text:
    The People of the State of New York, Appellant and Respondent, v. Claude H. Henderson, Appellant, and Fred E. Laman, Respondent.
    Argued November 23, 1948;
    decided March 3, 1949.

      Robert 0. Brink, District Attorney (Samuel W. Bernstein and Frederick J. Vavra of counsel), for People of tbe State of New York, appellant and respondent.
    I. There was sufficient evidence in tbe case besides tbe testimony of accomplices to justify submitting tbe question of defendant guilt as to tbe crimes of accepting bribes as a public officer, taking unlawful fees as a public officer, and of tbe crime of conspiracy. (People v. Suffolk Contr. Co., 171 App. Div. 645.) II. There was sufficient evidence from non-accomplices which, tended to connect defendant Laman with the commission of the crime of conspiracy. III. There was sufficient evidence from non-accomplice testimony which tended to connect defendant Laman with the crimes of bribery and accepting unlawful fees. (People v. Becker, 215 N. T. 126; People v. Dixon, 231 N. Y. Ill; People v. Reddy, 261 N. Y. 479; People v. Duffy, 160 App. Div. 385, 212 N. Y. 57; People v. Sweeney, 161 App. Div. 221, 213 N. Y. 37; People v. Buchalter, 289 N. Y. 181; Pinkerton v. United States, 328 U. S. 640.) TV. The charge with respect to the requirements of corroboration was correct as to defendant Henderson. (People v. Becker, 215 N. Y. 126; People v. Dixon, 231 N. Y. Ill; People v. Reddy, 261 N. Y. 479; People v. Duffy, 160 App. Div. 385, 212 N. Y. 57; People v. Sweeney, 161 App. Div. 221, 213 N. Y. 37.) V. The charge with respect to corroboration of the conspiracy counts was correct. (People v. Flack, 125 N. Y. 324; People v. Sweeney, 213 N. Y. 37; People v. Connolly, 253 N. Y. 330; People v. Miles, 123 App. Div. 862, 192 N. Y. 541; People v. Micelli, 156 App. Div. 756, 216 N. Y. 727; People v. Suffolk Contr. Co., 171 App. Div. 645; People v. McCarthy, 256 App. Div. 522, 280 N. Y. 763.) VI. The evidence of guilt was overwhelmingly conclusive. (Dunn v. United States, 284 IL S. 390; People v. Sciascia, 268 App. Div. 14, 294 N. Y. 927.)

      Abraham E. Gold and James B. Gitlitz for Claude H. Henderson, appellant.
    I. The trial court erred in its charge as to corroboration of the substantive counts of the indictment. (People v. Nitzberg, 287 N. Y. 183; People v. Mullens, 292 N. Y. 408; People v. Kress, 284 N. Y. 452; People v. Maione, 284 N. Y. 423; People v. Goldstein, 285 N. Y. 376; People v. Werblow, 241 N. Y. 55; People v. Tavormina, 257 N. Y. 84; People v. Luciano, 277 N. Y. 348; People v. 0 ’Neil, 109 N. Y. 251.) II. The charge with respect to corroboration of the conspiracy counts was erroneous, inadequate and confusing. (People v. Goldstein, 285 N. Y. 376; People v. Kress, 284 N. Y. 452; People v. Feolo, 284 N. Y. 381; People v. Maione, 284 N. Y. 423; People v. Nitz-berg, 287 N. Y. 183; People v. Fanning, 131 N. Y. 659.)

      William E. Night and Donald W. Kramer for Fred E. Laman, respondent.
    I. The evidence is insufficient to justify the conviction of defendant Laman. (People v. Weiss, 290 N. Y. 160;
      People v. Ligouri, 284 N. T. 309; People v. Landers, 264 N. T. 119; People v. Swersky, 216 N. Y. 471; People v. Baldiseno, 266 App. Div. 909; People v. Kathan, 136 App. Div. 303.) II. The Appellate Division properly dismissed the indictment as to defendant Laman. (People v. Ditchik, 288 N. Y. 95; People v. Mullens, 292 N. Y. 408; People v. Duffy, 160 App. Div. 385; People v. Friedlander, 280 N. Y. 437; People v. Rosenthal, 289 N. Y. 482; People v. Feolo, 284 N. Y. 381; People v. Kress, 284 N. Y. 452; People v. Kathan, 136 App. Div. 303; People v. Courtney, 28 Hnn 589; People v. Weiss, 290 N. Y. 160; People v. Goldstein, 285 N. Y. 376.)
   LoughraN, Ch. J.

At the times here in question the defendant Henderson was sealer of weights and measures of the City of Binghamton and the defendant Laman was in the service of the Department of Agriculture and Markets of this State as an inspector of weights and measures with jurisdiction in a number of counties. One of these was the county of Broome where the city of Binghamton is the county seat. After trial in the County Court of that county, both defendants in January, 1947, were convicted (1) of a conspiracy to commit bribery; (2) of having on numerous occasions accepted moneys as bribes; and (3) of having on those occasions received the same moneys as unlawful fees.

Conspiracy is a misdemeanor (Penal Law, § 580). Bribery and taking unlawful fees are separate felonies (Penal Law, §§ 2, 372, 1826). On each felony conviction, each of these two defendants was sentenced to imprisonment in a State prison for not less than two' nor more than five years, the sentences to run concurrently and not consecutively. (No point is made of the circumstance that each defendant was thus sentenced twice for each of a number of single acts. Cf. Penal Law, § 1938, and People v. Morel, 258 App. Div. 971.) On the misdemeanor-conspiracy count, each defendant was committed to the county jail of Broome County for one year, but execution of these sentences was suspended on condition that the sentences imposed on the defendants under the felony counts be served.

The defendants appealed to the Appellate Division where the judgment against Henderson was unanimously affirmed and the judgment against Laman was reversed on the law and the facts, the indictment dismissed on the law and the defendant discharged, two of the Justices dissenting. One of the Justices then granted to Henderson a certificate upon which he has appealed to this court from the order affirming the judgment against him, while by a certificate of the same Justice the People have been permitted to bring here for review the order which reversed the judgment entered against Laman (see Code Crim. .Pro., § 520, subd. 3).

In our opinion, the Appellate Division was right in taking the evidence against Laman to be less than sufficient to support a finding of his guilt beyond a reasonable doubt and in his case the order of- the Appellate Division will accordingly be affirmed. What follows has reference to the case.of the defendant Henderson.

The acceptance by him of bribes and unlawful fees was sworn to only by accomplices. There was, however, enough non-accomplice testimony to entitle the jury to find that he and the accomplice witnesses had antecedently entered into a conspiracy to cause such unclean moneys to be paid to him. In respect of that state of the record, the Trial Judge in his charge said to the jury: ‘ ‘ .1 am going to charge you that if you find neither defendant to be a participant in such a conspiracy, then there is no evidence in this case to corroborate the testimony of the accomplices as to the alleged payments, and as to those counts in the indictment other than the conspiracy counts, they would have to fail. But * * * when you find a conspiracy of that nature, the law contemplates that is a partnership in crime and each defendant is liable for the acts of the other, and corroborative evidence, once it establishes a conspiracy to bribe, once it ‘ tends ’ to establish a conspiracy to bribe, and the defendants’ connection with it, then they are liable for each act that flows out of that conspiracy and you do.not have to find corroboration or additional testimony other than that of. accomplices, in order to find them guilty of each act of bribery or of taking unlawful fees.” This ruling was several times repeated by the Trial Judge and the question of its correctness is here properly raised.

The applicable statute is section 899 of the Code of Criminal Procedure. It is thereby provided: “ A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with, the commission of the crime.” The corroborative evidence so required need not connect the defendant with the crime charged. If it have a fair tendency to connect him therewith and is found by the to be true, the statute is satisfied. (See People v. Reddy, 261 N. Y. 479, 484.)

The conspiracy in question was one through which Henderson was to receive moneys from truckers of coal for letting them deliver short weights in the city of Binghamton. Undoubtedly this corrupt agreement became an offense complete in itself once an overt act was done to effect the object of the conspirators (Penal Law, § 583; People v. Tavormina, 257 N. Y. 84). But their original plan did not at that stage cease to be relevant to show that subsequent acts which were contemplated thereby had in fact been done (see 1 Wigmore on Evidence [3d ed.], § 102). Moreover, these acts could readily have been facilitated by the defendant Henderson in his position as city sealer of weights and measures. Existence of so practicable and concrete a plan was without more an adequate basis for the jury’s finding of participation by the defendant Henderson in the planned felonious conduct which the accomplice witnesses attributed to him (People v. Lucicmo, 277 N. Y. 348, 358-359). In the light of these considerations, the above instruction of the Trial Judge to the jury appears to us not to be open to any substantial objection.

To be sure, the mere fact of the conspiracy in question did not indisputably establish participation by the defendant Henderson in the later acts charged as felonies, but nobody at the trial pretended to understand any words of the court as an assertion to that effect.

The orders should be affirmed.

Lewis, CoNwat, DesmoNd, Dye and Fuld, JJ., concur.

Orders affirmed.


source: Caselaw Access Project

author: Ftjld, J. CoNway, J.

license: Public Domain

text:
    In the Matter of the Claim of Charles A. Wilson, Respondent, against General Motors Corporation, Chevrolet Motor and Axle Division, Appellant. Workmen’s Compensation Board, Respondent.
    Reargued February 21, 1949;
    decided March 3, 1949.

      Edward L. Robinson, William M. Fay and Solon J. Stone for appellant.
    The undisputed facts show that claimant’s injuries did not arise out of and in the course of his employment and, consequently, that he is not entitled to recovei'y herein. (Matter of Heits v. Ruppert, 218 N. Y. 148; Matter of De Voe v. New York State Rys., 218 N. Y. 318; Matter of Kowalek v. New York Cons. R. R. Co., 229 N. Y. 489; Matter of Scott v. Whitehouse & Co., 280 N. Y. 742; Volk v. City of New York, 284 N. Y. 279; Matter of Ritbinstein v. Madison House Soc;, 239 App. Div. 867; Matter of Janik v. New York Central R. R. Co., 234 App. Div. 642; Matter of Humphrey v. Marcuse, 257 App. Div. 1086; Pate v. Plymouth Mfg. Co., 198 S. C. 159; Leventhalv. Wright Aeronautical Corp., 25 N. J. Mis. Rep. 154; State Young Men’s Christian Assn. v. Industrial Comm., 235 Wis. 161; Clark v. Chrysler Corp., 276 Mich. 24; Matter of Johnson v. Smith, 263 N. Y. 10; Matter of Pisko v. Mints, 262 N. Y. 176; Tallón v. Interborough R. T. Co., 232 N. Y. 410.)

