author:
      Per Curiam.
     Conway, J.

text:
    In the Matter of Philip Edwards, Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents. John H. Campbell, Jr., Intervener, Respondent.

      Argued May 20, 1940;
    decided July 24, 1940.

      Joseph Ferber for appellant.
    The Board erred in its determination in revoking the certificate of occupancy by entirely disregarding the provisions of section 301 of the Multiple Dwelling Law (Cons. Laws, ch. 61-a). (Central Park Plaza Corp. v. Monsky, 260 N. Y. Supp. 902; Wokal v. Sequin, 167 Misc. Rep. 463; Ten Eyck v. Witbeck, 135 N. Y. 40.)

      William C. Chanler, Corporation Counsel (Francis J. Bloustein and Paxton Blair of counsel) for defendants, respondents.
    Since the erection of dwarfed partitions on each of the floors of petitioner’s lodging house created cubicles or rooms, a violation of the Multiple Dwelling Law resulted. Therefore the certificate of occupancy was improperly and illegally issued and the Board was justified in revoking it. (People v. Keller, 96 Misc. Rep. 92; Crosby v. City Council of Montgomery, 108 Ala. 498; Adamec v. Post, 273 N. Y. 250; Matter of Gutting v. Brennan, 97 App. Div. 23; Neuman v. City of New York, 137 App. Div. 55; Matter of Village of Middletown, 82 N. Y. 196; People ex rel. Jackson v. Potter, 47 N. Y. 375; People v. Wolfe, 272 N. Y. 608; 273 N. Y. 498; People v. Kesbec, Inc., 281 N. Y. 785; Hadacheck v. Sebastian, 239 U. S. 394; People v. Santa Clara Lumber Co., 213 N. Y. 61.)

      George G. Lake for intervener, respondent.
   Per Curiam.

Before the petitioner acquired Ms leasehold of the lodging house in question, the erection therein of the so-called cuMcles had been completed pursuant to plans that had been approved by the Department of Buildings and a certificate of occupancy had been issued by the Commissioner of Buildings. No claim is made that tMs certificate of occupancy was not a “ certificate ” in the sense of section 301 of the Multiple Dwelling Law (Cons. Laws, ch. 61-a). Section 301 provides: “No tenement house shall hereafter be occupied in whole or in part for human habitation until the issuance of a certificate by the department charged with the enforcement of the tenement house law or of tMs chapter that said building conforms in all respects to the requirements of the tenement house law or of tMs chapter. No building hereafter constructed as or altered or converted into a multiple dwelling shall be occupied in whole or in part for human habitation until the issuance of a certificate by the department charged with the enforcement of tMs chapter that said building conforms in all respects to the requirements of tMs chapter. Such certificate shall be issued witMn ten days after written application therefor if said building at the date of such application shall be entitled thereto. Such a certificate, or the record in the department aforesaid that such a certificate has been issued or a statement signed by the head of such department that such a certificate has been issued, may be relied upon by every person who in good faith purchases a multiple dwelling or who in good faith lends money upon the security of mortgage covering such dwelling. Whenever any person has so relied upon such certificate, no claim that such dwelling had not, prior to the issuance of such certificate, conformed in all respects to the provisions of this chapter shall be made against such person or against the interest of such person in a multiple dwelling to which such a certificate applies or concerning which such a statement has been issued(Italics supplied.) Petitioner was a purchaser ” witMn the intent and meaning of tMs section 301 of the Multiple Dwelling Law. (See Real Prop. Law [Cons. Laws, ch. 50], § 290, subd. 2.)

It follows that the Board of Standards and Appeals had no authority to revoke as against the petitioner the certificate of occupancy issued to his predecessor in interest by the Commissioner of Buildings. The above-stressed words of section 301 of the Multiple Dwelling Law are so explicit as to exclude any latitude of interpretation. Accordingly, section 646 (g) of the Charter of the City of New York (effective January 1, 1938) must be taken to apply only in cases where there has been no reliance by a purchaser or mortgagee upon a certificate that there has been compliance with the law.

The orders should be reversed, without costs, and the matter remitted to the Special Term for further proceedings in accordance with this opinion.

Conway, J.

(dissenting); I dissent upon the grounds that (1) there is neither allegation nor proof of good faith on the part of the purchaser, a close relative of the seller, so as to make applicable the provisions of section 301 of the Multiple Dwelling Law (Cons. Laws, ch. 61a), and (2) the doctrine of estoppel may never be invoked, by reason of unauthorized acts of its officers or agents, to prevent a state or municipality from properly exercising its police power. (People v. Santa Clara Lumber Co., 213 N. Y. 61, 67.)

Loughran, Finch, Rippey, Sears and Lewis, JJ., concur in per curiam opinion; Conway, J., dissents in opinion; Lehman, Ch. J., taking no part.

Orders reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Philip M. McHugh, Respondent, v. J. Edward Jones, Appellant.
    Argued May 22, 1940;
    decided July 24, 1940.

      Hyman I. Fischbach and John J. Corwin for appellant.
    A verdict may not be set aside upon affidavits of jurors who participated in the rendition thereof. (Payne v. Burke, 236 App. Div. 527; Tyler v. Stevens, 4 N. H. 116; McDonald v. Pless, 238 U. S. 264; Hanor v. Housel, 128 App. Div. 801; Zint v. Mulligan, 140 App. Div. 230) Zimmerman v. Carr, 59 Ind. App. 245; Broadway Building Co. v. Saladino, 81 Misc. Rep. 73; Taylor v. Evart, 2 How. Pr. 23; Mais v. Ruh, 57 App. Div. 15; Gans v. Metropolitan Street Ry. Co., 84 N. Y. Supp. 714; Clum v. Smith, 5 Hill, 560; Miller v. Gerard, 200 App. Div. 870; Lyberg v. Hols, 145 Wash. 316; Maryland Casualty Co. v. Seattle Electric Co., 75 Wash. 430; Hinkle v. Oregon Chair Co., 88 Ore. 404.)

      Horace M. Gray and Charles E. Wythe for respondent.
    The Appellate Division properly held that the trial court should have investigated into the existence of fraud in the selection of the jury before disposing of the motion. (Slater v. United Traction Co., 172 App. Div. 404, Clark v. United States, 289 U. S. 1; Lane v. Vaselius, 137 Misc. Rep. 756; Baccelli v. Booth, 75 Misc. Rep. 260; Dalrymple v. Williams, 63 N. Y. 361; Steubing v. Krischer, 168 Misc. Rep. 20.)
   Per Curiam.

Prima facie evidence of ineligibility of one of the members of the jury to sit as a juror was disclosed by statements made outside the jury room and having no relation to the deliberations of the jury. The disclosures were sufficient, even though contained in affidavits of jurors, to require the court to make inquiry as to their truth for the purpose of determining the question of eligibility. (People v. Leonti, 262 N. Y. 256.)

The order should be affirmed, with costs, and the question certified answered in the negative.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Order affirmed, etc.


text:
    In the Matter of William E. Folkes, Appellant and Respondent, against James E. Hushion, as Comptroller of the City of Yonkers, Respondent and Appellant.
    Submitted June 14, 1940;
    decided July 24, 1940.

      Clarence Alexander for petitioner, appellant and respondent.
    Petitioner’s position of tax clerk was not abolished, neither were his duties abolished or discontinued, in fact or in good faith. (Gregory v. Mayor, 113 N. Y. 416.)

      Leonard G. McAneny, Corporation Counsel (J. Raymond Hannon and William F. Cauley, Jr., of counsel), for defendant, respondent and appellant.
    The petitioner was not removed from his position for political purposes and is not entitled to reinstatement because of any violation of section 25 of the Civil Service Law (Cons. Laws, ch. 7). The court below erred in finding that the petitioner’s position was not abolished in good faith. (People ex rel. Kaufman v. Board of Education, 166 App. Div. 58; Matter of Edkins v. Wotherspoon, 173 App. Div. 330; Matter of Jones v. Willcox, 80 App. Div. 167; Matter of Colligan v. Williams, 91 Misc. Rep. 128; People ex rel. Steers v. Delaney, 190 N. Y. Supp. 29; Matter of Reilly v. Smith, 92 Misc. Rep. 309; People ex rel. Vineing v. Hayes, 135 App. Div. 19; Matter of McCarthy v. Board of Elections, 119 Misc. Rep. 257; Matter of Scahill v. Drzewucki, 244 App. Div. 530; Matter of Hirshfield v. Craig, 239 N. Y. 98.) The petitioner is not entitled to reinstatement from a preferred list under the provisions of section 31 of the Civil Service Law upon the ground that his seniority rights have been violated. (Matter of Skrocki v. Greene, 242 App. Div. 226; Matter of Smith v. Greene, 247 App. Div. 425; Matter of Glisman v. Moses, 255 App. Div. 1020; Matter of White v. Harrell, 236 App. Div. 206.) The petitioner has not shown a clear legal right to hold any position paying a salary, or to receive any salary, in excess of $2,400 per year. (Matter of Mullane v. McKenzie, 269 N. Y. 369; O’Malley v. Board of Education, 160 App. Div. 261; People ex rel. Campbell v. Partridge, 89 App. Div. 497; 179 N. Y. 530; Matter of Smith v. Greene, 247 App. Div. 425; Matter of Ryan v. Kaplan, 213 App. Div. 131; 240 N. Y. 690; Matter of Meehan v. Flaherty, 119 App. Div. 128; Matter of Cooper v. Paris, 73 Misc. Rep. 244; People ex rel. Lee v. Gleason, 32 App. Div. 357; People ex rel. Chamberlain v. Knox, 45 App. Div. 518; Matter of McEneny v. McKee, 236 App. Div. 140.)
   Per Curiam.

