author: Lehman, J. Crouch, J.

text:
    Emmy Mertz, Appellant, v. Fred Mertz, Respondent.

      (Argued June 3, 1936;
    decided July 8, 1936.)

      Israel Hoffman and David StecJder for appellant.

      Irving I. Goldsmith, Monroe Collenburg, Frank Rashap and Joseph L. Roesch for respondent.
   Lehman, J.

The plaintiff has brought an action in this State against her husband to recover damages for personal injuries which, she alleges, she sustained in the State of Connecticut through her husband’s negligent operation of an automobile, owned and controlled by him. Under the law of New York the rule is well established that a husband is not liable to his wife for personal injuries caused by his negligence. (Schultz v. Schultz, 89 N. Y. 644; Allen v. Allen, 246 N. Y. 571.) The complaint alleges that under the law of the State of Connecticut a husband is liable for such injuries. The parties are residents of the State of New York. The problem presented upon this appeal is whether a wife residing here may resort to the courts of this State to enforce liability for a wrong committéd outside of the State, though under the laws of this State a husband is immune from such liability.

“A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage.” The immunity of the husband is based upon the common law doctrine of the merger of the beings of husband and-wife in the unity of marriage. Each spouse is disabled under our law from maintaining an action against the other for personal injuries. (Schubert v. Schubert Wagon Co., 249 N. Y. 253, 256.) We are told that the rule “ exists merely as a product of judicial interpretation, is vestigial in character, and embodies no tenable policy of morals or social welfare.” That is a strong indictment of the existing law, and if true calls for change in the law. In spite of such arguments, this court has held that the rule of law exists by tradition and authority, and change, if any, must be made by the Legislature. “ We are not at liberty to extend it by dubious construction.” (Schubert v. Schubert Wagon Co., supra, p. 258.) It is equally true that we are not at liberty to disregard it as long as it remains part of the law of the State.

The Legislature of Connecticut has chosen to remove the common law disability. There a wife may maintain an action against her husband for damages caused by his wrong and no exception has been engrafted there upon the general rule that “ illegality established, liability ensues.” The sovereign power of each State is coterminous with its territorial limits. Its law alone determines what acts may be performed there with impunity and from what acts liability enforceable in its courts shall flow. The law of one State has in other jurisdictions such force only as is lent to it by the law of such jurisdiction. A cause of action for personal injuries is transitory. Liability follows the person and may be enforced wherever c. the person may be found. None the less, a cause of i action arising in one State may be enforced in another \ State only by the use of remedies afforded by the law of [the forum where enforcement is sought. The courts of the State of New York are not concerned with the wisdom of the law of Connecticut or of the internal policy back of that law. They must enforce a transitory cause of action arising elsewhere, unless enforcement is contrary to the law of this State. So we have said, The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” (Loucks v. Standard Oil Co., 224 N. Y. 99, 111.) (Cf. American Law Institute, Restatement of the Law of Conflict of Laws, § 612.)

We have said again and again, as we did in Loucks v. Standard Oil Co. (supra), that rights may not be granted or withheld by our courts “ at the pleasure of the judges, to suit the individual notion of expediency and fairness.” When the court said further in that case that the test of a right to resort to the courts of this State for enforcement of a foreign right exists “ unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal,” the court did not and could not have intended to formulate a standard measured by individual notion of expediency and fairness ” or, indeed, by any standard other than the law of the forum. Judicial decision has heretofore been confined to the formulation of rules of law and their application to the facts of a particular case. Notions of expediency and justice which at times we call public policy ” may exercise a controlling influence in the development of law. Indeed as Judge Crouch has pointed out in his opinion, “ back of every law is something which is conventionally referred to as public policy.” Law written in constitution or statute is fixed. The courts must interpret the writing; they may not disregard the law as written. Its validity does not depend upon whether the public policy behind it is strong or weak, sound or unsound. It must always control judicial decision. Only the unwritten law resting upon judicial precedent is plastic. There, in reaching decision, the courts must, at times, formulate a new rule of law where statutes or earlier decisions furnish no sure guide. How far judicial decision then may be dictated by individual notion of expediency and justice has been the subject of much discussion. "Upon one point all agree. The courts must always endeavor to apply to the facts of a particular case a general rule of law which they find expressed in statute or judicial decision or which they formulate to meet new conditions; and even in formulating a rule individual notion of public policy may be given effect only where the court finds that its notion of public policy is so generally held and so obviously sound that it is in fact a part of the law of the State.

“ The term ‘ public policy ’ is frequently used in a very vague, loose or inaccurate sense. The courts have often found it necessary to define its juridical meaning, and have held that a State can have no public'policy except what is to be found in its constitution and laws. (Vidal v. Gerard’s Exr., 2 How. [U. S.] 127; Hollis v. Drew Theological Seminary, 95 N. Y. 166; Cross v. U. S. T. Co., 131 N. Y. 343; Dammert v. Osborn, 140 N. Y. 40.) Thereforewhen we speak of the public policy of the State, we mean the law of the State, whether found in the Constitution, the statutes or judicial records.” (People v. Hawkins, 157 N. Y. 1, 12.) We have reiterated that definition in Straus & Co. v. Canadian Pacific Ry. Co. (254 N. Y. 407, at p. 413). There is nothing in the opinion in Loucks v. Standard Oil Co. (supra) which could indicate that in the field of conflict of laws the juridical meaning ” of the vague concept of public policy is different.

In that case the administrator of a resident of this State who was killed in Massachusetts sued here to recover the damages caused by his death. In Massachusetts, as in New York, statutes have created a cause of action for death caused by wrongful act. The remedies are not in all respects alike. In Massachusetts there are limitations upon a recovery which are not contained in the New York statute. Nevertheless in each State the. statute provides a remedy through suit by the administrator and no public policy to be found in the Constitution, the statutes or judicial records ” of this State, no fundamental principle of justice,” no “ prevalent conception of good morals ” or “ deep-rooted tradition of the common weal ” precluded the administrator from enforcing, in our courts, by the remedy available under our law, the cause of action arising in Massachusetts for wrong committed there. This court then held only that in such case the courts may not read into the law a limitation created by a supposed public policy, founded on its own notion of expediency and justice. It did not hold that the courts might disregard a limitation, contained in the law of the State, established by authority and tradition, because the court could not discern a sound public policy back of the law.

The law of the forum determines the jurisdiction of the courts, the capacity of parties to sue or to be sued, the remedies which are available to suitors and the procedure of the courts. Where a party seeks in this State enforcement of a cause of action created by foreign law, he can avail himself only of the remedies provided by our law, and is subject to the general limitations which are part of our law. So we pointed out in Loucks v. Standard Oil Co. (supra) and the same rule is generally applied in all other jurisdictions. “ If no form of action is provided by the law of a State for the enforcement of a particular foreign right, no action to enforce that right can be maintained in the State.” (Restatement of Law of Conflict of Laws, § 608.) Our courts are not concerned with the internal policy of the State which created the cause of action. They are concerned solely with the law of this State which determines the jurisdiction of its courts and the remedies that may be accorded here. The law of this State attaches to the marriage status a reciprocal disability which precludes , a suit by one spouse against the other for personal injuries. It recognizes the wrong but denies remedy for such wrong by attaching to the person of the spouse a disability to sue. No other State can, outside of its own territorial limits, remove that disability or provide by its law á remedy available in our courts which our law denies to other suitors. So we said in Herzog v. Stern (264 N. Y. 379). A disability to sue /which arises solely from the marital status and which has no relation to a definition of wrong or the quality of an act from which liability would otherwise spring, may ' perhaps be an anachronistic survival of a common law rule. Even then, the courts should not transform an anachrony into an anomaly, and a disability to sue attached by our law to the person of a wife becomes an anomaly if another State can confer upon a wife, even though residing here, capacity to sue in our courts upon a cause of action arising there.

The judgment should be affirmed, with costs.

Crouch, J.

(dissenting). The plaintiff and defendant, residents of New York, are wife and husband. The action is for personal injuries sustained, through the defendant’s gross negligence, by the plaintiff in Connecticut while a passenger in defendant’s automobile. The complaint alleges that by the law of Connecticut a wife, under such circumstances, may maintain an action against a husband. The Appellate Division affirmed a judgment dismissing the complaint for insufficiency and lack of jurisdiction. It was held that “ the cause of action asserted offends our public policy to so great an extent that the court is without jurisdiction to entertain it.”

Without pausing to inquire whether the word jurisdiction ” was accurately used, we accept it as a convenient symbol applying to a refusal to enforce a claim created by a foreign law. In approaching the question whether the refusal was justified, certain general principles may be dogmatically stated. The cause of action rests primarily upon the law of Connecticut. If we entertain it, whether we say we are enforcing the original foreign law or a copy of it incorporated in our own rule of conflicts, is immaterial as a practical matter. It is not penal; it is transitory; and our courts will enforce it according to the substantive law of Connecticut unless it “is contrary to the strong public policy ” of our own State. (Restatement of Law of Conflict of Laws, § 612.) We are left, then, to determine whether the law of Connecticut, which permits. a wife to sue a husband for personal injuries, is contrary to some strong public policy of New York.

