text:
    Julie F. Shipman, Respondent, v. Title Guarantee and Trust Company, as Successor Trustee, Appellant and Respondent; Julie F. Shipman, as Executrix of Edson Bradley, Deceased, Impleaded Defendant-Respondent, and Percy P. Melville et al., Impleaded Defendants-Respondents and Appellants.
    Argued April 3, 1944;
    decided May 18, 1944.

      Louis J: Merrell and Louis J. Moss for Title Guarantee and Trust Company, as successor trustee, defendant-appellant and respondent.

      Thomas B. Gilchrist, Catherine N. Lee and Hampton D. Ewing, Jr., for Barbara F. Jones and others, impleaded defendants-respondents and appellants.

      William F. Bleakley and Boswell P. C. May for plaintiff-respondent.
   Judgment affirmed, with costs payable out of the estate to all parties filing separate briefs in this court. No opinion.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Accounting of Edgar F. Luckenbach, as Trustee under the Will of Lewis Luckenbach, Deceased. William R. as General Guardian of Edgar F. Luckenbach, Jr., et al., Respondents; Andrea L. Dobbs et al., Appellants.
    Argued April 4, 1944;
    decided May 18, 1944.

      William T. Griffin and Joseph V. McKee for Andrea L. Dobbs, appellant.

      John A. Wilson, Joseph W. Brahe and George G. Seward for Lewis Luckenbach and others, appellants.

      Robert W. Owens, Jr., and William R. Conhlin for William R. Conklin, as general guardian of Edgar P. Luckenbach, Jr., respondent.

      Roscoe H. Supper for Roscoe H. Hupper, as executor of Edgar P. Luckenbach, deceased trustee, respondent.

      John P. McGrath and Edwm M. Bourhe for Prank J. Taylor, as successor trustee.
   Order affirmed, with costs payable out of the estate to all parties filing separate briefs. No opinion.

Concur: Lehmah, Ch. J., Loughrah, Lewis, CoNway, Des-moND and Thacher, JJ.. Taking no part: Rippey, J.


text:
    The People of the State of New York, Respondent, v. Joseph Lucca, Appellant.
    Argued April 11, 1944;
    decided May 18, 1944.

      Louis J. Lefkowits for appellant.

      Frank 8. Hogan, District Attorney (Milton H. Spiero of counsel), for respondent.
   Judgments reversed and information dismissed on the ground that the evidence is insufficient to sustain a finding of guilt beyond a reasonable doubt. No opinion.

Concur: Ch. J., LoughraN, and Thacher, JJ. Dissenting: Lewis and DesmoNd, JJ. Taking no part: Rippey, J.


text:
    The People of the State of New York ex rel. Wall Street Building, Inc., et al., Appellants and Respondents, against Joseph Lilly et al., Constituting the Tax Commission of the City of New York, et al., Respondents and Appellants.
    Argued April 12, 1944;
    decided May 18, 1944.

      Edward B. Finch for relators-appellants and respondents.

      Ignatius M. Wilkinson, Corporation Counsel (Oscar L. Tucker and Arthur H. Goldberg of counsel), for defendants-respondents and appellants.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Michael Montagno, Appellant, against Vernon A. Morhous, as Warden of Great Meadow Prison, Respondent.
    Submitted April 5, 1944;
    decided May 18, 1944.

      Michael Montagno, appellant in person.

      Nathaniel L. Goldstein, Attorney-General (Herman N. Ear-court, Orrin G. Judd and Patrick H. Glune of counsel), for respondent.
   Order affirmed; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Lewis, Cowway, Des-moNd and Thacher, JJ. Taking no part: Rippey, J.


text:
    The People of the State of New York ex rel. Sam Blue, Relator, against Eugene J. Kearney, as Warden of the City Prison, Brooklyn, New York, Respondent. The People of the State of New York, Appellant.
    Argued April 11, 1944;
    decided May 18, 1944.

      Thomas Cradock Hughes, Acting District Attorney (Fred J. Loughran of counsel), for appellant.

      Harry Qittleson, Hyman Barshay, Samuel Bader, Maurice Sherman and Charles R. Rubin for respondent.
   Order affirmed; no opinion.

Concur: LbhmaN, Oh. J., Lottghran, Lewis, CoNWay, Desmond and Thacher, JJ. Taking no part: Rippey, J.


text:
    Raymond Klimtzak, an Infant, by Irene Klimtzak, His Guardian ad Litem, Appellant, v. Pennsylvania Railroad Company, Respondent.
    Argued April 4, 1944;
    decided May 18, 1944.

      William J. Sernoffslcy for appellant.

      Harold J. Adams for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis, CoNway and Thacher, JJ. Taking no part: Eippey and DesmoND, JJ.


text:
    Gus Angelos et al., Copartners under the Name of The World Cafeteria, Respondents, v. William Mesevich, Individually and as President of the Cafeteria Employees Union, Local 302, et al., Appellants. Elias Tsakires et al., Copartners under the Name of The Cosmo Cafeteria, Respondents, v. William Mesevich, Individually and as President of Cafeteria Employees Union, Local 302, et al., Appellants.
    Reargued April 10, 1944;
    decided May 18, 1944.

      Louis B. Boudin for appellants.

      David L. Delman for respondents.
   Upon reargument: Judgment reversed and complaint dismissed, with costs in this court. No opinion.

Concur: Lepimah, Ch. J., LotjghraN, Lewis, CoNway, Des-moND and Thacher, JJ. ■ Taking no part: Rippey, J.


text:
    In the Matter of Irving B. Weinstein, Respondent, against The Board of Regents of the University of the State of New York, Appellant.
    Argued April 11, 1944;
    decided May 18, 1944.

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

      Benjamin G. Ritman, Myron M. Fineman and Horace M. Cohen for respondent.
   Order of Appellate Division reversed and determination of the Board of Regents of the State of New York confirmed. The determination is supported by substantial evidence and the Appellate Division has no power under section 1296 of the Civil Practice Act to review such a determination “ on the facts ”. (Matter of Miller v. Kling, 291 N. Y. 65.) (See 293 N. Y. 589.)

Concur: Ch. J., LoughbaN, Lewis, CoNWay, moNd and JJ. Taking no part: Rippey, J.


text:
    The People of the State of New York, Respondent, v. Peter De Lutro, Alex Bellomo and Frank Di Maria, Appellants.
    Argued April 12, 1944;
    decided May 18, 1944.

      Rudolph Stand, John Gar done and Frederick J. Sullivan for Peter De Lutro, appellant.

      Abraham J. Gellinoff, Joseph S. Gershman, Frank D. Paoli and Thomas H. Allen for Alex Bellomo, appellant.

      Harry G. Anderson and Samuel Bader for Prank Di Maria, appellant.

      Frank S. Hogan, District Attorney (Stanley H. Fuld and Richard G. Denser of counsel), for respondent.
   Judgments of conviction affirmed on the ground that the evidence was amply sufficient to sustain the conviction of each defendant and that there was no prejudicial error in any of the rulings of the Trial Judge. In People v. Ertel (283 N. Y. 519) all the judges agreed that the better practice is to charge the jury in the words of section 1045-a of the Penal Law. The trial court did not err in declining to depart from this rule in this case. (See 293 N. Y. 693.)

not know the significance of the words “ imprisoned for the term of his natural life ” as used in the statute. The jury asked a question calculated to elicit an instruction in regard to the legal significance of those words and the legal consequence of a recommendation, and which showed that the jurors assumed, contrary to the provisions of section 230 of the Correction Law, that the words “ imprisoned for the term of his natural life ” describe imprisonment from which the prisoner might be in part relieved by action of the Parole Commission. It was error to refuse to give the requested instruction.


text:
    Agnes McC. Schwerin, Respondent, v. Joseph Schwerin, Appellant.
    Submitted April 17, 1944;
    decided May 18, 1944.

      Lawrence H. King and Sidney 0. Raphael for motion.

      Thomas D. Scoble, Jr., opposed.
   Motion denied with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action within the meaning of the Constitution. (Turner v. Turner, 285 N. Y. 740; Livingston v. Livingston, 222 N. Y. 526.)


text:
    In the Matter of Alma M. Fabricius, Appellant, against or Education of the City of New York, Respondent.
    Submitted April 17, 1944;
    decided May 18, 1944.
   Motion by appellant for reargument denied. (See 291 N. Y. 787.)


text:
    The People of the State of New York, Respondent, v. Morris Malinski and Sidney Rudish, Appellants.
    Submitted May 15, 1944;
    decided May 18, 1944.
   “ Questions under tbe constitution of tbe United States were presented and necessarily passed upon.
“ Tbe defendant Rudish contended that tbe admission of tbe confession of bis co-defendant Malinski in evidence against Malinski was a denial to tbe defendant Rudish of due process under tbe Fourteenth Amendment to tbe constitution of tbe United States.
“ Tbe defendant Malinski contended that tbe admission’ in evidence of bis alleged confession and bis identification of tbe ‘ murder car ’ and bis description of tbe events at tbe scene of tbe murder violated bis rights under tbe Fourteenth Amendment to tbe constitution of tbe United States.
“ This court held that tbe rights of neither defendant under tbe Fourteenth Amendment to tbe constitution of tbe United States bad been violated or denied.” (See 292 N. Y. 360.)


text:
    The People of the State of New York, Respondent, v. Louis Parisi, Appellant.
    Submitted May 15, 1944;
    decided May 24, 1944.

      Peter L. F. Sabbatino for appellant.

      Frank S. Hogan, District Attorney (Whitman 'Knapp of counsel), for respondent.
   Motion for reargument denied. Motion to dismiss appeal granted and appeal dismissed.


text:
    Argued April 17, 1944;
    decided May 25, 1944.

      Thomas I. Sheridan for appellant.

      Chester B. McLaughlin, S-. C. Lewis and Einar Chrystie for respondent.
   Order affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis, CoNway and Des-moND, JJ. Taking no part: Rippey and Thachee, JJ.


text:
    In the Matter of the Will of Jacob G. Dettmer, Deceased. Brooklyn Institute of Arts and Sciences et al., Appellants; City Bank Farmers Trust Company, as Trustee under the Will of Jacob G. Dettmer, Deceased, et al., Respondents.
    Argued April 10, 1944;
    decided May 25, 1944.

      John F. Brosnan, G. Pickering, Richard 8. Ritzel and John Wallis for Brooklyn Institute of Arts and Sciences, appellant.

      Ralph E. Hemstreet for Orphan Asylum Society of the City of Brooklyn, appellant.

      Floyd G. Williams and Frank H. Shaffer, Jr., for Otto D. Steil et al., appellants.

      Francis J. Rogers for National City Bank of New York, as executor of Justus G-. Dettmer, deceased, et al., appellants.