A position is not effectively abolished where a person not appointed in accordance with the provisions of the Civil Service Law (Cons. Laws, ch. 7) is employed to perform the duties formerly performed by the holder of the position. The holder of such a position who has been suspended because no appropriation has been made for the payment of the salary attached to the position, is entitled to reinstatement in the same or similar position, at least from the date where, it appears, his salary can be paid, without requiring an appropriation of additional moneys. Proof of the existence since October 1, 1936, of a vacancy in a position of the same salary grade establishes that no new moneys need be appropriated in order to pay the salary attached to the position which the petitioner formerly held. The order of the Appellate Division directing that the petitioner should be reinstated as of that date in the position he formerly occupied or in a similar position, and should receive from that date compensation which he has lost, is correct, even though the petitioner could not be appointed to the vacant position.

The order should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Order affirmed.


author: Conway, J.

text:
    In the Matter of the Accounting of Isabel Nichols, as Executrix of Leo P. Burrows, Deceased, Respondent. Ralph E. Prime, Jr., et al., as Trustees under the Will of Ralph E. Prime, Deceased, Appellants.

      Argued April 9, 1940;
    decided July 24, 1940.

      Francis J. Duffy, Ralph Earl Prime, Jr., and William C. Prime for appellants.
    Appellants were entitled to the relief sought against the estate of the deceased. (Prime v. Nichols, 252 App. Div. 446; Matter of Bowes, 164 Misc. Rep. 190.) The appellants have an absolute right to elect whether they will hold and enforce their collateral security or will waive and surrender it to the legal representative of their deceased debtor. (Marshall v. Davies, 78 N. Y. 414; Matter of Bowes, 164 Misc. Rep. 190.) The order or decree of March 2, 1938, was properly an intermediate order only and as such reviewable on appeal with the final decree. (Matter of Callahan, 139 N. Y. 51.)

      Paul L. Bleakley for respondent.
    The motion to dismiss the appeal from the decree of March 2, 1938, was properly granted. (Matter of Merllo, 152 Misc. Rep. 435; Matter of Lichtman, 148 Misc. Rep. 228.) The appellants must proceed in the first instance against the real property. (Matter of Hun, 144 N. Y. 472; Pease v. Egan, 131 N. Y. 262; Matter of Dusenbery v.. Bragg, 241 App. Div. 553; Matter of Horner, 149 Misc. Rep. 695; Matter of Dell, 154 Misc. Rep. 216; Matter of Rosenbaum, 157 Misc. Rep. 316; Johnson v. Corbitt, 11 Paige’s Ch. 265.)
   Conway, J.

The appellants are trustees under the will of one Ralph E. Prime, deceased, and shall be referred to hereafter as trustees. Ralph E. Prime had been the holder of a bond and first mortgage. Payment of the bond had been assumed by William R Burrows by extension agreements entered into between him and trustees. Thereafter William F. Burrows died and his entire estate passed under his will to Leo Placid Burrows, his sole executor, legatee and devisee. The administration of William F. Burrows’ estate had not been completed nor had the proceeds been paid to Leo Placid Burrows when the latter died and the assets of both estates have since been administered by respondent, the executrix under the will of Leo Placid Burrows, as one estate. There are sufficient assets in the estate of Leo Placid Burrows coming from the estate of William F. Burrows to pay the debt.

The trustees seek payment of the bond and mortgage which is past due. To the final account of the executrix, trustees filed objections to her refusal to allow and pay it. The Surrogate dismissed the objections, treating the claim as one contingent upon the amount of a deficiency judgment which might be recovered in a foreclosure action pursuant to section 1083-a or section 1083-b of the Civil Practice Act. To ascertain that sum the Surrogate took testimony, offered on behalf of respondent only, to determine the fair and reasonable market value of the mortgaged property which could at some future date be set off against the amount due on the bond under section 1083-b or deducted under section 1083-a. Finding such value to be greater as of September 13, 1938, than the amount due, the Surrogate directed the distribution of the estate without payment of the debt and without reservation of any sum for future payment of a possible deficiency judgment.

The trustees are entitled to such a reservation of moneys. Section 207 of the Surrogate’s Court Act provides in part as follows: Whenever at the death of any person there shall be a contingent or unliquidated claim against his estate, or an outstanding bond, recognizance or -undertaking upon which the deceased shall have been principal, surety, or indemnitor and on which at the time of his death the liability is still contingent or -unliquidated, a claimant or a surety shall have the right to file with the executor or administrator of the estate of the deceased on or before the day named in the notice provided for in this section, an affidavit setting forth the facts upon which such contingent or -unliquidated liability is based and the probable amount thereof, and there shall be no distribution of the assets of said estate without the reservation of sufficient moneys to pay such contingent or -unliquidated claim when the amount thereof is finally determined. * * * If such contingent or unliquidated claim has not become so fixed and liquidated, the decree on a final accounting shall direct that a sum sufficient to satisfy the claim, or the proportion to which it is entitled, be retained in the hands of the accounting party for such period or periods as the court may deem proper for the purpose of being applied to the payment of such claim when fixed and liquidated; and that so much of such sum as is not needed for such purpose be after-wards distributed according to law.”

Section 1083-a of the Civil Practice Act has no application in this proceeding. By its terms it applies only to actions. (See Civ. Prac. Act, § 7, subd. 8.) It will become applicable, however, in view of the death of William F. Burrows and the applicable provisions of section 250 of the Real Property Law (Cons. Laws, ch. 50).

Originally the common law rule, in case of the devise of real property subject to a mortgage, was that the personalty of the testator was the primary fund for the payment of the debt. (Fowler’s Real Property Law [3d ed.], § 250.) That rule was changed in this State by the Revised Statutes (1 R. S. [2d ed. 1836] p. 740, § 4.) Section 4 is as follows: “ Whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage, out of his own property, without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator, that such mortgage be otherwise paid.”

The original Revisers’ note reads as follows (3 R. S. [2d ed. 1836] p. 600, § 5): Where the testator or intestate has given a bond or other personal security for a mortgage debt, and probably in all cases where a mortgage is given to secure the payment of money, the personal estate, by the existing law, is the primary fund for the payment of the debt, and the heir or devisee may throw the charge upon the personal representatives. (See all the cases collected by Chancellor Kent, in Cumberland v. Codrington, 3 Johns. Ch. R. 229.) This rule of law is unknown to the generality of our citizens. The received opinion is, that the land is first hable for the debt; and it can hardly be doubted that the intentions of testators have frequently been defeated by the operation of the rule. It is, therefore, submitted, whether it ought not to be abrogated.”

The statute, as so enacted, has been continued substantially in the same form to date and is now section 250 of the Real Property Law. The mortgaged property is now the primary fund from which payment of the bond is to be sought before resort may be had to the executrix of the testator, unless there be a contrary express intention in the will. (Hauselt v. Patterson, 124 N. Y. 349; Erwin v. Loper, 43 N. Y. 521, 525; Rice v. Harbeson, 63 N. Y. 493; Matter of Glacius v. Fogel, 88 N. Y. 434.)

The trustees must, therefore, proceed first against the real property. If a sale of the real property satisfies the debt, the trustees have been paid in full. If it does not, then in the foreclosure action brought to reach the land, application may be made for leave to enter a deficiency judgment upon proper notice under section 1083-a of the Civil Practice Act, following foreclosure sale and delivery of deed. If such application be granted, then the trustees may resort to the executrix for payment of the amount of such judgment. In the meantime, there is the clear command of the statute that “ * * * there shall be no distribution of the assets of said estate without the reservation of sufficient moneys to pay such contingent or unliquidated claim when the amount thereof is finally determined.” That will be after hearing has been sought and had under section 1083-a of the Civil Practice Act and an order entered thereon directing the entry of a deficiency judgment. Such reservation of moneys must be made by the executrix and it must necessarily continue until (a) the expiration of the emergency period, or (b) the lapse of a reasonable time after the trustees have the right to foreclose the mortgage within the permissive provisions of the moratorium statutes and to continue the action to judgment and a sale of the premises. During that period the trustees must proceed diligently under penalty of the loss of their right to the reservation of moneys to pay the claim. (Surr. Ct. Act, § 207.)

The order of the Appellate Division, in so far as it affirmed the Surrogate’s decree of April 25, 1939, should be reversed, with costs to the appellants, and the matter remitted to the Surrogate with direction to proceed in accordance with this opinion. The order of the Appellate Division, in so far as it dismissed the appeal from the decree of the Surrogate’s Court of March 2, 1938, should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rjppey and Sears, JJ., concur; Lewis, J., dissents and votes for affirmance.

Ordered accordingly.


text:
    The People of the State of New York, Appellant, v. Peter Yannucci, Alfred De Viva, Andrew Grossi, Wallace Taddeo and Dominick Yannucci, Respondents.
    Argued April 25, 1940;
    decided July 24, 1940.

      Charles P. Sullivan, District Attorney (J. Irwin Shapiro and Edmund C. Rowan of counsel), for appellant.
    Since the orders of reversal specify that the reversals were made on the law it must be presumed that the Appellate Division reviewed the facts and were satisfied with the conviction in that respect. (People v. Marino, 271 N. Y. 317; People v. Bellows, 281 N. Y. 67.) The record discloses ample evidence to justify the verdict of guilty, and consequently, more than justifies the Court of Appeals in finding, as a matter of law, that there is prima facie proof of the crime. (People v. Dohring, 59 N. Y. 374; People v. Bowles, 3 N. Y. Crim. Rep. 447; People v. Connor, 126 N. Y. 278; People v. Clemons, 37 Hun, 580.)