The public policy concept is a vague • and variable phenomenon. When we find it necessary, in a general way, to embody it in words, we are apt to resort to the language used in People v. Hawkins (157 N. Y. 1, 12), and say that when we use the term “ we mean the law of the State, whether found in the Constitution, the statutes or judicial records.” We go further, sometimes, and in explanation say that the law so found evidences the will of the Legislature ” (Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407, 413), and so, perhaps, represents an inarticulate public opinion on the specific matter involved. In that broad sense it may be true to say that back of every law there is something which is conventionally referred to as public policy. Obviously, however, the bulk of public policy, so defined, relates to minor morals of expediency and debatable questions of internal policy.”. Hence, the difference between our own public policy and that of our sister States is for the most part disregarded by our own law of conflict of laws. In that field, the concept of public policy is greatly narrowed and specialized. People v. Hawkins (supra) was a non-conflict case. The strong public policy,” which alone serves to prevent the enforcement of foreign rights, must have relation to something which in its nature offends our sense of. justice or menaces the public welfare.” (Loucks v. Standard Oil Co., 224 N. Y. 99, 110.) Our courts do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of our common weal.” (Id. p. 111.)

It may be freely conceded that back of the New York rule which withholds from the wife the right to sue the husband for personal injuries is a public policy of the kind which is back of every other rule of law. But neither in the history of the rule nor in its operation is there anything to indicate that that policy is founded upon a definite view — or even upon some vague feeling — that justice or the public welfare would be affected by a contrary rule. There is no need again to trace the course of decision by which the rule as an exception became “ engrafted upon ” (Schubert v. Schubert Wagon Co., 249 N. Y. 253, 258) what is now Domestic Relations Law (Cons. Laws, ch. 14), section 57. For that story and its consequences reference may be had to the opinion of Pound, J., in Allen v. Allen (246 N. Y. 571). It is enough to say that the rule exists merely as a product of judicial interpretation, is vestigial in character, and embodies no tenable policy of morals or of social welfare. To urge that it survives because it is an aid to conjugal peace disregards reality. Conjugal peace would be as seriously jarred by an action for breach of contract, or on a promissory note, or for an injury to property, real or personal, all of which the law permits, as by one for personal injury. In short, even though we assume that there is some shadowy element of policy back of the rule, it should give way to the controlling public policy * * * that the courts of each State shall give effect to all valid causes of action created by the laws of another State except possibly in extreme cases.” (Hubbs, J., in Herzog v. Stern, 264 N. Y. 379, 387; cf. Restatement of Law of Conflict of Laws, § 612, comment (c); 44 Yale Law Journal, 158.)

Resort to precedent in cases involving the doctrine of public policy is seldom useful. (Cf. Goodhart, Essays in Jurisprudence and The Common Law, p. 67.) Herzog v. Stern (supra) is not in conflict with the view herein expressed. The decision there went on the ground that each sovereign has complete control of the devolution and administration of the property of a deceased resident, and, since our own statutory scheme expressly excluded the claim sought to be enforced, our courts were without jurisdiction. There was, therefore,, no room for any consideration of the question of public policy (p. 384), though the view was expressed obiter that the same conclusion might be reached on that ground.

The judgment should be reversed, with costs in all courts.

Crane, Ch. J., O’Brien, Hubbs and Loughran, JJ., concur with Lehman, J.; Crouch, J., dissents in opinion, in which Finch, J., concurs.

Judgment affirmed.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Austin B. Irwin, Respondent, v. John Klein et al., Appellants.

      (Argued April 28, 1936;
    decided July 8, 1936.)

      Al. J. D’Auria for John Klein, appellant.

      Bertrand L. Pettigrew for Paramount Publix Corporation, appellant.

      Clarence E. Mellen and John II. Scully for R. K. 0. Studios, Inc., appellant.

      Fred P. Harrington, Edward A. Scott, Jr., and Edward A. Scott for respondent.
   Lehman, J.

The plaintiff, a police officer, was injured while acting as a motor escort for an automobile used in taking moving pictures in streets in New York for insertion in a film which the defendant R.K.O. Studios, Inc., was then making in Hollywood. For the consequent damages he has recovered a judgment against the three defendants who now appeal to this court.

The evidence fully sustains the finding of the jury that the accident was occasioned by negligence in the operation of the automobile without any contributory negligence on the part of the plaintiff. The automobile was owned by the defendant John Klein. He was engaged in the business of renting automobiles. In the course of his business he sent the automobile to the studios of the defendant Paramount Publix Corporation. The only directions which he gave to the driver of the automobile were to accept the orders or instructions of that company. That company had previously entered into an agreement with R.K.O. Studios, Inc., formulated in a letter which read as follows:

This confirms our verbal understanding with your Mr. A. Dearholt, concerning the taking of certain silent New York atmospheric shots for transparency use in one of your productions.
“ We are to furnish you necessary personnel, equipment and materials for the above work which are to be billed to you at cost plus our service charge of 33%, to be invoiced to you at the above address.”

An employee of R.K.O. Studios was in the automobile at the time of the accident. He came to New York pursuant to instructions from the office of that company in Hollywood in connection with the making of the motion picture. The plaintiff testified that this employee was the person who gave him directions and explained to him that “ he wanted me to eliminate traffic jams so that they could make a continuous film from start to finish; he didn’t want the film interfered with, or interrupted at any time.” It appears also from the plaintiff’s testimony that he was informed by this employee of R.K.O. that the automobile was to be operated in a manner which would permit the taking of a moving picture which would make it appear as though they were avoiding signal lights and going right straight through disregarding everything.” The plaintiff’s injuries resulted from such operation. The question upon this appeal is whether all or any of the defendants are liable for such injuries; Klein who owned the car, or Paramount Publix Company to which Klein furnished the car and driver, or R.K.O. Studios, Inc., which obtained, by contract with Paramount Publix' Company the “ necessary personnel, equipment and materials ” for the taking of the moving pictures.

An earlier judgment in the sum of $2,500 in favor of the plaintiff against the defendant R.K.O. Studios, Inc., was reversed by the Appellate Division, upon an appeal by the plaintiff, and a new trial granted. (Irwin v. Klein, 243 App. Div. 23.) The court there held that though, at the time of the accident, the defendant Klein had parted completely with control of the automobile and its driver, Klein remained liable for the negligence of the driver under the provisions of section 59 of the Vehicle and Traffic Law (Cons. Laws, ch. 71), because the automobile was used with his permission, and that the two other defendants were liable for the same negligence because the automobile was operated in their joint business and subject to their joint control. Upon the second trial the trial justice followed the rules laid down in the opinion of the Appellate Division and charged the jury that if the plaintiff was entitled to a verdict, it must be against all three defendants. The plaintiff now maintains that since the defendants did not appeal from the order of reversal, they are bound by that decision and cannot, upon this appeal, bring up for review any question of fact or law determined by that order.

The effect of that order was to set aside the judgment which would otherwise have been a final determination of the issues in the action, both of fact and law. From its nature the order could not finally determine any of such issues; they could be determined only by a final judgment entered after the trial ordered by the Appellate Division. The defendants might be aggrieved by the order setting aside a determination of the issues in the action, but ihe order left open those issues for a new contest upon which the defendants might again be successful. They could appeal to this court from the order setting aside the judgment only by giving a stipulation that, upon affirmance, judgment absolute should be entered against them. The choice whether or not to waive the possible benefit of a new trial lay with them. Waiver of a new trial would give them the benefit of an immediate appeal, but refusal to waive a new trial would not deprive the defendants of the right to challenge any judgment entered upon that trial. In making that choice the defendants might reasonably anticipate that the trial judge would follow the ruling of the Appellate Division that the earlier judgment was erroneous, and that, upon a second appeal, the Appellate Division would not abandon its earlier ruling; nevertheless the second judgment entered after the new trial constitutes the sole final determination of every question of fact and law and is open to challenge as if there had been no earlier trial and judgment.

The driver of the automobile was in the general employ of the defendant Klein, who hired him and paid his wages, and when Klein directed him to go to the studio of Paramount Publix Corporation, Klein intended to, and did, furnish to that corporation both the automobile and the services of the driver, for use in the business of the corporation. That corporation, in turn, furnished the automobile and the services of the driver for use in the business of the R.K.O. Studios. Each defendant maintains that the right to control the operation of the automobile at the time of the accident rested in some other defendant or defendants, and that responsibility for any negligence of the driver of the automobile is confined to the defendant who had the right to control its operation.

The common law rule of respondeat superior is based upon principles of agency. There the test is whether the wrongful act of the servant or employee was performed by one acting within the scope of his employment lin the business of the principal. The field of responsibility has been enlarged by section 59 of the Vehicle and Traffic Law. Liability is no longer dependent upon use or operation by a servant in the ‘ business ’ of a master.” It is dependent upon legal operation in that business “'or otherwise ’ with permission or consent.” (Fluegel v. Coudert, 244 N. Y. 393, 394-) Klein employed the driver of the vehicle. At the time of the accident the driver was operating the motor vehicle with his permission and pursuant to his employer’s direction to take instructions from Paramount Publix Corporation. We may assume that Klein did not intend to give Paramount Publix Corporation the right to use the vehicle for the dangerous purpose to which that company put the vehicle; but he did not place any restriction or condition upon his direction to the driver to obtain instructions from Paramount Publix Corporation and to proceed accordingly. Thus the driver at the time of the accident was legally ” operating the vehicle with the “ permission ” of the owner and the statute provides that for injuries resulting from negligence in such operation “ in the business of such owner or otherwise,” the owner is liable. (§ 59.)

