counsel ”, raises a question of due process of law under the State and Federal Constitutions. The

      fatal weakness in the intervener’s position is that his papers nowhere allege that he was then ignorant of those rights or in any way prejudiced by the court’s inaction. It is clear that no State or Federal constitutional question can be raised without such an allegation. (Betts v. Brady, 316 U. S. 455; Ganizio v. New York, 66 S. Ct. 452; Hawk v. Olson, 66 S. Ct. 116; Rice v. Olson, 324 U. S. 786.) III. An order in the nature of prohibition pursuant to article 78 of the Civil Practice Act is the appropriate remedy for preventing the Court of General Sessions from exceeding its jurisdiction in a coram nobis proceeding. (Bandini Co. v. Superior Court, 284 U. S. 8; People ex rel. Jerome v. Court of General Sessions, 112 App. Div. 424, 185 N. Y. 504; Quimbo Appo v. The People, 20 N. Y. 531; Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Hughes v. Court of Special Sessions, 181 Misc. 846; People v. Superior Court, 4 Cal. 2d 136; State ex rel. Atty. Gen. v. Hurst, 59 Okla. Cr. 220; State ex rel. Mitchell v. Swindall, 33 Okla. Cr. 210; State ex rel. Davis v. Superior Court, 15 Wash. 339; State ex rel. Atty. Gen. v. Stanfield, 11 Okla. Cr. 147; Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24.)

      Sydney Rosenthal, Emanuel H. Reichart, Benjamin J. Jacobson and J. Bertram Wegman for intervener, respondent.
    I. The Court of General Sessions has jurisdiction to entertain the intervener’s application, since it has inherent power to vacate its own judgments, invalid because procured in violation of a constitutional right, or because the court was without jurisdiction of the subject matter. (Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131; People v. Gersewits, 294 N. Y. 163; Matter of Hogan v. N. Y. Supreme Court, 295 N. Y. 92.) II. Intervener’s motions are sufficient on their face to invoke the jurisdiction of the Court of General Sessions. (People ex rel. Moore v. Hunt, 258 App. Div. 24; People v. McLaughlin, 291 N. Y. 480; Canido v. New York, 90 L. ed. 393; Williams v. Kaiser, 323 U. S. 471; Matter of Lyons v. Goldstein, 290 N. Y. 19; People ex rel. Wiegand v. Brophy, 261 App. Div. 877, 286 N. Y. 640.)
   Thacher, J.

In this proceeding the District Attorney of New York County filed in the Supreme Court of that county a petition for an order prohibiting the Court of General Sessions from taking any further action with regard to two separate applications made to that court by Jacob Shapiro for separate orders vacating and setting aside two judgments of conviction against him, one rendered on October 6, 1915, convicting him of the crime of burglary in the third degree and the other rendered on April 4,1918, convicting him of the crime of attempted grand larceny in the second degree. The District Attorney, before petitioning for the order in prohibition, moved in the Court of General Sessions to dismiss each of these applications on the ground that the court had' no jurisdiction to entertain either of them or to grant any of the relief requested. These motions were denied. When the petition for the order in prohibition was presented to the Supreme Court it was dismissed by that court “ osa matter of law, and not in the exercise of discretion ”, with an opinion holding that the Court of General Sessions had general jurisdiction to inquire into the applications and to determine whether or not to entertain them and if so what disposition should be made. The Appellate Division affirmed without opinion, one justice dissenting.

This proceeding under article 78 of the Civil Practice Act being one in the nature of prohibition, we are confined in our consideration to a question of the jurisdiction of the Court of General Sessions to vacate and set aside either of its judgments of conviction against Shapiro. We are in no way concerned with the merits of intervener’s applications, which must be justified, if justified at all, as requiring an exercise of the court’s inherent power to set aside its own judgments within the limited and circumscribed field within which the common-law writ of coram nobis was employed (Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131; Matter of Hogan v. N. Y. Supreme Court, 295 N. Y. 92). In each of these cited cases the coram nobis application was predicated upon allegations that the judgment was procured by fraud. In People v. Gersewits (294 N. Y. 363) Chief Judge Lehman said (p. 167): “ We have sanctioned the exercise of such a power by a court to correct its own record or to set aside an order or judgment which was induced by fraud or procured in violation of a constitutional right of a party. Perhaps that power can have no broader scope. No case has been presented to the court in which the court was called upon to define its exact limits, but in March, 1943, this court authoritatively decided (three judges dissenting) that a court of criminal jurisdiction has ‘ inherent ’ power to set aside a judgment procured by fraud and misrepresentation and to permit a defendant to withdraw a plea of guilty induced by violation of his constitutional rights [citing case]; and in Matter of Morhous v. N. Y. Supreme Court (293 N. Y. 131), we held that a motion to vacate a judgment procured by violation of the defendant’s constitutional rights is the corrective judicial process which is authorized by the law of the State to remedy the alleged wrong to the defendant and that it adequately meets the requirement of due process ’.” This language of the late Chief Judge is certainly not to be understood as saying that any judgment procured as the result of a trial during the course of which rulings were made in violation of constitutional right may be vacated and set aside if there was a right to review such rulings on an appeal from the judgment. Similarly, matters not presented during the trial, if presentable upon a motion for a new trial, would not be ground for setting aside the judgment years after its. entry.