      Samuel S. Leibowitz and Julius A. Itzkowitz for respondents.
    The evidence failed to establish the crime of rape. (People v. Connor, 126 N. Y. 278; People v. Carey, 223 N. Y. 519; People v. Dohring, 59 N. Y. 374; People v. Clemons, 37 Hun, 580; People v. Morrison, 1 Park. Crim. Rep. 625; People v. Quin, 50 Barb. 128; People v. Abbott, 19 Wend. 192; People v. Ledwon, 153 N. Y. 10; People v. Gluck, 188 N. Y. 167; People v. Scharf, 217 N. Y. 204.) There was no evidence of corroboration as required by section 2013 of the Penal Law. (People v. Taleisnik, 225 N. Y. 489; People v. Page, 162 N. Y. 272; People v. Friedman, 139 App. Div. 795; People v. Downs, 236 N. Y. 306; People v. Carey, 223 N. Y. 519; People v. Page, 162 N. Y. 272; People v. Countryman, 201 App. Div. 805; People v. Shaw, 158 App. Div. 146; People v. O’Sullivan, 104 N. Y. 481; People v. Kearney, 110 N. Y. 188; People v. Plath, 100 N. Y. 590; Kenyon v. People, 26 N. Y. 203; People v. O’Farrell, 175 N. Y. 323; Higgins v. People, 58 N. Y. 377; People v. Doyle, 158 App. Div. 37.)
   Conway, J.

Six defendants were tried for the crime of rape, first degree, upon an indictment which charged the commission of the crime upon complainant “ when her resistance was prevented by fear of immediate and great bodily harm, which she had reasonable cause to believe would be inflicted upon her.” (Italics supplied.) The complainant testified that she offered no further resistance after the appearance of three of the defendants other than Yannucci; that she realized she could not get away; that she was completely paralysed, speechless and numb. One defendant did not appeal.

There is only one question involved here. The Appellate Division reversed on the law. Section 543-a of the Code of Criminal Procedure reads as follows: “ The judgment or order of the appellate division reversing a judgment of conviction shall state whether the reversal was made upon the facts or upon the law or upon both the law and the facts, as in civil cases. Where the order only specifies that the reversal is for error of law, it shall be presumed, for the purpose of an appeal to the court of appeals, that the appellate division reviewed the facts and was satisfied with the conviction in that respect, and that but for the alleged error of law, it would not have reversed the conviction.”

That leaves a very narrow point to be decided. In People v. Marino (271 N. Y. 317) there was an indictment for receiving stolen goods. The reversal there was upon the law. Chief Judge Crane said: Although the Appellate Division reversed, it did so solely upon the law, giving effect to the provisions of section 543-a of the Code of Criminal Procedure, which states that such a reversal is an affirmance of the facts. Therefore, the facts which have been affirmed are that this defendant received, concealed and withheld Joseph Bichelman’s automobile, knowing it to have been stolen and intending to deprive the owner of it.”

Paraphrasing that statement in the instant case, the facts which have been affirmed are that the defendants perpetrated an act of sexual intercourse with the complainant, a female not the wife of any of them, against her will and without her consent, when her resistance was prevented by fear of immediate and great bodily harm which she had reasonable cause to believe would be inflicted upon her. The reversal was upon the law for failure to establish corroboration.

Taking up, then, the narrow point involved. While corroboration is needed as to every fact, all the facts are conceded or admitted except whether the resistance of the complainant was prevented by fear of immediate and great bodily harm, which she had reasonable cause to believe would be inflicted upon her. It is admitted that defendants had sexual intercourse with her and conceded that she was not the wife of any of them.

From the time she was taken to the shack ” until about six o’clock in the morning the six defendants admittedly had intercourse with her in the shack and in a car parked in the lot in which the shack was located. In addition to the six defendants, complainant testified that there were two or three other men, also participants, but who had not been apprehended.

It would seem that there is no way jurymen can ever determine whether a woman fails to resist attack because of fear of Immediate and great bodily harm, which she has reasonable cause to believe will be inflicted upon her, unless they consider the surrounding circumstances. Whether no resistance was offered because of fear is dependent upon the state of the woman’s mind. Defendants urge that complainant’s failure to resist was not due to fear; she says it was. That was, therefore, a question of fact for the jury to determine from the circumstances: the type of woman, the lonely location, the apparent futility of any resistance and the number of men there. The higher the type of woman and the more highly strung, the more likely might she be, when faced with a situation such as this, to be paralyzed, speechless and numb and to be prevented by fear from resisting. That was for the jury to say. The complainant here was a young woman, a graduate of a university abroad, who had come to this country two months before the occurrence in question to be employed by an institute of international repute and was so employed out on Long Island as research assistant. She was observed and her veracity passed upon by the jury.

Since no part of the complainant’s version of what occurred is disputed (no one of defendants testified), except that her resistance was prevented by fear of immediate and great bodily harm, which she had reasonable cause to believe would be inflicted upon her, she was amply corroborated by (1) the admissions of the defendants, (2) the conceded fact that she was confronted by a number of men in a lonely lot in a place where no help was likely to be available, (3) the testimony of the physician as to her physical condition on the day of the occurrence which made examination impossible and her condition upon examination the following day, indicating as he testified, that it could not have resulted from any amount of prolonged normal sexual intercourse, (4) her appearance immediately after the crime and her prompt complaint. (People v. Terwilliger, 74 Hun, 310; affd. on opinion below, 142 N. Y. 629; People v. Bowles, 3 N. Y. Crim. Rep. 447, 453; People v. Clemons, 3 N. Y. Crim. Rep. 565, 572; Baccio v. People, 41 N. Y. 265, 268.)

People v. Dohring (59 N. Y. 374), relied upon by defendants, is readily distinguishable from the instant case. In that case this court said at page 382: The resistance must be up to the point of being overpowered by actual force, or of inability from loss of strength longer to resist, or from the number of persons attacking resistance must be dangerous or absolutely useless, or there must be duress or fear of death. * * * there was but one for the prosecutrix to oppose, and he a man in years; * *

As to each defendant, the order of the Appellate Division should be reversed and the judgment of the County Court affirmed.

Lehman, Ch. J., Lowghran, Finch, Rippey, Sears and Lewis, JJ., concur.

Judgment accordingly.


text:
    In the Matter of the American Committee on Maternal Welfare, Inc., et al., Appellants, against Thomas J. Mangan et al., Constituting the Board of Regents of the State of New York, Respondents.
    Argued April 8, 1940;
    decided April 23, 1940.

      Charles H. Tuttle, Ellis J. Staley and Millard H. Ellison for appellants.

      Charles A. Brind, Jr., and Ernest E. Cole for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippet, Sears, Lewis and Conwat, JJ.


text:
    The People of the State of New York ex rel. Westbrook-Buffalo, Inc., Appellant, against State Tax Commission, Respondent.
    Argued April 8, 1940;
    decided April 23, 1940.

      John W. Van Allen, George B. Barrell and Archibald M. Laidlaw for appellant.

      John J. Bennett, Jr., Attorney-General (Harry T. O’Brien, Jr., of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Seabs, Lewis and Conway, JJ.


text:
    Sarah Mossip, as Administratrix of the Estate of William H. McKenzie, Deceased, Appellant, v. F. H. Clement & Co., Respondent.
    Submitted April 8, 1940;
    decided April 23, 1940.

      Philip Halpern, Emil L. Cohen and Winton H. Church for appellant.

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

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


text:
    In the Matter of the Estate of Joseph D. Eddy, Deceased. Sally D. Eddy, Appellant; Thomas Dickson, as Executor of Joseph D. Eddy, Deceased, et al., Respondents.
    Argued April 8, 1940;
    decided April 23, 1940.

      Henry Alan Johnston, Eugene P. Fitzpatrick and Theodore R. Finder for appellant.

      Cornelius J. Smyth for Sally H. Eddy et al., infants, respondents.
   Order affirmed, with costs to all parties filing briefs payable out of the estate. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of Max Siegel, Appellant, against Thomas J. Mangan et al., Constituting the Board of Regents of the State of New York, et al., Respondents.
    Argued April 8, 1940;
    decided April 23, 1940.

      George G. Lake, I. Maurice Wormser and Clayton R. Lush for appellant.

      Ernest E. Cole for respondents.
   Order affirmed, without costs, upon the ground that the Board of Regents had not lost control of the proceedings and had power to reconsider its incomplete determination. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Probate of the Will of James E. Johnston, Deceased. Seth B. Rumsey et al., Respondents; Minnie Jewhurst, Appellant.
    Argued April 9, 1940;
    decided April 23, 1940.

      Norman G. Stagg for appellant.

      Bert T. Baker for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York ex rel. William A. Youell, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted April 9, 1940;
    decided April 23, 1940.

      William A. Youell, appellant, in person.

      John J. Bennett, Jr., Attorney-General (James A. Noonan of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Accounting of the Syracuse Trust Company as Trustee under the Will of Frank A. Garrett, Deceased. Syracuse Trust Company, as Trustee, et al., Respondents; G. Everett DeMore, as Executor of Minnie S. Garrett, Deceased, Appellant.
    Argued April 9, 1940;
    decided April 23, 1940.

      G. Everett DeMore, as executor, appellant.

      Joseph M. Meatyard for respondents.
   Order affirmed, with costs payable out of the estate; no opinion.'

Concur:" Lehman, Ch. J., Loughran, Finch, Rippey and Conway, JJ. Taking no part: Sears and Lewis, JJ.


text:
    Chase Watch Corporation, Appellant, v. Irving Heins, Respondent.
    Argued April 9, 1940;
    decided April 23, 1940.

      Abraham Karp for appellant.

      Shepard Broad and Jack D. Burris for respondent.
   Appeal dismissed on the ground that the order is not a final order in a special proceeding, unless the appellant applies within twenty days to the Appellate Division to resettle the order and for the certification of a question and unless thereafter such application is granted. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Christopher Shea, an Infant, by Patrick Shea, His Guardian ad Litem, et al., Appellants, v. Harris Malken, Respondent.
    Argued April 16, 1940;
    decided April 23, 1940.

      Robert Hyman and Harry Kupansky for appellants.