The statute imposes in proper case a liability upon the owner of a motor vehicle not arising from the relation of master and servant. It leaves unchanged liability arising from that relation. There liability still depends upon proof that the negligence of the servant was in the “ business of the master or principal.” Difficulty in the application of the rules of agency at times arises where the servant is hired by one person and his services used in carrying out the purpose of another. The test for determining liability in such case “ has been stated in various ways. The general principles applicable are comparatively simple. The trouble comes in applying those principles to the varying facts of particular cases.” (Ramsey v. New York Central R. R. Co., 269 N. Y. 219.)

Any attempt to reconcile all the decisions of this court would require analysis of the facts in each case. The underlying principles remain constant and in Ramsey v. New York Central R. R. Co. (supra), we said that an examination of those cases will disclose that the”court has consistently enforced the rule that ‘ the servant of one master to become, for the time being, the servant of another must pass out of the direction and control of the former into that of the latter ” citing Cannon v. Fargo (221 N. Y. 321). Here we have a practical test, and practical rules have been evolved for its application. He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work but in all its details.” (Shearman & Redfield on the Law of Negligence, quoted with approval in Wyllie v. Palmer, 137 N. Y. 248, 257, and in Ramsey v. New York Central R. R. Co., supra, at p. 224.) The rule now is that as long as the employee is furthering the business of his general employer by the service rendered to another, there will be no inference of a new relation unless command has been surrendered, and no inference of its surrender from the mere fact of its division.” (Charles v. Barrett, 233 N. Y. 127, 129.) In the absence of proof that the general employer has surrendered control completely, it must be presumed that his control continued. (Bartolomeo v. Bennett Contracting Co., 245 N. Y. 66.)

Such tests and rules are necessary guide-posts for the proper application of the principles of the law of agency which underlie the rule of respondeat superior. They do not change these principles. Liability rests upon the principle that a principal is liable for the acts of his servant when the servant is acting in the business of the employer, within the scope of his employment and subject to the supreme control and right of direction by the employer. Confusion arises only in definition of what constitutes the “ business ” of the employer and what constitutes “ control and right of direction.” Instinct in every contract of employment is the right of the employer to direct the work of the employee and the duty of the employee to accept such direction. An agreement to perform work is not in true sense a contract of employment nnlñss the workman is bound to submit to the will of the person for whom the work is to be done, in regard to all the details of the work. Right to specify the work to be done, even right to require that in specified matters the workman shall submit to the will and directions of the person for whom the work is to be performed, is not sufficient to create the relation of master and servant. So long as the workman retains, even with such limitations, the-right to determiné the details of the performance of the work, he is rather an independent contractor than a servant, and his work, though performed in furtherance of the “business” of another person, remains the “ business ” of the workman.

This same principle of the law of agency must be applied when the contract for work is not made with the workman but with a general employer of the workman. If the general employer’s contract is to furnish an employee who will do the specified work under the supreme direction and control of the person for whom the work is to be done, the workman becomes for the time being the servant of the person to whom he is furnished. The general employer’s business ” in the matter does not include the doing of the work. He has no control of the manner in which it is performed, and the workman though hired by him does not act as his agent but as the agent of his employer for the time being to whose orders he must submit. Ordinarily a contract to lease an automobile with the services of a driver cannot be so construed. True, the parties in such case intend that the lessee may have the full use of the automobile, and by the express terms of the contract or by reasonable implication, the right is conferred upon the lessee to direct the driver where, when and how to drive the automobile; otherwise the purpose of the contract could not be fully carried out. None the less, so long as the general employer retains the right to direct and control in other details the operation of the automobile, the driver remains his servant rather than the servant of the lessee, and the driver’s work, though in furtherance of the business of the lessee, is performed in the course of his original employment and, therefore, in the business ” of the general employer, who there is acting as a contractor who has agreed to do the work of driving through the agency of one of his servants, rather than as a contractor who has agreed to supply a servant to work in the business ” of another. Thus in the absence of proof that a lessor of an automobile has surrendered to the lessee complete control and direction of the driver even outside of those matters where direction is a usual detail of the anticipated use, the lessor and not the lessee is the principal of the driver and responsible as such for negligence in the operation of the automobile at least where the accident was not the result of directions given by the lessee. (Cf. McLaughlin v. Audley Clarke Co., 251 N. Y. 507, and cases there cited.)

Here the circumstances are different. At the time of the accident the automobile was being put to a use, extraordinary and inherently dangerous in its nature. It could not be operated in such use without continuous and unquestioned control by the user. R.K.O. used the automobile, and through its employee did exercise such control. The general employer may not have anticipated that the automobile would be put to such use, and he may not have intended to part with complete control of its operation, but he made such use possible by his direction to the driver to take orders from the Paramount Publix Corporation. Regardless then of whether or not the lessee violated the terms of the contract of hiring, the lessor had effectively surrendered to that company complete control of the operation of the vehicle, and either that company or the R.K.O., which was using the vehicle, exercised complete control of the vehicle and its driver at the time of the accident.

The Paramount Publix Corporation placed the leased automobile and its driver at the disposal of R.K.O. Studios, Inc., for use in taking the moving picture. It did so pursuant to its agreement with R.K.O. to furnish necessary personnel, equipment and materials for the above work.” It did not agree to do any part of the work for R.K.O. through its agents or servants. It agreed only to loan its servants and equipment to R.K.O. for use in the business of R.K.O. It hired the automobile and driver from Klein to enable it to carry out its agreement. It surrendered to R.K.O. the same control over the driver which Klein had surrendered to it. Both the express terms of the contract and the manner in which it was carried out show conclusively that so far as concerns the taking of the picture, Paramount’s “ business ” extended only to furnishing the personnel and equipment, and R.K.O. business began at that point. In that business R.K.O. had sole control and direction and is liable as principal for negligence of its servants. Paramount Publix has no such responsibility.

The judgments against Klein and It.K.O. Studios, Inc., should be affirmed, with costs; the judgment against Paramount Publix Corporation reversed and the complaint dismissed, with costs in all courts.

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgment accordingly.


text:
    In the Matter of Elite Dairy Products, Inc., Respondent, against Peter G. Ten Eyck, as Commissioner of the Department of Agriculture and Markets of the State of New York, Appellant.

      (Argued June 5, 1936;
    decided July 8, 1936.)

      Henry S. Manley for appellant.

      Herbert L. Maltinsky and Harry L. Marcus for respondent.
   Lehman, J.

In March, 1935, the petitioner Elite Dairy Products, Inc., applied for a license to purchase, handle, sell or distribute milk,” pursuant to the provisions of article 21 of the Agriculture and Markets Law (Cons. Laws, ch. 69) for the period ending March 31, 1936. The application was denied by the Commissioner of the Department of Agriculture and Markets. The determi' nation of the Commissioner was brought before the Appellate Division for review by certiorari proceedings. That court annulled the determination and directed the Department of Agriculture to issue a license.

A supervisor of field work of the Department of Agriculture held a hearing upon that application. He reported that the application should be denied. Upon receipt of the report, the Director of the Division of Milk Control filed a memorandum containing a similar recommendation. Thereupon an order was made “ that, in accordance with the memorandum of the Director of the Division of Milk Control dated June 8th, 1935, the application of said Elite Dairy Products, Inc., for an extension of its license to permit the sale of fluid milk be and the same is hereby denied.” The order was signed Peter G. Ten Eyck, Commissioner of Agriculture and Markets of the State of New York, by Kenneth F. Fee, Director, Division of Milk Control.”

The Agriculture and Markets Law provides (Art. 21, § 258-c): “ No Acense shall be granted to a person not now engaged in business as a milk dealer except for the continuation of a now existing business, and no license shall be granted to authorize the extension of an existing business by the operation of an additional plant or other new or additional facility, unless the commissioner is satisfied that the applicant is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business, that the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest.”

The statute forbids any person from engaging in business as a milk dealer without a license. That business is subject to reasonable regulation to promote the public welfare and the power of the State to require that all persons who engage in that business shall be licensed is not now challenged. Nevertheless prohibition of a right to engage in a lawful business may not be arbitrary, and conditions imposed must be reasonable. The Appellate Division has construed the statute as prohibiting absolutely the grant of a license to any person not now engaged in business as a milk dealer ” and delegating to the Commissioner arbitrary authority to determine whether a license should be granted even for the extension of an existing business. For that reason it has held that the statute is unconstitutional.

The application for a license was not refused on the ground that the applicant is a person not now engaged in business as a milk dealer.” The hearings which were held were directed to ascertaining whether the applicant is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business,” and whether the issuance of a license will not tend to a destructive competition and will be in the public interest. The Commissioner does not now assert any right to deny to the applicant a license except upon the ground that the evidence produced at the hearing justifies the exercise of a discretion vested in him by the statute to refuse a license to any person either to enter into business as a milk dealer or to extend an existing business. He urges that the statute, properly construed, is not intended to prohibit the issuance of a license to “ a person not now engaged in business as a milk dealer except for the continuation of a now existing business,” but is intended only to impose the same conditions upon the issuance of a license to a person who proposes to establish a new business which in clear language is imposed upon the issuance of a license to extend an existing business.

■ A determination' of the Commissioner which denies to an applicant a license to engage in business may be reviewed by the courts. The determination may be annulled where it does not appear that it is based soundly upon a ground for which the applicant may, in accordance with law, be excluded from engaging in a business which would, otherwise, be lawful. Before a court may direct that a license shall be issued, it must appear, as matter of law, that no valid ground exists for its denial. A determination based on reasonable grounds cannot be assailed because the Legislature may, perhaps, have intended to confer upon the Commissioner an arbitrary power. The Legislature has conferred upon the Commissioner power to grant licenses but has attempted to circumscribe the power by conditions. The Commissioner in the exercise of his powers must observe limitations placed upon his power by the Legislature so far as such limitations are valid; he must disregard those which are invalid. So long as the Commissioner and the applicant agree that the Commissioner may not arbitrarily deny to a person not now engaged in business as a milk dealer a license to establish a new business, it is immaterial whether, as the Commissioner maintains, the statute was never intended to confer such power upon him or whether, as the Appellate Division has held, the Legislature made a futile attempt to confer it. In either view the question here presented is whether the Commissioner properly determined that the applicant for a license failed to show compliance with valid conditions or limitations imposed by the Legislature upon the grant of licenses.