The first conviction — October 6, 1915 — was after a trial before a jury in which intervener was represented by counsel. He was convicted of burglary in the third degree and sentenced to the Elmira 'Reformatory. He was again convicted, on April 4, 1918, of the crime of attempted grand larceny in the second degree and sentenced to one year and two months in a State prison. In October, 1944, he made the two applications to the Court of General Sessions here involved seeking to set aside each of these judgments.

The application concerning the 1915 judgment was predicated upon the allegation that intervener was under the age of sixteen years at the time the judgment was rendered. His application concedes that at the time of his arraignment he gave his name as Morris Friedman and his age as twenty-one and that during the trial he testified that he was eighteen. His argument is that, since the jurisdiction- of .the Court of General Sessions at the time the judgment was rendered was limited to criminal actions, and since he was in truth under sixteen years of age despite his statements to the contrary, he was without capacity to commit a crime (Penal Law, § 2186), so that the judgment convicting him of a crime was invalid and deprived him of his liberty without due process of law.

The application concerning the 1918 judgment was predicated upon the allegation that the intervener was not advised of his right to counsel at the time a plea of guilty was accepted. He asserts: “Before my arraignment, the police officer who arrested me told me that I should not get a lawyer — that I would be better off without one. At the arraignment I was not represented by counsel nor was I advised by the Clerk or the Magistrate presiding that I was entitled to such representation or that if I did not have the funds to employ counsel that the court would assign counsel to me. In any event, without the advice of counsel, when I was asked how T pleaded to the charge, I replied, ‘ Guilty.’ I was thereupon held for the grand jury.” Subsequently an indictment was found against intervener charging him with the crime of grand larceny in the second degree, to which he pleaded guilty. He states: ‘ ‘ At no time during any of the proceedings above set forth was I represented by counsel nor was I at any time advised that I was entitled to such representation. The only mention that was ever made of counsel during this proceeding was when the arresting officer told me before taking me before the Bench for arraignment in the Magistrates’ Court that I shouldn’t get a lawyer for I did not need one.” He alleges that, since his conviction, he has learned that the value of the merchandise which he is accused of stealing was no more than $46.20 and he therefore should have been charged with the crime of petit larceny instead of grand larceny, and that, “ If I had been cognizant of this fact at the time of my arraignment, or if I had benefit of counsel to so advise me, it is obvious that I would not have pleaded guilty to attempted grand larceny in the second degree.”