      Louis W. Arnold, Jr., for respondent.
   Appeal withdrawn.


text:
    Carll S. Chace, Appellant, v. Eleanor U. Chace, Respondent.
    Submitted April 15, 1940;
    decided April 23, 1940.

      Jacob I. Horowitz for motion.

      Branch P. Kerfoot opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not final.


text:
    In the Matter of Frederick P. Altschul, Respondent, against Oscar Dane, Appellant.
    Submitted April 15, 1940;
    decided April 23, 1940.

      Ralph J. Barra and Caesar B. F. Barra for motion.

      Avel B. Silverman opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements. If the order is final an appeal lies as of right.


text:
    Ralph Miozzi, as Administrator of the Estate of Patsy Miozzi, Deceased, Appellant, v. Armstrong Coal Co., Inc., et al., Respondents.
    Suomitted April 15, 1940;
    decided April 23, 1940.

      Thomas F. Keane for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion. (Markiewicz v. Thompson, 246 N. Y. 235; Meo v. Bloomgarden, 262 N. Y. 72.)


text:
    Consumers of the Long Island Lighting Company, by Rene A. Freyre et al., Appellants, v. Long Island Lighting Company et al., Respondents, Impleaded with Others.
    Submitted April 15, 1940;
    decided April 23, 1940.

      Stephen Callaghan for motion.

      Vincent A. O’Connor opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    First National Trust & Savings Bank of San Diego, California, as Administrator c. t. a. of Frank Crozier, Plaintiff, v. J. Roy Browning, as Trustee in Bankruptcy of Burton Coal Company et al., Appellants and Respondents; Thomas M. Hoyne, II, et al., as Administrators of the Estate of Maclay Hoyne, Deceased, Respondents and Appellants, and United States Steel Corporation et al., Respondents, Impleaded with Another.
    Argued March 12, 1940;
    decided April 26, 1940.

      Mark W. Maclay, John D. Black and John G. Haviland for Thomas M. Hoyne, II, et al., as administrators of the estate of Maclay Hoyne, deceased, appellants and respondents.

      P. Otis Zwissler for J. Roy Browning, as trustee in bankruptcy of Burton Coal Company, appellant and respondent.

      Charles F. Quantrell, John H. S. Lee, Arthur W. Clement and John J. Healy for James W. McElvain, J. William McElvain and Thornton H. McElvain, appellants and respondents.

      Kenneth B. Halstead and William Averell Brown for United States Steel Corporation and Gordon L. Edwards, respondents.

      Harlan L. Hackbert, William Averell Brown and Kenneth B. Halstead for United States Fuel Company, respondent.

      Walter F. Pease for Foreman-State National Bank and First National Bank of Chicago, respondents.
   Judgment affirmed, with costs payable out of the fund to United States Steel Corporation and to United States Fuel Company. No opinion. (See 283 N. Y. 644.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Claim of Susan Mata, Respondent, against Phoenix Construction Associates, et al., Appellants. State Industrial Board, Respondent.
    Argued April 10, 1940;
    decided April 26, 1940.

      George S. Collins for appellants.

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

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Claim of Thorlief R. Jensen, Respondent, against Boudin Contracting Corporation et al., Respondents. State Industrial Board, Appellant.
    Submitted April 10, 1940;
    decided April 26, 1940.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Henry Epstein of counsel), for State Industrial Board, appellant.

      George J. Hayes and Bernard Botein for respondents.
   Order affirmed, with costs against the State Industrial Board. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Claim of John Nagengast, Respondent, against Edward G. Spatz et al., Appellants. State Industrial Board, Respondent.
    Submitted April 10, 1940;
    decided April 26, 1940.

      J. Vanderbilt Straub for appellant.

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

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Samuel Graff, an Infant, by Harry Graff, His Guardian ad Litem, Appellant, v. Board of Education of the City of New York, Respondent.
    Argued April 10, 1940;
    decided April 26, 1940.

      Sigmund Eisenstein for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Sears and Lewis, JJ. Rippey and Conway, JJ., dissent on the ground that a question of fact was presented.


text:
    In the Matter of the Claim of Mary Palmer. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant; Edward P. Mullin, Respondent. In the Matter of the Claim of Michael Del Buono. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant; Michael H. Gornston, Respondent.
    Submitted April 10, 1940;
    decided April 26, 1940.

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan, Francis R. Curran and Henry Epstein of counsel), for appellant.

      William F. Cassin for respondents.
   In each proceeding: Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Claim of David Levine. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant; Aluminum Cooking Utensil Co., Inc., Respondent.
    Argued April 10, 1940;
    decided April 26, 1940.

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan, Francis R. Curran and Henry Epstein of counsel), for appellant.

      Harold L. Smith and Richard W. Hogue, Jr., for respondent.
   Order affirmed, with costs against State Industrial Commissioner. No opinion.

Concur: Lehman, Ch. J., Loitghran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of S. M. & J. Eisenstadt, Inc., Appellant; Horace Heffernan, Respondent.
    Argued April 10, 1940;
    decided April 26, 1940.

      David I. Michaelson for appellant.

      William E. Seward, Philip Goodheim and Horace Heffernan for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotighran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of Jack Morgenbesser, Appellant, against Philip J. McCook, a Justice of the Supreme Court of the State of New York, Respondent.
    Argued April 10, 1940;
    decided April 26, 1940.

      Sydney Rosenthal and Benjamin J. Jacobson for appellant.

      Thomas E. Dewey, District Attorney (Manuel Robbins and Stanley H. Fuld of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippet, Sears, Lewis and Conway, JJ.


text:
    Frederick A. Bellows, Respondent, v. Merchants Despatch Transportation Company, Appellant.
    Submitted April 11, 1940;
    decided April 26, 1940.

      Paul Folger for appellant.

      William L. Clay for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch and Conway, JJ. Not voting: Rippey, J. Taking no part: Sears and Lewis, JJ.


text:
    Globe Indemnity Company, Respondent, v. Sterling Stewart Corporation et al., Defendants, and Sam Ranzo, Appellant.
    Argued April 11, 1940;
    decided April 26, 1940.

      William L. Clay for appellant.

      Philip A. Sullivan for respondent.

      Philip A. Sullivan for Utica Mutual Insurance Company, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Sears and Conway, JJ. Taking no part: Rippey and Lewis, JJ.


text:
    Henrietta Eberhardt, Appellant, v. Charles M. Siegel et al., Respondents, Impleaded with Others.
    Argued April 11, 1940;
    decided April 26, 1940.

      Winfred C. Allen, George J. Kirschenstein and Jacob Marx for appellant.

      Abraham J. Halprin for Arthur A. Oldham, respondent.
   Order affirmed, with costs, on the ground that the payment of the principal sum by one of the joint debtors discharged and satisfied the judgment not only as to him but also as to the other joint debtor. (Brady v. Mayor, 14 App. Div. 152; United States v. Sherman, 98 U. S. 565; Cutter v. Mayor, 92 N. Y. 166.) No opinion. (See 283 N. Y. 658.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Elizabeth Roewekamp, Appellant, v. New York Post-Graduate Medical School and Hospital, Respondent.
    Argued April 12, 1940;
    decided April 26, 1940.

      Jacob S. Schneider for appellant.

      Martin Taylor and John Collins for respondent.
   Judgment affirmed, without costs; no opinion. (See 283 N. Y. 645.)

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    George S. Wildey et al., Appellants, v. John J. McElligott, as Fire Chief and Commissioner of the Fire Department of the City of New York, et al., Respondents.
    Submitted April 12, 1940;
    decided April 26, 1940.

      Charles L. Raskin and Samuel M. Ostroff for appellants.

      William C. Chanler, Corporation Counsel (James Hall Prothero and Jeremiah M. Evarts of counsel), for respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Laura M. Lewis, as a Relative of Ruth C. Weller, an Incompetent Person, Respondent, v. Fannie Weller et al., as Administrators of the Estate of Reuben Weller, Deceased, Appellants, Impleaded with Others.
    Submitted April 22, 1940;
    decided April 26, 1940.

      George G. Lake for motion.

      Murray D. Welch opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not final.


text:
    In the Matter of the Estate of John P. Kellas, Deceased. Jean M. Eldridge, Individually and as Administratrix with the Will Annexed of the Estate of John P. Kellas, Deceased, et al., Appellants; Anna G. Kellas, Respondent.
    Submitted April 22, 1940;
    decided April 26, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 281 N. Y. 813.)


text:
    Henry Willner et al., Doing Business under the Firm Name of Willner & Kramer, Appellants, v. Sam Willner, Doing Business under the Firm Name of Eagle Undergarment Company, Appellant.
    Submitted April 22, 1940;
    decided April 26, 1940.

      Adolph S. Ziegler for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground the order appealed from is not final.


text:
    In the Matter of the Estate of Hilda Westberg, Deceased. Selma V. Westberg et al., Appellants; Clara L. Grunthal, Respondent.
    Submitted April 22, 1940;
    decided April 26, 1940.
   Motion for leave to reopen motion to dismiss appeal and that motion to dismiss be reargued on the same papers denied, with ten dollars costs. (See 279 N. Y. 316.)


text:
    Sadie Goldman, Appellant, v. Anna Sontag et al., Respondents.
    Submitted April 26, 1940;
    decided April 26, 1940.

      Benjamin M. Goldstein for appellant.

      John D. Lyons for respondent.
   Appeal dismissed.


text:
    William S. Hart et al., Copartners Doing Business under the Name of William S. Hart Company, Respondents, v. United Artists Corporation, Appellant.
    Argued April 15, 1940;
    decided May 21, 1940.

      Joseph M. Proskauer, Arthur F. Driscoll, J. Alvin Van Bergh, Edward C. Raftery and Jacob P. Aronson for appellant.