In clear language the statute provides that a license, even for the extension of an existing business, shall not be granted unless the commissioner is satisfied that the applicant is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business, that the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest.” Every reason which could be urged in justification of the conditions so imposed upon the grant of a license for the extension of an existing business would apply, perhaps, with even greater force to the grant of a license to a “ person not now engaged in business as a milk dealer except for the continuation of a now existing business.” In section 258-c of the statute the Legislature quite evidently intended to limit the grant of licenses in both cases. Assuming that one of the limitations there imposed was intended to exclude completely from the field in which the Commissioner might exercise a power to grant a license, applications falling into the second category, yet excision of that limitation would still leave in force the conditions imposed by the Legislature upon the grant of any license. The field for the exercise of the Commissioner’s power and duty to issue licenses would be enlarged; the conditions governing the manner of its exercise would still remain. We then reach the question whether the determination may be justified by failure of the applicant to show compliance with these conditions.

We are told that in imposing these conditions, the Legislature has attempted to delegate to the Commissioner a power to deny a license to enter or extend a lawful private business without guide or standard to direct or restrain the exercise of that power. The condition that the Commissioner shall be satisfied that the applicant is “ qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business ” is not fairly open to that criticism. True, the Legislature has not attempted to create a rule of thumb by which a man’s character, experience, financial responsibility and equipment may be measured. It is difficult to conceive of a rule of thumb which could be formulated. None the less, it has created a standard by which such qualifications can be measured. They must be sufficient to properly conduct the proposed business.” All that is left to the Commissioner is to weigh the evidence and determine the fact. It can hardly be doubted that where the State has power to require a license for the pursuit of a particular business, it may withhold a license from those who are not properly qualified to conduct it. There may be reasonable difference of opinion as to the nature of the qualifications that should be required of an applicant for a license to conduct a particular kind of business. The Legislature has determined the nature of those qualifications. It is not part of the legislative function to determine whether a particular applicant has these qualifications. There determination may properly be left to an administrative officer. Rigid formulas for determining character or evaluating experience or the sufficiency of financial responsibility and equipment are useless if they are broad enough to include every factor which may be relevant in a particular case; they become arbitrary to the extent that they exclude any such factor. The Legislature may properly authorize an administrative officer to weigh the evidence in each case and determine questions of fact. Any discretion, there, left to the administrative officer is confined to a designated field, and within that field rests, not upon unfettered choice, but upon the application of rules of reason to facts proven or found. All applicants similarly situated must be treated alike if the Commissioner properly determines the question submitted to bim for decision. Legislative bodies have often without successful challenge intrusted wider discretion to administrative officers and bodies. (Cf. Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266; Matter of Mandel v. Bd. of Regents, 250 N. Y. 173; People v. Perretta, 253 N. Y. 305.)

There may be justified doubt as to whether the Legislature could impose the condition that the Commissioner be satisfied also that “ the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest.” We do not reach that question unless it appears from the order of the Commissioner that the denial was not justified by the applicant’s failure to show that he was qualified “ to properly conduct the proposed business.” Inquiry as to the probable effect of the issuance of a license would be a vain gesture where, upon the evidence submitted, the Commissioner finds that, because of lack of qualifications, the applicant is not entitled to receive a license. In this case the Commissioner has made no express findings on any question. Indeed, it does not appear that the Commissioner has personally passed upon the application. The hearings were held by a supervisor of field work. He reported to the Director of the Division of Milk Control. That officer filed a “ memorandum ” and, as stated above, the order of the Commissioner recites that it is made in accordance with the memorandum of the Director.” The evidence may be sufficient to sustain a finding by the Commissioner that the applicant lacks the required qualifications. The order does not show that such a finding has been made by the Commissioner.

The statute imposes upon the Commissioner duties which, perhaps, no single man could perform in person. There can be no reasonable doubt that the Legislature intended that at least some of his duties may be performed and some of his powers exercised through the agency of an employee of the department. In some cases the right to delegate powers is expressly provided; in other cases it is clearly implied in the statute. Article 21 of the statute provides for a division in the department to be known as the Division of Milk Control and that the functions, powers and duties of the department as provided by that article shall be exercised and performed therein by and through the Division of Milk Control (§ 252). It further provides that any designated employee may conduct hearings and investigations ” (§ 254). It does not, however, leave to an employee who holds a hearing the determination whether an application for a license shall be granted or denied. There it requires as a condition for the grant of a license that the Commissioner be satisfied that the applicant is properly qualified and that the issuance of a license would be in the public interest. The hearing is merely a method for obtaining knowledge of the facts upon which the determination must be based. That function is quasi-judicial. Denial may work great injury to an applicant for a license, and the Legislature has nowhere indicated that this function conferred upon the Commissioner may be delegated by him to an employee of the department. We do not say that the Commissioner must, in every case, read the evidence produced at the hearing or make specific findings of fact. Where an application is granted it is of no practical importance whether or not the Commissioner makes formal findings of fact, or indeed whether or not a formal order is made by the Commissioner; for the issuance of the license clearly indicates that the Commissioner is satisfied of the existence of all facts which the Legislature has there made conditions precedent to the grant of a license. The courts are not concerned with the steps by which the Commissioner has become satisfied, or the manner in which his determination is made until the determination is challenged. There, no rights of the applicants are invaded if the Commissioner’s determination is reached by reliance upon the report or memorandum of a trusted employee.

The situation is different where the application for a license is denied. The applicant is entitled to opportunity to challenge a determination against him. He is denied a right to engage in a business from which he may not be lawfully excluded if he complies with the conditions properly imposed by the Legislature and which must be applicable to all persons in similar situation. The conditions imposed by the Legislature are separable. Failure to show compliance with any one condition may be fatal. Then the applicant is entitled to findings which will show the particular matter determined against him. (Cf. Pacific States Box & Basket Co. v. White, 296 U. S. 176.) That determination must be made by the Commissioner, though in reaching it, practical considerations may lead him to rely rather upon the report or memorandum of the Director of Milk Control or other officer or employee than upon independent examination of the testimony produced at the hearing.

• In this case, since the denial of a license was not based upon findings made by the Commissioner, the Appellate Diyision had the right to annul the determination. It could not, however, direct the Commissioner to issue a license where the record does not conclusively establish that the applicant is entitled to it. Only after the Commissioner has made findings of fact can the court decide whether the findings are sustained by the evidence and whether the Legislature had power to decree that facts so found should be ground for a denial of a license.

The proceeding should be remitted to the Commissioner with direction to proceed in accordance with this opinion. The order of the Appellate Division should be modified by striking out the direction to issue a license ” and, as so modified, affirmed, without costs.

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JL, concur.

Ordered accordingly.


author: Per Curiam.

text:
    Matthew J. Conlin, Appellant, v. F. W. Kraft & Sons Company et al., Respondents.
    (Argued June 4, 1936;
    decided July 8, 1936.)

      Raphael Link for appellant.

      Ivan S. Skura and Heyman S. Tunick for respondents.

      Charles E. Hughes, Jr., John F. Caskey, Curtiss E. Frank and John R. McCullough for Louis H. Pink, Superintendent of Insurance of the State of New York, as rehabilitator of Bond and Mortgage Guarantee Company, amicus curien.

   Per Curiam.

The Special Term found that the defendant corporation, F. W. Kraft & Sons Company, having theretofore refused to pay its obhgation to the plaintiff when due, in effect transferred its property to its stockholders for less than the full value of the property; and that such transfer was made and intended to prevent the plaintiff from enforcing his right as a creditor against the property so transferred. These findings, we think, are in accord with the weight of the evidence.

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

Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Damiano Consentino, Appellant.
    (Argued March 16, 1936;
    decided April 15, 1936.)

      David F. Price, Aaron É. Koota, Nathaniel H. Kramer and Alfred A. Duffy for appellant.

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

Concur: Crane, Ch. J., Lehman, O’Brien, Hijbbs, Crouch, Loughran and Finch, JJ.


text:
    The People of the State of New York, Respondent, v. Charles Kropowitz, George Rosenberg, Frank Russo and Vincent De Martino, Appellants.
    (Argued March 16, 1936;
    decided April 15, 1936.)

      Morris J. Stein, George Gru and Irving I. Steinberg for Charles Kropowitz, appellant.

      James F. Ryan, David F. Price and Harry Werner for George Rosenberg, appellant.

      Joseph l. Weisman, James J. Delaney and C. Joseph Danahy for Frank Russo, appellant.

      Edward J. Reilly for Vincent De Martino, appellant. William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   As to each defendant: Judgment of conviction affirmed; no opinion.

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


text:
    Louis Perotti, an Infant, by Anthony Perotti, His Guardian ad Litem, Respondent, v. Board of Education of the City of Buffalo, Appellant. Anthony Perotti, Respondent, v. Board of Education of the City of Buffalo, Appellant.
    (Submitted March 17, 1936;
    decided April 15, 1936.)