While we may not concern ourselves with the merits of these applications, we must, in view of the fact that the court has denied motions to dismiss them for lack of jurisdiction, consider the sufficiency of the allegations to sustain the court’s jurisdiction to vacate and set aside its judgment of conviction. As to the first conviction, involving only the question of the intervener’s age, that was a question of fact determined upon the trial. If there was any mistake about it, the question could have been raised again upon a motion for a new trial and there is no basis whatever for any proceeding in coram nobis. It was held below, and is insisted here, that prohibition cannot lie because the. Court of General Sessions has general jurisdiction to vacate its own judgments in coram nobis proceedings and a fortiori has jurisdiction to determine the sufficiency of the applications to sustain its jurisdiction to proceed further. These contentions overlook the function of the writ of prohibition, not merely to restrain an unwarranted assumption of jurisdiction, but also to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction. That jurisdiction the court has exercised but in error has concluded with reference to the 1915 conviction that it may proceed further and upon the facts alleged, if they be established, vacate and set aside its judgment of conviction. This the court may not do without exceeding its jurisdiction, and the writ of prohibition may be used to restrain further proceedings in excess of jurisdiction. These rules were well stated in Matter of Culver Contrg. Corp. v. Humphrey (268 N. Y. 26, 39): “ The order of prohibition is provided for by the Civil Practice Act (§§ 1341-1355) [now Civ. Prac. Act, art. 78, §§ 1283-1306]. These sections represent the codification of the common law writ of prohibition. The change is only of form and the order continues to be governed by the common law as to its nature, function and the facts governing its issuance. The remedy is an extraordinary one which lies within the discretion of the court. Although ordinarily employed to restrain a subordinate tribunal from entertaining a cause or proceeding over which it has no jurisdiction (People ex rel. Safford v. Surrogate’s Court, 229 N. Y. 495; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24), it may be exercised also to enjoin a lower court from exceeding its authorized powers in a proceeding over which it has jurisdiction. (Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. Court of General Sessions, 185 N. Y. 504.) (See People ex rel. Livingston v. Wyatt, 186 N. Y. 383; at p. 393.) The writ does not issue where the grievance can be redressed by ordinary proceedings at law or in equity or merely to prevent error which may be readily corrected on appeal. (People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Pummel v. Trial Term, 184 N. Y. 30; People ex rel. Livingston v. Wyatt, supra; People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463.) It is not available ordinarily as a method of premature appeal. Nevertheless, where the lower court is exceeding its jurisdiction and the writ or order furnishes a more effective remedy, it may be availed of although the error might be corrected by appeal.” The remedy is particularly appropriate when, as in this case, the error may not be corrected on appeal (People v. Gersewits, supra; People ex rel. Jerome v. Court of General Sessions, 185 N. Y. 504, 506; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24, 35; Canizio v. State of New York, 327 U. S. 82).

As to the second conviction, without considering the merits, we are constrained to conclude that the failure to advise the defendant of his right to counsel, in the light of all the surrounding circumstances as they may be developed in further proceedings, may require the exercise of the court’s extraordinary power to vacate its own judgments as upon a writ of error coram nobis.

The order should be reversed insofar as it dismisses that part of the petition which seeks an order of prohibition with respect to the 1915 judgment, and as to such part of the petition the application should be granted; otherwise the order should be affirmed, without costs.

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

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

Ordered accordingly.


text:
    Arthur L. Malkenson, Appellant, v. Journal-News Corporation, Respondent.
    Argued June 7, 1946;
    decided July 23, 1946.

      John A. Bell, Jr., for appellant.
    I. The Appellate Division erred in its determination. (Matter of Paramount Publix Corp., 90 F. 2d 441; Garbarino v. Utica Uniform Co., 269 App. Div. 622; Kane v. Walsh, 295 N. Y. 198; Strobe v. Netherland Co., Inc.,
      245 App. Div. 573; Buhl v. University of State of New York, 182 Misc. 786, 268 App. Div. 530.) II. An action for a declaratory judgment is the proper remedy. (Kane v. Walsh, 295 N. Y. 198; Faingnaert v. Moss, 295 N. Y. 18; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45; Kalman v. Shubert, 270 N. Y. 375; Kittinger v. Churchill Evangelistic Assn., Inc., 151 Misc. 350, 244 App. Div. 876; Bond Stores, Inc., v. Marbridge Building Co., 185 Misc. 1043; Levy v. Congregation Beth Sholom, 181 Misc. 877.)

      Nathan Immerman for respondent. The remedy of declaratory judgment is not available to plaintiff.
   Per Curiam.

We think the allegations of the complaint were sufficient to require an exercise of the court’s discretion under rule 212 of the Rules of Civil Practice (Civ. Prac. Act, § 473) and that the court erred in dismissing the complaint “ upon the law ” (Rockland Light and Power Co. v. City of New York, 289 N. Y. 45). There is nothing upon the face of the contract to indicate an illegal invasion of the powers of the directors. What the plaintiff sought was a declaration of legal rights flowing from acts of the directors. The Appellate Division having reversed and dismissed the complaint upon the law, we assume that the dismissal was not an exercise of its extraordinary discretionary powers (Civ. Prac. Act, § 602; Newburger v. Lubell, 257 N. Y. 383, 385; Seventh Annual Report of N. Y. Judicial Council, 1941, p. 555; Batchelar v. Batchelar, 244 N. Y. 274; Matter of Berry v. Brearton, 263 N. Y. 274).