      Max D. Steuer, Jesse Hemley and Leonard Hemley for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Batavia Times Publishing Company, Respondent, v. Garry J. Fury, Appellant.
    Argued April 16, 1940;
    decided May 21, 1940.

      Garry J. Fury, appellant, in person.

      William J. Darch for respondent.
   Judgment affirmed, with costs. Appeal from order of Appellate Division affirming order of the Supreme Court entered on January 9, 1939, dismissed, without costs. No opinion.

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


text:
    John Hauff, as Administrator of the Estate of Harold Hauff, Deceased, Respondent, v. New York Central Railroad Company, Appellant.
    Argued April 16, 1940;
    decided May 21, 1940.

      Charles S. Wilcox for appellant.

      Arthur B. Curran for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey and Conway, JJ. Talcing no part; Sears and Lewis, JJ.


text:
    Six Realty Company, Inc., Respondent, v. Irving O’Melia et al., Appellants.
    Submitted April 16, 1940;
    decided May 21, 1940.

      C. Elmer Spedick and Arthur L. Reuter for appellants.

      David M. Engelson and Hyman M. Resnick for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Seabs, Lewis and Conway, JJ,


text:
    Joseph O. Collins, an Infant, by Bernard J. Collins, His Guardian ad Litem, et al., Appellants, v. Lina Noss, Respondent.
    Argued April 16, 1940;
    decided May 21, 1940.

      Ivan E. Maginn and Frederick C. Scheel for appellants.

      Julius S. Christensen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Sears, Lewis and Conway, JJ. Dissenting: Rippey, J.


text:
    Stephen Dwornik et al., Appellants, v. State of New York, Respondent. Delaware, Lackawanna & Western R. R. Co., et al., Respondents.
    (Claim No. 22303.)
    Argued April 16, 1940;
    decided May 21, 1940.

      John J. Kane for appellants.

      John J. Bennett, Jr., Attorney-General (Thomas J. O’Donnell and William, J. Driscoll of counsel), for State of New York, respondent.

      Louis L. Babcock, Howard R. Sturtevant and Leonard W. Zingler for the Delaware, Lackawanna & Western Railroad Co., et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    P. Walker Morrison et al., as Trustees, Appellants, v. New York Rapid Transit Corporation et al., Respondents.
    Argued April 16, 1940;
    decided May 21, 1940.

      Philip M. Kleinfeld, Barnet Kaprow and David L. Weissman for appellants.

      Trabue Carswell, William W. Spear and W. Harry Sefton for New York Rapid Transit Corporation, respondent.

      Burt L. Rich and Daniel Miner for Faircroft Engineering Corporation, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gladys Lobsenz, an Infant, by Harry L. Lobsenz, Her Guardian ad Litem, et al., Appellants, v. Irwin Rubinstein, Doing Business under the Name of Camp Winona, Respondent.
    Argued April 16, 1940;
    decided May 21, 1940.

      Harris J. Griston and Marvin George Florman for appellants.

      George J. Stacy, James J. Mahoney and Joseph Kane for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Oliver R. Alridge, Appellant.
    Argued April 17, 1940;
    decided May 21, 1940.

      J. M. Seymour and Frank L. Bowen for appellant.

      A. Edward Krieger, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ. Taking no part: Lehman, Ch. J.


text:
    American Store Equipment & Construction Corporation, Appellant, v. Jack Dempsey’s Punch Bowl, Inc., Respondent, Impleaded with Others.
    Argued April 17, 1940;
    decided May 21, 1940.

      I. Maurice Wormser and Philip Feldman for appellant.

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

Concur: Lehman, Ch. J., Loughran, Finch, Bippey, Sears, Lewis and Conway, JJ.


text:
    Alice C. Wing, Appellant, v. National Surety Corporation, Respondent. Henry Cheney, Appellant, v. National Surety Corporation, Respondent.
    Argued April 18, 1940;
    decided May 21, 1940.

      Leo O. Coupe and Henry F. Coupe for appellants.

      Boy H. Callahan for respondent.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    William J. Schieffelin et al., Appellants, v. Mocan Realty Corporation et al., Respondents, Impleaded with Another.
    Argued April 18, 1940;
    decided May 21, 1940.

      Isaac Gluckman and Stanley S. Casden for appellants.

      I. Maurice Wormser, Charles C. Peters, John E. Leddy and Donald M. Cunningham for respondents.
   Judgment affirmed, with costs, on the ground the discharge of the judgment discharged the surety. No opinion.

Concur: Lehman", Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Harry Brenner, Appellant, v. Samuel Strasbourger et al., Doing Business as Strasbourger & Schallek, Respondents.
    Argued April 18, 1940;
    decided May 21, 1940.

      Samuel Rubin and A. Alfred Conrad for appellant.

      Samuel Randel and Alfred Englander for respondents.
   Judgments reversed and a new trial granted, with costs to the appellant to abide the event, on the ground that plaintiff made out a prima facie case in regard to the second cause of action. No opinion.

Concur: Loughban, Finch, Rippey and Conway, JJ. Dissenting: Lehman, Ch. J., Seabs and Lewis, JJ.


text:
    William Carey, Respondent, v. Co-Co-Oi Transportation, Inc., Appellant, Impleaded with Others.
    Argued April 18, 1940;
    decided May 21, 1940.

      Edward M. Fuller, I. Maurice Wormser and Daniel Mungall for appellant.

      Samuel Justin Jackman and Max Brandes for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Adolph Englert, Appellant.
    Argued April 18, 1940;
    decided May 21, 1940.

      Jeremiah Hinden for appellant.
    No appearance for respondent.
   Judgments reversed and information dismissed on the ground that no offense has been charged or proved. No opinion.

Concur: Lehman, Ch. J., Loiighran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Cathryn G. Haskell, as Executrix of Edward L. Haskell, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 24690.)
    Argued April 18, 1940;
    decided May 21, 1940.

      John J. Bennett, Jr., Attorney-General (Leon M. Lay den of counsel), for appellant.

      Albert Averbach and Walter Wilcox for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank H. Coyne, as Trustee, Appellant, v. New York State Teachers’ Retirement System, Respondent.
    Argued April 19, 1940;
    decided May 21, 1940.

      Leon London and I. Maurice Wormser for appellant.

      Pliny W. Williamson, Thomas J. Whalen and Francis K. Raynor for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Sears and Conway, JJ. Dissenting: Finch, Rippey and Lewis, JJ.


text:
    New York State Teachers’ Retirement System, Respondent, v. Frank H. Coyne, as Trustee, Appellant, Impleaded with Others.
    Argued April 19, 1940;
    decided May 21, 1940.

      Leon London and I. Maurice Wormser for appellant.

      Pliny W. Williamson, Thomas J. Whalen and Francis K. Raynor for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    Lehigh Structural Steel Company, Inc., Plaintiff, v. Nyack Kennel Club et al., Defendants; Vernon Lumber Corporation, Respondent, and Biophile Club Company, Inc., Appellant.
    Argued April 19, 1940;
    decided May 21, 1940.

      Francis D. Wells for appeHant.

      Max Ornstein for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Concetta Bravado, an Infant, by Lena Bravado, Her Guardian ad Litem, et al., Appellants, v. Thomas E. Murray, as Receiver of Interborough Rapid Transit Company, Respondent.
    Submitted April 19, 1940;
    decided May 21, 1940.

      William A. Blank, Daniel Ginsberg and Louis Myerson for appellants.

      A. L. Wilbur and James L. Quackenbush for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Anthony Wekker, Respondent, v. William Spencer & Son Corporation, Appellant.
    Argued April 19,1940;
    decided May 21, 1940.

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

      Meyer Kraushaar for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Lillian Kasitch, Respondent, v. City of Albany, Appellant. Helen P. Czyzewski, Respondent, v. City of Albany, Appellant.
    Argued April 19, 1940;
    decided May 21, 1940.

      Joseph J. Casey, Corporation Counsel (George Myers of counsel), for appellant.

      M. James Conbay for respondents.
   Orders reversed and motion denied, with costs in all courts (Bush Terminal Co. v. City of New York, 259 N. Y. 509; Davidson v. City of New York, 221 N. Y. 487), and question certified answered in the negative. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. James Pryor, Appellant.
    Argued April 22, 1940;
    decided May 21, 1940.

      George C. Norton, Cornelius F. Collins, Jr., and John H. Lewis for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Manuel Robbins of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ. .


text:
    John Simon, Appellant, v. Chemical Bank & Trust Company, Respondent.
    Argued April 22, 1940;
    decided May 21, 1940.

      Charles H. Tuttle and Laurence Berenson for appellant.

      Justus Sheffield, Philip A. Carroll and Fairfax Leary, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Wolcott Cook et al., Respondents, v. Laura M. Gill et al., Individually and as Executors of Frank B. Gill, Deceased, Appellants.
    Argued April 22, 1940;
    decided May 21, 1940.

      Ward N. Truesdell for appellants.

      Oliver D. Burden for respondents.
   Appeal dismissed, with costs, on the ground that no appeal lies from the order entered upon the decision of the Appellate Division. (Matter of Westberg, 279 N. Y. 316.) No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. John J. Baumeister, Appellant.
    Submitted April 23, 1940;
    decided May 21, 1940.

      John J. Baumeister, appellant, in person.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Manuel Robbins of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Mary Nunes, as Administratrix of the Estate of Frank Nunes, Deceased, Respondent, v. Sachs Quality Furniture Co., Inc., et al., Appellants, Impleaded with Another.
    Argued April 23, 1940;
    decided May 21, 1940.

      F. A. W. Ireland for appellants.

      Joseph F. Murray and George A. Grabow for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Mildred Van Dorn et al., Respondents, v. W. H. Jackson Auto Sales, Inc., Appellant.
    Argued April 24, 1940;
    decided May 21, 1940.