      Gregory U. Harmon, Corporation Counsel (Forbes F. Dougherty of counsel), for appellant.

      Adrian Block and William J. Brock for respondents.
   In each case: Judgment affirmed, with costs; no opinion.

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


text:
    F. Bruce Easton, Respondent, v. The State of New York, Appellant.
    (Argued March 17, 1936;
    decided April 15, 1936.)

      John J. Bennett, Jr., Attorney-General (Harry H. Flemming and Henry Epstein of counsel), for appellant.

      Robert B. Craft, Ralph 8. Ives and Arthur F. Bouton for respondent.
   Judgment affirmed, with costs, no opinion.

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


text:
    Louis L. Cage, as Executor of Isaac Wiseman, Deceased, Respondent, v. Fannie Rosenberg, Appellant.
    (Argued March 17, 1936;
    decided April 15, 1936.)

      Moses H. Rothman for appellant.

      Edwin R. Wolff for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ. Lehman, J., dissents and votes to affirm.


text:
    Maurice Walter, Respondent, v. Alexander M. Crane, Appellant.
    (Argued March 17, 1936;
    decided April 15, 1936.)

      George B. Fearon and Alexander M. Crane, in person, for appellant.

      John J. Dillon and William, D. Cunningham for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frances Keller, Appellant, v. Equitable Life Assurance Society of the United States, Respondent. Joseph Keller, Appellant, v. Equitable Life Assurance Society of the United States, Respondent.
    (Argued March 17, 1936;
    decided April 15, 1936.)

      Raymond A. Knowles and Edward D. Mahoney for appellants.

      Ralph W. Dox and Ulysses 8. Thomas for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hijbrs, Crouch, Loughran and Finch, JJ.


text:
    Sidney Benjamin, an Infant by Morris Benjamin, His Guardian ad Litem, et al., Respondents, v. Herman Trebatch, Respondent, and Marcus Contracting Co., Inc., Appellant.
    (Argued March 17, 1936;
    decided April 16, 1936.)

      Clarence S. Zipp and William E. Lowther for appellant.

      Sidney J. Feltenstein for plaintiffs, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anthony Saraceni, an Infant, by Salvatore Saraceni, His Guardian ad Litem, Appellant, v. The Mount Vernon Trust Company, Respondent.
    (Argued March 17, 1936;
    decided April 15, 1936.)

      Thomas A. McKennell, Max Cohn and Jerome B. Evans for appellant.

      Clarence S. Zipp and James B. Henney for respondent.
   Judgment affirmed, with costs no opinion.

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


text:
    The People of the State of New York, Respondent, v. Louis Gaglione, Appellant.
    (Argued March 18, 1936;
    decided April 16, 1936.)

      John P. Judge for appellant.

      Charles J. Banney, District Attorney (Charles G. Maloy of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Dorothy M. Wheeler, Appellant, v. C. H. S. Holding Corporation, Respondent.
    (Argued March 18, 1936;
    decided April 15, 1936.)

      Leo Fishel, Elvin N. Edwards and Martin H. Young for appellant.

      A. S. Gilbert and Jerome E. Malino for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Paul Wolf, Respondent, v. Heating Maintenance Corp. of New York, Appellant.
    (Argued March 18, 1936;
    decided April 15, 1936.)

      Theodore Ornstein, Henry H. Silverman and Edward Elman for appellant.

      David Goldstein and Thomas G. Frost for respondent.
   Judgment affirmed, with costs: no opinion.

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


text:
    The Chase National Bank of the City of New York et al., as Executors of and Trustees under the Will of Philip Gurian, Deceased, Respondents, v. Leo Tover et al., Appellants.
    (Argued March 18, 1936;
    decided April 15, 1936.)

      Jay Leo Rothschild and Walter S. Beck for appellants.

      David Steckler and Edmund B. Hennefeld for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Marie Johnsen, Respondent, v. Staten Island Hospital, Inc., Appellant.
    (Argued March 19, 1936;
    decided April 15, 1936.)

      Bertram, G. Eadie, Thomas Nunley and John J. Kirwin for appellant.

      Thomas Schleier, Seymour Kempner and Elias Bernstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Grane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    The People of the State of New York, Respondent, v. Harry H. Dorsen and Benjamin Shepard, Appellants. The People of the State of New York, Appellant, v. Harold Spielberg, Respondent.
    (Argued March 19, 1936;
    decided April 15, 1936.)

      Morton Milman and Charles Eno for defendants-appellants.

      James F. Donnelly and Israel Spielberg for defendant-respondent.

      William Copeland Dodge, District Attorney (Erwin N. Schapira of counsel), for plaintiff, respondent and appellant.
   In each proceeding: Judgment affirmed; no opinion.

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


text:
    In the Matter of the Accounting of Union Trust Company of Jamestown, as Administrator with the Will Annexed of the Estate of Martin Merz, Deceased, Appellant. Mae M. Barrett et al., Respondents.
    (Argued April 13, 1936;
    decided April 15, 1936.)

      J. Bussell Rogerson for motion.

      Thomas B. Wheeler opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Accounting of Maria L. Perry, as Executrix of John S. Barry, Deceased, Appellant; Emma J. Horton, Respondent.
    (Argued April 16, 1936;
    decided April 21, 1936.)

      Lindsley McChesney for appellant.

      Luden E. Clichner for respondent.
   Appeal dismissed on argument, with twenty dollars costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loitghran and Pinch, JJ.


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Plaintiff, v. Max Aaron et al., Defendants; Lillian B. Walder, Respondent, and Benjamin H. Roth et al., Copartners under the Firm Name of D. H. Roth & Co., Appellants.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 568.)


text:
    Martin H. Smith Company, Appellant, v. American Pharmaceutical Company, Inc., et al., Respondents.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements.

Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 184.)


text:
    In the Matter of the Accounting of Jennie Albanese, as Guardian of William Albanese. William Albanese, Appellant; Walter A. Fullerton, Respondent.
    (Argued April 13, 1936;
    decided April 21, 1936.)

      Walter A. Fullerton for motion.

      R. Emmet Mahoney opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    The People of the State of New York, Respondent, v. Eugene Rowan, Appellant.
    (Submitted April 13, 1936;
    decided April 21, 1936.)

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for motion.
   No one opposed.

Motion granted and appeal dismissed.


text:
    The People of the State of New York, Respondent, v. Williams Nevins, Appellant.
    (Submitted April 13, 1936;
    decided April 21, 1936.)

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for motion.
   No one opposed.

Motion granted and appeal dismissed.


text:
    The People of the State of New York ex rel. Henry Gerald et al., Appellants, against John Bockel, as Warden of Tombs Prison, Respondent. The People of the State of New York ex rel. Mike Vlavlino et al., Appellants, against John Bockel, as Warden of Tombs Prison, Respondent. The People of the State of New York ex rel. Arthur Grushay et al., Appellants, against John Bockel, as Warden of Tombs Prison, Respondent.
    (Argued April 13, 1936;
    decided April 21, 1936.)

      William Copeland Dodge, District Attorney (Ambrose J. Delehanty of counsel), for motion.

      Louis B. Boudin opposed.
   Motion granted and appeals dismissed.


text:
    The People of the State of New York ex rel. John Aquino, Appellant, v. Robert Barr, as Warden of Tombs Prison, Respondent.
    (Argued April 13, 1936;
    decided April 21, 1936.)

      William Copeland Dodge, District Attorney (Ambrose J. Delehanty of counsel), for motion.

      Louis B. Boudin opposed.
   Motion granted and appeal dismissed.


text:
    Commissioner of Public Welfare of the City of New York, Appellant, v. Murray Simon, Respondent.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 188.)


text:
    Orville Gerhardt, Respondent, v. Helen M. Norton, Defendant, and Marie H. Maeder, Appellant.
    (Submitted April 13, 1936;
    decided April 21, 1936.)

      Joseph B. Boyle for motion.

      Melvin H. Zurett opposed.
   Motion denied, with ten dollars costs and necessary-printing disbursements.


text:
    In the Matter of Sol Douglas, Appellant, against Frank F. Adel, a Justice of the Supreme Court of the State of New York, Respondent.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 144.)


text:
    In the Matter of John E. Friedman, Appellant, v. Yeung O. Gum, Respondent. Ringling Bros. Barnum and Bailey Combined Shows, Inc., Respondent.
    (Submitted April 13, 1936;
    decided April 21, 1936.)

      Irving M. Radin for motion.

      William J. Rapp opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant perfects the appeal within ten days and pays ten dollars costs, in which event the motion is denied.


text:
    John E. Friedman, Appellant, v. Yeung O. Gum, Defendant. Ringling Bros. Barnum & Bailey Combined Shows, Inc., Respondent.
    (Submitted April 13, 1936;
    decided April 21, 1936.)

      Irving M. Radin for motion.

      William J. Rapp opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Charles La Greca, Appellant, v. The Carborundum Company, Respondent.
    (Submitted April 13, 1936;
    decided April 21, 1936.)