Accordingly, we reverse the judgment appealed from, with costs to abide the event, and remit the case to the Appellate Division for determination as it may be advised upon the question of discretion raised in that court by defendant’s motion to dismiss.

The judgment should be reversed and the case remitted to the Appellate Division for further proceedings not inconsistent with this opinion, with costs to abide the event.

Loughban, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ., concur; Dye, J., taking no part.

Judgment reversed, etc.


text:
    In the Matter of Harlem Check Cashing Corporation, Appellant, against Elliott V. Bell, as Superintendent of Banks of the State of New York, Respondent.
    Argued June 6, 1946;
    decided July 23, 1946.

      Neilson Olcott and John H. Jacltson for appellant.
    1. Under section 605 of the Federal Communications Act of 1934, it was a crime to intercept and divulge telephone messages. This statute creates a rule of evidence binding on all courts, State and Federal, and applies to intrastate as well as interstate messages. Article I, section 12, of the Constitution of the State of Hew York and section 813-a of the New York Code of Criminal Procedure purporting to legalize such interception and disclosure are violative of the interstate commerce clause of the Federal Constitution (art. I, § 8, cl. 3). (Weiss v. United States, 308 U. S. 321; Goldstein v. U. S., 316 U. S. 114; Rowan v. State, 175 Md. 547; People v. Kelley, 122 Pac. 2d 655; People v. Kelley, 137 Pac. 2d 1; Erie R. R. Co. v. New York, 233 U. S. 671; People v. Hudson River Connecting R. R. Corp., 228 N. Y. 203; Sablowsky v. United States, 101 F. 2d 183.) II. The order should be reversed because the Superintendent avowedly “ considered ” the illegal evidence, despite the fact that he asserted, hypothetically, that he would have reached the same result without it. (Morgan v. United States, 298 U. S. 468.) III. The admission of the evidence objected to resulted in denying appellant a fair hearing. (People ex rel. Shiels v. Greene, 179 N. Y. 195; People ex rel. Moynihan v. Greene, 179 N. Y. 253; Matter of N. Y. City Council v. Goldwater, 284 N. Y. 296.)

      Nathaniel L. Goldstein, Attorney-General (John P. Powers and Samuel A. Eirschowitz of counsel), for respondent.
    The evidence obtained by wire tapping was properly received and did not deprive the witness of any constitutional rights. (United States v. Butler, 297 U. S. 1; Townsend v. Yeomans, 301 U. S. 441; Stafford v. Wallace, 258 U. S. 495; Terminal Railroad Association of St. Louis v. Brotherhood of Railroad Trainmen, 318 U. S. 1; Sablowshy v. United States, 101 F. 2d 183; Twining v. State of New Jersey, 211 U. S. 78; Brown v. Mississippi, 297 U. S. 278; Jordan v. Massachusetts, 225 U. S. 167; Milburne v. United States, 77 F. 2d 310; People v. Richter’s Jewelers, Inc., 291 N. Y. 161; People v. Defore, 242 N. Y. 13; Hubin v. State, 180 Md. 279; Rowan v. State, 175 Md. 547; Young v. Young, 56 R. I. 401.)
   Per Curiam.

We are not persuaded that we are constrained by the decision in Weiss v. United States (308 U. S. 321) to condemn as illegal the disclosure and divulgence, by use in evidence, of the intercepted messages which were recorded by tapping wires in accordance with the statutes of the State as expressly authorized by the Constitution of the State (N. Y. Const., art. I, § 12; Code Crim. Pro., § 813-a). That case dealt with intercepted telephone messages procured without a court order and in violation of the laws of this State (Penal Law, § 1423, subd. 6) by a police officer acting under instructions of a post-office inspector, and the sole question decided was “ whether the [Federal] trial court properly received in evidence intercepted telephone communications ” (Weiss v. United States, 307 U. S. 621, 308 U. S. 321, 326). While there aré expressions in the opinion of the court which seem to go so far as to interpret the Federal statute as a substantive law forbidding all disclosure or divulgence, the decision was concerned only with the propriety of the receipt of such intercepted messages in evidence on the trial of a criminal case in a Federal court. The State of New York having provided, by Constitution and statute, certain specific methods by which it may exercise its fundamental power of gathering evidence of criminality and of prosecuting crime, it surely is not to be assumed that Congress intended to circumscribe that power unless it unequivocally indicated such an intent. A Federal statute, it is recognized, must be presumed to be limited in effect to the Federal jurisdiction and not to supersede a State’s exercise of its police power unless there be a clear manifestation to the contrary. (Townsend v. Yeomans, 301 U. S. 441, 454; Atchison Ry. v. Railroad Comm., 283 U. S. 380, 392-393; Savage v. Jones, 225 U. S. 501, 533.)