      H. H. Brown, Alfred M. Bailey and E. C. Sherwood for appellant.

      Sydney A. Syme for respondents.
   Judgment affirmed, with costs. We hold that the doctrine of MacPherson v. Buick Motor Co. (217 N. Y. 382) applies in the relationship of these plaintiffs and the defendant. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Lena Dvorkin, Appellant, v. Commercial Travelers Mutual Accident Association of America, Respondent.
    Argued April 24, 1940;
    decided May 21, 1940.

      Samuel B. Budey and Robert I. Rogin for appellant.

      Charles J. Nehrbas and Henry C. Moses for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Finch, Rippey, Sears, Lewis and Conway, JJ. Taking no part: Lehman, Ch. J.


text:
    Arthur Strough, as Mayor of the Village of Canastota, et al., Appellants, v. Frank Conley et al., Respondents.
    Argued April 24, 1940;
    decided May 21, 1940.

      K. E. Woolsey for appellants.

      Robert D. Jones for Federal Land Bank of Springfield, respondent.

      P. Augustus Hopkins for Fred Conley et al., respondents.

      Harold F. Lee for William Ryan et al., respondents.
   Appeal from the order of Appellate Division filed June 28> 1938, dismissed, with costs. No opinion.

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


text:
    Arthur Strough, as Mayor of the Village of Canastota, et al., Appellants, v. Frank Conley et al., Respondents.
    Argued April 24, 1940;
    decided May 21, 1940.

      K. E. Woolsey for appellants.

      P. Augustus Hopkins for Fred Conley et al., respondents.

      Robert D. Jones for Federal Land Bank of Springfield, respondent.

      Harold F. Lee for William Ryan et al., respondents.
   Appeal from the judgment of the Appellate Division entered July 22, 1939, affirmed, with costs; no opinion.

Concur: Lotjghran, Finch, Rippey, Sears, Lewis and Conway, JJ. Taking no part: Lehman, Ch. J.


text:
    Joseph M. Bucko, Appellant, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company, et al., Respondents.
    Argued April 25, 1940;
    decided May 21, 1940.

      Walter A. Bruce for appellant.

      Harry Sacher for Austin Hogan et al., respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    William Steinert et al., as Executors of Joseph Steinert, Deceased, Appellants, v. Title Guarantee & Trust Company, Respondent.
    Argued April 26, 1940;
    decided May 21, 1940.

      John Todd Stuart and Eugene Edward Fink for appellants.

      William J. Junkerman, Flynn L. Andrew and Eugene Z. DuBose for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Bernard D. Hirsh, Appellant.
    Argued April 26, 1940;
    decided May 21, 1940.

      Myron J. Greene, Walter K. Pick, Martin Greene and James T. Neary for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Richard G. Denzer of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Rita Fishman, Individually and as Assignee of Melvin Fishman et al., Respondent, v. New York Life Insurance Company, Appellant.
    Submitted April 26, 1940;
    decided May 21, 1940.

      Kenneth deF. Carpenter and Louis H. Cooke for appellant.

      Harold D. Romanow for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Vincent Cammarata et al., Appellants, v. Nassau Appliance Company et al., Respondents, Impleaded with Another.
    Submitted May 20, 1940;
    decided May 28, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 282 N. Y. 795.)


text:
    First National Bank of Hempstead et al., Appellants, v. Level Club, Inc., et al., Respondents.
    Submitted May 20, 1940;
    decided May 28, 1940.
   Motion to amend the remittitur denied. Our decision was that there was evidence sufficient to support the findings of the Appellate Division that the defendants had not been guilty of fraud. (See 282 N. Y. 577.)


text:
    Alexander Weiler, Appellant, v. Dry Dock Savings Institution, Respondent.
    Submitted May 20, 1940;
    decided May 28, 1940.

      George W. Harrington for motion.

      Julius Reinlieb opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking on appeal and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    In the Matter of the Estate of Grace Danielson, an Incompetent Person. Charles J. Dodd, Jr., as Committee, Appellant; Donato Zappa, Respondent.
    Submitted May 20, 1940;
    decided May 28, 1940.

      Charles Maiorana for motion.

      Lyman Sessen opposed.
   Motion denied, with ten dollars costs payable out of the estate.


text:
    Alice M. Lang, as Administratrix of the Estate of Earl A. Lang, Deceased, Respondent, v. City of Troy, Appellant.
    Submitted May 20, 1940;
    decided May 28, 1940.
   Motion for reargument and a stay granted. (See 282 N. Y. 607.)


text:
    In the Matter of the Probate of the Will of Flora J. Allen, Deceased. Lena Dunham et al., Appellants; Monroe M. Sweetland, as Executor of Flora J. Allen, Deceased, et al., Respondents.
    Submitted May 20, 1940;
    decided May 28, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 282 N. Y. 492.)


text:
    Olive Coat Company, Inc., Appellant, v. City of New York, Respondent.
    Submitted May 20, 1940;
    decided May 28, 1940.

      William, C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.

      Emanuel Bedfield opposed.
   Motion denied with leave to renew upon the argument.


text:
    First National Trust & Savings Bank of San Diego, California, as Administrator c. t. a. of Frank Crozier, Plaintiff, v. J. Roy Browning, as Trustee in Bankruptcy of Burton Coal Company et al., Appellants and Respondents; Thomas M. Hoyne, II, et al., as Administrators of the Estate of Maclay Hoyne, Deceased, Respondents and Appellants, and United States Steel Corporation et al., Respondents, Impleaded with Another.
    Submitted May 20,1940;
    decided May 28, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 569.)


text:
    Manufacturers Trust Company, as Trustee, Respondent, v. Chase National Bank of the City of New York, as Executor and Trustee under the Will of Herman Simon, Deceased, Appellant, and Malvin Lichter, as Administrator of the Estate of Constance Lichter, Deceased, Respondent.
    Submitted May 20, 1940;
    decided May 28, 1940.
   . Motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended to provide that costs be payable out of the trust fund to all parties respondent appearing and filing briefs. (See 282 N. Y. 790.)


text:
    John Bailer, Respondent, v. Euphemia Ringe et al., Appellants.
    Submitted May 20, 1940;
    decided May 28, 1940.
   Motion for reárgument denied, with ten dollars costs and necessary printing disbursements. (See 282 N. Y. 778.)


text:
    George Panos, Appellant, v. Bruno Borsch et al., Respondents.
    Submitted May 20, 1940;
    decided May 28, 1940.

      Nathan Feldman for motion.

      David P. Siegel opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking on appeal and pays ten dollars costs within ten days, in which event the motion is denied, with leave to renew upon the argument.


text:
    Elizabeth Roewekamp, Appellant, v. New York Post-Graduate Medical School and Hospital, Respondent.
    Submitted May 20, 1940;
    decided May 28, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 585.)


text:
    In the Matter of Newman Lake House, Inc., Respondent, against Henry E. Bruckman et al., Constituting the State Liquor Authority, Appellants.
    Argued May 20,1940;
    decided May 28, 1940.

      Spencer B, Eddy for motion.

      Monroe I. Katcher, II, and Francis V. McHugh opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Christie Chassis, Inc., Appellant, v. William E. Christ et al., Respondents.
    Submitted May 20,1940;
    decided May 28, 1940.

      Walter H. Bond for motion.

      Marcus G. Christ opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not final.


text:
    Carmen Gibson, Appellant, v. Prudential Insurance Company of America, Respondent.
    Submitted May 20, 1940;
    decided May 28, 1940.

      Theodore L. Karpf for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves an undertaking on appeal and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    Alfred Jones, Appellant, v. New York Savings Bank, Respondent.
    Submitted May 20, 1940;
    decided May 28, 1940.

      Theodore L. Karpf for motion to dismiss appeal.

      Harold Ira Panken opposed and for counter motion.
   Motion to dismiss appeal denied, without costs, and plaintiff’s motion to prosecute the appeal as a poor person granted.


text:
    Sadie Goldman, Appellant, v. Anna Sontag et al., Respondents.
    Submitted May 20, 1940;
    decided May 28, 1940.
   Motion for reargument denied. (See 283 N. Y. 589.)


text:
    Fred A. Proefrock, as Administrator of the Estate of Richard E. Proefrock, Deceased, Appellant, v. C. E. Denney et al., as Trustees in Bankruptcy of Erie Railroad Company, Respondents.
    Argued April 25, 1940;
    decided June 4, 1940.

      Bayard J. Stedman for appellant.

      William L. Marcy, Jr., and LeRoy H. Hurlbert for respondents.
   Judgment of Appellate Division affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotjghban, Pinch and Sears, JJ. Dissenting: Rippey and Conway, JJ. Taking no part: Lewis, J.


text:
    In the Matter of Aberdeen Garage, Inc., Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    Argued May 20, 1940;
    decided June 4, 1940.

      Arthur Miller for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of Mary E. Clift, Deceased. City National Bank of Binghamton, Appellant; Chester C. Clift, Respondent.
    Argued May 20, 1940;
    decided June 4, 1940.

      Morris Gitlitz for appellant.

      Henry B. Multer and Vere H. Multer for respondent.
   Order affirmed, with costs payable out of estate to both parties filing briefs; no opinion.

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


text:
    Clara Aronson, as Executrix of Andrew Aronson, Deceased, Respondent, v. New York Life Insurance Company, Respondent, and Clara Aronson, Appellant.
    Argued May 20, 1940;
    decided June 4, 1940.

      Harry J. McDermott for appellant.

      Earl S. MacArthur and Louis H. Cooke for defendant, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghran, Finch, Rippey, Sears, Lewis and Conway, JJ. Taking no part: Lehman, Ch. J.


text:
    In the Matter of Russell D. Dustin, Appellant, against Thomas H. Murphy, as Warden of Clinton Prison, et al., Respondents.
    Submitted May 20, 1940;
    decided June 4, 1940.