      Winton H. Church for Charles A. Wilson, respondent.
    I. The award of the Workmen’s Compensation Board was supported by evidence, and the -findings of fact which established benefit to the employer are final. (Matter of Hoffman v. New York Central R. R. Co., 290 N. Y. 277.) II. Appellant seeks a reversal of a long line of New York decisions governing picnics, dances and sponsored recreation and the adoption of the minority rule which disapproves of awards in picnic cases. (Matter of Kenney v. Lord & Taylor, Inc., 227 App. Div. 831, 254 N. Y. 532; Matter of Holst v. New York Stock Exch., 252 App. Div. 233; Matter of Chadwick v. New York Stock Exch., 252 App. Div. 714; Matter of Huber v. Eagle Stationery Corp., 254 App. Div. 788; Matter of Piusinski v. Transit Valley Country Club, 259 App. Div. 765, 283 N. Y. 674; Matter of Fagan v. Albany Evening Union Co., 261 App. Div. 861 •, Matter of Bowen v. Saratoga Springs Comm., 267 App. Div. 928.)
    Board, respondent.
    The finding of the board that claimant’s accidental injuries arose out of and in the course of his employment, is supported by ample evidence. (Matter of Huber v. Eagle Stationery Corp., 254 App. Div. 788; Matter of Holst v. Neiv York Stock Exch., 252 App. Div. 233; Matter of Chadwick v. New York Stock Exch., 252 App. Div. 714; Matter of Bowen v. Saratoga Springs Comm., 267 App. Div. 928; Matter of Piusinski v. Transit Valley Country Club, 259 App. Div. 765, 283 N. Y. 674; Matter of Fagan v. Albany Evening Union Co.., 261 App. Matter of Clapham v. David, 232 App. Div. 458; Matter of Bollard v. Engel, 254 App. Div. 162, 278 N. Y. 463; Matter of Laubeck v. Toe’s Products Co., 260 App. Div. 966, 286 N. Y. 577; Matter of McLellan v. International Paper Co., 2.69 App. Div. 800, 271 App. Div. 857; Matter of Martino v. Blue Ridge Coal Co., 248 App. Div. 660; Matter of Schwarts v. Jacobs Bros. Co., 247 Div. 848, 271 N’ Y. 640; Matter of Sassano v. City of New York, 272 App. Div. 843; Le Bar v. Ewald Bros. Dairy, 13 N. 2d 729 Thomas v. Proctor Gamble Mfg. Co., 104 Kan. 432.)
   Ftjld, J.

Injured in a play at first base in a softball game between teams made up of employees of General Motors Corporation, claimant sought and was awarded compensation benefits. On application of the self-insured employer, we granted leave from the affirmance of that award by the Appellate Division so that we might consider whether an injury suffered by an employee voluntarily participating in an athletic or other recreational activity, under the circumstances here disclosed, is properly compensable as one ‘ arising ont of and in the course of ’ ’ Ms employment.

Claimant, forty-five years old, was employed as a clerk in the patrol office of General Motors which, at the time of the accident, was engaged in the manufacture of aircraft engines. Upon their own initiative, without suggestion or encouragement from the management, the employees had a baseball league consisting of fourteen teams. The games were played on the employees’ own time in a public park many miles from the employer’s plant, and the players had to provide their own transportation to and from the park. Not only were the employees not paid for time spent on the baseball field, but their wages were, indeed, actually subject to deduction if they were late for work after playing or practicing. All organizational details and all arrangements affecting the games were handled by the employees. They procured the equipment — gloves, bats and balls — and selected the uniforms, bearing the letters M. & A.” (signifying Motor and Axle Division), although it appears that the employer paid for the equipment and permitted conferences relating to the contests on company time and on the company’s premises. The games were not advertised in any waj^, and no outside publicity whatsoever attended their playing.

The determination made by the Workmen’s Compensation Board that claimant’s participation in playing baseball * * s was incidental to his employment ”, was based upon findings that “ the employer promoted the organization of departmental baseball teams and encouraged the participation of its employees in athletic activities ’ ’ and that ‘ ‘ the resulting-better employer-employee relationship exercised a stimulating influence upon the work activity of the participant employee through such recreational facilities.” The board, in holding the injury compensable, and the Appellate Division, in affirming that body’s decision, relied specifically upon the evidence that the employer had paid for the equipment and had permitted conferences relating to the games to be held on company time, and that its nurse, following claimant’s injury, had given him heat treatments.

The Workmen’s Compensation Law has been broadly construed, and properly so, to embrace all activities which can, in any reasonable sense, be included within its coverage. (See Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443, 446-447.) Liberally though we would now apply it, however, we cannot stretch the statute’s “ broad and remedial purpose phrase urged upon us — to cover a case such as this. By its very provisions, the statute permits compensation awards only for those injuries “ arising out of and in the course of ” employment. (Workmen’s Compensation Law, § 10; see Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85; Matter of Gaurin v. Bagley & Sewall Co., 298 N. Y. 511; Matter of Martin v. N. Y. 617, 618.)

Though section 21 of the Workmen’s Compensation Law creates a presumption — “in the absence of substantial evidence to the contrary ” — that the claim for compensation. “ comes within the [statute’s] provision ”, it is a “ limited presumption ”. (Matter of Magna v. Hegeman Harris Co., 258 N. Y. 82, 85.) It has no bearing here, for it cannot be used as a substitute for actual proof that the injury arose out of and in the course of the employment. (See Matter of Dyviniek v. Buffalo Courier Express Co., 296 N. Y. 361, 364; see, also, Matter of Daus v. Gunderman & Sons, 283 N. Y. 459, 465-466; Matter of Lorchitsky v. Gotham Folding Box Co., 230 N. Y. 8, 12.) In truth, the presumption has no place in any case once the facts are fully developed; of necessity, it fails in the presence of contrary evidence. (See Matter of Magna v. Hegeman Harris Co., supra, at p. 84.) The presumption, then, is inapplicable and inoperative in this case, and consideration of the record constrains us to conclude that the determination under review lacks evidentiary support.

These ball games, the record makes plain, were out-of-hours, off-the-premises, personal diversions of the men, and were not only optional with the employees but were exclusively for their own recreation and indulgence, without business advantage to the employer. The games were neither initiated nor sponsored by the employer, in no way connected with its affairs, and in no manner subject to its control Even if the company had so desired, it could not have halted the ballplaying or changed the program in any way. In other words, totally lacking is any basis for an inference that it the activity or sought to compel or induce any employee to participate in it. On the contrary, indication almost positive that the activity was separate and removed from the employment is found in the fact that the employer actually penalized employees who, as a result of playing or practicing, reported late for work. Neither the circumstance that management gave its permission to employees to take part in the sport, nor even that it co-operated in the program, can be said to spell out compulsion or constraint, and no evidence on that score is supplied hy testimony that a foreman once remarked that a particular game might have been won had claimant been playing. And, as indicated, we look in vain for evidence of any business advantage or benefit accruing to the company from the employees’ participation in the contests. Too tenuous and ephemeral is the possibility that such participation might perhaps indirectly benefit the employer hy improving the workers’ morale or health or hy fostering employee good will.

Personal activities of employees, unrelated to the employment, remote from the place of work and its risk, not compelled or controlled by the employer, yielding it neither advantage nor benefit, are not within the compass of the Workmen’s Compensation Law. Nor is it of any operative consequence that the employer acquiesced in, or contributed some financial aid to, such activities. The slight support thus given by the .employer, without attendant advertising or consequent business advantage, should be accepted for what it really was, a gratuitous contribution to its employees’ social and recreational life. (See, e.g., Matter of Rubinstein v. Madison House Soc., 239 App. Div. 867; Clark v. Chrysler Corp., 276 Mich. 24, 29; Pate v. Plymouth Mfg. Co., 198 S. C. 159, 162.) In a case such as the one before us, the granting of a compensation award would not only do violence to the letter of the statute but would offend against its spirit, by penalizing employers who, without prospect of profit or benefit, co-operate in enabling their employees to engage in social or athletic recreation on their own time and away from the company premises.

The conclusion thus reached impresses us as sound, the reasoning upon which it is based convincing, and, accordingly, we need not the authority or support which decisions from other States may furnish. However, it is of some consequence that every court that has passed upon the subject has likewise concluded that participation in a baseball game, under circumstances such as those here presented, cannot be considered an incident of employment. (See Industrial Comm. v. Murphy, 102 Col. 59; Leventhal v. Wright Aeronautical Corp., 25 N. J. Mis. Rep. 154; Porowski v. American Can Co., 15 N. J. Mis. Rep. 316; Pate v. Plymouth Mfg. Co., 198 S. C. 159, supra; State Young Men’s Christian Assn. v. Industrial Comm., 235 Wis. 161; cf. Clark v. Chrysler Corp., 276 Mich. 24, supra; Auerbach Co. v. Industrial Comm., 195 P. 2d 245 [Utah].)

In Pate v. Plymouth Mfg. Co. (supra), the employer likewise gave financial assistance to a baseball team formed by its employees. Holding that an accidental injury suffered by an employee was not compensable, the court wrote that “ ‘ There is no evidence that the mill exercised or attempted to exercise any control or domination of the club or endeavored to direct its activities ⅞ ⅝ it is impossible * # * to see where the corporation had any connection with the ball club, other than from a charitable or benevolent standpoint to promote the social life of its workers. It is impossible * * # to see how the words of the statute defining a compensable injury can he stretched to cover the situation ” (198 S. C., at pp. 162-163.)

There are, of course, many instances where the recreation may be so bound up with the employment that a resulting injury will be deemed one arising out of and in the course of such employment. One such is Matter of Brown v. United Services for Air, Inc. (298 N. Y. 901), which we also decide today. There, the injury occurred during a volleyball game which was played on the employer’s premises, under the employer’s supervision and during the employee’s lunch hour. Other instances are found in the three cases cited by Judge Conway in his dissent (298 N. Y. 475, 482). In one, Matter of Kenney v. Lord & Taylor, Inc. (254 N. Y. 532), the claimant was injured on company property at a gathering held at the employer’s request for the purpose of having speeches on salesmanship given for the benefit of the defendant concern; in the second, Matter of Piusinski v. Transit Valley Country Club (283 N. Y. 674), the claimant was injured on the very course where he was wont to work for his employer as a golf caddy and it appeared that the game in which he was hurt constituted practice which was of some benefit to the employer; and in the third, Matter of Huber v. Eagle Stationery Corp. (254 App. Div. 788, leave to appeal denied 278 N. Y. 739), where claimant was injured while playing baseball, the team’s expenses and transportation were paid for by the employer, the team was organized and supported by the employer for advertising purposes, and all this was done in the hope that a winning team would advertise the company and redound to its benefit. Thus, in each of those cases there was evidence that the activity in which the particular employee had engaged not only was encouraged by the employer, not only was directly aimed at promoting the employee’s skill in the discharge of the very duties of his employment, but was of unquestioned “ benefit ” to the employer. On the same footing, too, stand those cases wherein the employer requires the employee to participate in the recreational activity or subsidizes it in order to derive for himself a financial return or some beneficial publicity. (See, e.g., Matter of Holst v. New York Stock Exch., 252 App. Div. 233; Linderman v. Cownie Furs, 234 Iowa 708; Le Bar v. Ewald Bros. Dairy, 217 Minn. 16; Salt Lake City v. Industrial Comm., 104 Utah 436.)