      T. Fergus Redmond for Empire Trust Company, as executor of Carolyn D. Wood, deceased, appellant.

      Aaron Frank for City Bank Farmers Trust Company, as trustee under the will of Jacob GL Dettmer, deceased, respondent.

      Walter J. Carlin for County of Miami, Ohio, et al., respondent.
   Order affirmed, with costs payable out of the estate to all parties appearing by attorneys admitted to practice in the State of New York and filing separate briefs. No opinion.

Concur: LehmaN, Ch. J., LoixghraN, Lewis, and Thacher, JJ. Taking no part: Rippey and Coxway, JJ.


text:
    Apro Realty Co., Inc., Appellant, v. William Rosenberg, Respondent, et al., Defendants.
    Argued April 13, 1944;
    decided May 25, 1944.

      Louis Rosenberg and Irwin H. Rosenberg for appellant.

      Arthur Garfield Hays and John Schulman for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. Judgment affirmed, with costs. No opinion.

Concur: LehmaN, Ch. J., LoxjgheaN, Rippey, Lewis, Coéway, DesmoNd and Teaches, JJ.


text:
    Charles Smith & Sons Construction Company, Inc., Respondent, v. State of New York, Appellant.
    (Claim No. 24134.)
    Argued April 18, 1944;
    decided May 25, 1944.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Alfred Thayer and John R. 'Davison of counsel), for appellant.

      George M. Simon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., Rippey, Lewis, CoNway, Desmond and Thachee,, JJ.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Extending from the Marginal Street, Wharf or Place at East 92nd Street, in the Borough of Brooklyn, to Sunrise Highway, in the Borough of Queens, to be Known as Shore Parkway. Boardwalk Stores Corporation, Appellant.
    Argued April 20, 1944;
    decided May 25, 1944.

      William B. Boulstone for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Louis M. Wein-traub, Julius Isaacs and Benjamin Offner of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Eippey, Lewis, CoNway and Desmond, JJ. Taking no part: Thaoher, J.


text:
    Rose Block et al., Respondents, v. Miltjay Realty Corporation Appellant.
    Submitted April 10, 1944;
    decided May 25, 1944.

      Isidore Halpern, Louis Eelfenstein and Joseph 8. Robinson for appellant.

      Abraham B. Fuss and Robert Jablin for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Ch. J., LoughraN, Rippey, Lewis, CoNWAy, DesmoND and Thacher, JJ.


text:
    Argued April 4, 1944;
    decided May 25, 1944.

      Dwight Whitney, John F. Dowd and Ivan 8. Shura for appellant.

      Henry D. Holdeoi and Mooiroe J. Calm for respondent.
   Judgments affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughrak, Lewis, CoNWAY, Des-moND and Thacheb, JJ. Taking no part: Rippey, J.


text:
    In the Matter of Thomas F. Powers et al., Respondents, against Fiorello H. La Guardia, as Mayor of the City of New York, et al., Appellants, et al., Defendants.
    Argued April 13, 1944;
    decided May 25, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel, Harry Hollander and Harry Ta/nnenbaum of counsel),' for appellants.

      H. Eliot Kaplan for respondents.
   Order affirmed, with costs; no opinion.


text:
    Stanley Sadowski et al., Respondents, v. Long Island Lighting Company, Appellant.
    Argued April 17, 1
    decided May 25, 1944.

      William B. Davis and E. G. Sherwood for appellant.

      Frank A. Jablonka and William A. Spreekels for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the City of New York, Appellant, Acting for the New York City Housing Authority, Relative to Acquiring Title to Real Property in the Area Bounded by Amsterdam Avenue and Other Streets in the Borough of Manhattan, Selected as a Site for the Amsterdam Houses. City and Suburban Homes Company, Respondent.
    Argued April 18, 1944;
    decided May 25, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Reuben Levy and Julius Isaacs of counsel), for appellant.

      Martin A. Schenck, James 8. Auerbach and Edwin Guest for respondent.
   Order affirmed, with costs; no opinion.

Concur: LehmaN, Ch. J., LoughraN, Lewis, CoNway and DesmoND, JJ. Taking no part: Thacher, J.


text:
    Max Grassmann, Appellant, v. Solomon Fromm, Respondent.
    Argued April 19, 1944;
    decided May 25, 1944.

      Ralph Stout, Louis Rothbard and Oscar A. Meyerson for appellant.

      Herbert F. Hastings, Jr., and F. G. Mann for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event. Inhere was evidence from which the jury could have found that the plaintiff was a licensee to whom the defendant owed the duty to refrain from an act of affirmative negligence. In those circumstances the questions of defendant’s negligence and plaintiff’s freedom from contributory negligence were for the jury. No opinion.

Concur: LehmaN, Ch. J., LottgheaN, Lewis, CoNwat, Desmond and Thachee, JJ. Taking no part: Bippey, J.


text:
    George W. Kane, Respondent, v. Ten Co., Inc., et al., Appellants.
    Argued April 21, 1944;
    decided May 25, 1944.

      RolUn B. Sanford and Merton D. Meelcer for appellants.

      John J. Scully for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehmau, Ch. J., Lewis, CoNway, Des-MOND and Thachee, JJ. Taking no part: Rippey, J.


text:
    Bank of New York, Appellant, v. David G. Leggett, Respondent.
    Counsel appeared May 16, 1944;
    decided May 25, 1944.

      George W. Martin and Thomas B. Fenlon for appellant.

      Gerson C. Young and Kadel for respondent appearing specially.
   Concur: Lehman, Ch. J., Loughean, Lewis, Conway, Desmond and Thacheb, JJ. Taking no part: Rippey, J.


text:
    The People of the State of New York, Plaintiff, v. Heney C. Elfast et al., Individually and as Copartners under the Name of Elfast, Frisk & Company, et al., Defendants. Mildred K. Stillwaggon, Appellant; Arthur C. Frisk et al., Respondents.
    Argued March 2, 1944;
    decided May 25, 1944.

      John T. Trimble for appellant.

      Henry Epstein and Nathaniel Whitehorn for Arthur C. Frisk, respondent.

      David W. Kahn for Lou Lamb, respondent.
   Orders modified so as to provide (1) for the allowance of the claim of Mildred K. Stillwaggon in the sum of $282.23 as to which amount she was able to trace moneys obtained from her by Henry C. Elfast into the Stock Exchange seat purchased by him; (2) by providing that the claim of Arthur C. Frisk, as liquidator of Elfast, Frisk & Co., be allowed; and (3) by providing that the claim of Arthur C. Frisk, individually, be disallowed, with costs in all courts to appellant Stillwaggon. No opinion.

Concur: LehmaN, Ch. J., LotjgheaN, Lewis, CoNway, and Thachek, JJ.


text:
    Argued April 5, 1944;
    decided May 25, 1944.

      Joshua M. Fiero, Jr., for appellant.

      Lester D. Stickles and Harry J. Hill for respondents.
   In each proceeding: Order of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division, upon the ground that the weight of evidence sustains the findings of the Special Term. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, CoNway, Desmond and Thacher, JJ.


text:
    In the Matter of Niagara Falls Power Company, Appellant, against John A. White et al., Constituting the Water Power and Control Commission of the State of New York, et al., Respondents.
    Argued April 12, 1944;
    decided May 25, 1944.

      Joseph M. Proskauer, Randall J. Warren Tubbs, Lauman Martin and J. Alvin Van Bergh for appellant.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Ruth K. Toch of counsel), for respondents.
   Order affirmed, without costs. Question certified not answered. No opinion.

Concur: LehmaN, Ch. J., LotxghraN, Rippey, Lewis, CoNway, DesmoNd and Thacher, JJ.


text:
    Sterling National Bank & Trust Company of New York, as Trustee, Respondent, v. 1231 Park Ave. Holding Co., Inc., et al., Defendants. Joshua Morrison et al., Appellants.
    Argued April 17, 1944;
    decided May 25, 1944.

      Wilmurt B. Linker and Mitchell 8. Fisher for appellants.

      Edward Endelman for certificate holders in various reorganizations, amici curiae, in support of appellants’ position.

      Leslie Kirsch, Joseph Glass and Samuel Bader for respondent.
   Order affirmed, with costs. Motion to dismiss appeal denied. No opinion.


text:
    In the Matter of Clifford R. Canfield, Appellant, against Vernon A. Morhous, as Warden of Great Meadow Prison, et al., Respondents.
    Argued April 20, 1944;
    decided May 25, 1944.

      Leon M. Layden for appellant.

      Nathaniel L. Goldstein, Attorney-General (Patrick H. Glune, Orrin G. Judd and Daniel J. Loventhal of counsel), for repondents.
   Order affirmed; no opinion.

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


text:
    Argued May 15, 1944;
    decided May 25, 1944.

      Isadora Bookstein for appellant.

      Joseph F. Purcell and John P. Judge for respondent.
   Order affirmed; no opinion.

Concur: LehmáN, Cli. J., LoughraN, Lewis, Conway and DesmoND, JJ. Dissenting: Thacher, J. Taking no part: Rippey, J.


text:
    In the Matter of the Probate of a Paper Propounded as the Will of Frederick S. Reeves, Deceased.
    Argued April 5, 1944;
    decided May 25, 1944.

      Fred L. Gross and Robert P. Griffing for appellant.

      Stanley Fowler and Milton H. Reuben for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehmah, Ch. J., Loughbah, Rippey, Lewis, CoNway, DesmoNd and Teacher, JJ.


text:
    The People of the State of New York, Respondent, v. Louis Gabriel, Appellant.
    Argued April 18, 1944;
    decided May 25, 1944.

      Harry Roter and Abraham 8. Robinson for appellant.

      Frank 8. Hogan, District Attorney (Richard, Q. Denser and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., LottghraN, Lewis, Conway, Desmond andThacher, JJ. Taking no part: J.


text:
    George R. Teich, on His Own Behalf as a Stockholder and for the Benefit of All Other Stockholders, Similarly Situated, of Equity Corporation, Appellant and Respondent, and Cambart Co., Inc., Intervener, Plaintiff-Appellant and Respondent, v. Joseph S. Lawrence et al., Defendants, and David M. Milton et al., Defendants-Respondents and Appellants.
    Submitted April 17, 1944;
    decided May 25, 1944.
   Motion hy intervener, plaintiff-appellant and respondent, for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 245.)


text:
    Lieberman, Respondent, v. Maurice B. Lieberman, Appellant.
    Submitted May 15, 1944;
    decided May 25, 1944.

      Jacob Burns and Henry L. Finlcelstein for motion.

      Louis A. Tepper opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Submitted. May 15, 1944;
    decided May 25, 1944.