      Harold J. Adams for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    B’Nai B’Rith Club, Inc., Respondent, v. The City of New York, Appellant.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 12.)


text:
    Hanover Fire Insurance Company, Respondent, v. Morse Dry Dock and Repair Company, Appellant. Globe and Rutgers Fire Insurance Company, Respondent, v. Morse Dry Dock and Repair Company, Appellant. Eagle Star & British Dominions Insurance Company, Ltd., Respondent, v. Morse Dry Dock and Repair Company, Appellant. Universal Insurance Company, Respondent, v. Morse Dry Dock and Repair Company, Appellant.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 86.)


text:
    Frederick W. Schmidt, Appellant, v. The Merchants Despatch Transportation Company, Respondent. Giulio Felli, Appellant, v. United States Gypsum Company, Respondent.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motions for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 287.)


text:
    In the Matter of John L. Armstrong, as Executor of John Armstrong, Deceased, Appellant; Paul Windels, as Corporation Counsel of the City of New York, Respondent.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 627.)


text:
    The Bay Parkway National Bank of Brooklyn in New York, Appellant, v. Ishaia Shalom, Respondent.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 172.)


text:
    M. Beatrice Donovan, Respondent, v. The Aeolian Company, Appellant.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 267.)


text:
    Seeck & Kade, Inc., Appellant, v. R. Tomshinsky, Individually and Trading as Webster Cut Rate Drug Stores, et al., Respondents.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 613.)


text:
    The National City Bank of New York et al., Appellants and Respondents, v. Charles D. Waggoner et al., Defendants, and Central Hanover Bank and Trust Company, Respondent and Appellant.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 592.)


text:
    Frances Whitney, Respondent, v. Lyric-Rochester Corporation, Appellant. Edward Whitney, Respondent, v. Lyric-Rochester Corporation, Appellant.
    (Submitted April 13, 1936;
    decided April 21, 1936.)

      Ashner N. Shapiro for motions.

      Nicholas J. Weldgen opposed.
   Motions denied, with ten dollars costs.


text:
    Monroe Weill et al., Respondents, v. Title Guarantee and Trust Company, Appellant, Impleaded with Others.
    (Submitted April 13, 1936;
    decided April 21, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y, 322.)


text:
    Land Finance Corporation, Appellant, v. Frank Giorgio, Jr., as Trustee in Bankruptcy of Nox Realty Corporation, Respondent, Impleaded with Others.
    (Argued March 17, 1936;
    decided April 28, 1936.)

      Leopold Blumberg, in person for himself as appellant, and for Land Finance Corporation, appellant.

      Maurice Heilman and Robert Daru for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hijbbs, Crouch, Loughran and Finch, JJ.


text:
    George W. Bridgman, Individually and as President of the Uniformed Firemen’s Association, Inc., of the City of Mount Vernon, Appellant, against Charles Cosse et al., Constituting the Municipal Civil Service Commission of the City of Mount Vernon, Respondents.
    (Argued April 13, 1936;
    decided April 28, 1936.)

      H. Eliot Kaplan for appellant.

      Lester D. Stickles, Corporation Counsel (Irving J. Bland and Arthur H. Ellis of counsel), for respondents.

      Seth T. Cole for Firemen’s Association of the State of New York et ah, amici curix.

   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Title Guarantee and Trust Company, Appellant; Robert S. Boggiano, an Infant, by Maria Boggiano, His General Guardian, Respondent.
    (Argued April 13, 1936;
    decided April 28, 1936.)

      Edward J. Pigott and H. Lincoln Miller for appellant.

      Benjamin S. Thaw for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Citizens Trust Company of Binghamton, Appellant, v. Lewis B. Merselis et al., Respondents.
    (Submitted April 13, 1936;
    decided April 28, 1936.)

      Daniel J. McAvoy for appellant.

      Charles R. Stewart for respondents.
   Order affirmed, with costs, and the question certified answered in the negative. No opinion.

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


text:
    In the Matter of Saul Kallman, Appellant, against Charles Gold, as Mayor and as Commissioner of Public Works of the City of Long Beach, et al., Respondents.
    (Argued April 13, 1936;
    decided April 28, 1936.)

      Theodore Ornstein and Edward Elman for appellant.

      David B. Tolins, Corporation Counsel, for respondents.
   Order affirmed, with costs; no opinion. (See 271N.Y. 659.)

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


text:
    In the Matter of Ernest W. Glisman, Respondent, against Robert Moses et al., Constituting the Long Island State Park Commission, et al., Appellants.
    (Argued April 13, 1936;
    decided April 28, 1936.)

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer, Henry Epstein and Patrick PL. Clune of counsel), for appellants.

      Aaron H. Kaufman for respondent.
   Appeal dismissed, with costs, on the ground the order appealed from is not a final order. No opinion.

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


text:
    The People of the State of New York ex rel. Richard R. Rogers, Appellant, v. Mark Graves et al., Constituting the State Tax Commission of the State of New York, Respondents.
    (Argued April 13, 1936;
    decided April 28, 1936.)

      Richard Reid Rogers, in person, for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig and Henry Epstein of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Julian Gumperz, Respondent, v. Herbert Hofmann, Appellant.
    (Argued April 14, 1936;
    decided April 28, 1936.)

      Lowell Wadmond for appellant (appearing specially).

      A. Walter Socolow and Maurice J. Speiser for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    In the Matter of Daniel M. O’Brien, Respondent, against Thomas Rozza, Doing Business under the Name of The Grand Wine & Liquor Store, et al., Appellants.
    (Argued April 14, 1936;
    decided April 28, 1936.)

      Sydney S. Snyder and Sydney Rosenthal for Thomas Rozza, appellant.

      Nelson Ruttenberg for State Liquor Authority, appellant.

      William, J. Reinhart, Jr., John J. Glynn and Alfred E. Smith, Jr., for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Frances N. Sturman, Appellant, v. The State of New York, Respondent.
    (Claim No. 21896.)
    (Submitted April 20, 1936;
    decided April 28, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 627.)


text:
    In the Matter of Emma Rosenthal, as Executrix of Jesse Rosenthal, Deceased, Respondent, against Mark Graves et al., Constituting the State Tax Commission, et al., Appellants.
    (Submitted April 20, 1936;
    decided April 28, 1936.)

      Robert E. Samuels for motion.

      John J. Bennett, Jr., Attorney-General (Seth T. Cole of counsel), opposed.
   Motion denied, without costs, and without prejudice to renewal of motion on argument of the appeal.


text:
    In the Matter of the Claim of Carl Freudenfeld, Appellant, against Louis Stein & Co., Inc., et al., Respondents. State Industrial Board, Respondent.
    (Argued April 15, 1936;
    decided May 1, 1936.)

      Abraham Markhoff for appellant.

      Herbert F. Hastings, Jr., and A. F. Klaiber for Louis Stein & Co., Inc., et ah, respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hijbbs, Crouch, Loughran and Finch, JJ.


text:
    In the Matter of the Claim of Robert Bosdyck, Respondent, against Rochester Folding Box Company et al., Appellants. State Industrial Board, Respondent.
    (Submitted April 15, 1936;
    decided May 1, 1936.)

      Clarence B. Tippett for appellants.

      Leonard Marafioti and Henry Redman Dutcher for Robert Bosdyck, respondent.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion. (See 271 N. Y. 660.)

Concur: Crake, Ch. J., Lehman, O’Brien, IIubbs, Crouci-i, Loughran and Finch, JJ.


text:
    In the Matter of the Claim of Nick Orto, Respondent, against Jerry Poggioni, Respondent, and Maryland Casualty Company, Appellant. State Industrial Board, Respondent.
    (Argued April 15, 1936;
    decided May 1, 1936.)

      William S. Sinclair and James J. Mahoney for appellant.

      John J. Bennett, Jr., Attorney-General {Boy Wiedersum and Henry Epstein of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Alurion Realty Corporation, Appellant, against Samuel Levy, as President of the Borough of Manhattan, Respondent.
    (Argued April 16, 1936;
    decided May 1, 1936.)

      Harold L. Herrick and William B. Symmes, Jr., for appellant.

      Paul Windels, Corporation Counsel (Seymour B. Quel, Paxton Blair and Herman J. McCarthy of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Sidney Franklin, Respondent and Appellant, v. Columbia Pictures Corporation, Appellant and Respondent.
    (Argued April 16, 1936;
    decided May 1, 1936.)

      Louis D. Frohlich, Herman Finkelstein and Nathan Burkan for defendant, appellant and respondent.

      Milton J. Teiger for plaintiff, respondent and appellant.
   Judgment affirmed, without costs;'no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Einci-i, JJ.


text:
    Rose Faerman et al., Appellants and Respondents, v. Thomas Feely, Defendant, and Leon Meyer, as Executor of Victor Meyer, Deceased, Respondent and Appellant.
    (Argued April 16, 1936;
    decided May 1, 1936.)

      Louis L. Friedman for plaintiffs, appellants and respondents.

      Harold R. Medina and William F. Me Nulty for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Chañe, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loug-hran and Finch, JJ.


text:
    Abraham Gottfried, Respondent, v. City of New York et al., Appellants.
    (Argued April 16, 1936;
    decided May 1, 1936.)

      Paul Windels, Corporation Counsel (Alfred D. Jahr and Paxton Blair of counsel), and James L. Quackenbush for appellants.

      Elizabeth Stern and M. Robert Todd for respondent.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts. No opinion.

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


text:
    Edward Antenen, Respondent, v. New York Telephone Company, Appellant.
    (Argued April 17, 1936;
    decided May 1, 1936.)

      Irving W. Young, Jr., Edward F. Snydstrup, Hugh N. Wells and Frank M. Hays for appellant.

      Daniel J. McAvoy for respondent.
   Judgments reversed and complaint dismissed, with costs in all courts. (See Miller v. Gimbel Bros., Inc., 262 N. Y. 107.) No opinion.

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


text:
    Bessie Gilligan, Respondent, v. Richard L. Jones et al., Copartners under the Name of Jones Taxicab Company, Appellants.
    (Argued April 17, 1936;
    decided May 1, 1936.)