The further fact, relied upon by the Workmen’s Compensation Board and the Appellate Division, that a company nurse gave claimant heat treatments, we put aside as inconsequential. Similar service was provided to all employees who wanted it — for all ailments, whether contracted at home or sustained on plant property, while at work or while at play. That being so, we may not view the rendering of such nursing service as acknowledgment that claimant’s injury was compensable. Nor may the additional circumstance, also remarked below, that the employer permitted conferences on company time and property, be deemed sufficient to extend the employment to claimant’s voluntary personal recreation, far from his place of work and entirely outside of his working hours. Perhaps if the injury had occurred on the employer’s premises during the working day at a conference relating to the games, there might have been basis for finding that the employee’s general employment had not been interrupted by his participation in the discussions.

If the result we reach be thought unfortunate, the Legislature has power to alter it. As the law is now written, an employe!- is under no duty to compensate his employees for injuries sustained by them while pursuing their private interests on their own time and at a distance from their employer’s premises. "Were the courts to impose such a duty because the employer gave a modicum of encouragement to employees intent on organizing recreational activities, the employer might, in his own self-interest, seek to escape the burden by withholding all aid and support. Such a result would not, we venture, square with the large and long range objectives of the Workmen’s Compensation Law.

The order of the Appellate Division and the decision of the Workmen’s Compensation Board should be reversed, with costs in this court and in the Appellate Division, and the claim for compensation dismissed.

CoNway, J.

(dissenting). The problem presented is whether tion Law, § 20), the only question presented is whether there is any substantial evidence to sustain the findings of the board. We may not weigh the evidence.

The referee appointed under the Workmen’s Compensation Law found that the claimant’s injuries arose out of and in the course of his employment. ” On a review by the full board the award was affirmed and the following findings of fact were made:

‘ ‘ 2. On August 10th, 1944, the said Charles A. Wilson, while engaged in the regular course of his employment and while working for his employer, and while playing baseball on a team promoted and encouraged by the employer and made up of employees of his Department, sustained accidental injuries * ⅜ #.
“ 5. The employer promoted the organization of departmental baseball teams and encouraged the participation of its employees in athletic activities. It paid for the equipment and conferences were held on the company’s time without deduction of pay.
The resulting better employer-employee relationship • exercised a stimulating influence upon the work activity of the participant employee through such recreational facilities.
“ The claimant’s participation in playing baseball was only because he was an employee and was incidental to his employment. Following the accident, nursing treatment was rendered to Charles A. Wilson at the plant.” (Emphasis supplied.)

The board, therefore, concluded that the payment of equipment by the company, conferences held on company’s time without deduction of pay, nursing treatment rendered to claimant herein at plant, in conjunction with all other proof, indicate that the employer promoted the organization and also the participation in athletic activities as above described. It follows therefrom that this resulted in the fostering of Letter employer-employee relationship and exercised a stimulating influence upon the work activity of the participant employees through such recreational facilities.”

The proof referred to and relied upon by the board was substantially follows:

The employer, General Motors Corporation, Chevrolet Motor and Axle Division, at the time of this accident, was engaged in the manufacture of aeroplane engines. It was during wartime and the factory was operating with day and night shifts. The employee, a man of forty-five years of age was in the patrol service of the plant protection department. There was a league of fourteen softball teams organized at the suggestion of the men, with a president and other officers. There was a rules committee consisting of the managers of each team. Claimant was asked to play on the team representing patrol service by . one of his fellow patrolmen and urged to continue thereon when he failed to appear for play by his lieutenant. The teams represented many divisions of workers including one representing foreman and called Supervision.” ■ The employer furnished all equipment, at a cost of $1,000, consisting of jerseys, caps, baseballs, bases, etc. The uniform had across the front “ M. & referring to the Motor and Axle Division, together with the number 10, which represented the patrol service. The games were played at Front Park, a public park of Buffalo which had baseball diamonds. In this way claimant became acquainted with the other men in the plant including “ Supervision.” At the time of the organization of the league, one Fred Hill, a salaried foreman, was appointed to oversee it and the team managers acted under his supervision. Hill was in charge of issuing regular company A. Y. 0. forms (a company classification) to authorize the dispensing of replacement softball equipment by the employer to the managers as it was needed by the teams. The company furnished a place to store and care for the equipment. Meetings of team managers were called during working hours in the conference room of the employer. At times claimant would receive a telephone message to contact the manager and to have him go over to attend the meeting. The managers would be given time off from duty by their foreman to attend the meetings without wage deduction. A schedule would be drawn at the meetings so that a player would know where he was to play the following week. There was some attendance by employees as spectators. The umpires were selected from the men and were supplied with white jerseys and caps by the employer. On the day of the injury claimant was picked up by his sergeant, a superior, in the latter’s automobile and driven to' the park. On that day the claimant during play collided with one of the players on the opposing team. As a result he suffered a comminuted fracture of Ms left leg at the knee with consequent permanent loss of use of that leg to the extent of two thirds.

The Appellate Division in unanimously affirming the findings of the hoard said in part: “ Claimant was a member of one of fourteen softball teams, composed of employees of the employer’s Tonawanda plant and organized into a league. There is evidence [1] that the company furnished playing equipment, [2] permitted conferences of the league’s officials to be held on company time without deduction of pay, and [3] furnished nursing treatment to claimant after his injury. ’ ’ (Arabic numerals supplied.) (272 App. Div. 845.)

The board and the Appellate Division obviously proceeded upon the theory that an injury sustained by an employee while engaged in a recreational activity, so promoted and encouraged by the employer and redounding to the employer’s benefit, is compensable as arising out of and in the course of employment. We believe that theory to be correct and in accord with the letter and spirit of the law and the previous decisions of this court.

The broad and remedial purpose of the Workmen’s Compensation Law would not be effectuated by narrowly restricting coverage solely to employees who are injured while performing the specific tasks for which they were hired. It is one of the attributes of the employer-employee relationship that the employee usually attempts in some measure to accede to the wish, as well as the command, of his employer. Because of the subordinate position of the employee, the employer’s wish may well acquire the force of a compulsion — to a greater or lesser degree according to the circumstances of each case. This moral suasion exerted by the employer is a very real factor in any employment and cannot be ignored by the board or the courts in cases like the one at bar. Thus, where an activity— different from the employee’s regular duties and even recreational in nature — is encouraged, promoted or subsidized by the employer, there is a strong compulsion upon the employee to participate in the outside activity. We must recognize this human reaction and the social pressures that prompt it. It has a very practical aspect, too; for a young employee with a young family might better resist the urging of his superiors to engage in the playing of baseball where there is frequently the fracture of fingers or ankles, even among professionals, if his family is to be left without compensation during his recovery from an injury, assuming that there may he a complete recovery.

True, it is urged by the employer that there was no compulsion exercised to induce the claimant to play. We do not think proof of direct compulsion was necessary since the employer was found to have sponsored the adventure in employee-supervision relationship but again that would be a question of fact. Recently there was consideration of the subject of what constitutes compulsion as a matter of law in Matter of Dearing v. Union Free School, Tonawanda (272 App. Div. 167), but we felt that there was no room for such consideration where the Workmen’s Compensation Board had already passed upon the question as one of fact. We reversed the order of the Appellate Division and reinstated the decision of the board on the ground that the board’s finding* of fact that the injury did not arise out of and in the course of claimant’s employment was supported by substantial evidence and was, therefore, conclusive under section 20 of the Workmen’s Compensation Law. (Matter of Dearing v. Union Free School, Tonawanda, 297 N. Y. 886, 887.)

We think it clear too that the’ employer derived business benefit from its promotion and encouragement of the activity. That activity tended to exercise a salutary influence upon employer-employee relations and increased contacts and acquaintanceship among the employees. The board has so found upon substantial evidence. The money expenditure would be properly allocable to “ employees’ welfare ” a proper item of “ operating expense ” for corporate and tax purposes. We must bear in mind that directors do not attempt to expend moneys for noncorporate purposes.

It is also urged that an affirmance here may cause employers to reduce their offers of relaxation and athletic activities to their employees. The probability of such future conduct on the part of employers, we think, will depend in large measure upon experience as to the frequency of injuries sustained by employees during such athletic activities. If the injuries suffered by players in a particular sport are infrequent and unusual, the employer will continue its practice since protection under the Workmen’s Compensation Law be obtained by a slight increase in the security bond deposit as to self-insurers, or additional pennies in a State-wide insurance rate as to other employers. If the injuries are frequent and serious, then the risk may be an unreasonable one for tbe employer, and also for a player with, a family, and it may be that the employer will not wish to underwrite that risk, nor the player to assume it without workmen’s compensation to take care of him and his family. At any rate, it is better for groups of employers and employees to know where they stand and so be able to govern themselves accordingly. If athletic contests for foreman and workers do not benefit the corporation, there is no corporate reason for providing them. If they do, then injuries suffered for the corporation’s sake, must draw workmen’s compensation in their wake.

Finally, the employer urges certain out-of-State cases upon us as analogous. The nearest in point is a South Carolina case, Pate v. Plymouth Mfg. Co. (198 S. C. 159). The next nearest is a Michigan case, Clark v. Chrysler Corp. (276 Mich. 24). The difficulties in construing our Workmen’s Compensation Law by the light of South Carolina or Michigan cases are manifold. First, the statutes are not the same. Neither State has a provision such as we have in subdivision 1 of section 21, to the effect that there is a fact presumption at the threshold of the inquiry which, with some evidence of connection between the accident and the employment, establishes the claimant’s case. Then, other States neither have the number and variety of factories we have here, nor the number of factory workers. Therefore, they have not our problems and so their Legislatures have not framed laws to meet them. As a result, their courts have not written against a background of our problems. In other words, quite naturally, not having our problems, they have not our viewpoint or approach. It is doubtful from a reading of the language in the South Carolina and Michigan cases whether in those States the cases cited in the first paragraph of this opinion would have been decided as our courts decided them.

Can we say on this record that the presumption of fact of subdivision 1 of section 21 of the Workmen’s Compensation Law, has been overcome by “ substantial evidence ” to the contrary? That section reads:

‘ ‘ PresumptioNs. In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary
“ 1. That the claim comes within the provision of this chapter; * * We think not. (Matter of Hoffman v. New York Central R. R. Co., 290 N. Y. 277, 278-279.)