      David Ascii and Arthur G. II. Power, appearing specially, for motion.

      William J. Killea and Alexander Bides opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the special proceedings. (See Hammond v. National Life Assn., 168 N. T. 262; Matter of Kerwin, 270 N. Y. 564.)


text:
    Max Becker, as Assignee of Joseph A. Broderick, Superintendent of Banks of the State of New York, Appellant, v. Boris Stern, Respondent.
    Submitted May 15, 1944;
    decided May 25, 1944.

      Leo Wiener and Harry Salvan for motion.

      Isidor Enselman and Harry G. Fromherg opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action within the meaning ,of the Constitution.


text:
    H. Porter, Appellant, v. Commercial Casualty Insurance Company, Respondent.
    Submitted May 15, 1944;
    decided May 25, 1944.
   Motion by respondent for reargument denied, with ten dollars costs and necessary printing disbursements. (See 292 N. Y. 176.)


text:
    The People of the State of New York ex rel. New York Central Railroad Company, Appellant, against State Tax Commission, Respondent, and City of Albany, Intervener, Respondent.
    Submitted May 15, 1944;
    decided May 25, 1944.
   Motion by appellant for a reargument denied, with ten dollars costs and necessary printing disbursements. (See 292 N. Y. 130.)


text:
    The People of the State of New York ex rel. John P. Smith, Appellant, against Vernon A. Morhous, as Warden of Great Meadow Prison, Respondent.
    Submitted May 15, 1944;
    decided May 25, 1944.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Patrióle H. Clune and Herman N. Harcourt of counsel), for motion.

      John P. Smith, in person, opposed.
   Motion granted and appeal dismissed on the ground that no substantial constitutional question is involved and that no appeal lies as of right.


text:
    Submitted May 15, 1944;
    decided May 25, 1944.


text:
    Theodore Drivas, Appellant, v. Nicholas C. Lekas et al., Respondents, et al., Defendants. Theodore Drivas, Individually and on Behalf of All Other Stockholders of Lekas & Drivas, Inc., Similarly Situated, Appellant, v. Nicholas C. Lekas et al., Respondents.
    Submitted May 15, 1944;
    decided May 25, 1944.
   Motion by defendant-respondent Lekas & Drivas, Inc.* for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 292 N. Y. 204.)


text:
    In the Matter of the Application of Owen M. Quinn et al., Appellants and Respondents. Archer Guion, as Receiver of Taxes of the Town of Mount Pleasant, Respondent and Appellant; Elbert T. Gallagher, as District Attorney of Westchester County, Respondent.
    Submitted May 15, 1944;
    decided May 25, 1944.

      Thomas D. 8coble, Jr., for motion.

      Edmund Halsey Cox opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements on the ground that the movant may appeal as of right from the order of the Appellate Division.


text:
    Charles L. Reese, Jr., Appellant, v. Texas Company, Respondent.
    Submitted May 15, 1944;
    decided May 25, 1944.
   Motion by appellant for reargument denied, with ten dollars costs and necessary printing disbursements. (See 292 N. Y. 583.)


text:
    In the Matter of Frank C. Uitz, Jr., Appellant, against Frederick Moran et al., as Commissioners of the State Board of Parole, Respondents.
    Submitted May 15, 1944;
    decided May 25, 1944.

      Frank G. Uitz, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd of counsel), opposed.
   Motion dismissed on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Northeastern Real Estate Securities Corporation, Judgment Creditor, Appellant, v. Edgar B. Goldstein, Judgment Debtor. Dudley D. Doernberg & Company, Respondent.
    Submitted May 15, 1944;
    decided May 25, 1944.

      Morris R. Chase and Reuben Chase for motion.

      David Haar opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Claim of John Lapp, Respondent, against Owl Laundry Service, Inc., et al., Appellants. State Industrial Board, Respondent.
    Submitted May 22, 1944;
    decided May 25, 1944.
   Motion by appellants to amend the remittitur denied, without costs, and without prejudice to the right of appellants, if they be so advised, to apply to the Appellate Division for correction of the order entered oh the remittitur of this court. (See 292 N. Y. 582.)


text:
    The People of the State of New York, Respondent, v. Charles Greiner, Appellant.
    Submitted May 22, 1944;
    decided May 25, 1944.

      Edward J. Neary, District Attorney (Philip Huntington of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


author: Lewis, J. Conway, J.

text:
    In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Opening and Extending of Exterior Street and Other Streets in the Borough of The Bronx. Bowery Savings Bank, Appearing Specially, Appellant; Stephens Fuel Company, Inc., Respondent.
    Argued February 24, 1944;
    decided May 25, 1944.

      Richard T. Herrmarm, Curtis 8. Bates and Henry F. Richardson, Jr., for appellant appearing specially.
    I. The proceedings insofar as they sought to affect the right of access via the Mott Haven Canal to damage parcel No. 381 were without jurisdiction. The condemnation of property across the mouth of the canal for street purposes did not expressly or impliedly authorize the closing of the canal. (Matter of City of New York [Exterior St.], 259 App. Div. 1007, 285 N. Y. 455; Matter of City of New York [Canal Place], 115 App. Div. 458, 191 N. Y. 525.) II. The interference with the easement of access was illegal as no notice was given of the taking thereof. (Matter of New York City [Exterior St.], 259 App. Div. 1007; Matter of City of N. Y. [Grand Boulevard], 212 N. Y. 538; Bell Telephone Co. v. Parker, 187 N. Y. 299.)

      Ignatius M. Wilkinson, Corporation Counsel (Eugene L. Brisach, Julius Isaacs and Leo Brown of counsel), for respondent.
    I. The jurisdictional requirements of the condemnation statutes were fully complied with by the publication of the notice describing the lands acquired by metes and bounds, the nature and extent of the title acquired, as well as the purpose of the improvement. (Greater New York Charter [L. 1901, ch. 466, as amd.], §§ 969-1003; Matter of Canal Place, 64 App. Div. 604; Matter of City of New York [Canal Place], 115 App. Div. 458, 191 N. Y. 525; Matter Appl’n. Mayor, etc., of the City of N. Y., 99 N. Y. 569; Merriman v. City of New York, 227 N. Y. 279.) II. The acquisition in fee for street purposes extinguished all interests in the land taken, and awards were properly made for all damages, consequential as well as direct, occasioned by the taking. (Greater New York Charter, §§ 974, 979 [formerly § 996], 1000, 1003; Merriman v. City of New York, 227 N. Y. 279; Matter of City of New York [Exterior Street], 285 N. Y. 455.) III. The award for damage parcel No. 381, having been paid to the person designated in the final decree, such payment, in the absence of fraud or notice of an adverse claim, relieved the City from further liability. (Merriman v. City of New York, 227 N. Y. 279.)
   Lewis, J.

The appellant, The Bowery Savings Bank, a mortgagee of premises presently to be described, challenges procedure by which the City of New York acquired certain real property for the widening of East 135th Street in connection with the construction of the westerly approach to the Triborough Bridge. The condemnation involved easements possessed by the owners of lands, outside the lines of taking, which abut upon the Mott Haven Canal. (See Matter of City of New York [Exterior St.] 285 N. Y. 455, 457.) An award for consequential damages was paid to Stephens Fuel Company, Inc., the owner in fee of damage parcel No. 381, upon its representation that the property was free of all encumbrances. It now appears, however, that the appellant held several mortgages on that parcel but filed no notice of claim in the condemnation proceeding captioned above.

More than two years after payment of the awards the appellant, appearing “ specially ” in this proceeding, moved at Special Term to set aside the final decree in condemnation upon the ground that the court had acquired no jurisdiction in this proceeding over damage parcel No. 381 or over the appellant as mortgagee. Special Term denied the motion upon the ground that there was no fraud or mistake in making the award which would justify vacating the decree. The Appellate Division affirmed the order, one Justice dissenting, and granted leave to appeal to this court upon the following certified questions: “ 1. Did the Court at Special Term have jurisdiction to amend the damage maps in this proceeding so as to include Damage Parcel No. 381 without giving the notice provided for in Section 994 of the Greater New York Charter? 2. Were the proceedings taken herein sufficient to apprise appellant that its property was to be taken? 3. Did the Court at Special Term have jurisdiction over appellant? ”

Additional facts are as follows: On October 20, 1936, the Board of Estimate and Apportionment' adopted a resolution which authorized the taking in fee of property required for an extension and widening of East 135th Street. The rule map approved by the Board included premises designated as “ Parcel F ”,— a strip of land on the northerly side of East 135th Street through which passed Mott Haven Canal. The proceeding was instituted on notice published in the City Record as provided by sections 999 and 1000 of the Greater New York Charter, which notice described by metes and bounds the property to be taken, including “ Parcel F.” The published notice also directed every person interested in the property to be taken to file a claim therefor and proof of title. Thereafter in due course and upon authority of a resolution of the Board of Estimate, the Corporation Counsel applied for an order of condemnation which was granted on November 4,1936, on which date title to the property described in the condemnation notice vested in the City. A draft damage map was then prepared by the president of the Borough of Bronx and thereafter the appellant filed a notice of appearance as owner of damage parcel No. 147 — a parcel separate and unrelated to parcel No. 381 upon which it held mortgages. Thereafter it partiel-' pated actively in the proceeding and received an award for parcel No. 147.

During the course of the condemnation trial several owners of parcels of real property along Mott Haven Canal and not within the lines of taking — including the owner of Parcel No. 381 — applied for leave to file claims in the proceeding. Such applications were based on the alleged fact that the acquisition of title in fee of damage parcel F, which included a segment of the Mott Haven Canal, and the filling in of the canal prism at that location would extinguish their easements in the Canal. The application was granted and the court directed that damage numbers be assigned to such owners along the Mott Haven Canal whose easements would be cut off by the taking. The damage numbers thus assigned included the Parcel No. 381 owned by Stephens Fuel Company, Inc., as to which property the appellant was a mortgagee.

A tentative decree included awards to Stephens Fuel Company, Inc., as owner of damage Parcel No. 381 and to the appellant as owner of the separate damage Parcel No. 147. Notice to file objections to the tentative awards was published in the City Record as provided by the Greater New York Charter and thereafter a final decree in condemnation was entered.

Upon the appellant’s present motion to vacate the final decree in condemnation it appears that Stephens Fuel Company, Inc., filed with the Corporation Counsel proof of title of its premises in connection with its claim for consequential damages; that such claim included a verified statement by one of its executive officers —“ That said lands [Parcel No. 381] are free and clear of all mortgages * * * that upon receiving payment of the award an executive officer of Stephens Fuel Company, Inc., signed a verified receipt therefor and a release, which instrument contained the statement There are no mortgages or liens of any description against the said premises ”; that in truth the appellant was then the owner of several mortgages which were liens upon land comprised within Parcel No. 381. It also appears by an affidavit of the executive officers who filed the verified proof of title for the corporate owner of Parcel No. 381 and the verified receipt and release at the time the award was paid, that at the times of filing such instruments they knew there were mortgages upon the lands described in the instruments but were informed by counsel and believed that no land subject to the mortgage liens was being acquired by the City of New York in the condemnation proceeding.