The order should be affirmed, with costs.

Loughran, Ch. J., Lewis, Conway, Desmond, Thaoheb and, Fuld, JJ., concur; Dye, J., taking no part.

Order affirmed.


author: Conway, J.

text:
    Central Greyhound Lines, Inc., of New York, Appellant, v. Carroll E. Healey et al., Constituting the State Tax Commission, Respondents.
    Argued June 6, 1946;
    decided July 23, 1946.

      Charles A. Schoeneck for appellant.'
    I. If receipts from the sale of utility services for use partly within and partly outside the State are taxable under section 186-a of the Tax Law when the voyage originates and terminates in New York State, the tax must be limited to the revenue attributable to the mileage in New York State. (Lehigh Valley Railroad v. Pennsylvania, 145 U. S. 192; U. S. Express Co. v. Minnesota, 223 U. S. 335; Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617.) II. The history of section 186-a and the plain meaning of the language used show a clear legislative intent to limit the tax to utility services consumed or used in New York State and not to tax services consumed or used partly within and partly without the state. (People ex rel. Cornell Steamboat Co. v. Sohmer, 206 N. Y. 651, 235 U. S. 549; Matter of Hamlin, 226 N, Y. 407; Pacific Express Co. v. Seibert, 142 U. S. 339; Converse v. Northern Pacific R. R. Co., 2 F. 2d 959; Hoyt v. Commissioner of Taxes, 23 N. Y. 224; People ex rel. Jefferson v. Smith, 88 N. Y. 576; People ex rel. Metropolitan Playhouses, Inc., v. Graves, 251 App. Div. 655, 275 N. Y. 621; Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Matter of Luchow, Inc., v. Taylor, 251 App. Div. 164, 275 N. Y. 536.)

      Nathaniel L. Goldstein, Attorney-General (John C. Crary,Jr., and Wendell P. Brown of counsel), for respondents.
    Appellant’s receipts from sale of transportation from points in the State of New York to destinations therein are validly taxable in their entirety although a portion of the route lies outside the State, and section 186-a of the Tax Law applies to such receipts. (People ex rel. Cornell Steamboat Co. v. Sohmer, 235 U. S. 549; Cornell Steamboat Co. v. United States, 321 U. S. 635; Maine v. Grand Trunk Ry. Co., 142 U. S. 217; McGoldrick v. Berwind-White Co., 309 U. S. 33; O’Kane v. State, 283 N. Y. 439; International Harvester Co. v. Dept, of Treasury, 322 U. S. 340; People ex rel. Pennsylvania R. R. Co. v. Wemple, 138 N. Y. 1; People ex rel. N. Y. C. & H. R. R. Co. v. Roberts, 32 App. Div. 113, 157 N. Y. 677.)
   Conway, J.

There is presented for construction a part of section 186-a of the Tax Law. That section imposes an emergency tax of 2% upon the gross income of every utility doing business in this State which is subject to the supervision of the State Department of Public Service and which has an annual gross income in excess of $500. The petitioner is a corporation engaged in business as a common carrier by omnibus and subject to the supervision of the Public Service Commission. It operates omnibuses both within and without the State. Subdivision 2, clause (a) provides that the word utility ” includes every person subject to the supervision of the State Department of Public Service with certain exceptions not material here. Subdivision 2, clause (b) provides that the word “ person ” includes corporations.

Subdivision 2, clause (c) provides: “ the words ‘ gross income ’ mean and include receipts received in or by reason of any sale * * * made or service rendered for ultimate consumption or use by the purchaser in this state * * V’

The State Tax Commission included within petitioner’s gross income, for the purpose of computing the emergency tax, receipts from sales of tickets for certain journeys which originated and terminated in New York State but 'which went through New Jersey and Pennsylvania. At the hearing before the commission, the proof was limited to figures for July, 1937, with the stipulation that the result should be applicable to all the assessments for which application for revision had been filed.