The order of the Appellate Division should be affirmed, with costs.

LoughraN, Ch. J., DesmoNd and Bromley, JJ., concur with Fuld, J.; CoNway, J., dissents in opinion in which Lewis and Dye, JJ., concur.

Order reversed, etc.


author: Conway, J.

text:
    Sterling Industries, Inc., Respondent, v. Ball Bearing Pen Corporation et al., Appellants et al., Defendants.
    Argued November 16, 1948;
    decided March 3, 1949.

      Bernard A. Saslow, Abraham N. Geller and Philip Kazan for appellants.
    I. The Appellate Division erred in holding that the action of the president in instituting this action is supported by the doctrine of prima facie authority. The authority to institute any action on behalf of the corporation is vested by law and agreement of the parties in plaintiff’s board of directors. (Mcllrath v. Waterbury & Sons Go., 193 App. Div. 491; McQuade v. Stoneham, 263 N. T. 323; Long Park, Inc., v. Trenton-New Brunswick Theatres Go., 297 N. Y. 174; People ex rel. Manice v. Powell, 201 N. Y. 194; United Copper Securities Go. v. Amalgamated Copper Co., 244 TJ. S. 261; Koral v. Savory, Inc., 276 N. Y. 215; Orr & Go. v. Fireman’s Fund Ins. Go., 141 Mise. 330; Central Opera House Realty Gorp. v. Verschleiser, N. Y. L. J., April 20,1946, p. 1548; American Water Works Co. of N. J. v. Vernier, 63 Hun. 632,18 N. Y. S. 379; Ashuelot Mfg. Go. v. Marsh, 1 Cush. 507 [Mass.]; Bridgeport Sav. Bank v. Eldridge, 28 Conn. 556; Jeanerette Rice $ Milling Go. v. Durocher, 123 La. 160.) II. The doctrine of prima facie or presumptive authority has no application in this case. (Powers v. Schlicht Heat, Light & Power Go., 23 App. Div. 380, 165 N. Y. 662; Schwartz v. United Merchants & Manufacturers, Inc., 72 P. 2d 256; Hardin v. Morgan Lithograph Go., 247 N. Y. 332; Holmes v. Willard, 125 N. Y. 75.) III. Even if it be assumed that the president of plaintiff corporation could have had presumptive authority to institute the action, that presumption has been conclusively rebutted. {Powers v. Schlicht Heat, Light S Power Co., 23 App. Div. 380, 165 N. Y. 662; Bussing v. Lowell Film Productions, Inc., 233 App. Div. 493, 259 N. Y. 593; Twyeffort v. Unexcelled Mfg. Co., 263 N. Y. 6; Oakes v. Cattaraugus Water Go., 143 N. Y. 430.) IV. The relationship between the directors opposing the action and defendants, and the bare assertion that this suit is vital to the corporate interest are no basis for the Appellate Division’s departure from clearly established principles of law. {Blaustein v. Pan American Petroleum & Transport Go., 263 App. Div. 97, 293 N. Y. 281; Koch v. Estes, 146 Mise. 249, 240 App. Div. 829, 264 N. Y. 480; J. G. F. Holding Gorp. v. General Gas & Elec. Gorp., 181 Mise. 283, 267 App. Div. 863; Espach v. Nassau & Suffolk Lighting Go., 293 N. Y. 463; Everett v. Phillips, 288 Y. 227; Stock Corporation Law, § 60; Matter of Automotive Manufacturers Assn., Inc., 120 Mise. 405.) V. The contention that this action is vital to the interests of plaintiff corporation provides no justification for the institution of this action. (Elblum Holdng Corp. v. Mints, 120 N. J. L. 604; Potter v. New York Infant Asylum, 44 Hun 367, 118 N. T. 684; Citizens Nat. Bank of Kingman v. Berry, 53 Kan. 696; Beebe v. Beebe, 64 N. J. L. 497.) VI. The existence of a deadlock in the board of directors creates no extraordinary powers in the corporate president. (Long Park, Inc., v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; Benmtendi v. Kenton Hotel, Inc., Y. 112; McQuade v. Stoneham, 263 N. Y. 323; Douglas Development Corp. v. Carillo, 64 N. Y. S. 2d. 747; Cogwill Land Co. v. Coughlan, 245 App. Div. 759; Koral v. Savory, Inc., 276 N. Y. 215; Earl v. Brewer, 248 App. Div. 314, 273 N. Y. 669; Pueblo of Santa Rosa v. Fall, 273 IJ. S. 315; Orr & Co. v. Fireman’s Fund Ins. Co., 141 Mise. 330.)

      David P. Siegel for respondent.
    I. Under the unusual circumDiv. 465; Pinh v. Title Guar. & Trust Go., 164 Mise. 128; Singer v. Carlisle, 26 N. Y. S. 2d 172, 261 App. Div. 897; Everett v. Phillips, 288 N. Y. 227; United Copper Securities Co. v. Amalgamated Copper Co., 244 U. S. 261; Koral v. Savory, Inc., 276 N. Y. 215; Munsonv. Syracuse, Geneva & Corning R. R. Co., 103 N. Y. 58; Billings v. Shorn, 209 N. Y. 265.)
   Conway, J.

The plaintiff corporation was formed in 1946, by two groups of men who were to share equally in its control. The first group were representatives of the defendant Ball Bearing Pen Corporation (hereinafter referred to as Pen Co.). The other group consisted of one Middleman, later elected president of plaintiff, and others named Shindel and Golub. Each group was represented by its own counsel who participated in the organization. The charter and by-laws were finally adopted after consultation between counsel for both groups. In order that the control of the corporation might be shared equally by both groups, the common stock was divided into two classes, Class A and Class B, having equal voting rights. The charter provided that the holders of each class of stock had the right to elect one half of the directors.

The by-laws provided in section 1 of article II: “ The affairs and business of this corporation shall be managed by a Board of Directors composed of four members * *

The Class A common stock was to be held by the Middleman-Shindel group and the Class B common stock by the representatives of those who controlled Pen Co. Two representatives of Pen Co. were charter members of the board of directors of plaintiff and each owned twenty shares of Class B common stock. Middleman and Shindel became the other two directors and each owned twenty shares of Class A common stock. Those eighty shares constituted 100% of the stock of the plaintiff which is issued and outstanding.

As is understandable, in view of the manner in which the plaintiff was formed, the respective counsel for the two groups provided in paragraph 16 of its charter as follows: “ No contract or other transaction between the corporation and any other corporation shall be affected or invalidated by the fact that one or more of the Directors of this corporation is or are interested in or is a Director or officer or are Directors or officers of such other corporations, and any Director or Directors, individually or jointly may be a party to or parties to, or may be interested in any contract or transaction of this corporation, or in which this corporation is interested, and no contract, act or transaction of this corporation with any person or persons, firms or corporations, shall be affected or invalidated by the fact that any director or directors of the corporation is a party to or are parties to, or interested in such contract, act or transaction, or in any way connected with such person or persons, firm or assoand each and every person who may become a director of this corporation is hereby relieved from any liability that may otherwise exist from contracting with the corporation for the benefit of himself or any firm, association, or corporation in which he may be in any wise interested. ’ ’

The by-laws of the corporation, in addition to providing that the affairs and business of the corporation were to be managed by a board of directors of four members and that a. majority of the board were to constitute a quorum, contained the following provision: Section 9. Voting. At all meetings of the Board of Directors, each director shall have one vote, irrespective of the number of shares of stock that he may hold. The act of a majority of the entire Board of Directors shall constitute the-act of the Board of Directors.” (Emphasis supplied.)

The by-laws which set forth the powers and duties of the officers contain no reference to any authority on the part of the president or any other officer to institute litigation.

On February 28, 1947, the president of plaintiff corporation gave notice of a special meeting of the board of directors to be held on March 12,1947, “ to consider and act upon the following matters:

C( ^ ⅜ ⅜ ⅜
‘ ‘ 2. The report of the President in respect to the status of the contractual and other business relationship between this corporation and Ball Bearing Pen Corporation.
“ 3. To consider and act upon a breach of contract on the part of Ball Bearing Pen Corporation.
To consider the advisability of instituting suit or other proceedings against the Ball Bearing Pen Corporation for breach of the said contract.
“ 5. * * V’ (Emphasis supplied.)

Middleman, the president, presided over the meeting held on the date appointed. During the course of the meeting he moved that the corporation bring an action against Pen Co. for breach of contract and am accounting. The motion was put to a vote. Two directors voted in favor of the motion and two voted in opposition. The president then stated that in view of the tie vote, the motion had failed to he carried. He then declared the meeting at an end. No further meetings of the board were held prior to the institution of this action which is one at law.

The complaint, verified by Middleman, sets forth two causes of action. The first is for breach of contract under which it is alleged that Pen Co. agreed to manufacture ball point fountain pens and “ to make the plaintiff the exclusive agency for the sale ” of all such pens for a period of one year. It then alleged that two and one-half months later, after plaintiff had-- spent a substantial sum of money for advertising and promoting the sale of such pens and had obtained orders for upwards of 300,000 pens, Pen Co. breached the contract, refused to deliver any further pens to plaintiff or to fill its orders and sold directly and through others without making payment to plaintiff of the sums agreed upon in the event of such sales directly or through others than plaintiff. The second cause of action alleged that the individual defendants induced Pen Co. to break the contract which is the subject of the first cause of action.