The question for our decision is whether the notice of condemnation, which failed specifically to describe damage Parcel No. 381 as included in the taking, was adequate.

The appellant argues that the condemnation proceeding as originally instituted gave inadequate notice that easements appurtenant to property abutting upon Mott Haven Canal outside the line of taking would be affected. It asserts that a description showing a taking in fee of Parcel F, which included a strip of land through which Mott Haven Canal passes, would give no indication that a bridge at that location and within the line of taking was to be discontinued and that the canal prism was to be filled at that point. A statute is cited (L. 1896, ch. 623) pursuant to which a bridge had been erected over the Mott Haven Canal at East 135th Street as a means to maintain the width and the depth of the canal at that location,

We may not disregard the fact that Mott Haven Canal is a private waterway and was properly the subject of condemnation. (Matter of Canal Place, 64 App. Div. 604, 606-608. Cf. Matter of City of New York [Canal Place] 115 App. Div. 458, 464, 465, affd. 191 N. Y. 525.) There was no requirement that the City retain permanently a bridge across the canal at East 135th Street if, for the purposes of widening that street, it acquired the fee of the segment of canal lands there involved and filled in the canal prism within the line of taking. The only notice to which the appellant was entitled was that prescribed by statute. (Matter of Appl’n Mayor, etc., of City of N. Y., 99 N. Y. 569, 580.) The Greater New York Charter, section 999, requires of the City that its notice of application shall indicate “ * * * the real property to be taken by a general description by metes and bounds * * * ”, Section 1000 of the Charter provides for a notice which shall contain a general description of the real property to be acquired.” The City complied with the requirements prescribed in both sections. The City could not include damage Parcel 381 within the line of taking because it was not proposed to acquire that property. The damage to Parcel No. 381 was the consequential loss of easements which occurred by reason of the taking of the property described in the notice. An indication as to the sufficiency of the notice given may be gathered from the fact that several abutting owners on Mott Haven Canal outside the line of taking — including Stephens Fuel Company, Inc. — appeared in the proceeding and claimed consequential damages. "

We believe that the notice was adequate and that the inclusion of damage Parcel No. 381 within the damage maps did not constitute an amendment of a defect in the notice of application or other proceeding in the condemnation as contemplated by section 994 of the Greater New York Charter. That statute provides: “ § 994. The court may at any time amend any defect or informality in any notice, petition, pleading, order, report or decree in a proceeding authorized by this title, or cause real property affected by such defect, informality or lack of jurisdiction to be excluded therefrom, or other real property affected by such defect, informality or lack of jurisdiction to be included therein by amendment, upon ten days’ notice, published and posted as provided by this title for the institution of a proceeding, and may direct such further notices to be given to any party in interest as it shall deem proper.”

There was no defect or informality in any notice which required an amendment in the description of the property within the line of taking. The filing of claims for consequential damages by abutting owners outside the line of taking, and the assignment by Special Term of additional damage parcel numbers neither enlarged nor diminished the area within the line of taking. The published notice disclosed that the City was acquiring a fee for street purposes in land within the widened portions of East 135th Street through which passed the waters of the Mott Haven Canal.1' By that publication owners of lands abutting on the Canal outside the line of taking had notice that the City was to acquire property in fee for a use permanent in character which indicated there would be an impairment or destruction of their easements. Owners and others having interests in property outside the taking were thus apprised that the use to which the street might be put was' actual or threatened and thereby might entitle the owners to consequential damages. (Vanneck Realty Corp. v. City of New York, 284 N. Y. 403. See Matter of City of New York [Rockaway Beach], 288 N. Y. 75, 77.)

It follows that the payment made by the City to the claimant, Stephens Fuel Co., Inc., named in the final decree, in the absence of any prior demand by the appellant, was proper and that the notice given as provided by the Charter was sufficient. There was concededly no fraud or bad faith on the part of the Comptroller or the City which may vitiate the payment thus made. (See Merriman v. City of New York, 227 N. Y. 279, 284.)

The order should be affirmed, with costs. Each certified question should be answered in the affirmative. ¡

Conway, J.

(dissenting). This is an appeal from an order denying a motion to vacate and set aside a final decree in condemnation proceedings. The final decree contained an award to Stephens Fuel Company, Inc., for loss of use of Motthaven Canal and for loss of use of improvements on said damage par-eel.” Appellant, The Bowery Savings Bank, is the holder of mortgages on the property of Stephens Fuel Company, Inc.

The condemnation proceeding was brought to acquire the lands necessary to widen 135th Street and other streets to be used as the westerly approach to the Triborough Bridge. A resolution of the Board of Estimate and Apportionment adopted October 20, 1936, provided: •

“ Resolved, That the Board of Estimate and Apportionment, in pursuance of the provisions of the Greater New York Charter, as amended, deems it for the public interest that the title, for the uses and to the extent thereof as hereinmentioned, to the real property required for the opening and extending of * * * East 135th Street from Park avenue to Lincoln avenue, * * * where not heretofore acquired by The City of New York for street purposes, * * * should be acquired by The City of New York.
“ Resolved, That the title to be so acquired is hereby determined to be a title in fee in such premises. * * * ”

The Corporation Counsel thereafter applied to the Supreme Court on notice published in the City Record for an order of condemnation. The said application described the property by metes and bounds. In Parcel F was included a strip in or across the Mott Haven Canal. (The City already owned a good portion of the Canal.) The notice to file claims provided that “each and every person interested in the real property to be taken for the purpose of opening and extending of the above named streets having any claim or demand on account thereof ” shall file his claim before November 18, 1936.

I Nothing was said in those papers about the Mott Haven Canal or about closing it.

| On October 20, 1936, the Board of Estimate approved the rule map submitted by the Borough President of the Bronx for use in the proceedings. That map shows the Mott Haven Canal running through Parcel F to the Harlem River.

On December 18, 1936, the Board of Estimate approved a damage map submitted by the Borough President for use in the proceedings. That map also showed the Mott Haven Canal running through Parcel F.

On March 5,1937, the Board of Estimate approved the amendment of the proceedings to acquire additional property. Nothing was said about the Mott Haven Canal. Supplementary rule and damage maps were thereafter approved. The Supplementary Rule Map showed the Mott Haven Canal running through Parcel F, but the „ Supplementary Damage Map only showed it within Parcel F and not continuing through it.

Upon the trial in the condemnation proceedings certain of the owners of lands along the Mott Haven Canal applied for leave to file claims on the ground that the Canal would be rendered valueless as a result of the proceeding and that the closing of the Canal would result in damage to them by reason of the fact that the highway to be erected for the westerly approach to the Triborough Bridge would shut off access to the Mott Haven Canal north of 135th Street. The application was granted, damage numbers (including number 381) assigned to the plots affected by the discontinuance of the Canal and testimony taken. (See Matter of City of New York [Exterior Street], 285 N. Y. 455, and record therein.)

A tentative decree was thereafter entered. It contained an award to Stephens Fuel Company, Inc. (among others), for Parcel No. 381 for “ Improvements, Damage for removal of Canal ”. A final decree was entered and an appeal taken. This court directed further proceedings as to the amount of the award (285 N. Y. 455) and subsequently an award was made- and paid to Stephens Fuel Company, Inc.

The Bowery Savings Bank was the owner and holder of three first mortgages covering the premises (Parcel No. 381) owned by Stephens Fuel Company, Inc. However, Stephens Fuel Company, Inc., made two affidavits stating that there were no mortgages or other incumbrances. The award was therefore paid to Stephens Fuel Company, Inc., and not to The Bowery Savings Bank.

The Bowery Savings Bank had appeared in the condemnation proceedings with reference to another parcel (Parcel No. 147), had actively participated in the trial, and was awarded damages for that parcel. It had no actual notice, however, as to Parcel No. 381 (the Stephens’ parcel).

The Bowery Savings Bank now urges that the court had no jurisdiction to amend the proceedings so as to include Parcel No. 381 and that there was no notice that there was to be interference with the easement of access of Stephens Fuel Company, Inc.

The Appellate Division has certified the following questions:

“ 1. Did the Court at Special Term have jurisdiction to amend the damage maps in this proceeding so as to include Damage Parcel No. 381 without giving the notice provided for in Section 994 of the Greater New York Charter?
2. Were the proceedings taken herein sufficient to apprise appellant that-its propery was to be taken?
“ 3. Did the Court at Special Term have jurisdiction over appellant? ”

The resolutions of the Board of Estimate, the maps and the notices all showed that certain lands were to be taken in fee for the purpose of widening streets. We do not think any of those documents would apprise property owners that a canal was to he closed. There was at that time a drawbridge across the Mott Haven Canal. Since the street, which was to be widened crossed the Canal, the natural inference would be that the widened street would also cross the Canal. That would necessitate a new bridge but not the closing of the Canal. There is nothing in the record to show why the Canal was closed. The closing apparently had nothing to do with the widening of the particular street, but may have been in connection with some other project. In connection with a prior appeal, Special Term stated that a representation had been made in open court that a street would be substituted for the Canal. The record, however, does not disclose the representation nor by whom it was made. (See 285 N. Y. 455, 459, 461.) In the brief of appellants then submitted, it was stated that the Canal had been rough-filled but that no further improvement had been made since 1937 (that tvas in 1941). The instant proceeding was initiated in October, 1936. The closing of the Canal could not have been contemplated because of anything in connection with the Triborough Bridge approach. Clearly the property owners could not have learned from the notices and maps that the Canal was to be closed. The abutting property owners who filed claims must have learned of it in some other manner.

It is claimed, however, that because the City was taking Parcel No. 29 (the portion of the Canal just north of 135th Street). in fee, the easements were cut off. Respondent contends that the notice that certain parcels were to be taken by the City in fee informed property owners outside the lines of taking that the easements in the Canal were to be extinguished and that they should file claims. That does not follow. The fact that the City took the land in fee would not mean that the Canal was to be closed. The City might have permitted the Canal to remain; it might have widened and deepened it; it might have ■ charged for the use of it; it might have used the bed to uphold parts of a new bridge without closing the Canal. The record in the prior proceeding shows that the City had acquired the entire bed of the Canal except Parcel No. 29 in tax lien foreclosure actions. A referee’s deed was given to the City on June 26,1922. Since the City permitted the Canal and the easements to remain, even though it owned the property, there was no reason to suppose that the City would not continue the Canal after it had acquired an additional parcel of the bed.