The regular route of the busses of this company traveling between New York City and cities and villages in upstate New York is through New Jersey and Pennsylvania. A passenger who wishes to go to New York City from Buffalo, for instance, buys a single ticket marked “ Buffalo to New York City.” The bus travels within this State from Buffalo to Elmira; en route from Elmira to Towanda, Pennsylvania, it crosses the Pennsylvania State line and continues through Pennsylvania to Scranton. En route from Scranton, it crosses the New Jersey State line and continues through New. Jersey to the Holland or Manhattan Tunnel and into New York City.

Petitioner’s Exhibit 7, entitled “ Receipts from Interstate Business .Which Originates apto Terminates in New York State ”, breaks down the total receipts of July, 1937, for journeys originating and terminating in New York State into two figures: $84,412.31 which represents receipts for total mileage covered, and $48,508.97 which represents receipts for mileage covered within New York State. Receipts for journeys wMch begin at a point in New York State and terminate at a point outside of the State, or the reverse, are not included in this controversy.

The contention of the petitioner at the hearing before the commission was that gross income to be taxed under this statute, if any, is limited to receipts representing mileage covered within New York State. The assessment of $1,688.24 made by the commission on the basis of total receipts for these journeys was affirmed upon the hearing. It was stipulated that the commission found that (1) 42.53$ of the total mileage of such journeys was traversed without the State, and 57.47$ within the State; (2) that section 186-a of the Tax Law applies to bus transportation originating and terminating in this State; (3) that section 186-a so construed violates neither the Federal nor State Constitutions; and (4) that the receipts from such transportation should not be prorated according to the mileage traversed in and out of this State.

Petitioner advances two arguments. The first is that the language of section 186-a includes within “ gross income ” receipts for sales made or service rendered for ultimate consumption or use by the purchaser in this State, but does not’ include sales made or service rendered for consumption or use partly within and partly without the State. Petitioner argues that the word “ ultimate ” has no reference to the point of destination in transportation and may therefore be disregarded. It explains that that word was used in order to make the tax applicable to the resale of utility services by the original purchaser of such service (for instance, submeterers), and at the same time to avoid the pyramiding of taxes which would result from taxation of both wholesale and retail sales. There seems no reason to doubt this explanation of the word “ ultimate ” so far as it refers to submeterers. Indeed, the “ Declaration of legislative intent ” which accompanied the amendment of section 186-a in 1941 (L. 1941, ch. 137, § 1) states: “It was intended to include persons and corporations which were directly in competition with ordinary utilities, such as, landlords and submeterers, who buy their services from other utilities and, in turn, resell such services. For that reason the tax was imposed on receipts from sales to ultimate consumers. Receipts from the sale of such utility services to submeterers were not taxed, but receipts «of submeterers from their own customers were intended to be taxed.”

However, that aspect of the use of the word “ ultimate ” does not render it necessary to ignore the word entirely in relation to transportation. Nor do we think the Legislature intended such a result. Subdivision 1 of the section distinguishes between utilities subject to the supervision of the Department of Public Service and utilities not so subject. Submeterers and landlords are not subject to the supervision of the Department of Public Service, but they are taxable under this statute. (Matter of Lacidem Realty Corp. v. Graves, 288 N. Y. 354.) A 2% tax of its “ gross income ” is imposed on every utility subject to the supervision of the Department of Public Service; a 2% tax is also imposed on the “ gross operating income ” of every other utility doing business in this state ”. Subdivision 2, clause (c) defines “ gross income ” (which, as used in subdivision 1, refers only to income of utilities under the supervision of the department, to which class petitioner belongs) as including receipts for “ any sale * * * made or service rendered for ultimate consumption or use * * * in this state ”. Subdivision 2, clause (d) defines gross operating income ” (which, as used in subdivision 1, refers to income of those not under the supervision of the department, to which class submeterers and landlords belong) as including receipts for any sale * * * made for ultimate consumption or use ” or for “ furnishing for such consumption or use * * * in this state Thus it appears that the word “ ultimate ” is used in both cases.

Petitioner also points out that section 186-a “ is not the first law of this state imposing a tax upon the gross income of utilities engaged ip, the transportation business.” It cites section 184 of the Tax Law which imposes a franchise tax on transportation and transmission corporations and associations. That statute includes within “ gross earnings ” earnings from transportation or transmission business originating and terminating within this state ” but excludes “ earnings derived from business of an interstate character ”. Petitioner argues that since section 186-a does not use the phrase “ earnings from * * * business originating and terminating within this state ”, section 186-a excepts this type of business from taxation.