The Appellate Division, by a sharply divided court, reversed an order of Special Term vacating the service of the and complaint upon the ground that the plaintiff had not authorized the institution or prosecution of this action and denied the motion. The Appellate Division thereupon granted leave to appeal and certified the following question: “ On the facts appearing in the record, should the summons and complaint herein and the service thereof upon the moving defendants have been vacated and set aside upon the ground that the plaintiff corporation did not authorize the institution or prosecution of this action? ”

We assume that all questions of fact were determined by the Appellate Division in favor of respondent. (Civ. Prac. Act, § 603.-) The question presented for our consideration, therefore, is whether a president of a corporation may institute an action under the circumstances disclosed on this record after lie has asked his board of directors for permission so to do and it has been refused. We think he may not and that the certified question must be answered in the affirmative.

there is no question here of any presumptive or prima facie authority in the president of a corporation qua president to institute litigation and engage counsel therefor. (See, Koral v. Savory, Inc., 276 N. Y. 215, 217; United Copper Securities Co. v. Amalgamated Copper Co., 244 U. S. 261, 263; Twyeffort v. Unexcelled Mfg. Co., 263 N. Y. 6; Potter v. New York Infant Asylum, 44 Hun 367; 19 C. J. S., Corporations, § 1051, pp. 559, 560; General Corporation Law, § 27; Stock Corporation Law, § 60.) Nor is there question of apparent authority, since we consider here no rights of outsiders or third parties, but only those of organizers of plaintiff corporation and representatives of Pen Co. Any actual or implied authority which Middleman may have had as president to commence this action was terminated when a majority of the board of directors at the special meeting refused to sanction it. Section 27 of the General Corporation Law provides in part: “ The business of a corporation shall be managed by its board of directors * * Plaintiff’s by-laws provided in section 1 of article II, as we have seen (supra, p. 487), for the management of its affairs and business by its board of directors. Section 60 of the Stock Corporation Law provides in part: “ The directors of a stock corporation may appoint or elect from their number a president, and may appoint or elect one or more vice-presidents, a secretary, a treasurer, and other officers, agents and employees, who shall respectively have such powers and perform such duties in the management of the property and affairs of the corporation, subject to the control of the directors, as may be prescribed by them or in the by-laws. ⅜ ⅝ (Emphasis supplied.) Thus in Koral v. Savory, Inc. (supra, p. 217), we quoted from United Copper Securities Co. v. Amalgamated Copper Co. (supra): “ * * * the question whether the cor•poration should ‘ seek to enforce in the courts a cause of action for damages is, like other business questions, ordinarily a matter of internal management and is left to the discretion of the directors, in the absence of instruction by vote of the 'stock” (Emphasis supplied.)

Next, it is urged that the two directors who were nominated by Pen Co. were disqualified to vote at the meeting of March 12, 1947, by interest in Pen Co. To that there are three answers. (1) The president Middleman called the meeting of March 12th by notice dated February. 28, 1947. On that latter date the alleged breach of contract had. already occurred, yet Middleman treated his other three codirectors as.fully qualified and asked their vote to authorize him to institute this action. ITe and they were charter members of the board which had been constituted purposefully to his knowledge so as to have two representatives of Pen Co. (2) Not only is there a presumption that those two directors acted properly and in the interest of plaintiff but they have not been made parties defendant here and no relief has been asked against them. There are no facts alleged indicating that they are not acting in the best interests of plaintiff despite the fact that they have submitted affidavits deposing that in their opinion “ this suit is not in the best interests of plaintiff corporation ”. (3) The whole purpose of counsel severally representing the two groups which formed plaintiff was to see to it by the insertion of paragraph 16 (supra, pp. 487-488) in the charter that the interest of its directors in another contracting-corporation should not constitute disqualification to vote by reason of interest in the contract or transaction then under consideration.

The circumstances of the organization of plaintiff corporation indicate that the parties intended that the corporation should be managed by its board of directors and that the board should take no affirmative action if not sanctioned by a majority. That is the arrangement the parties intended and there is no basis on which to hold such an arrangement illegal. Had the Legislature intended to eliminate the problem of a deadlock it could have done so by the simple expedient of requiring an odd number of directors. Instead, apparently realizing the desire for equal control in some closely held corporations, it has continued to permit the election of a board of directors with an even numbers of directors. The fact that a deadlock may result does not necessarily mean that the present law is inadequate and that it should be remedied by the approval of presidential power where none in fact exists — thus disregarding fundamental rules of agency law. There is available to the group in favor of instituting suit here the more appropriate remedy of a stockholder’s derivative action which we shall discuss more fully below.

We have consistently held that section 27 of the General Corporation Law, which provides that the business of a corporation shall be managed by its board of directors, cannot be circumvented. (Long Park, Inc., v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; Benintendi v. Kenton Hotel, Inc., 294 N. Y. 112; McQuade v. Stoneham, 263 N. Y. 323; Manson v. Curtis, 223 N. Y. 313.) The decision below in effect amends section 27 to read that the corporation shall be managed by its board of directors, except in the case of deadlock when it shall be managed by any director who happens to be president.

Finally, it is urged that the litigation presents an emergency or a critical situation. The Appellate Division did not rest its decision on that basis and properly so. It went no further than to say that the suit “ vitally concerns the plaintiff and affects its intérests in respect to a substantial asset. We do not think that the merits or sufficiency of the factual basis for bringing the action should be considered at this time.” (273 App. Div. 464.)

No evidentiary facts are alleged to indicate that a crisis is at hand or that immediate or vital injury threatens plaintiff. Two, of the four affidavits submitted by plaintiff contain the following single sentence: “ This suit is critical and vital to the interests of the corporation and a recovery would redound to the benefit of the corporation. ’ ’ One of the affidavits contains the following two sentences:

“ This suit against the corporate and personal defendants is vital and critical.
The defendants by their action and conduct sought to destroy the very existence of this corporation.”

Those three sentences are the only allegations that this action is at all vital or critical to the corporate interests. Clearly they are conclusory and not factual. (Kalmanash v. Smith, 291 N. Y. 142, 153, 154, and cases cited.) Lacking such factual allegations, the lower court cases in this and another State cited by plaintiff are inapposite. Moreover, those cases presented neither a request by a president and a refusal by a board of directors to institute action nor a charter provision such as paragraph 16 (supra). While the complaint has been incorporated by reference into the affidavits, it discloses no urgency on its face. It states that plaintiff “ was and still is engaged in the business of selling and distributing articles of general merchandise ” (emphasis supplied), and while it alleges an exclusive agency to sell the pens of the corporate and that the contract has been breached, no facts are alleged to indicate that its corporate existence is threatened or that its business will not continue normally.

Plaintiff has an appropriate remedy by action in which it may obtain any necessary provisional remedy as well as prompt trial. That is by a stockholder’s derivative action. Plaintiff urges that in an action at law it will be entitled to a jury trial. There is nothing here to suggest that the bringing of an action at law, with a jury trial, is in any way essential to the corporate interest. On the contrary, since the affidavits of the defendants state that the contract sued upon is oral, and that is not denied by plaintiff, there may be no cause of action upon which recovery may be had since in two of the defenses the Statute of Frauds is pleaded. If the Middleman-Shindel group has a cause of action, its will be fully protected in equity and its counsel compensated from any recovery and only from a recovery on behalf of the corporation, subject to the approval of the court. If there be no cause of action, the plaintiff corporation will not have that discovered in equity at its expense. As it was phrased in the dissenting opinion below: “ One side should not be entitled to maintain an action in the name and at the expense of the corporation simply because the president happens to be allied with its interests.” (273 App. Div. 469.)

The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs to appellant in this court and in the Appellate Division. The question certified is answered in the affirmative.

Loughran, Oh. J., Lewis, Desmond, Dye and Fuld, JJ., concur.

Order reversed, etc.


author: LotjgheaN, Ch. J.

text:
    The People of the State of New York, Respondent, v. Edward M. MacKenna, Appellant.
    Argued January 5, 1949;
    decided March 3, 1949.

      John J. Dillon and Edward M. MaeKenna, in person, for appellant.
    I. The trial court exceeded its authority by imposing sentence under section 1944 of the Penal Law seven years after sentencing appellant for the same act under section 1897 of the Penal Law. (Matter of Cedar v. Judges of Ct. of General Sessions, 240 App. Div. 182, 265 N. Y. 620; People v. Krumme, 161 Mise. 278; People v. Lohman, 2 Barb. 216, 1 N. Y. 379; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288; People ex rel. Decker v. Page, 125 Mise. 538; People v. Archer, 18 Chic. Leg. New 245; People v. Mueller, 4 Crim. L. Mag. 725; People v. Baeder, 161 Mise. 557; People v. Kastel, 172 Mise. 784; State v. Watson, 41 La. Ann. 598; State v. Walker, 22 La. Ann. 425; Grossman v. Oakland, 30 Ore. 478; Fletcher v. State, 12 Ark. 169.) II. This is a clear case of double jeopardy, and denial of due process of law. (People v. Skarczewski, 178 Mise. 160, 287 N. Y. 826; People v. Goldfarb, 152 App. Div. 870, 213 N. Y. 664; People v. Procito, 261 N. Y. 376; Matter of Stebbins v. Sherwood, 148 Mise. 763; People v. Kevlon, 221 App. Div. 224; Matter of Dodd v. Martin, 248 N. Y. 394; People v. Krennen,
      264 N. T. 108; Matter of Bennett v. Merritt, 173 Mise.- 355, 261 App. Div. 824.) III. The trial court erred by sentencing appellant, assertedly under the provisions of section 1944, without a hearing or an inquiry, and without taking a single word of testimony to sustain the action. (People v. Caruso, 249 N. Y. 302; People v. Krennen, 264 N. Y. 108; People ex rel. Schoen v. Murphy, 243 App. Div. 216; People ex rel. Lorraine v. Lcrnes, 275 N. Y. 620; People ex rel. Romano v. Brophy, 280 N. Y. 181, 280 N. Y. 707; People v. Sandoval, 262 App. Div. 288; Matter of Lyons v. Robinson, 293 N. Y. 191.) IV. The court was without jurisdiction to sentence the appellant to imprisonment under section 1944 of the Penal Law under the guise of correcting error in another part of the sentence. (People ex rel. Griffin v. Hunt, 150 Mise. 163, 242 App. Div. 903, 267 N. Y. 597; Ex Parte Lange, 18 Wall. [U. S.] 163; Matter of Cedar v. Judges of Ct. of General Sessions, 240 App. Div. 182, 265 N. Y. 620; Matter of Lyons v. Robinson, 293 N. Y. 191; People ex rel. Hager v. Hunt, 261 App. Div. 1046; People ex rel. Romano v. Brophy, 280 N. Y. 181, 280 N. Y. 707; People ex rel. Kerrigan v. Martin, 291 N. Y. 513; People v. Meservy, Mich. 227.)

      Frank S. Hogan, District Attorney (Edward T. Perry and Whitman Knapp of counsel), for respondent.
    The imposition of the sentence for being armed was a valid exercise of the court’s power. (People ex rel. Hager v. Hunt, 261 App. Div. 1046; People ex rel. Kerrigan v. Martin, 291 N. Y.' 513; People v. Garcia, 272 App. Div. 1084; People v. Sandoval, 262 App. Div. 288; People ex rel. Griffin v. Hunt, 267 N. Y. 597.)
   LotjgheaN, Ch. J.

In 1940, the defendant, who had been indicted in the county of New York for attempted robbery in the second degree, attempted grand larceny in the second degree, assault in the second degree and for carrying a dangerous weapon after a prior conviction (see Penal Law, §§ 2120, 2126, 1290, 1296, 242, 1897), was allowed by the Court of General Sessions of that county to plead guilty on the assault count and to a charge of carrying a dangerous weapon as a misdemeanor (see Penal Law, §§ 2, 1897). The prior conviction alleged in the indictment took place in the State of Mississippi and was the result of a larceny which in the opinion of the Court of General Sessions would have been a felony under the Penal Law of New York. Accordingly that court took the defendant to be a second felony offender and on October 17, 1940, sentenced him as such to imprisonment for not less than five nor more than ten years on the assault count (see Penal Law, § 1941), while on the misdemeanor count sentence was suspended (see Penal Law, § 2188). Before he was so sentenced, the defendant had admitted his use of a gun in committing the felony of assault in the second degree. This circumstance authorized the court to increase the punishment by imprisonment in a State prison for not less than five nor more than ten years (Penal Law, § 1944); but no such extra sentence was then imposed.