      Bussell D. Dustin, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Patrick H. Clune and Victor F. Boire of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    In the Matter of Ida Jolles, Respondent; Morris Wunthal, Appellant.
    Argued May 20, 1940;
    decided June 4, 1940.

      Robert I. Rogin for appellant.

      Robert Daru and Oswald Vischi for respondent.
   Order aifirmed, with costs; no opinion.

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


text:
    In the Matter of Frederick P. Altschul, Respondent, against Oscar Dane, Appellant.
    Submitted May 27, 1940;
    decided June 4, 1940.

      Avel B. Silverman for motion.

      Caesar B. F. Barra opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the order is not final.


text:
    Henrietta Eberhardt, Appellant, v. Charles M. Siegel et al., Respondents, Impleaded with Others.
    Submitted May 27, 1940;
    decided June 4, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 583.)


text:
    Sophie Trust et al., Appellants, v. City of New York, Respondent.
    Submitted May 27, 1940;
    decided June 4, 1940.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.

      Abraham L. Rubenstein opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking on appeal and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    Henry Weisgerber, Respondent, v. J. Kane Grocery Co., Inc., Appellant, Impleaded with Another.
    Submitted May 27, 1940;
    decided June 4, 1940.

      Marcus J. Friedman for motion.

      George J. Stacy and James J. Mahoney opposed.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York, Respondent, v. Norman Wheelock, Appellant.
    Argued April 11, 1940;
    decided June 11, 1940.

      Alton J. Wightman for appellant.

      George A. King, District Attorney (Clarence H. Brisco of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Joseph Tomasino, Appellant.
    Argued April 25, 1940;
    decided June 11, 1940.

      Philip Segal and Samuel Segal for appellant.

      Thomas E. Dewey, District Attorney (Charles W. Manning and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Jean G. Poswick, Respondent, v. Ruloff E. Cutten et al., Individually and as Copartners under the Name of E. F. Hutton & Company, et al., Appellants, Impleaded with Others.
    Argued April 26, 1940;
    decided June 11, 1940.

      Arthur M. Bool for Ruloff E. Cutten et al., appellants.

      Ralph B. Neuburger and John J. Corwin for respondent.
   Order affirmed, with costs, and questions certified answered in the negative. No opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippeyj Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Probate of the Will of John Gibbons, Deceased. Norah O’Boyle, Appellant; Anne Gibbons et al., Respondents.
    Argued May 20, 1940;
    decided June 11, 1940.

      Harold St. L. O’Dougherty and Benjamin W. Schwartzberg for appellant.

      Osborne A. McKegney, James H. Gilvarry and John J. Rooney for respondents.
   Order of Appellate Division affirmed, with costs to the respondents payable out of the estate. No opinion.

Concur: Lehman, Ch. J., Finch, Sears and Lewis, JJ. Dissenting: Loughran, Rippey and Conway, JJ.


text:
    In the Matter of the Claim of Phillip Kelleher, Respondent. Frieda S. Miller, as Industrial Commissioner, Appellant.
    Argued May 21, 1940;
    decided June 11, 1940.

      John J. Bennett, Jr., Attorney-General (Francis R. Curran, W. Gerard Ryan and Henry Epstein of counsel), for appellant.

      Arthur T. McAvoy for respondent.
   Order of the Appellate Division reversed and determination of the Unemployment Insurance Appeal Board reinstated, without costs. The reversal by the Appellate Division was not upon the facts and we find no error of law in the determination of the Appeal Board. No opinion.

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


text:
    In the Matter of Harold A. Cunningham et al., Appellants, against Paul J. Kern et al., as Members of the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Submitted May 21, 1940;
    decided June 11, 1940.

      H0erman Morris for appellants.
    ‘ William C. Chanler, Corporation Counsel (David DuVivier and Paxton Blair of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Charles E. Ironside, Respondent, against Ordway Tead et al., Constituting the Board of Higher Education of the City of New York, Appellants.
    Argued May 21, 1940;
    decided June 11, 1940.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Paxton Blair and Nicholas Bucci of counsel), for appellants.

      Arthur Carter Hume for respondent.
   Order affirmed, with costs. First question certified answered in the negative. Third question certified answered in the affirmative. Other questions certified not answered. No opinion.

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


text:
    In the Matter of Arbitration between Howard M. Pierce, Respondent, and Brown Buick Company, Inc., et al., Appellants.
    Argued May 21, 1940;
    decided June 11, 1940.

      Frederick B. Van Kleeck, Jr., for appellants.

      Morris Orenstein for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Morris Kusel, Respondent, against Eastern Bridle Iron & Steel Corporation et al., Appellants. State Industrial Board, Respondent.
    Argued May 21, 1940;
    decided June 11, 1940.

      George S. Collins for appellants.

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

Concur: Loughran, Pinch, Rippey, Lewis and Conway, JJ. Lehman, Ch. J., and Sears, J., dissent on the ground that there is neither finding nor testimony that the injury was caused by an accident.


text:
    In the Matter of the Claim of the Commissioner of Taxation and Finance, Respondent, against Charles W. Phillips, Appellant. State Industrial Board, Respondent.
    Submitted May 22, 1940;
    decided June 11, 1940.

      James M. Ryan and Lyman B. Lewis for appellant.

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

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Claim of Teddy Piusinski, Respondent, against Transit Valley Country Club et al., Appellants. State Industrial Board, Respondent.
    Submitted May 21, 1940;
    decided June 11, 1940.

      Frank L. Ward for appellants.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin and Isaac Frank of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Claim of Sylvia Stern, Appellant, against Camp Blue Ridge et al., Respondents. State Industrial Board, Respondent.
    Argued May 22, 1940;
    decided June 11, 1940.

      Martin B. Nadle for appellant.

      Reid A. Curtis for Camp Blue Ridge et al., respondents.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Claim of Stephen P. Tonra. Robins Dry Dock and Repair Company, Appellant; Frieda S. Miller, as Industrial Commissioner, Respondent.
    Argued May 22, 1940;
    decided June 11, 1940.

      Arthur E. Goddard, Harry G. Hill and Robert B. Lisle for appellant.

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan, Francis R. Curran and Henry Epstein of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Estate of Frank Jennings, Deceased. Chauncey M. Depew, as Administrator of the Estate of Frank Jennings, Deceased, Appellant; Julia Lama, Respondent.
    Argued May 22, 1940;
    decided June 11, 1940.

      Joseph A. McCabe for appellant.

      John E. Mack and Benson B. Frost for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Sears, Lewis and Conway, JJ. Dissenting: Rippey, J,


text:
    In the Matter of Ralph C. Tobin et al., Constituting the Board of Trustees of the Seventh Regiment Armory Building in New York City, Respondents, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate of the City of New York, Appellants.
    Argued May 22, 1940;
    decided June 11, 1940.

      William C. Chanler, Corporation Counsel (Seymour B. Quel of counsel), for appellants.

      John F. O’Ryan and L. Laurence Liss for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of Manufacturers Chemical Co., Inc., Respondent. Caswell, Strauss & Co., Inc., Appellant.
    Argued May 23, 1940;
    decided June 11, 1940.

      Russell C. MacFall for appellant.

      Samuel F. Frank and Paul Moskowitz for respondent.
   Appeal dismissed, with costs, on the ground that no order finally determining the special proceeding has been made. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Accounting of Louis Katz et al., as Executors of Sarah Goldowitz, Deceased, Respondents. Workmen’s Mutual Fire Insurance Society, Appellant.
    Submitted May 23, 1940;
    decided June 11, 1940.

      Seymour J. Wilner for appellant.

      Joseph M. Lonergan for respondents.
   Appeal dismissed, with costs, on the ground that the order appealed from is not final. No opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Estate of Edward W. Browning, Deceased. Title Guarantee and Trust Company, as Executor of Edward W. Browning, Deceased, Appellant; Bernice Hackman et al., Respondents.
    Argued May 27, 1940;
    decided June 11, 1940.

      Joseph V. McKee and William T. Griffin for appellant.

      Leo Eckman and Hyman J. Reit for respondents.
   Appeal dismissed, with costs, on the ground the order is not final. No opinion.

.'Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Seabs, Lewis and Conway, JJ.


text:
    Ida C. Hazzard et al., Appellants, v. Chase National Bank of the City of New York, Respondent, Impleaded with Others.
    Submitted June 3, 1940;
    decided June 11, 1940.
   Motion for reargument or to amend remittitur. Motion for reargument denied, with ten dollars costs and necessary printing disbursements, on the ground that it does not present either authority or reason for changing our decision that the liability of the corporate trustee though acting as a fiduciary was limited by the terms of the trust agreement. (Benton v. Safe Deposit Bank of Pottsville, 255 N. Y. 260.) Motion to amend the remittitur denied. (See 282 N. Y. 262.)


text:
    In the Matter of the Claim of Sophia Hansen, Respondent, against Jacob Jarcho et al., Appellants.
    Submitted June 3, 1940;
    decided June 11, 1940.

      Jerome Golenbock for motion.

      George J. Hayes opposed.
   Motion denied with leave to renew upon the argument.


text:
    George Sherman, Appellant, v. Pasquale Bruno, Defendant, and J. Clarence Davies, Inc., Respondent.
    Submitted June 3, 1940;
    decided June 11, 1940.

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


text:
    Walter Cavanagh et al., Appellants, v. Metropolitan Jockey Club et al., Respondents, Impleaded with Others.
    Submitted June 3, 1940;
    decided June 11, 1940.

      Thomas P. Dwyer for motion.

      Sidney Kraut opposed.
   Motion denied, without costs.


text:
    In the Matter of Helen Browne, Appellant, against John L. Rice, as Commissioner of Health of the City of New York, Respondent.
    Submitted June 3, 1940;
    decided June 11, 1940.

      William C. Chanler, Corporation Counsel (William Mason Smith, Jr., of counsel), for motion.