We do not think it necessary to attempt to interpret section 186-a in the light of the language of section 184. It is not shown that the two sections are related in any way. Section 184 has been in force with frequent amendments since 1880. It imposes a franchise tax on corporations doing a particular kind of business: transportation or transmission. Section 186-a, in force since 1937, imposes an emergency tax on a-great, number of different utility services. We think that the language of the latter is broad enough to include the kind of business in issue here, and that it was not necessary in a statute which was made applicable to such a wide field to use the specific words used in section 184 in relation to transportation corporations.

Even aside from the use of the word ultimate ”, we do not agree with petitioner’s assertion that the service it renders in this transportation is consumed or used partly within and partly without the State. The Appellate Division pointed that out clearly.

The second argument of petitioner is that, if the statute is construed to tax this kind* of business, it should be construed to tax only that proportion of receipts attributable to mileage within this State.. Its petition in the Supreme Court alleged that a construction of section 186-a which includes within gross income the total receipts for these trips is “ contrary to statute [and] is unconstitutional ”, but petitioner does not urge in its brief here that such construction is unconstitutional. It states that the primary question is not one of constitutional taxing power but of statutory construction. It relies upon Lehigh Valley Railroad v. Pennsylvania (145 U. S. 192); United States Express Co. v. Minnesota (223 U. S. 335); and Hanley v. Kansas City Southern Ry. Co. (187 U. S. 617) as indicating that the statute ought to be limited to receipts for mileage covered within this State. It should be noted here that the petitioner cites no cáse where the "United States Supreme Court has held that a tax on transportation originating and terminating in one State but passing through another State must he limited to receipts for mileage covered within the State of origin and terminus. In the Lehigh Valley case, the State court had upheld a tax imposed on a railroad corporation, based on receipts for continuous transportation beginning and ending in Pennsylvania but passing through New Jersey. It appears that only that portion of transportation which was within Pennsylvania was taxed. The railroad objected to the tax on the ground that the transportation was interstate commerce. The question before the Supreme Court was: “ * * * simply whether, in the carriage of freight and passengers between two points in one State, the mere passage over the soil of another ‘State renders that business foreign, which is domestic. We do not think such a view can be reasonably entertained, and are of opinion that this taxation is not open to constitutional objection by reason of the particular way in which Philadelphia was reached from Mauch Chunk.”

In State v. United States Express Co. (114 Minn. 346), a tax construed as a property tax was levied against the total transportation business done by defendant within the State. The Supreme Court of Minnesota held, following the Lehigh case, that transportation originating and terminating in Minnesota but passing through another State was not interstate commerce. It then limited the tax, however, to the mileage within the State, saying (p. 350): “ This seems to us the safer rule, and avoids any question of taxing interstate-commerce * * *.” When the case reached the United States Supreme Court it was affirmed (223 U. S. 335). It is not accurate to say that the Minnesota court held that the Lehigh case required that the tax be limited to revenue from mileage within the State, and that the Supreme Court affirmed that holding. As in the Lehigh case, the appellant in the Supreme Court objected to the taxation of any of the transportation which originated and terminated in Minnesota but passed through another State, on the ground that that kind of business was interstate commerce. The Supreme Court cited the Lehigh case as controlling on this issue (pp. 341-342) not on the question of whether the tax should be prorated. It does not appear that the latter question was before the court.

Hanley v. Kansas City Southern Ry. Co. (187 U. S. 617) cited by petitioner, is not applicable here, since it determined only that commerce extending from one State to a Territory may not be regulated by either State or Territory; it specifically distinguished the Lehigh case as an example of State taxing power.

There is no constitutional objection to taxation of the total receipts here. This is not interstate commerce (Lehigh Valley case; supra; People ex rel. Cornell Steamboat Co. v. Sohmer, 235 U. 8. 549; Ewing v. Leavenworth, 226 U. S. 464); and, since we think that this service is “ service rendered for ultimate consumption, or use by the purchaser in this state ”, we see no reason why the statute should be construed to limit the tax to receipts attributable to mileage covered within this State in the course of continuous transportation between points in this State.

The order should be affirmed, with costs. [See 296 N. Y. 638.]

Loughban, Ch. J., Lewis, Desmond, Thaoheb and Fuld, JJ., concur; Dye, J., taking no part.

Order affirmed.