On June 15, 1945, the defendant was released on parole — all but twelve days of the five-year minimum term of his New York sentence having theretofore been served. He then returned to his home in Louisiana but was there convicted upon charges of theft and forgery, in consequence of which he was later recommitted to prison here in New York as a parole violator.

In 1947, the New York sentence was vacated on the defendant’s motion, because the offense of which he had been convicted in Mississippi had finally been shown by him to have been the equivalent of no more than a misdemeanor in New York. Accordingly he was brought before the Court of General Sessions to be resentenced — this time as a first felony offender — and thereupon the same judge who had originally passed sentence upon him pronounced a new sentence in these words: “In the light of all the events and all the facts before me, the sentence that I am imposing is nunc pro tunc as of October 17, 1940, and the sentence is that the defendant be confined to State Prison for a term of not less than six nor more than ten years, of which not less than five years nor more than seven years is imposed as an additional punishment pursuant to section 1944 of the Penal Law, for the use of a gun in the commission of a felony. ’ ’ This sentence has been affirmed by the Appellate Division and is now before us for review on a certificate granted to the defendant pursuant to section 520 of the Code of Criminal Procedure.

The relevant provision of section 1944 is in substance this: If any person while in the commission or attempted commission of a felony shall be armed with a pistol, the punishment elsewhere prescribed in the Penal Law for that felony may he increased by imprisonment in a State’s prison for not less than five nor for more than ten years. This defendant was so armed in that statutory sense at the time of his commission of the felony in question, as he still concedes.

The increased punishment authorized by section 1944 is an “ additional ” penalty, that is to say, it presupposes a substantive offense followed by an initial sentence to which it may be annexed .(see Matter of Lyons v. Robinson, 293 N. Y. 191). On that basis, we said in the Lyons case (supra) that invalidity of such an additional sentence did not require disturbance of a valid initial sentence imposed for a substantive crime, since the former sentence was “ severable ” from the latter (p. 195). Prom that premise, the present defendant • argues that the admitted invalidity of the initial sentence here imposed for assault in the second degree-was no warrant for the cancellation by the sentencing court of its original concomitant decision not to impose any additional sentence as increased punishment under section 1944. This proposition has been urged upon us with force and skill, but in the end we find ourselves unable to adopt it.

The initial sentence that was originally here imposed for the substantive crime of assault in the second degree was illegal and for that reason that sentence was -necessarily vacated at the defendant’s request. At that juncture, he stood before the court as one who had never been sentenced at all for the substantive felony to which he had pleaded guilty and in the commission of which, as he confessed, he had used a gun. Hence the new sentence which was then and there imposed — including the additional penalty under section 1944 — was warranted and the infliction thereof did not subject the defendant to double jeopardy (see People ex rel. Kerrigan v. Martin, 291 N. Y. 513; Bozza v. United States, 330 U. S. 160, 165-167).

Of course, the defendant is entitled to have credited on the new sentence the time already served by him in consequence of the sentence that was vacated.

The judgment should he affirmed. [See 299 N. Y. 601.]

Lewis, CoNWay, DesmoNd, Dye and Ptjld, JJ., concur.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. George O. Moore and Lester Haughton, Appellants.
    Submitted June 1, 1948;
    decided June 2, 1948.
   Motion by appellants for reargument denied. [See 297 N. Y. 734.]


text:
    The People of the State of New York, Respondent, v. George C. Moore and Lester Haughton, Appellants.
    Submitted May 17, 1948;
    decided June 2, 1948.
   Motion for an order pursuant to tbe provisions of sections 503 and 504 of the Code of Criminal Procedure granted. [See 297 N. Y. 734.]


text:
    Jean Pfister, v. Abe Coopersmith, Appellant.
    Argued March 16, 1948;
    decided June 4, 1948.

      Frank 8. Samansky for appellant.

      John P. McGrath, Corporation Counsel (Stanley Buchsbaum of counsel), for City of New York, amicus curia, in support of appellant’s position.

      Salvator Milaszo for respondent.
   Orders of the Appellate Division and of the Appellate Term reversed and order of the Municipal Court affirmed, without costs, on authority of Matter of Tartaglia v. McLaughlin (297 N. Y. 419), decided May 20, 1948; no opinion.


text:
    In the Matter of New York State Labor Relations Board, Respondent, against Bethlehem Steel Company et al., Appellants.
    Submitted June 1, 1948;
    decided June 4, 1948.

      G. A. McLain and Daniel J. Kenefick for appellants.

      William E. Grady, Jr., for respondent.
   Orders reversed and proceeding dismissed, with costs in this court and in the Appellate Division. (See Angelos v. Mesevich, 292 N. Y. 681, 682.) No opinion.


text:
    In the Matter of the Estate of Morris Einbinder, Deceased. Anna Axman, as Administratrix of the Estate of Morris Einbinder, Deceased, Appellant; Meyer Einbinder et al., Respondents.
    Argued April 15, 1948;
    decided June 4, 1948.

      Philip Novick for appellant.

      Samuel Masia and Archibald Palmer for respondents.
   Order of Appellate Division and decree of Surrogate’s Court affirmed, without costs; no opinion.


text:
    In the Matter of the Arbitration between Catz American Sales Corporation, Respondent, and Holleb & Co., Appellant.
    Argued May 18, 1948;
    decided June 4, 1948.

      David Bergner and Samuel H. Friedman for appellant.

      Irving J. North and Otto G. Sommerich for respondent.
   Judgment affirmed, with costs; no opinion.


text:
    Harriet E. Weinstein, Appellant, and John S. Kroese, Intervener, Appellant, v. Sosthenes Behn et al., Respondents.
    Argued May 17, 1948;
    decided June 4, 1948.

      Allen T. Klots, Arthur H. Dean, Ralph M. Carson, Peter H. Kaminer, Francis W. Phillips, Robert L. Augenblick, Richard Joyce Smith, Forbes D. Shaw and Ralph M. McDermid for motion to dismiss appeal and in opposition to motion for leave to appeal.

      Samuel J. Levinson, Frank Weinstein and Nathaniel Phillips opposed to motion to dismiss and for motion for leave to appeal.
   Motions to dismiss appeal granted and appeal dismissed, -with costs and $10 costs of motion.

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


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Opening and Extending of East River Drive and Approaches Thereto, in the Borough of Manhattan. Guy Cary et al., as Ancillary Executors of Robert W. Goelet, et al., Respondents.
    Submitted May 17, 1948;
    decided June 4, 1948.

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

      Charles Lamb, Walter L. Hopkins, Louis W. Datvson, Edward F. Clark ánd Leonard J. Reynolds opposed.
   Motion denied, with $10 costs and necessary printing disbursements upon the ground that an appeal lies as of right.


text:
    Manocraft Clothes, Inc., Appellant, v. Simon Gittelmacher, Respondent.
    Submitted May 17, 1948;
    decided June 4, 1948.

      Jacob W. Friedman for motion.

      Ira A. Greene opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements, unless, within fifteen days, all papers required by rule 21 (subd. of the Court of Appeals are filed.


text:
    Wilson P. Foss, Jr., et al., Respondents, v. Charles E. Riordan, as Administrator de Bonis non cum Testamento Annexo of John J. Riordan, Jr., Deceased, Appellant.
    Submitted May 17, 1948;
    decided June 4, 1948.

      Herbert Noble and Myron Butter for motion.

      Lester Kissel and Robert L. Clare, Jr., opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, without prejudice to a renewal thereof if, and when, a judgment has been entered upon the order of the Appellate Division.


text:
    George Chapellier, Respondent, v. Henry Woodhouse, Doing Business as The Historic Art Galleries, Appellant.
    Submitted June 1, 1948;
    decided June 4, 1948.

      Isidor Unger for motion.

      Henry Woodhouse, in person, opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion on the ground that it does not appear that any constitutional question is involved.


text:
    Submitted June 1, 1948;
    decided June 4, 1948.
   Motion by appellant for reargument denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 829.]


text:
    The People of the State of New York, Respondent, v. Murray Winters, Appellant.
    Submitted June 1, 1948;
    decided June 4, 1948.


text:
    In the Matter of the Probate of the Will of Joseph C. Greff, Deceased. Lester M. Greff, Appellant; Charles A. Porth et al., Respondents.
    Submitted June 1, 1948;
    decided June 4, 1948.

      Peter «7. Háberkorn for motion.

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


author: Per Curiam.

text:
    In the Matter of the Claim of Beulah Gaurin, on Behalf of Herself, as Widow, and Dependent Minor Children, on Account of the Death of Geeald G. Gaurin, Respondent, against Bagley & Sewall Company et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued May 20, 1948;
    decided June 11, 1948.

      Lewis C. Ryan for appellants.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum, Wendell P. Broivn and Daniel Polcmshy of counsel), for respondent.
   Per Curiam.

There is no evidence in this record that the death of claimant’s decedent arose out of and in the course of his employment (see Matter of Frost v. Franklin Mfg. Co., 204 Div. 700, affd. 236 N. Y. 649; cf. Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443, 447). Order of Appellate Division and award of the Workmen’s Compensation Board reversed, with costs against the board in this court and in the Appellate Division and the claim dismissed.

Loughran, Ch. J., Lewis, CoNway, Desmond, Thachee, Dye and Fuld, JJ., concur.

Ordered accordingly. [See 298 N. Y. 619.]


text:
    New York Credit Men’s Association, as Trustee in Bankruptcy of Louis Miller, Trading as Louis Miller & Co., and Bridgeville Shirt Co., Appellant, v. Manufacturers Discount Corporation, Respondent.
    Argued June 2, 1948;
    decided June 11, 1948.

      Julius J. Abeson, J. Jacob Hahn and Reuben Qolin for appellant.

      Milton P. Kupfer, Eli 8. Silberfeld and Peter D. Andreoli for respondent.
   Judgment' affirmed, with costs; no opinion.

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


text:
    Mas Gross, Appellant, v. Libby Properties, Inc., Respondent.
    Argued May 20, 1948;
    decided June 11, 1948.

      Ralph E. Freidus for appellant.