      George Dyson Friou opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of A. H. DuGrenier, Inc., et al., Respondents, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued May 28, 1940;
    decided June 14, 1940.
   Per Curiam.

Our decision of this case (281 N. Y. 608) was made solely on the ground that the Legislature could not empower the city to tax the proceeds of transactions in interstate commerce. The issue as to whether transactions of the character in question are within the scope of the enabling act (L. 1934, ch. 873) was not considered by us. But that question is no longer open on this record, since our remittitur on which the case was certified to the Supreme Court of the United States recites that we affirmed the order of the Appellate Division upon the sole ground that the City Sales Tax Law as here applied violates the Commerce Clause (Art. 1, sec. 8, cl. 3) of the Constitution of the United States.” (281 N. Y. 669.)

Reargument should be denied, without costs.


text:
    Western New York Water Company, Appellant, v. Arthur W. Brandt, as Superintendent of Public Works of the State of New York, Respondent.
    Argued April 9, 1940;
    decided June 14, 1940.

      Thomas R. Wheeler for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Jack Goodman of counsel), for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Grade Crossings of the Lehigh Valley Railroad Company et al., and Union Road in the Town of Cheektowaga. Western New York Water Company, Appellant; Public Service Commission et al., Respondents.
    Argued April 9, 1940;
    decided June 14, 1940.

      Thomas R. Wheeler for appellant.

      Gay H. Brown and Sherman C. Ward for Public Service Commission, respondent.

      John J. Bennett, Jr., Attorney-General {Henry Epstein and Jack Goodman of counsel), for State Department of Public Works, respondent.

      George H. Stover and Frank C. Bowers for Transit Commission, amicus curiæ.

   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Wynne M. Casteel, Respondent, v. Clarence Hodson & Co., Inc., Appellant.
    Argued May 23, 1940;
    decided June 14, 1940.

      Edward K. Hanlon, Milton Weiss and Howard A. Cashmore for appellant.

      Harry Yarm and Abraham Porter for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Finch, Rippey, Lewis and Conway, JJ. Dissenting: Lehman, Ch. J., and Sears, J., on the ground that errors in the charge require a reversal.


text:
    In the Matter of the Village of Wellsville, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.
    Argued May 24, 1940;
    decided June 14, 1940.

      Gay H. Brown, Laurence J. Olmsted and Sherman C. Ward for appellants.

      Samuel Slaff, Harry R. Booth and Fred Kleinman for Committee on Public Utilities of the National Lawyers Guild, amicus curiæ.

      Harold H. McBride for respondent.
   Appeal dismissed, with costs, on the ground the order is not final. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York ex rel. Metropolitan Life Insurance Company, Appellant and Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, et al., Respondents and Appellants. (1937 Proceeding.) The People of the State of New York ex rel. Hotel Woodstock Realty Company, Inc., Appellant and Respondent, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Respondents and Appellants. (1938 Proceeding.)
    Argued May 27, 1940;
    decided June 14, 1940.

      Francis D. Higson and Kenneth F. Clark for relators, appellants and respondents.

      William C. Chanler, Corporation Counsel (Hyman W. Kehl and Arthur A. Segall of counsel), for defendants, respondents and appellants.
   Orders affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of Markt & Hammacher Company, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued May 27, 1940;
    decided June 14, 1940.

      Harry Levine and Henry G. Fritsche for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Pinch, Rippey, Sears, Lewis and Conway, JJ.


text:
    A. J. P. Contracting Corporation et al., Appellants, v. Brooklyn Builders Supply Company, Defendant, and Reynolds Corporation et al., Respondents.
    Submitted May 27, 1940;
    decided June 14, 1940.

      Clarence G. Bachrach for appellants.

      John Steele Brice for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ. ■


text:
    The People of the State of New York, Respondent, v. Robert Meeks, Appellant.
    Argued May 28, 1940;
    decided June 14, 1940.

      Sydney Rosenthal and Benjamin J. Jacobson for appellant.

      Charles P. Sullivan, District Attorney (J. Irwin Shapiro and George P. Stier of counsel), for respondent.
   • Judgments reversed and indictment dismissed on the ground that the evidence is not sufficient to prove guilt beyond a reasonable doubt. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of Acquiring Title by the City of New York of Lands Bounded by Dwight Street, Verona Street, West 9th Street, Clinton Street, Loraine Street and Otsego Street in the Borough of Brooklyn. Hen-Bus Realty and Holding Co., Inc., et al., Appellants and Respondents; City of New York, Respondent and Appellant.
    Argued May 29, 1940;
    decided June 14, 1940,

      George Schenker for Hen-Bus Realty & Holding Co., Inc., et al., appellants and respondents.

      William C. Chanler, Corporation Counsel (Lewis Orgel, Julius Isaacs and Daniel M. Cohen of counsel), for City of New York, respondent and appellant.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conwat, JJ.


text:
    Frank Flack, an Infant, by Benjamin Flack, His Guardian ad Litem, et al., Appellants, v. Stahl-Meyer, Inc., Respondent, Impleaded with Another.
    Argued May 29, 1940;
    decided June 14, 1940.

      Maxwell Boss, Lyman A. Spalding and Harold L. Grossman for appellants.

      Arnold La Guardia for respondent.
   Judgment of the Appellate Division reversed and judgment of the Trial Term reinstated, with costs in this court and in the Appellate Division, on the ground that the Record presents a question of fact as to whether the chauffeur Bauser was acting at the time of the accident with the permission of the owner of the motor vehicle. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Frank G. Hanssel, Doing Business as Frank G. Hanssel Company, Respondent, v. P. Tomasetti Contracting Corporation, Appellant, Impleaded with Another.
    Submitted June 10, 1940;
    decided June 14, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 164.)


text:
    Harry Brenner, Appellant, v. Samuel Strasbourger et al., Doing Business as Strasbourger & Schallek, Respondents.
    Submitted June 10, 1940;
    decided June 14, 1940.
   Motion for rearguinent denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 609.)


text:
    Helen S. Allen, Appellant, v. Hungarian Mother’s Club, Inc., Respondent.
    Submitted June 12, 1940;
    decided June 14, 1940.

      Adolph M. Newman for motion.
    No one opposed.
   Motion denied on the ground that this court has no jurisdiction to grant leave to appeal in an action started in an inferior court. (Franklin Simon & Co. v. Pease & Elliman, Inc., 262 N. Y. 693; Civ. Prac. Act, § 589.)


text:
    The People of the State of New York, Respondent, v. Celestian L. Strzep, Appellant.
    Submitted March 8, 1940;
    decided July 24, 1940.

      Celestian L. Strzep, appellant, in person.

      Leo J. Hagerty, District Attorney (Winifred C. Stanley of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the Will of Elizabeth Ryan, Deceased. Agnes Daverin, Appellant; William G. Reardon, Individually and as Testamentary Trustee, et al., Respondents.
    Argued May 21, 1940;
    decided July 24, 1940.

      Robert J. McKeever for appellant.

      William Burdell Banister for William G. Reardon et al., respondents.

      Wolfango E. Cribari and George W. Scapolito for William Ryan et al., respondents.
   Order affirmed, with costs to all parties filing briefs payable out of the estate. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Sears and Conway, JJ. Dissenting: Rippey and Lewis, JJ.


text:
    In the Matter of Maurice J. McCarthy, Jr., et al., Appellants, against Fiorello H. LaGuardia, as Mayor and as a Member of the Board of Estimate of the City of New York, et al., Respondents.
    Argued May 21, 1940;
    decided July 24, 1940.

      Irving H. Saypol and Leo Kotler for appellants.

      William G, Chanler, Corporation Counsel (Frederick v P. Bryan, Robert H. Schaffer and George G. Gallantz of counsel), for respondents.
   Order affirmed, with costs; no opinion.'

Concur: Lehman, Ch. J., Loughran, Finch, Sears and Lewis, JJ. Dissenting: Rippey and Conway, JJ.


text:
    Lamson Company, Inc., Respondent, v. Central New York Regional Market Authority et al., Respondents, and Lincoln National Bank & Trust Company of Syracuse, Appellant.
    Argued May 28, 1940;
    decided July 24, 1940.

      Howard H. Cannon for appellant.

      William L. Broad for plaintiff-respondent.

      Lawson Barnes for Central New York Regional Market Authority, respondent.

      Hubert C. Stratton for A. Friederich & Sons Company, respondent.

      Lloyd M. Withers for John C. Boland, as trustee for Gray Steel Corporation, Bankrupt, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Blazek, Appellant.
    Argued May 28, 1940;
    decided July 24, 1940.

      John F. Wilkinson, John C. Bruckmann and Maurice J. Schulkind for appellant.

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

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Appellant, v. Joseph Gordon, Respondent.
    Argued June 3, 1940;
    decided July 24, 1940.

      William O’Dwyer, District Attorney (Edward H. Levine of counsel), for appellant.

      Lester Lyons and Louis J. Gribetz for Kashruth Association of Greater New York, Inc., et al., amici curiæ.

      Samuel A. Telsey for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Edna Barr et al., Appellants, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents. Algon Realty Corporation, Respondent.
    Argued June 4, 1940;
    decided July 24, 1940.

      Max E. Greenberg and Herbert G. McLear for appellants.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for Board of Standards and Appeals, respondent.

      Clarence G. Bachrach for intervener, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    William E. Woollard, Respondent, v. Schaffer Stores Company, Inc., Appellant.
    Argued June 4, 1940;
    decided July 24, 1940.

      I. Maurice Wormser and Harry M. Schaffer for appellant.

      Ernest B. Morris for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sarah Shyatt et al., Appellants, v. City of New York, Respondent.
    Argued June 4, 1940;
    decided July 24, 1940.

      Joseph R. Apfel and Abraham Greenberg for appellants.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Finch, Sears and Lewis, JJ. Dissenting: Loughran and Rippey, JJ. Taking no part: Conway, J.