There is nothing inconsistent between the ownership in fee of a parcel by one person and the ownership of an easement in the same parcel by another. By definition, “ an easement is a right without profit, created by grant or prescription, which the owner of one estate may exercise in or over the estate of another for the benefit of the former.” (G. L. & P. J. R. R. Co. v. N. Y. & G. L. R. R. Co., 134 N. Y. 435, 439.) The two estates are independent and the conveyance of one does not affect the other. In Nellis v. Munson et ad., (108 N. Y. 453) in holding that an easement was an interest “ in fee or of a freehold estate ” ivithin the meaning of a statute requiring that the conveyance of such an interest must be acknowledged, we said (p. 460): “ Washburn in discussing the distinction between an easement and a license, says that ‘ an easement always implies .an interest in the land, in or over which it is to be enjoyed. * * * ’ And further says, ‘ the ownership of an easement and that of the fee in the same estate are in different persons. Nor does the interest of the one affect that of the other, so but that each may have his proper remedy for an injury to his right, independent of the other.’ ” Where the City serves notice that it is taking the fee of the servient estate, it does not follow of necessity that it is taking the easement which is appurtenant to the dominant estate. Certainly not, when it is a street opening proceeding although it would be so if it were a street closing proceeding. Here the City was attempting a closing proceeding result in a street opening and widening proceeding. Opening and closing proceedings produce different-results and have different purposes. Thus when it was desired to close.this same Canal north of 138th Street to 144th Street in the Bronx, a proceeding was instituted for the purpose of opening a street to be called Canal Place over property constituting part of a canal or waterway between those streets. (Matter of Canal Place, 64 App. Div. 604.)

The easements here were apparently acquired by grant (see Matter of City of New York [Canal Place], 115 App. Div. 458, 468, affd. 191 N. Y. 525) and since they were estates independent of the fee, there was nothing in the notice that the City was to take the fee which would apprise the owners of the dominant estates that their interests were being taken. It has been held that “ The property or interest to be acquired must be ascertainable from the description thereof in the petition itself without reference to extrinsic facts. ‘ Without this the owner of land cannot know what portion of his lands is required; nor the commissioners what damages to appraise; nor the petitioner the precise boundaries of the land after the same is acquired.’ ” (Bell Telephone Co. v. Parker, 187 N. Y. 299, 303.) (Emphasis supplied.)

It is contended that Greater New York Charter section 999 and section 1000 require only that the City indicate in the notice to file claims the real property to be taken by a general description by metes and bounds that the City complied with that requirement and that that was sufficient notice to abutting owners on Mott Haven Canal outside the line of taking. Section 999 provides that “ Whenever the iacquisition of title to real property ” shall have been authorized, the Corporation Counsel shall publish a notice, which notice shall contain a metes and bounds description. Insofar as Parcel 381 was concerned in the instant case, the City was not acquiring title to real property, but was cutting off an easement. Undoubtedly, where the City is acquiring title to real property, it must describe that property by metes and bounds but that does not mean that if it is cutting off an easement it may be silent. Under that theory, if the City wished to acquire or cut off an easement, it could do so without giving anyone any notice. We think, therefore, that the provisions of the Charter do not change the rule, that “ The property or interest to be acquired must be ascertainable from the description thereof in the petition itself * * (Bell Telephone Co. v. Parker, supra.) (Emphasis supplied.)

Since the notices were inadequate to apprise the easement owners that their interests were being taken, I do not think -Special Term had jurisdiction to add the additional damage parcels. If 'the court may without notice add other parcels, it will be impossible for any property owner to know when his interests are affected. The parcel involved in the instant case (Parcel No. 381) was three blocks away from the parcel the City was taking (Parcel No. 29) according to the notice given. It was merely tied to that parcel by the fact of the easement, which was appurtenant to it (Parcel No. 381) and not to Parcel No. 29. Suppose the Canal had extended for several miles. The property owners at the farther end might never learn through extrinsic sources that the City intended to close the Canal at the opposite end. Could the court add those parcels without notice merely because they were tied to the parcel being taken by their right to use the Canal? We think section 994 of the Charter provides a proper answer. That section indicates a method by which a condemnation proceeding may be enlarged when it develops during the course of it that other property rights are affected. It provides: “ The Court may at any time amend any defect or informality in any notice, petition, pleading, order, report or decree in a proceeding authorized by this title, or cause real property affected by such defect, informality or lack of jurisdiction to be excluded therefrom, or other real property affected by such defect, informality or lack of jurisdiction to be included therein by amendment, upon ten days’ notice, published and posted as provided by this title for the institution of a proceeding, and may direct such further notices to be given to any party in interest as it shall deem proper.” We think this section applies to a situation like the present one, where it has developed during the proceeding that other rights are affected and that the notice and petition were defective in that they did not refer to them. Although no change occurred in the lines of taking, a change did occur in that easements were destroyed. Although no additional property was taken in fee, additional easements were included. The court should, therefore, have directed that notice be given of that change.

■ Section 394 also disposes of the argument that it would be too burdensome to require the City to search out every interest that might be affected. If it develops during the course of a condemnation proceeding that certain property is consequentially affected, the proceeding may be amended to include that property. In most instances it will occur to some one that his rights are affected and notice can then be given to others in like situation.

In the instant case, moreover, it would have been quite a simple matter for the City to indicate that it was closing" Mott Haven Canal, or that it was taking the fee and all easements therein. If either had been stated in the notices in addition to the fact that the fee was being taken and certain streets were to be widened, no one could have claimed that his interests were affected without notice.

We do not think that appellant’s position is affected by the fact that it appeared in the proceeding as to another parcel. The lack of jurisdiction here is of the subject matter and not of the person. Jurisdiction of the subject matter cannot be conferred by appearance or consent. (Patrone v. Howlett, 237 N. Y. 394, 397.) The subject matter of the action (insofar as involved here) was the fee of Parcel No. 29. The court had no jurisdiction of the easement over Parcel No. 29 nor of Parcel No. 381 to which the easement attached. In order to cut off the easement both Parcel No. 29 (in and across the Canal, part of Parcel P) and Parcel No. 381 had to be brought within the jurisdiction of the court insofar as the easement was to be affected. That was not done, since the notices were inadequate. Therefore the fact that a party owning the easement appeared in the proceeding so as to protect his property rights in Parcel No. 147, conferred no jurisdiction on the court and appellant’s interests were not cut off.

The first and second certified questions should be answered in the negative; the third question need not be answered.

Lehman, Ch. J., Rippey and Desmond, JJ., concur with Lewis, J.; Conway, J., dissents in opinion in which Loughran, J., concurs; Thacher, J., taking no part.

Order affirmed, etc.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Joel Rosenberg, Appellant.
    Argued April 13, 1944;
    decided May 25, 1944.

      Henry G. Singer, Samuel Altman and William E. Risley for appellant.
    I. The supplemental charge to the jury was error. It deprived defendant of his defense. It was a submission of the case to the jury on a theory not supported by the evidence. (People v. De Martino, 252 App. Div. 476; People v. Barberi, 149 N. Y. 256; People v. Tirnauer, 77 Misc. 387; People v. Gerdvine, 210 N. Y. 184; People v. Walker, 198 N. Y. 329; People v. Helmer, 154 N. Y. 596; People v. Corey, 148 N. Y. 476; People v. Strait, 154 N. Y. 165; People v. Koerner, 154 N. Y. 355.) II. Similar error was committed with respect to count 8.

      Thomas Cradock Hughes, Acting District Attorney (Solomon A. Klein of counsel), for respondent.
    I. The supplemental charge with respect to count 5 does not present reversible error. (People v. Dimick, 107 N. Y. 13; People v. Wagner, 245 N. Y. 143.) II. The supplemental charge with respect to count 8 was correct. ,
   Per Curiam.

The error in the supplemental charge, as to the fifth count of the indictment, was too serious to be disregarded. It was an instruction to the jury, in plain words, that, despite the positive statement of the prosecutrix that the transaction occurred on September 6, 1941, and on no other possible day, the jury might convict if it found that she was mistaken and that it really took place on some other day, close to September 6th. Appropriate — and repeated — exceptions and requests by appellant’s counsel, in the presence of the jury, brought forth only a statement by the court that he would “ leave it to the jury.” All this amounted to the submission to the jury of “ a theory of the facts which had no foundation in the evidence ” (People v. Barberi, 149 N. Y. 256, 274). We consider also that this error as to the fifth count is not without bearing on the conviction of appellant on the other count (eighth) submitted to the jury. The acts charged in those two counts were, if the prosecution’s proof be accepted, intimately connected as being two of a series of similar frauds by the same man. On this proof, appellant must have been guilty of all those acts, or of none of them. The interests of justice require a reversal as to both counts. Since there must he a new trial, we do not discuss the other alleged errors complained of by appellant.

The judgments should be reversed and a new trial ordered. (See 293 N. Y. 697.)

Lehman, Ch. J., Lohghban, Rippey, Lewis, Conway, Desmond and Thachee, JJ., concur.

Judgments reversed, etc.


author:
Lewis, J.
      Desmond, J.

text:
    In the Matter of the Application of Sonia Jordi, Respondent, for Letters of Administration on the Estate of Homer D. Lindgren, Deceased. Gladys McD. Lindgren, Appellant.
    Argued April 11, 1944;
    decided May 25, 1944.

      Nathaniel S. Corwin, Douglas E. Mathewson and Douglas Mathewson for appellant.
    I. A party who invokes the jurisdiction of a foreign court to obtain a decree of divorce in his favor may not thereafter challenge the validity of the court’s decree. (Krause v. Krause, 282 N. Y. 355; Guggenheim v. Wahl, 203 N. Y. 390; Matter of Swales, 60 App. Div. 599, 172 N. Y. 651; Matter of Bingham, 265 App. Div. 463; Glaser v. Glaser, 276 N. Y. 296.) II. The infant daughter, here represented by her guardian, the respondent, is in privity of estate with the decedent and rests under the same disability to challenge the validity of the appellant’s marriage to the decedent, or to challenge the validity of the Florida decree of divorce. (Starbuck v. Starbuck, 173 N. Y. 503; Matter of Morrison, 52 Hun 102, 117 N. Y. 638.) III. The Florida divorce decree is not subject to a collateral attack. (Hynes v. Title Guarantee & Trust Co., 249 App. Div. 732, 273 N. Y. 612.) IV. It is anomalous to hold that the Florida divorce proceedings were invalid as to the decedent who was the plaintiff therein but valid as to his wife, the defendant therein. (Vernon v. Vernon, 262 App. Div. 431, 288 N. Y. 503.) V. The decedent’s second marriage, to Gladys McD. Lindgren is presumed to be valid. (Matter of Dugro, 261 App. Div. 236, 287 N. Y. 595; Matter of Meehan, 150 App. Div. 681; Matter of Tuttle, 234 App. Div. 1; Matter of Fingerlin, 167 Misc. 770.)