      Samuel Luloff for respondent.
   Judgment affirmed, with costs. We find ample support for the Appellate Division’s opinion declbiing to pronounce a declaratory judgment. (Rules Civ. Prac., rule 212.) Consequently, we do not reach the merits of any question sought to be raised by the parties.


text:
    Argued May 19, 1948;
    decided June 11, 1948.

      Henry Adsit Bull, appellant in person.

      Will Maslow and. Shad Potter for The American Jewish Congress, amicus curiae, in support of appellant’s position.

      Samuel D. Smoleff for Citizens Union of the City of New York, amicus curiae, in support of appellant’s position.

      Frederic White Shepard for Nassau Taxpáyers League, amicus curiae, in support of appellant’s position.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for Herman T. Stichman and others, respondents.

      Charles J. Wick for The Canisius College of Buffalo, N. Y., respondent.

      Franklin B. Brown for Metzger Construction Corp., respondent.
   Judgment affirmed, without costs; no opinion.


text:
    In the Matter of the Probate of the Will of Olga S. Noding, Deceased. Cleo M. Bunker, Appellant and Respondent; Walter A. Donnelly, Special Guardian for Sverre Svenkeson, an Incompetent, Respondent and Appellant.
    decided June 11, 1948.

      John F. X. Browne for proponent, appellant and respondent.

      Walter A. Donnelly, in person, and James A. Donnelly for contestant, respondent and appellant.
   Order affirmed, with costs; no opinion.


text:
    William Henderson, an Infant, by Henderson, His Guardian ad Litem, et al., Appellants, v. Crystal Aquatic Arena, Inc., Respondent.
    Submitted April 21, 1948;
    decided June 11, 1948.

      Samuel Cooperman and Harry Leff for appellants.

      Archie B. Morrison, John D. Lynn, WilUam T. Rogers and Daniel Miner for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, on the ground that the record presents questions of fact for the jury as to negligence and contributory negligence. No opinion.

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


text:
    In the Matter of the Estate of Charles A. Scherzinger, Deceased. George T. Scherzinger, Appellant; Marie L. Scherzinger, as Administratrix of the Estate of Charles A. Scherzinger, Deceased, Respondent.
    Argued May 17, 1948;
    decided June 11, 1948.

      James N. Vaughan for appellant.

      William F. Cassin and Edward J. Barry for respondent.
   Order affirmed, with costs to the respondent payable out of the estate. Motion to dismiss appeal denied. No opinion.

Concur: LoughraN, Ch. J., Lewis, DesmoND, Thacheb, Dye and JJ. Taking no part: CoNway, J.


text:
    In the Matter of the Estate of Mary A. Khapp, Deceased. Daisy K. Van Noy, Respondent; Charles A. Austin, II, as Executor of Mary A. Knapp, Deceased, Appellant.
    Submitted May 18, 1948;
    decided June 11, 1948.

      Harry Moseson for appellant.

      Bichard Marlowe for respondent.
   Order affirmed, -with, costs; no opinion.

Concur: Lewis, CoNWay, Desmond, Dye and Fuld, JJ. Ob. J., and Thacher, J., dissent and vote to reverse tbe order of tbe Appellate Division and to reinstate tbe decision of tbe Surrogate.


text:
    Homefield of Yonkers, N. Y., Inc., et al., Appellants, v. Curtiss E. Frank, as Mayor of tbe City of Yonkers, et al., Respondents.
    Argued May 19, 1948;
    decided June 11, 1948.

      William A. Walsh for appellants.

      John H. Galloway, Jr., Corporation Counsel (John Preston Phillips of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    David Daniels, Doing Business under the Name of Daniels & Daniels, Respondent, v. Samuel L. Golden et al., Appellants.
    Submitted May 20, 1948;
    decided June 11, 1948.

      Meyer F. Goodman for appellants.

      Israel Siegel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Victor S. Mare, Appellant, against Mary E. Dillon et al., Constituting the Board of Education of the City of New York, Respondents.
    Submitted June 1, 1948;
    decided June 11, 1948.

      Antonio M. Luongo for appellant.

      John P. McGrath, Corporation Counsel (S.eymour B. Quel, Morris Weissherg and Michael A. Castaldi of counsel), for respondents.
   Order affirmed, without costs; no opinion.

Concur: LougheaN, Ch. J., Lewis, DesmoND, Thacher, Dye and Fulb, JJ. Taking no part: CoNway, J.


text:
    The People of the State of New York, Respondent, v. Edward L. Appellant.
    Argued June 1, 1948;
    decided June 11, 1948.

      George J. SMvington for appellant.

      George D. Newton, District Attorney, for respondent.
   Judgment reversed and indictment dismissed on the ground that on this record defendant’s guilt of manslaughter in the second degree was not established beyond a reasonable doubt. We pass on no other question. No opinion.

Concur: LotjghsaN, Ch. J., Lewis, Desmohd, Thaohee and Dye, JJ. Fuld, J., dissents on the ground that the defendant’s firing the revolver at Ms wife — resulting in her death — without assuring himself that it was not loaded, justified the jury-in finding that defendant was culpably negligent and guilty of manslaughter in the second degree under section 1052 of the Penal Law. Taking no part: CoNway, J.


text:
    In the Matter of Charles M. Appellant, v. Thomas J. Patterson, as Director of the Budget of the City of New York, et al., Respondents.
    Argued May 18, 1948;
    decided June 11, 1948.

      David O. Kuh for appellant.

      John P. McGrath, Corporation Counsel (Pauline K. Berger and Seymour B. Quel of counsel), for respondents.
   Order affirmed, without costs; no opinion.


text:
    In the Matter of the Probate of the Will of Chico Schneider, Deceased. Lisa P. Schneider et al., Appellants; Rita A. Mahool et al., Respondents.
    Argued May 19, 1948;
    decided June 11, 1948.

      . David J. Levy, Saul A. Finhel, Hyman D. Lehrich, Cornelius J. Smyth and Dennis K. Keller for appellants.

      Harold H. Corbin, Stuart Sprague, Joseph V. O’Leary, Francis B. Delehanty, Jr., and L. Arnold Weissberger for respondents.
   Order of Appellate Division and decree of Surrogate’s Court affirmed, with costs to the respondents payable out of the estate; no opinion.

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


text:
    The People of the State of New York ex rel. 14 East 90th Steeet Corporation, Relator, and Lawyers Mortgage Corporation, as Trustee, Corelator-Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Submitted June 1, 1948;
    decided June 11, 1948.

      A. I. Madison for appellant.

      John P. McGrath, Corporation Counsel (Morris Hrndel and William F. Murphy of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: LoughbaN, Ch. J., Lewis, DesmoND, Thaoher, Dye and Fuld, JJ. Taking no part: CoNway, J.


text:
    Henry T. Smith, Respondent, v. Samuel Feigin et al., Appellants.
    Argued June 2, 1948;
    decided June 11, 1948.

      Isadora B. Hurwits and Harold Feigin for appellants.

      Paul D. Miller, Henry Boot Stern and Henry Allen Marh for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughrah, Ch. J., Lewis, DesmoND, Thacher, Dye and Fuld, JJ. Taking no part: Cohway, J.


text:
    In the Matter of Brooklyn Union Gas Company, Respondent, against Lazarus Joseph, as Comptroller of the City of New York, Appellant.
    Argued March 3, 1948;
    decided June 11, 1948.

      John P. McGrath, Corporation Counsel (Isaac C. Donner and Gertrude Herschler of counsel), for appellant.

      Jackson A. Dykman, Sigourney B. Olney and Milo F. McDonald, Jr., for respondent.
   Order affirmed and order absolute directed against the appellant on the stipulation, with costs in all courts; no opinion.


text:
    In the Matter of the Will of Stella M. Rothchild, Deceased. Lewis H. Rothchild et al., Appellants; Central Hanover Bank and Trust Company, as Executor and Trustee under the Will of Stella M. Rothchild, Deceased, et al., Respondents.
    Argued May 18, 1948;
    decided June 11, 1948.

      Mark P. Stumpf, William Fits Gibbon and Emil Morosini, Jr., for Lewis H. and Lucille Krumbine Rothchild, appellants.

      Francis R. Curry as special guardian for Stella-Maris Roth-child and Marisol Rothchild, infants, appellants.

      Thomas A. Ryan as special guardian for David Marsten and Lewis A. Marsten, Jr., infants, appellants.

      A. Maurice Grill for Central Hanover Bank and Trust Company, respondent.

      A. Hayne de Yampert, Dana G. Backus, Ernest A. Zema, Siegfried F. Hartman, Robert H. Mulreany, William H. Welsh, John L. Gray, Jr., and H. Woodward McDowell for The American National Red Cross and others, respondents.

      Nathaniel L. Goldstein, Attorney-General (Corning G. McKennee and Wendell P. Brown of counsel), for unknown beneficiaries, respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion. [See 298 N. Y. 754.]

Concur: Ch. J., Lewis, DesmoNd, Thacher and Dye, JJ. Taking no part: CoNway and Fuld, JJ.


text:
    E. Sterling Carter, as Administrator with the Will Annexed of Robert E. Carter, Deceased, et al., Appellants, v. New York Central Railroad Company, Respondent.
    Argued June 1, 1948;
    decided June 11, 1948.

      Marry H. Chambers and A. I. Madison for appellants.

      Gerald E. Dwyer, Lee P. Gagliardi and Frederick L. Wheeler for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LotjghbaN, Ch. J., Lewis, DesmoNd, Thachee, Dye and Füld, JJ. Taking no part: J,


text:
    In the Matter of D. Hewitt, Appellant and Respondent, against Spencer E. Bates et al., Constituting the State Tax Commission, Respondents and Appellants. In the Matter of Caroline D. Hewitt et al., Individually and as Copartners under the Name of Miss Hewitt’s Classes, Appellants, against Spencer E. Bates et al., Constituting the State Tax Commission, Respondents.
    Submitted June 1, 1948;
    decided June 11, 1948.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to provide that the modification is also without costs in the Appellate Division. [See 297 N. Y. 239.]


text:
    Arthur Burton, Appellant, v. American Bridge Co., Respondent, et al., Defendants.
    Submitted June 7, 1948;
    decided June 11, 1948.
   Motion by respondent for reargument denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 993.]


text:
    Plainfield Hotel Corporation, Appellant, v. Erhart Motors Company, Inc., et al., Respondents.
    Submitted June 7, 1948;
    decided June 11, 1948.

      P. Kohler and P. Kohler, Jr., for motion.

      Daniel N. McNaughton opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements on the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division.


text:
    King Arthur Restaurant, Inc., Plaintiff, v. London Terrace, Inc., Respondent, and Hans Jaeger, Appellant.
    Submitted June 7, 1948;
    decided June 11, 1948.

      Maurice FinJcelstein for motion.