      John E. Mack and William B. Shelton for appellants.

      James E. Carroll for respondent.
   Judgment affirmed, with, costs; no opinion.

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


text:
    In the Matter of the Estate of Edward Connors, Deceased. Daniel B. Dwyer, as Administrator of the Estate of Edward Connors, Deceased, Appellant; Josephine B. Miller, Respondent.
    (Argued April 17, 1936;
    decided May 1, 1936.)

      Thomas V. Kenney for appellant.

      Joseph P. Keenan for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Richard T. Hogan et al., Respondents, v. Comac Sales, Inc., Appellant, Impleaded with Others.
    (Argued April 17, 1936;
    decided May 1, 1936.)

      Wyman S. Bascom and Raymond F. Allen for appellant.

      Edward R. Waite and JohnL. Ostrander for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Katarzyna Pasiak, Individually and as Administratrix of the Estate of Michael Pasiak, Deceased, Appellant, v. International Railway Company, Respondent, Impleaded with Others.
    (Submitted April 27, 1936;
    decided May 1, 1936.)

      Clarence R. Ruñáis for motion.

      George E. Phillies opposed.
   Motion denied.


text:
    Marian S. Honeyman, Appellant, v. Herbert G. Hanan, as Executor of Herbert W. Hanan, Deceased, Respondent.
    (Argued April 15, 1936;
    decided May 19, 1936.)

      Robert B. Honeyman for appellant.

      James S. Brown, Jr., and Anthony F. Tuozzo for respondent.
   Judgment affirmed, with costs; no opinion. (See 271 N. Y. 662.)

Concur: Lehman, O’Brien, Hubbs, Crouch, Lough-ran, and Finch, JJ. Not voting: Crane, Ch. J.


text:
    The People of the State of New York, Respondent, v. Jacob Blatt, Appellant.
    (Argued April 15, 1936;
    decided May 19, 1936.)

      Abraham Fishbein for appellant.

      William Copeland Dodge, District Attorney (LeBoy Mandle of counsel), for respondent.
   Judgment affirmed, no opinion.

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


text:
    James H. Whorton et al., Respondents, v. Vincenzo Andretta et al., Appellants.
    (Submitted April 17, 1936;
    decided May 19, 1936.)

      Arthur B. Ewig for appellants.

      James E. Carroll for respondents.
   Appeal dismissed, with costs, as the order appealed from is not a final determination. No opinion.

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


text:
    In the Matter of the Grade Crossing of The New York, Ontario and Western Railway at East Seneca Street in the City of Oswego. New York, Ontario and Western Railway Company, Appellant; State Department of Public Works et al., Respondents.
    (Argued April 20, 1936;
    decided May 19, 1936.)

      Warnick J. Kernan and Elbert N. Oakes for appellant. Sherman C. Ward and Charles G. Blakeslee for Public Service Commission, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    William H. Lee et al., Respondents, v. Maclean Gander et al., Appellants.
    (Submitted April 20, 1936;
    decided May 19, 1936.)

      Alphonse J. D’Auria for appellants.

      Martin E. Burke and Richard J. Burke for respondents.
   Appeal dismissed, without costs, as the defendants are not aggrieved parties and cannot appeal under subdivision 2 of section 588 of the Civil Practice Act. No opinion.

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


text:
    Kathryn E. Larkin, Appellant, v. The Greenwich Savings Bank, Defendant, and Earl Daffer et al., as Executors of Mary Leonard, Deceased, Respondents.
    (Argued April 20, 1936;
    decided May 19, 1936.)

      Aaron William Levy for appellant.

      Honour B. Gelson and Warren S. Fogel for respondents.
   Judgment affirmed, with costs payable out of the fund. No opinion.

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


text:
    George S. Van Schaick, Superintendent of Insurance of the State of New York, as Conservator of the Independence Indemity Company, Appellant, v. National City Bank of New York, Respondent, Impleaded with Another.
    (Argued April 20, 1936;
    decided May 19, 1936.)

      Jacob J. Alexander and Alfred C. Bennett for appellant.

      Carl A. Mead and Lester Kissel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hijbbs, Crouch, Loughran and Finch, JJ.


text:
    Louise E. Wenner, Appellant, v. The Prudential Insurance Company, Respondent.
    (Argued April 20, 1936;
    decided May 19, 1936.)

      David Michelsohn for appellant.

      Benjamin Paul Goldman and Solon Weit for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Turczynski, Respondent, v. John Hancock Mutual Life Insurance Company, Appellant.
    (Argued April 20, 1936;
    decided May 19, 1936.)

      Lester T. Hubbard for appellant.

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

Concur: Crane, Ch. J., Lehman, O’Brien, Hitbbs, Crouch, Lodghran and Finch, JJ.


text:
    In the Matter of Philip E. Cook, Appellant, against Lewis E. Lawes et al., Constituting the Prison Board of Sing Sing Prison, et al., Respondents. In the Matter of Nicholas Trimarco, Appellant, against Lewis E. Lawes et al., Constituting the Prison Board of Sing Sing Prison, et al., Respondents. In the Matter of Henry Matthews, Appellant, against Lewis E. Lawes et al., Constituting the Prison Board of Sing Sing Prison, et al., Respondents. In the Matter of Joseph O’Keefe, Appellant, against Lewis E. Lawes et al., Constituting the Prison Board of Sing Sing Prison, et al., Respondents. In the Matter of William Thompson, Appellant, against Lewis E. Lawes et al., Constituting the Prison Board of Sing Sing Prison, et al., Respondents. In the Matter of Alfred Bonini, Appellant, against Lewis E. Lawes et al., Constituting the Prison Board of Sing Sing Prison, et al., Respondents.
    (Argued April 21, 1936;
    decided May 19, 1936.)

      Jay Leo Rothschild, Louis Rivkin and Arthur S. Jarcho for appellants.

      John J. Bennett, Jr., Attorney-General (Caleb Candee Brown, Jr., and Henry Epstein of counsel), for respondents.
   In each proceeding, order affirmed. No opinion.

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


text:
    Thyrza B. Fowler et al., Appellants, v. Montauk Beach Development Corporation et al., Defendants, and Thomas E. Ringwood, as Trustee of Montauk Beach Development Corporation, Respondent.
    (Argued April 21, 1936;
    decided May 19, 1936.)

      John A. Kelly and F. Trowbridge vom Bawr for appellants.

      Leonard P. Moore for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frieda Dunlap, Respondent, v. Clifford A. Crispell, Appellant.
    (Argued April 21, 1936;
    decided May 19, 1936.)

      Francis L. Driscoll and Lorenz J. Brosnan for appellant.

      Joseph A. McCabe, William A. Mulvey, Emery J. Hey and Paul A. Rieser for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    American Surety Company of New York, Respondent, v. Central Hanover Bank and Trust Company et al., Appellants. Lee L. Daly et al., Copartners under the Firm Name of Daly & Company, Respondents, v. Central Hanover Bank and Trust Company et al., Appellants.
    (Argued April 21, 1936;
    decided May 19, 1936.)

      J. Joseph Noble, Charles I. Taylor and Joseph E. Woodson for appellants.

      L. H. Surbeck, William W. Owens and Harry J. McIntyre for respondents.
   In each case, judgment affirmed, with costs; no opinion.

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


text:
    Charles H. Prindle, as Administrator of the Estate of Joan A. Prindle, Deceased, Respondent, v. Rockland Transit Corporation, Appellant.
    (Argued April 22, 1936;
    decided May 19, 1936.)

      Elbert N. Oakes and James I. Cuff for appellant.

      Mackey Rackow and Ralph 0. L. Fay for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Fred Lincer, Respondent, v. Canaday Cooler Co., Inc., Appellant. Fred Lincer, Respondent, v. Jack Rubin, Appellant.
    (Argued April 22, 1936;
    decided May 19, 1936.)

      Joseph S. McCann and William J. Ahearn for Canaday Cooler Co., Inc., appellant.

      William J. Grace for Jack Rubin, appellant.

      Maxwell H. Goldstein for respondent.
   In each case, judgment affirmed, with costs; no opinion.

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


text:
    Loreto Stornelli, Appellant, v. United States Gypsum Company, Respondent.
    (Submitted April 22, 1936;
    decided May 19, 1936.)

      William L. Clay for appellant.

      Justin J. Doyle for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Credito Italiano, Respondent, v. Emanuel F. Rosenbaum, Appellant, Impleaded with Another.
    (Submitted April 22, 1936;
    decided May 19, 1936.)

      Chester Bordean and Winslow M. Lovejoy for appellant.

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

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


text:
    Herman Ackert, Appellant, v. Lyman Delano, Respondent.
    (Argued April 22, 1936;
    decided May 19, 1936.)
    • Edward K. Haas for appellant.
    • Rush Taggart and Benson R. Frost for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts, unless plaintiff pays defendant costs to date within ten days, in which event appeal may be withdrawn. No opinion.

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


text:
    Wilfred L. Hinkle et al., Copartners under the Firm Name of Hinkle & Finlayson, Respondents, v. Globe and Rutgers Fire Insurance Company, Appellant.
    (Argued April 22, 1936;
    decided May 19, 1936.)

      H. H. Nordlinger and Morris Cooper, Jr., for appellant.

      A. V. Cherbonnier and Robert S. Erskine for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Brotherhood of Railroad Trainmen, Appellant, against the Public Service Com-Commission of the State of New York et al., Respondents.
    (Argued April 22, 1936;
    decided May 19, 1936.)