      Eugene T. McQuade for respondent.
    I. The 1939 Florida decree was void for lack of jurisdiction. (Bell v. Bell, 181 U. S. 175; Lefferts v. Lefferts, 263 N. Y. 131; Matter of Bingham, 265 App. Div. 463.) II. The 1939 decree being void, it is subject to collateral attack. III. Appellant’s claimed marriage to decedent was void. (Stein v. Dunne, 119 App. Div. 1, 190 N. Y. 524.) IV. Appellant’s void marriage creates no rights in her. (Matter of Moncrief, 235 N. Y. 390.) V. No rule of law prevents the child or her guardian from asserting the invalidity of the 1939 Florida decree. (Olmsted v. Olmsted, 190 N. Y. 458; Bell v. Little, 204 App. Div. 235, 237 N. Y. 519; German Savings Society v. Dormitzer, 192 U. S. 125.) VI. There is no presumption that supports the validity of appellant’s marriage. (Matter of Richmond, 178 Misc. 1018.) VII. Retroactive effect cannot be given to the 1941 Florida decree insofar as jurisdictional defects are concerned. The 1941 amendment to the void 1939 Florida divorce decree did not retroactively validate it. (Hindermann v. Hindermann, 245 App. Div. 246; Matter of Kimball, 155 N. Y. 62.) VIII. In Vernon v. Vernon (262 App. Div. 431, affd. 288 N. Y. 503), cited by appellant, the second marriage which was held valid was contracted after the wife had validated the originally void divorce by subsequent appearance therein. IX. It would be a denial of due process of law to hold the child or her guardian bound by the Florida decrees. (Hansberry v. Lee, 311 U. S. 32.) X. The Florida decrees against the first wife do not bind her in her capacity as guardian of the property of the decedent’s child. (B. L. T. & S. D. Co. v. K. T. & M. M. A. Assn., 126 N. Y. 450; Hellstern v. Hellstern, 279 N. Y. 327; First National Bank v. Shuler, 153 N. Y. 163.) XI. The first wife as such is estopped from attacking the Florida decrees in this proceeding. (Matter of Bingham, 265 App. Div. 463; Matter of Rhinelander, 290 N. Y. 31; Kelsey v. Kelsey, 204 App. Div. 116, 237 N. Y. 520.)
   Lewis, J.

The petitioner-respondent, Sonia Jordi — to whom it will be convenient to refer as the petitioner — is the mother and guardian of Gloria Lindgren, an infant, in whose behalf she seeks letters of administration upon the estate of Homer D. Lindgren, deceased. Although the petitioner was formerly the wife of the decedent, she does not ask to administer his estate because of that fact but because she is the guardian of the only child of that marriage who claims to be the sole distributee of the decedent’s estate. -(Surrogate’s Ct. Act, § 118.) The issues to be determined upon this appeal were tendered by the allegations in an answer and cross-petition served by the appellant, Gladys McD. Lindgren, who claims to be the decedent’s widow and as such asserts a prior right under section 118 of the Surrogate’s Court Act to letters of administration upon his estate.

Additional facts will define our problem. The decedent and the petitioner were married in New York State in 1925 where both were domiciled. He was then a member of the faculty of a university in the city of .New York where he served from 1925 until his death in 1942. After the birth in 1926 of the daughter, Gloria Lindgren, the decedent and his wife lived apart under a formal separation agreement. On October 3, 1939, in an action instituted in the Circuit Court of Florida the decedent was granted a decree of absolute divorce from the petitioner upon grounds not recognized in this State. Two days later, on October 5, 1939, at Elkton, Maryland, he entered into a ceremonial marriage with the present appellant, Gladys McDermaid Lindgren. The marriage license issued prior to that ceremony recites that the decedent resided in the State of New York. In fact, promptly after that alleged marriage he returned to New York State where he resided until his death.

In the. divorce action instituted by the decedent in Florida in 1939 service of process upon the petitioner had been made by publication. Although she did not then appear in the action, two years later — on September 30, 1941 — she applied to the Circuit Court of Florida for an order so amending the decree of divorce granted to the decedent in 1939 as to recite her appearance in the action, upon the ground that through inadvertence and mistake of counsel her appearance originally in the action had not been noted. Thereupon she procured an order which purported to amend nunc pro tune the divorce decree of 1939 to include a recital of her appearance in the action and her consent to the entry of the final decree. Two months later, and prior to the death of the decedent, the petitioner married Paul Jordi.

If the decedent was survived by a wife, she would have the first right to administer his estate; if he left no wife surviving the right to administration would be in his only child in whose behalf this proceeding is instituted. (Surr. Ct. Act, § 118.) The question whether the present appellant became the dece-. dent’s wife by the marriage of October 5, 1939, depends upon the validity of the Florida divorce granted to the decedent on October 3, 1939. The determination of that question depends in turn upon whether, under the facts of this case, the courts of this jurisdiction are required to give full faith and credit to the Florida decree.

Before reaching those questions, however, we consider the appellant’s challenge to the right.which the petitioner asserts in behalf of the only child of the decedent’s first marriage to attack the validity of the decree of the Florida court by which the child’s parents are alleged to have been divorced. It is said that when both parents of the child appeared in the Florida court in the manner disclosed by the present record neither of those two parties could thereafter challenge the validity of the foreign court’s decree. (See Vernon v. Vernon, 288 N. Y. 503; Krause v. Krause, 282 N. Y. 355, 357; Restatement of the Law of Judgments § 19; Restatement of the Law of Conflict of Laws § 112.) With such parental disability as a basis for her argument the appellant asserts that the child is in privity of estate with the decedent and thus is burdened with the same disability to challenge the validity of the Florida decree of divorce.

We think that under facts disclosed by this record the law does not visit upon the child the disability thus imposed upon the parents. The rights which are asserted in this proceeding are not property rights to which either parent has claimed to be entitled. There is no claim that the estate will derive special benefit or suffer special disadvantage in the appointment of either of the two present claimants to letters of administration. It may well be that the decedent or his personal representative acting in his behalf could not question the Florida decree. (Hynes v. Title Guarantee & Trust Co., 273 N. Y. 612.) In this proceeding, however, it is neither a right of the decedent nor of his estate which is the subject of inquiry. The petitioner attacks the validity of the Florida decree in behalf of the decedent’s daughter — not in hehalf of the decedent or of his estate or of the petitioner herself. By applying appropriate legal principles to the facts of record a choice must be made between the right, under section 118 of the Surrogate’s Court Act, of the petitioner, as guardian of the decedent’s only child, to administer his estate and the right, under the same statute, of the appellant who claims to be his widow. In each instance we are dealing with matters personal to the claimant; not to the decedent or his estate. As to the child they are independent rights to which she claims to be legally entitled as the sole distributee of her father’s estate. Of course the child was not a party to the Florida divorce action and accordingly the judgment then entered was not conclusive upon her or upon the rights now asserted in her behalf. In these circumstances we think that as a third party she may challenge the validity of the Florida decree of 1939. (See Olmsted v. Olmsted, 190 N. Y. 458, 466, 467, affd. 216 U. S. 386; Andrews v. Andrews, 188 U. S. 14, 39; German Savings Society v. Dormitzer, 192 U. S. 125, 128; Milliken v. Meyer, 311 U. S. 457, 462; Lefferts v. Lefferts, 263 N. Y. 131, 134; Matter of Holmes, 291 N. Y. 261, 272, 273.)

The statute law of Florida requires that “ In order to obtain a divorce the complainant must have resided ninety days in the State of Florida before the filing of the bill of complaint.” (F. S. A. § 65.02.) That requirement as to residence has been construed by the Florida courts to mean domicile as distinguished from a mere residence in the State. (Bowmall v. Bowmall, 174 So. [Fla.] 14, 17; Taylor v. Taylor, 182 So. [Fla.] 238, 240; Phillips v. Phillips, 1 So. 2d [Fla.] 186, 190, 191.) In the present case the Surrogate has found that by facts in evidence before him it was established that prior to instituting the divorce action in 1939 the decedent did not reside in Florida for the statutory period of ninety days; that his alleged residence in Florida was sham and fraud,” his presence in that State being “ for the sole purpose of taking advantoge of its divorce laws ”; that such evidence served conclusively to demonstrate “ that decedent did not acquire a bona fide residence in Florida ”. There being substantial evidence to support those findings and as the Surrogate’s decree based thereupon has mét with affirmance at the Appellate Division our inquiry must proceed upon the factual basis that the decedent did not acquire a bona fide domicile in Florida prior to the filing of the bill of complaint upon which the divorce decree of 1939 was granted. (Glaser v. Glaser, 276 N. Y. 296, 299.)

The divorce action brought by the decedent in 1939 and the subsequent appearance therein by the petitioner did not suffice to confer upon the Florida court jurisdiction of the subject matter of the action. It has been established in the present proceeding that neither party to that action was a domiciliary' of Florida before the bill of complaint was filed. It is that lack of domicile which deprived the foreign court of jurisdiction. In those circumstances the courts of this State did not violate the full faith and credit clause of the Federal Constitution when in this proceeding they refused to give effect to the Florida divorce decree of 1939. (Andrews v. Andrews, supra, pp. 41, 42; German Savings Society v. Dormitzer, supra, p. 128; Fauntelroy v. Lum, 210 U. S. 230, 237; Burbank v. Ernst, 232 U. S. 162, 163; Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 29; cf. Bell v. Bell, 181 U. S. 175, 177.)

This rule is not opposed to legal principles formulated in Williams v. North Carolina (317 U. S. 287, 292, 302). There the court expressly reserved the question now before us and treated the case precisely the same as if petitioners had resided in Nevada for a term of years and had long ago acquired a permanent abode there.” There it was assumed “ that petitioners had a bona fide domicile in Nevada, not that the Nevada domicile was a sham.” Here our decision upon that branch of the case rests upon factual findings that the decedent’s alleged residence in Florida was “ sham and fraud ” and that he “ did not acquire a bona fide' residence ” in that State.

We are thus led to conclude that the Florida divorce decree of 1939 was invalid and that the petitioner, as guardian of the decedent’s only child, is entitled to administer his estate.

The order should be affirmed, without costs.

Desmond, J.