      Bernard P. Levy opposed.
   Motion denied, with $10 costs.


text:
    Suzanne A. Roth, Appellant, v. Simon I. Patino, Respondent.
    Submitted June 7, 1948;
    decided June 11, 1948.

      Jonas J. Shapiro, Janet Perlman and B. Leo Schwarz for motion to reverse and in opposition to cross motion for substitution of parties.

      Charles Pickett and Edward R. Neaher in support of cross motion and in opposition to motion for reversal.
   Plaintiff’s motion granted, with $10 costs and judgment of Appellate Division reversed. Cross motion denied, with $10 costs.


text:
    In the Matter of L. Rose et al., Respondents. Williams Auction Sales Corp., Appellant.
    Submitted June 11, 1946;
    decided June 11, 1948.
   Motion to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 297 N. Y. 978.]


text:
    The People of the State of New York, Respondent, v. Harry Dukatt, Appellant. The People of the State of New York, Respondent, v. Isadore Hillman, Appellant.
    Argued June 7, 1948;
    decided July 16, 1948.

      Edward Halle for appellants.

      Frank 8, Hogan, District Attorney (.Harold Roland Shapiro and Whitman Knapp of counsel), for respondent.
   Judgments reversed and new trials ordered upon the ground that the undisputed evidence is that defendants tendered a check in payment for their lodging and other accommodations upon demand by the hotel; in the absence of competent evidence that the check was worthless, such tender overcomes the presumption created by section 925 of the Penal Law. No opinion.

Concur: Lqughran, Ch. J., Lewis, DesmoND, Thacheb, Dte and Pulo, JJ. Taking no part: CoNway, J.


text:
    In the Matter of the Claim of Matthew Slawinski, Respondent, against J. H. Williams & Co. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 10, 1948;
    decided July 16, 1948.

      Noel 8. Symons for appellants.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy and Boy Wiedersum of counsel), for respondent.
   Order affirmed, with costs; no opinion. [See 298 N. Y. 634.]

Concur: LougheaN, Ch. J., Lewis, Desmohd, Teacher, Dye and Fuld, JJ. Taking no part: CoNway, J.


text:
    The People of the State of New York, Respondent, v. Christopher J. Maikisch, Appellant.
    Argued June 9, 1948;
    decided July 16, 1948.

      Nicholas Pécora, Sidney S. Levine and John R. for. appellant.

      Frank S. Hogan, District Attorney (Whitman Knapp, Charles W. Manning and Leticia A. Tedeschi-Sant’ Agata of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Ch. J., Lewis, DesmoND, Thacheb, Dye and Fuld, JJ. Taking no part: CgNway,


text:
    Anna Imperatrice, Respondent, v. Antonio Imperatrice et al., Appellants, et al., Defendants.
    Argued June 1, 1948;
    decided July 16, 1948.

      George Mehlman for appellants.

      Irving L. Young and Alfred M. Schaffer for respondent.
   Per Curiam.

Since the first cause of action, sounding in equity, is valid and since defendants’ motion under rule 106 of the Rules of Civil Practice seeks dismissal of the entire complaint, the motion was properly denied. (See Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79, 84; Eidlitz v. Fischbach & Moore, Inc., 239 App. Div. 483, 486; Fusco v. Brooks, 263 App. Div. 845.) We neither consider nor pass upon the sufficiency of the other causes of action,' nor the nature of the judgment to which plaintiff may be entitled.

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

LoughraN, Ch. J., Lewis, DesmoNd, Thacher, Dye and Fuld, JJ., concur; CoNway, J., taking no part.

Order affirmed, etc.


text:
    The People of the State of New York ex rel. Trust Company, Respondent, against Joseph Lilly et al., Constituting the Tax Commission of the City of New York, Appellants.
    Argued June 1, 1048;
    decided July 16, 1948.

      John P. McGrath, Corporation Counsel (James J. McGowan, William F. Murphy and Morris Handel of counsel), for appellants.

      Isidore Feil for respondent.
   Order affirmed, with costs; no opinion.

Concur: LoughkaN, Ch. J., Lewis, DesmoND, Thacher, Dye and Ftjld, JJ. Taking no part: CoNway, J.


text:
    The People of the State of New York, Appellant, v. Mollie Schwartz, Respondent.
    Argued June 2, 1948;
    decided July 16, 1948.

      John P. McGrath, Corporation Counsel (Samuel D. Johnson, Seymour B. Quel and Fred Iscol of counsel), for appellant.

      Joseph M. Schivartz for respondent.
   Order of Appellate Division reversed and judgment of the Court of Special Sessions of the City of New York affirmed. Subdivision 1 of section 326 of the Multiple Dwelling Law, insofar as it provides for service of a notice or an order, has no application to criminal proceedings brought pursuant to the provisions of the Multiple Dwelling Law. No opinion.

Concur: Ch. J., Lewis, Desmoud, Thachee, Dye and Fuld, JJ. Taking no part: Conway, J.


text:
    Frank Zoccano, Appellant, v. Long Rail Road Company, Respondent.
    Submitted June 4, 1948;
    decided July 16, 1948.

      Nathaniel A. Kahn and Abraham Brimi for appellant.

      Louis J. Carruthers and Ralph E. Hemsireet for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LoughraN, Ch. J., Lewis, Teacher, Dye and Ftjld, JJ. Dissenting: DesmoND, J. Taking no part: CoNway, J.


text:
    The People of the State of New York ex rel. City Bank Farmers Trust Company, as Trustee, Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued June 8, 1948;
    decided July 16, 1948.

      Melville Southard for appellant.

      John P. McGrath, Corporation Counsel (Edith 1, Spivack, William F. Murphy and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.


text:
    The People of the State of New York ex rel. Bank for Savings in the City of New York, Appellant, against Joseph Lilly et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued June 8, 1948;
    decided July 16, 1948.

      Melville Southard for appellant.

      John P. McGrath, Corporation Counsel (Edith I. Spivack, William F. Murphy and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.


text:
    The People of the State of New York rel. Fales Estate, Inc., Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued. June 8, 1948;
    decided July 16, 1948.

      Melville Southard for appellant.

      JohnP. McGrath, Corporation Counsel (Ira Wollison, William F. Murphy and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Ch. J., Lewis, DesmoNd, Dye and Ftjld, JJ. Thachee, J., dissents on the ground that the weight of the evidence sustains the findings of the Special Term. Taking no part: Cohway, J.


text:
    Argued Jane 10, 1948;
    decided July 16, 1948.

      Robert Lamont for appellant.

      Robert J. Leamy for respondents.
   Judgment of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, upon the ground that the weight of the evidence supports the findings of the Special Term. No opinion.

Concur: Loughran, Ch. J., Lewis, DesmoNd, Thacher, Dye and Ftjld, JJ. Taking no part: CoNway, J.


text:
    In the Matter of the Claim of William Redman, Respondent, against Michael Iaculli, et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 10, 1948;
    decided July 16, 1948.

      Harold J. Hinman for appellants.

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

Concur: LoughraN, Ch. J., DesmoND, Thacher, Dye and Fuld, JJ. Dissenting: Lewis, J. Taking no part: CoNWAY, J.


text:
    In the Matter of the Claim of Walter O. Riegle, Respondent, against W. F. Fordon, et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 10, 1948;
    decided July 16, 1948.

      Morgan F. Bisselle and Warren C. Tucker for appellants.

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

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


text:
    Elizabeth H. Kilmarx, Respondent, v. New York Central Railroad Company, Appellant. Sumner D. Kilmarx, Respondent, v. New York Central Railroad Company, Appellant.
    Argued May 21, 1948;
    decided July 16, 1948.

      Frank J.'Máhony, C. Austin White and Frederick L. Wheeler for appellant.

      Clarence C. Meleney and Malcolm F. Holliday for respondents.
   Concur; LoughhaN, Ch. J., Lewis, CoNway, Desmond, Thacheb, Dye and Fuld, JJ.


text:
    In the Matter of George Blumenthal et al., Respondents, against Ferdinand Q. Morton et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants, and Miguel Koty, on Behalf of Himself and Others Similarly Situated, Interveners, Appellants.
    Argued June 2, 1948;
    decided July 16, 1948.

      John P. McGrath, Corporation Counsel (Seymour B. Quel and Angela B. Parisi of counsel), for Municipal Civil Service Commission, appellant.

      Paul Windels and David B. Tolins for interveners, appellants.

      Eugene A. Sherpich and Bichard T. Davis for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John M. Dunn, Andrew Sheridan, alias Andrew Thomas, and Daniel Gentile, alias Danny Brooks, Appellants.
    Argued June 3, 1948;
    decided July 16, 1948.

      Henry Epstein, Hyman Barshay and Beatrice Kastenbaum for John M. Dunn, appellant.

      Samuel Bader and David L. Malbin for Andrew Sheridan, appellant.

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

      Frank S. Hogan, District Attorney (Whitman Knapp and William Hoppen of counsel), for respondent.
   Judgments of conviction affirmed; no opinion. [See 298 N. Y. 706, 865, 929.]

Concur: LoughraN, Ch. J., Lewis, DeskoND, Thacher, and Euld, JJ. Taking no part; CoNway, J.


text:
    In the Matter of the Adoption of Michael B. Willing, an Infant. Henry E. Hirsch, Appellant; Lewis M. Willing, Respondent.
    Argued June 7, 1948;
    decided July 16, 1948.

      Doris Byrne and Isidor G. Popih for appellant.

      Edward B. Willing for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Claim of Balsom, Respondent, against American Biscuit Co. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted June 9, 1948;
    decided July 16, 1948.

      Jeremiah F. Connor for appellants.

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

Concur: LoughRáN, Cb. J., Lewis, DesmoND, Thacheh, Dye and Fuld, JJ. Taking no part: J.


text:
    Long Island Lighting Company, Respondent, v. Village of Old Brookville et al., Appellants.
    Argued June 10, 1948;
    decided July 16, 1948.

      Theodore V. Summers and Stoddard B. Colby for appellants.

      Charles G. Blakeslee, David S. Hill, Jr., Philip Huntington and Charles J. Tomick for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: LotjghraN, Ch. J., Lewis, Thacher, Dye JJ. Taking no part: CoNway, J.


text:
    In the Matter of James J. Kaney et al., Appellants, against New York State Civil Service Commission et al., Respondents.
    Argued June 11, 1948;
    decided July 16, 1948.

      Leonard N. Lakser for appellants.

      Emil Cohen for respondents.
   Appeal dismissed, without costs, on the ground that the asserted constitutional questions are not directly involved in the decision- appealed from. (Cf. Matter of Levy, 255 N. Y. 223, 226; Matter of Smith v. Cole, 296 N. Y. 614.) No opinion.

Concur: Loughrah, Ch. J., Lewis, DesmoNd, Thachee, Dim and Fuld, JJ. Taking no part; J.