      Homer E. Peters for appellant.

      Joseph Bosch and Alfred D. Kelly for The Delaware and Hudson Railroad Corporation, respondent.

      Sherman C. Ward and Russell B. Burnside for Public Service Commission, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Harry M. Overstreet, Appellant, v. Francis B. Sanford, as Committee of Fanny R. M. Hitchcock, an Incompetent Person, et al., Respondents.
    (Submitted April 23, 1936;
    decided May 19, 1936.)

      Alfred A. Walter, M. Maldwin Fertig and Raphael H. Rosenbluth for appellant.

      John Charles Straton for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alfred Basch, Appellant, v. The Salvation Army, Respondent, Impleaded with Another.
    (Submitted April 23, 1936;
    decided May 19, 1936.)

      Howard C. Kelly and Eugene L. Brisach for appellant.

      R. Keith Kane and Whitman Knapp for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis F. Albert, Respondent, v. Reich Bros. Long Island Motor Freight, Inc., et al., Appellants.
    (Submitted April 23, 1936;
    decided May 19, 1936.)

      William B. Davis and James E. Turner for appellants.

      Chester E. Barrett and Arnold 0. Charters for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Valerino, Appellant.
    (Submitted April 27, 1936;
    decided May 19, 1936.)

      Clarence Unckless for appellant.

      William C. Martin, District Attorney (DeBanks M. Henward, Jr., of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Mabel Birdsall, Appellant, v. Richard J. Lewis, as Sheriff of the County of Albany, Respondent.
    (Argued April 27, 1936;
    decided May 19, 1936.)

      Daniel J. Dugan, Isador Bookstein and Avrom M. Jacobs for appellant.

      Walter L. Collins for respondent.

      John J. Bennett, Attorney-General (Caleb Candee Brown, Jr., of counsel), for State Commission of Correction and Department of Correction, amicus curice.

   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Irving Baumel, Appellant.
    (Argued April 27, 1936;
    decided May 19, 1936.)

      John A. Klelt and Edward A. Alexander for appellant.

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

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


text:
    The People of the State of New York ex rel. C. Handasyde Whitney, Appellant, v. Mark Graves et al., as Tax Commissioners of the State of New York, Respondents.
    (Argued April 27, 1936;
    decided May 19, 1936.)

      Paul Austin Crouch and Mar cien Jenckes for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
    (See 271 N. Y. 618.)
   Order affirmed, with costs; no opinion.

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


text:
    The City of New York, Appellant and Respondent, v. Bee Line, Inc., Respondent and Appellant.
    (Argued April 27, 1936;
    decided May 19, 1936.)

      Paul Windels, Corporation Counsel Frederick vP. Byran, Elizabeth Rogers Horan and William S. Gaud, Jr., of counsel), for plaintiff, appellant and respondent.

      Charles H. Tuttle and John. Holley Clark, Jr., for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    The City of New York, Appellant, v. Tompkins Bus Corporation, Respondent.
    (Argued April 27, 1936;
    decided May 19, 1936.)

      Paul Windels, Corporation Counsel (Frederick vP. Bryan, William S. Gaud, Jr., and Elizabeth Rogers Horan of counsel), for appellant.

      James B. McDonough, Jr., for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of Sadie Brathwaite, Appellant, against The People of the State of New York, Respondent. In the Matter of Eugene Praither, Appellant, against The People of the State of New York, Respondent.
    (Submitted April 28, 1936;
    decided May 19, 1936.)

      Mordecai Konowitz, Philip B. Heller and Elias H. Avram for appellants.

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), for respondent.
   In each proceeding, order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of Anna B. Wells, Individually, and as Trustee under the Will of Henry Brewster, Deceased, and as Executrix of Cyrus C. Wells, Deceased, Appellant; E. Franklin Brewster et al., Respondents.
    (Argued April 28, 1936;
    decided May 19, 1936.)

      Arthur E. Sutherland and Judson A. Parsons for appellant.

      J. Sawyer Fitch for respondents.
   Order affirmed, with costs to the respondents payable out of the estate. No opinion.

Concur: Grane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    The Chase National Bank of the City of New York, as Successor Trustee under a Deed of Trust, Respondent, v. Chicago Title and Trust Company, as Executor of Edith R. McCormick, Deceased, et al., Appelants, and Fowler McCormick et al., Respondents, Impleaded with Others.
    (Argued April 28, 1936;
    decided May 19, 1936.)

      John W. Davis, Otis T. Bradley, Edward J. Willi, Cecil L. Head and Thomas 0. Chamberlain for Muriel McC. Hubbard, appellant.
    ■ Martin Taylor and Joseph F. Hunter for Chicago Title and Trust Company, as executor of Edith R. McCormick, deceased, appellant.

      Edwin A. Falk, Henry Gale and Samuel E. Hirsch for Maurice B. Rissman et ah, as cotrustees, et al., appellants.

      Harrison Tweed, John E. Mack, Eugene Congleton, Chauncey Belknap, Wilber Stammler and Thomas M. Debevoise for respondents.
   Judgment affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the fund. We do not pass upon the question as to whether the agreement entered into between Mrs. McCormick, her father and the trustee had the effect of modifying the power of appointment contained in the trust agreement. No opinion. (See 271 N. Y. 659.)

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


text:
    The Dry Goods Alliance, Inc., Appellant, v. Percival G. Stewart, Defendant, and American Surety Company of New York, Respondent.
    (Argued April 29, 1936;
    decided May 19, 1936.)

      Joseph Lorenz and Paul B. Carroll for appellant.

      L. H. Surbeck, W. W. Owens and A. E. Stewart for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Manning Strewl, Respondent.
    (Argued April 29, 1936;
    decided May 19, 1936.)

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

      George H. Smith for respondent.
   Appeal dismissed; no opinion.

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


text:
    In the Matter of the Application of Adele S. Cootes, Respondent, for a Construction of the Will of Henry Weil, Deceased. Central Hanover Bank and Trust Company, as Administrator de Bonis Non of the Estate of Carlie A. S. Didrichsen, Deceased, et al., Appellants; Kathryn B. McCulloch et al., Respondents.
    (Argued April 30, 1936;
    decided May 19, 1936.)

      Clarence J. Shearn and Powell Crichton for Central Hanover Bank and Trust Company, as administrator de bonis non of the estate of Carlie A. S. Didrichsen, deceased, appellant.

      William E. Sims and George Gray Zabriskie for Seamen’s Church Institute of New York, appellant.

      Conrad Saxe Keyes for Henry W. Butler, respondent.

      John P. Farnham for Kathryn B. McCulloch, respondent.

      Archibald B. Watson and Ralph 0. Willguss for Adele S. Cootes, respondent.
   Order affirmed, with costs to respondents payable out of the estate. No opinion.

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


text:
    Dawn A. Paris, Respondent, v. R. Z. Spaulding Company, Inc., et al., Appellants.
    (Submitted May 1, 1936;
    decided May 19, 1936.)

      John J. Conners, Jr., for appellants.

      A. H. F. Seeger and A. C. N. Thompson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of William J. Carey, Appellant, against Clarence A. Smith, as County Manager of Monroe County, et al., Respondents.
    (Submitted May 1, 1936;
    decided May 19, 1936.)

      J. Emmett O’Brien and Arnold H. Becker for appellant. Harry Rosenberg for respondents.
   Order afiirmed, without costs; no opinion.

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


text:
    Charles Krupnick, Appellant, v. Joseph Branikowski, Defendant, and Brooklyn and Queens Transit Corporation, Respondent.
    (Argued May 1, 1936;
    decided May 19, 1936.)

      Sidney Rosenberg, Nathan Frankel and Abraham Engel-man for appellant.

      Harold L. Warner and George D. Yeomans for respondent.
   Judgment of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division. The questions of negligence and contributory negligence were for the jury. No opinion.

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


text:
    Mary Vento et al., as Administrators of the Estate of Frank Vento, Deceased, Appellants, v. South Brooklyn Railway Company, Respondent.
    (Argued May 1, 1936;
    decided May 19, 1936.)

      Francis J. Nicosia, Ernanuel Forst and Charles E. Sorace for appellants.

      Harold L. Warner and George D. Yeomans for respondent.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts, unless plaintiffs pay costs within thirty days in which event leave to withdraw appeal granted. No opinion.

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


text:
    Ethelbert I. Low et al., as Executors and Trustees under the Will of Lyman N. Hine, Deceased, Respondents, v. Bankers Trust Company, as Trustee of Francis L. Hine et al., Respondents, and Francis L. Hine, 2d, et al., Infants, by Sibyl Y. Hine, Their Guardian ad Litem, Appellants.
    (Submitted May 18, 1936;
    decided May 26, 1936.)
    (See 270 N. Y. 143.)
   Per Curiam.

The motion for an order recalling the remittitur and the amendment thereof -is denied as unnecessary. Our decision (270 N. Y. 143) provided that judgment upon reversal was directed in accordance with this opinion, with costs to the appellants payable out of the fund. The opinion dealt merely with the disposition of the Francis L. Hine fund, subject to the power of appointment; it did not disturb the accounting nor any of the costs and allowances made below. The final judgment as entered stands with the exception of this disposition of the amount remaining in the Francis L. Hine trust fund. This fund, or the amount left after the deductions of costs and allowances as heretofore granted, is to be disposed of in accordance with our decision. The costs, however, in this court are to the appellants, payable out of the fund.

Motion denied.