(dissenting). Homer Lindgren died intestate. The effect of the order appealed from is to award the whole of his estate to his daughter and to exclude from all interest in that estate, decedent’s second wife. That result follows if we accept the holding of the Surrogate, made on petition of the daughter, that decedent’s Florida divorce from his first wife, and his subsequent marriage to cross-petitioner-appellant, were invalid. We think it settled that the daughter had no right to attack that second marriage. During decedent’s life, the courts would not have listened to any assertion by him, as against his second wife, that his marriage to her was void (Krause v. Krause, 282 N. Y. 355.) After his death his daughter, claiming his property as his distributee, was, as to such property, subject to the same disability; she was barred, as was her father before her, from denying that cross-petitioner is entitled to the property rights which come from marriage. (Matter of Morrisson, 52 Hun 102, affd. 117 N. Y. 638; Melchers v. Bertolido, 118 Misc. 196; Elliott v. Wohlfrom, 55 Cal. 384; Jacobs, Attack on Divorce Decrees, 34 Mich. Law Review 975.) None of the cases cited as contrary authority are in conflict with the rule herein stated, since in none of those cases was the party who disputed the divorce or the second marriage, a grantee, transferee or successor, as to the property involved, of the person who had obtained, the unlawful divorce.

The order should be reversed and appellant’s cross petition granted, with costs.

Loughran, Bippey, Conway and Thacher, JJ., concur with Lewis, J.; Desmond, J., dissents in opinion in which Lehman, Ch. J., concurs.

Order affirmed.


author: Rippey, J.

text:
    Metropolitan Savings Bank, Respondent, v. Friend L. Tuttle, as Executor of and Trustee under the Will of Angelo Ubriaco, Deceased, et al., Appellants, et al., Defendants.
    Argued March 7, 1944;
    decided May 25, 1944.

      Friend L. Tuttle and Wilfred H. Gillon for appellants.
    I. Section 1513 of the Civil Practice Act furnishes ample authority for the award of an additional allowance herein. The award of an additional allowance of $200 under subdivision 1 of the statute, would seem to follow as a matter of course in accordance with the usual practice. But defendants contend, on principle and authority, that the court also had power to award them an additional allowance under subdivision 2 of section 1513 of the Civil Practice Act. (Badger v. Johnston, 106 App. Div. 237; United Press v. New York Press Co., 164 N. Y. 406; Realty Associates v. Packard Motor Car Co., 119 Misc. 292; Ansorge v. Kane, 244 N. Y. 395; Moulton v. Beecher, 11 Hun 192; New York El. R. R. Co. v. Harold, 30 Hun 466; Vietor v. Halstead, 14 N. Y. S. 516; Abbey v. Wheeler, 57 App. Div. 417; Assets Collecting Co. v. Myers No. 1, 170 App. Div. 265, 225 N. Y. 631; Poughkeepsie Savings Bank v. Herron, 256 N. Y. 339; Mora et al. v. Great Western Insurance Company, 10 Bosw. 622; First National Bank of Plattsburgh v. Bush, 47 How. Pr. 78; Kilmer v. Evening Herald Co., 70 App. Div. 291; Chaffee v. Rahr, 40 N. Y. S. 2d 484.) II. The portions of the order and judgment denying defendants’ motion for an additional allowance, herein appealed from, are reviewable by the Court of Appeals. (Husted v. Van Ness, 1 App. Div. 120, 158 N. Y. 104; Kitching v. Brown, 180 N. Y. 414; Warren v. Second Ave. R. R. Co., 206 App. Div. 258.)

      C. Be Witt Rogers for respondent.
    As there was no trial, rule 200 of the Buies of Civil Practice requires the application to be made to the court “ before which the judgment was rendered ”, i. e., the Appellate Division. When the Appellate Division reversed the Special Term order and dismissed the complaint it made a new and complete adjudication. The judgment entered on the remittitur of the Appellate Division was the judgment of the Appellate Division. (Lamport v. Smedley, 213 N. Y. 82; Kaumagraph Company v. Stampagraph Co., 235 N. Y. 1; Herrman v. U. S. Trust Co., 221 N. Y. 143; New York Investors, Inc., v. Manhattan B. B. P. Corp., 137 Misc. 899; Waldo v. Schmidt, 200 N. Y. 199; Hascall v. King, 165 N. Y. 288.)
   Rippey, J.

This action was brought to foreclose a mortgage upon real property. The appellants, parties defendant in that action, moved at Special Term to dismiss the complaint under rule 106 of the Rules of Civil Practice on the ground that the complaint, upon its face, was insufficient as a matter of law. That motion was granted with permission to serve a supplemental complaint. After service of the supplemental complaint, the same defendants moved on the same ground to dismiss that pleading, which motion was denied at Special Term. Thereupon an appeal was taken from that order denying that motion and the Appellate Division reversed the order, with twenty dollars costs and disbursements, and granted the motion, with ten dollars costs, with certain relief to plaintiff which is not material here. Upon the remittitur of the Appellate Division on such reversal, filed in the office of the clerk of Bronx County on April 12, 1941, and upon affidavits, the defendants thereupon moved at Special Term for judgment upon the remittitur and for an additional allowance under section 1513 of the Civil Practice Act. An order was made at Special Term granting the motion upon the remittitur and dismissing the complaint and supplemental complaint on the merits without prejudice to the institution of a new action for the foreclosure of the mortgage but denying the application for an additional allowance on the ground that, since no answer or defense was interposed to the complaint and no trial of the issues raised by such a pleading was had in the action, the court was without power to impose additional costs, and a judgment was entered upon the order in the office of the clerk of Bronx County on July 9, 1941. Thereupon, the appellants took an appeal to the Appellate Division from so much of the aforesaid judgment and order as denied the application for additional costs and adjudged that the court was without power to grant an additional allowance. The judgment and order so far as appealed from were unanimously affirmed, with costs.

The granting or denial of additional costs under section 1513 of the Civil Practice Act is discretionary upon the merits in the lower courts (Taylor v. Root, 48 N. Y. 687) and such discretion, when exercised, is not reviewable in this court (Dudley v. Perkins, 235 N. Y. 448). By the form of the Appellate Division order and the judgment entered thereon, it must he presumed that the affirmance was based upon the ground that Special Term was without jurisdiction to grant an extra allowance and that the application therefor was denied for want of power.

Respondents urge here as the sole ground for affirmance of the judgment appealed from that the Appellate Division only had power under the provisions of rule 200 of the Rules of Civil Practice to pass upon a motion for an additional allowance since the Appellate Division reversed the order of Special Term denying the motion to dismiss the complaint and dismissed the complaint and thereby made a new and complete adjudication. That point is first made by the respondent in this court. Ordinarily we would not consider it for that reason. Since the case must he remitted for further proceedings, it seems advisable to pass upon the point. It was not made upon the motion for leave to appeal. We granted leave for the purpose of setting at rest the question of the power of Special Term to grant an additional allowance of costs in an action to foreclose a mortgage upon real property where no answer is interposed, where there is no trial of the issues raised by such a pleading, where there is no showing that the case is difficult and extraordinary and where the complaint is dismissed upon motion directed to the legal insufficiency of the complaint.

Respondent relies principally upon Kaumagraph Co. v. Stampagraph Co. (235 N. Y. 1), where it was held that in an action where issue had been joined by answer and a trial had been had and the Appellate Division had reversed the determination of the trial court and had made new findings and a new decree in accordance with the power vested in it by statute, it had the power to grant an additional allowance under rule 200 of the Rules of Civil Practice. Upon the facts, the case is not in point, nor are other cases to somewhat similar effect cited by the respondent. In the circumstances here, the application for an additional allowance was properly made at Special Term, prior to the entry of the judgment upon the order of the Appellate Division. Jurisdiction lies in this court to pass upon the question of the power of Special Term to make such an allowance (Hanover F. Ins. Co. v. Germania F. Ins. Co., 138 N. Y. 252). Under rule 200, it is provided that the application must be made to the court before which the trial was had or the judgment rendered before final costs are adjusted. As we later point out, the proceedings here constituted a trial of the legal issues involved on the motion to dismiss. An additional allowance may be made to either party to the action who is successful and entitled to costs (United Press v. New York Press Co., 164 N. Y. 406, 414).

Section 1513 of the Civil Practice Act, insofar as it applies to the circumstances in this case, provides that “In an action brought to foreclose a mortgage upon real property * * * where a defense has been interposed * * *, the court, in its discretion, also may award to any party a further sum, * * * not exceeding five per centum upon the sum recovered or claimed, or the value of the subject matter involved.” Actions where the further requirement is a showing that the case is difficult and extraordinary (Matter of Baker, 284 N. Y. 1, and other similar cases) are other than those for the foreclosure of a mortgage upon real property. In foreclosure actions, it is only where no defense ” is interposed that the additional allowance, if any, is limited to the sum of two hundred dollars, but where a defense ” is interposed the limit of the allowance is five per cent as above indicated (Poughkeepsie Savings Bank v. Herron, 256 N. Y. 339; Osinoff v. Gert Realty Corp., 260 N. Y. 36). The question here is whether a defense was interposed in the action within the meaning of section 1513 of the Civil Practice Act.

Section 1513 takes the place of former section 3253 of the Code of Civil Procedure and is substantially in the same wording as the former section of the Code. Objections to pleadings in point of law were formerly taken by demurrer. Demurrer was abolished by section 277 of the Civil Practice Act and objections to pleadings for legal insufficiency are now taken by motion in accordance with the practice prescribed by the Buies of Civil Practice. There is “ no distinction in principle between the practice on demurrer and the present practice when demurrers are abolished (Civ. Prae. Act, § 277), and the same objection is taken by motion ” (Ansorge v. Kane, 244 N. Y. 395, 397).

It was uniformly held under former section 3253 of the Code of Civil Procedure that an extra allowance might be granted to a defendant who had demurred to the complaint and that the demurrer was deemed to be a “ defense ” within the meaning of that section (New York Elevated R. R. Co. v. Harold, 30 Hun 466; Kingsland v. Mayor, etc., of New York, 52 Hun 98). The same conclusion has been reached in connection with motions for legal insufficiency of a pleading since the demurrer has been abolished (Assets Collecting Co. v. Myers, No. 1, 170 App. Div. 265, affd. 225 N. Y. 631).

We conclude that the motion to dismiss presented a “ defense ” within the meaning of the statute and that it raised a triable issue of law which was necessarily disposed of at Special Term.

The judgments should be reversed and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion, with costs in all courts to the appellants.

Lehman, Ch. J., Loughran, Lewis, Conway, Desmond and Thacher, JJ., concur.

Judgment accordingly.


text:
    Josephine De Pinto, as Administratrix of the Estate of Mauro De Pinto, Deceased, Respondent, v. O’Donnell Transportation Co., Inc., Appellant, et al., Defendants.
    Argued March 7, 1944;
    decided May 25, 1944.

      John P. Carson, Edmund F. Lamb and Reginald V. Spell for appellant.
    The Appellate Division erred in modifying the order of the trial court to the extent of depriving the defendant of its partial defense of limitation of liability pursuant to the Federal Limited Liability Act. (U. S. Code, tit. 46, § 183 et seq.) (In Re Eastern Transp. Co., 37 F. 2d 355; The Harry Hudson Smith, 142 F. 724; The Catskill, 95 F. 700; Carlisle Packing Co. v. Sandanger, 259 U. S. 255; The Lotta, 150 F. 219; Delaware River Ferry Co. v. Amos, 179 F. 756; The “ Scotland ”, 105 U. S. 24; Carpenter v. Mary R. Mullins, Inc., 33 F. Supp. 10; Coryell v. Pilkington, 39 F. Supp. 142, 128 F. 2d 702, 317 U. S. 406; Cantey v. McLain Line, 40 F. Supp. 887.)

      Abraham M. Fisch for respondent.
    I. The owner of a vessel who desires to limit his legal liability to the value of the vessel must do so within six months after a claim has been filed. (Standard Wholesale P. & A. Works v. Travelers Ins. Co., 107 F. 2d 373; The Irving, 28 F. Supp. 585; The Grasselli Chemical Co. No. 4, 20 F. Supp. 394.) II. The right to limit liability whether by petition or pleading in the answer must be perfected by a shipowner within six months after the plaintiff has filed her claim. Congress did not intend to make it possible for the shipowner by subterfuge to extend his time in which to limit liability. A shipowner cannot amend his answer to interpose the defense of limitation of liability after the expiration of six months from the filing of the claim. (The Irving, 33 F. Supp. 59; Standard Wholesale P. & A. Works v. Travelers Ins. Co., 107 F. 2d, 373; Conners Marine Co. v. U. S. Gypsum Co., 107 F. 2d 1011; The Grasselli Chemical Co. No. 4, 20 F. Supp. 394; The Joseph O’Donnell, 37 F. Supp. 120.) III. The jury having rendered a verdict in favor of the plaintiff and having found under the trial court’s charge that the appellant’s vessel was unseaworthy, the jury’s determination was res judicata to any new proceedings in the matter. The trial court was without authority to pass on the issues of limitation in the absence of the jury. (Southern Pacific Railr’d v. United States, 168 U. S. 1; Hull v. Hull, 225 N. Y. 342.)
   Per Curiam.

The evidence amply supports the finding by the jury that there was negligence on the part of the defendant-appellant and freedom from contributory negligence on the part of the deceased. Upon consideration of the Federal statutes (U. S. Rev. Stat., §§ 4283, 4284, 4285; U. S. Code, tit. 46, §§ 183, 184 and 185, as amd. by Act of June 5, 1936, ch. 521 [49 U. S. Stat. 1479 et seq.']), we agree with the interpretation in The Chickie (141 F. 2d 80), and, accordingly, under section 606 of the Civil Practice Act (as amd. by L. 1942, ch. 297), the judgment is reversed and the case is remitted to the Appellate Division, without costs, for determination upon the questions of fact, including discretion, raised in that court by the defendant-appellant’s motion to amend the answer.

The judgment of the Appellate Division should be reversed, without costs, and the case remitted to the Appellate Division for determination upon the questions of fact, including discretion, raised in that court by the defendant-appellant’s motion to amend the answer.

Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ., concur.

Judgment accordingly.


text:
    Press-On, Inc., Respondent, v. Jacob O. Goodman, Individually and Doing Business as Mendaire Products Manufacturing Co., Appellant.
    Argued April 19, 1944;
    decided May 25, 1944.

      Morris Aimer and Benjamin Koenig for appellant.
    The findings made by the Appellate Division, which were adopted from findings made by Special Term, do not support the conclusion reached by the Appellate Division in granting plaintiff an injunction. (Beatty v. Guggenheim Exploration Co., 223 N. Y. 294;
      Baker v. Order of Hibernians, 224 N. Y. 363; McDougall v. Shoemaker, 236 N. Y. 127; Never-Wet Corp. v. Never-Wet Processing Corp., 277 N. Y. 163; Pocket Books, Inc., v. Meyers, 292 N. Y. 59; Kellogg Co. v. Nat. Biscuit Co., 305 U. S. 111; Saxlehner v. Wagner, 216 U. S. 375; Gum v. Gumakers of America, 136 F. 2d 957; Cooke & Cobb Co. v. Miller, 169 N. Y. 475.)

      Menahem Slim, Samuel Bandel and Murray W. Greif for respondent.
    I. Defendant’s acts constituted unfair competition and warranted the granting of injunctive relief to plaintiff. (Ken-Tool Mfg. Co. v. Red Patch & Reliner Co., 41 N. Y. S. 2d 78; Day v. Webster, 23 App. Div. 601; International News Serv. v. Asso. Press, 248 U. S. 215; Walley, Inc., v. Saks & Co., 266 App. Div. 193; Bard-Parker Co., Inc. v. Crescent Manufacturing Co., 174 Misc. 356.) II. Plaintiff possessed a common-law copyright as to its labels, instructions and slogans. Defendant’s violation thereof warranted the injunctive relief granted to plaintiff. (Keene v. Wheatley, 14 Fed. Cas. No. 7644; Woolsey v. Judd, Duer, 379, 11 How. Prac. 49; Taft v. Smith Gray & Co., 16 Misc. 283; Alberts v. Remington Rand, Inc., 175 Misc. 486; Ketcham v. New York World’s Fair 1939, 34 F. Supp. 657; Healey v. Macy & Co., Inc., 251 App. Div. 440, 277 N. Y. 681; Palmer v. De Witt, 47 N. Y. 532; New Era Electric Range Co. v. Serrell, 252 N. Y. 107; Tabor v. Hoffman, 118 N. Y. 30; Casino Productions, Inc., v. Vitaphone Corp., 163 Misc. 403; Hewitt v. Coward, 49 N. Y. S. 2d 498; Fendler v. Morosco, 253 N. Y. 281; Wilkie v. Santly Bros., 91 F. 2d 978, 13 F. Supp. 136; Santly Bros. v. Wilkie, 302 U. S. 735; Wilkie v. Santly Bros., 94 F. 2d 1023; Jewelers’ Mer. Agency v. Jewelers’ Pub. Co., 155 N Y. 241; Kiernan v. Manhattan Quotation Telegraph Co., 50 How. Pr. 194; Associated Press v. International News Service, 245 F. 244.) III. The decision of the Appellate Division substantially complies with section 602 et seq., of the Civil Practice Act.
   Per Curiam.

As this case comes to us, there is in it neither proof nor finding of any palming off, substitution, deception, simulation of package or trademark, misappropriation of literary property, illegal use of trade slogans, or of any other wrongdoing of a Mnd which is actionable as /-amounting to “ unfair competition ”.

The judgment of the Appellate Division should he reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division. (See 293 N. Y. 748.)

Lehman, Oh. J., Loughran, Lewis, Conway, Desmond and Thacher, JJ., concur; Rippey, J., taking no part.

Judgment accordingly.


text:
    Joseph H. Dexter, Appellant, v. Board of Higher Education of the City of New York, Respondent.
    Argued April 20, 1944;
    decided May 25, 1944.

      A. Mark Levien for appellant.
    I. Plaintiff’s position in defendant’s employ was, at all times, that of “ Instructor ”. If, as alleged in the first partial defense, the defendant designated plaintiff as “ temporary Instructor ” during the years 1929 to 1938, it is evident from the facts conceded by the pleadings, that the word “ temporary ”, was not actually part of the title of plaintiff’s position, hut was merely descriptive of his tenure as an “ Instructor ”. (Matter of Rohr v. Kenngott, 288 N. Y. 97; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Neary v. O’Connor, 173 Misc. 696, 260 App. Div. 986; Matter of Petrillo v. Lynn, 243 App. Div. 796, 268 N. Y. 473; People ex rel. Hoefle v. Cahill, 188 N. Y. 489; People ex rel. Corkhill v. McAdoo, 98 App. Div. 312; Healey v. Bazinet, 291 N. Y. 430 ; Matter of Ironside v.
      Tend, 13 N. Y. S. 2d 17, 258 App. Div. 940, 283 N. Y. 667; Schneider v. City of New York, 178 Misc. 238, 264 App. Div. 855, 289 N. Y. 785.) II. Under defendant’s filed salary schedule for instructors, accrual of the scheduled annual increments was conditioned only on continued satisfactory service, and not on the grant of a permanent appointment or the acquisition of permanent tenure.

      Ignatius M. Wilkinson, Corporation Counsel (Joseph Q. Be Vito, James Hall Prothero and Nicholas Bucci of counsel), for respondent.
    I. The fact that the position of temporary instructor was not included in its salary schedules did not preclude defendant from appointing plaintiff to such position. The board has specific statutory authority to make appointments to temporary or part-time positions. (Story v. Craig, 231 N. Y. 33; Matter of Carr v. Kern, 279 N. Y. 42; Matter of McGowan v. Board of Education, 273 N. Y. 68; Matter of Wasmund v. La Guardia, 287 N. Y. 417; Koso v. Greene, 260 N. Y. 491; Matter of Hilsenrad v. Miller, 284 N. Y. 445; Matter of Kearns v. Bd. of Education, 279 N. Y. 61; Matter of Beggs v. Kern, 284 N. Y. 504.) II. Until the defendant granted him regular appointment in 1938, plaintiff was a temporary instructor and as such was not entitled to increments in salary. (Matter of Putnam v. Marshall, 286 N. Y. 485; Story v. Craig, 231 N. Y. 33; Matter of Phillips v. Kaplan, 242 App. Div. 815, 266 N. Y. 514; Matter of Pickett v. Board of Education, 251 App. Div. 798; Sheehan v. Board of Education, 120 App. Div. 557 affd. 193 N. Y. 627.)
   It appears conclusively from the allegations of the complaint and of the answer that the plaintiff in 1929 was appointed to service in the scheduled position of Instructor for the academic year beginning September 1, 1929, and that his appointment to the same position was renewed from year to year thereafter until he was given permanent tenure. The provisions of section 889 of the Education Law that compensation and salaries “ shall be not less than the salaries and salary increments fixed by the schedules and schedule conditions * * * on file in the office of the state commissioner of education on the fifth day of March, nineteen hundred thirty-one ”, apply to persons holding such positions by successive appointments for single scholastic years without right of permanent tenure, as well as to persons enjoying permanent tenure. That is true even though the appointment for each year he denominated an appointment as temporary Instructor ”.

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

The question certified should be answered in the negative.

Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur; Thacher, J., taking no part.

Ordered accordingly.