text:
    Morris Barth, Individually and on Behalf of Others, Respondent, v. The Addie Co., Inc., Appellant, and Harry Sherman, as President of Moving Picture Machine Operators Union of Greater New York, Local No. 306 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Respondent.
    (Submitted May 18, 1936;
    decided May 26, 1936.)
   Motion for reargument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 271 N. Y, 31.)


source: Caselaw Access Project

license: Public Domain

text:
    William C. Heaton et al., Doing Business under the Firm Name of W. C. Heaton and Company, Respondents, v. City of Cohoes, Appellant.
    (Submitted May 18, 1936;
    decided May 26, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 222.)


text:
    Olshansky Brothers, Inc., Respondent, v. Samuel Schwartz et al., Appellants, and Philip Spina et al., Respondents, Impleaded with Another.
    (Submitted May 18, 1936;
    decided May 26, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 662.)


text:
    In the Matter of John M. Kelly, Appellant, against William F. Morgan, Jr., as Commissioner of Public Markets of the City of New York, Respondent.
    (Submitted May 18, 1936;
    decided May 26, 1936.)

      Paul Windels, Corporation Counsel (.Arthur B. Hoff, Jr., of counsel), for motion.

      Alfred J. Talley opposed.
   Motion granted and appeal dismissed, with, costs and ten dollars costs of motion.


text:
    Joseph Sager, Respondent, v. Henry Friedman et al., Appellants, and Kaufwein Realty Co., Inc., Respondent.
    (Submitted May 18, 1936;
    decided May 26, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 472.)


text:
    Coral Gables, Inc., Appellant, v. Harry F. Mayer, Respondent.
    (Submitted May 18, 1936;
    decided May 26, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 670.)


text:
    The People of the State of New York ex rel. Fred Rothermel, Respondent, v. Thomas H. Murphy, as Warden of Clinton Prison, Appellant.
    (Argued May 18, 1936;
    decided May 26, 1936.)

      Fred Rothermel, in person, for motion.

      John J. Bennett, Jr., Attorney-General (Caleb Candee Brown, Jr., of counsel), opposed.
   Motion denied.


text:
    Blanche Hurley, Appellant, v. The Board of Education of the City of New York et al., Respondents.
    (Submitted May 18, 1936;
    decided May 26, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 275.)


text:
    The People of the State of New York ex rel. C. Handasyde Whitney, Appellant, against Mark Graves et al., as Tax Commissioners of the State of New York, Respondents.
    (Submitted May 25, 1936;
    decided May 26, 1936.)
   Motion to amend the remittitur granted and remittitur amended by adding thereto the following: “ Upon the appeal herein the relator contended that the assessment of a tax against relator under sections 351 and 351-a of the Tax Law of the State of New York contravenes the Fourteenth Amendment of the Federal Constitution as an extraterritorial tax, and such question was presented and necessarily passed upon but not sustained by the court.” (See 271 N. Y. 594.)


author: Per Curiam.

text:
    Yvonne A. Cotnareanu et al., Respondents, v. National City Bank of New York et al., Appellants.
    (Argued April 16, 1936;
    decided June 2, 1936.)

      John W. Davis, Russel S. Coutant, Edwin F. Blair, Frederick G. Watson, Jr., and Robert W. Dew for John F. Woods, appellant.

      Carl A. Mead, S. S. Jennings, Jr., William H. Reeves and Frank A. F. Severance for National City Bank of New York et al., appellants.

      Samuel Seabury, Francis L. Kohlman and George Trosk for respondents.
   Per Curiam.

The questions presented on this appeal are identical with the questions in Cotnareanu v. Chase National Bank (271 N. Y. 294), decided herewith. The orders should be modified in accordance with the opinion in that case and, as so modified, affirmed, with separate bills of costs in all courts to the appellants. The first question certified by the order granting leave to appeal to the defendant John F. Woods should be answered in the negative; the second question thereby certified should be answered in the affirmative. The second question certified by the order granting leave to appeal to the other defendants should be answered in the affirmative; the other questions thereby certified should be answered in the negative.

Crane, Ch. J., Lehman, O’Brien, Crouch and Loughran, JJ., concur; Hgbbs and Finch, JJ., taking no part.

Ordered accordingly.


text:
    International Mutoscope Reel Co., Inc., et al., Appellants, v. Lewis J. Valentine, Individually and as Police Commissioner of the City of New York, Respondent.
    (Argued May 18, 1936;
    decided June 2, 1936.)

      Arthur J. W. Hilly, Robert H. Sterling and Joseph Sterling for appellants.

      Paul Windels, Corporation Counsel (Paxton Blair, Alvin McKinley Sylvester and Charles C. Weinstein of counsel), for respondent.
   Judgment affirmed, with costs, upon the ground that the case is not one for a declaratory judgment. No opinion.

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


text:
    In the Matter of the Will of Samuel Smyth, Deceased. Samuel Smyth, Jr., et al., as Executors of Samuel Smyth, Deceased, et al., Appellants; David W. Smyth, Deceased, Respondent.
    (Argued May 18, 1936;
    decided June 2, 1936.)

      James A. Dayton for appellants.

      Ralph Royall and James G. Holland for respondent.
   Order affirmed, with costs to both parties payable out of the estate. No opinion.

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


text:
    In the Matter of the Application of the Board of Transportation of the City of New York to Acquire Interests in Real Property at the Corner of Fulton and Jay Streets in the Borough of Brooklyn. William A. Russo, Appellant; The City of New York, Respondent.
    (Argued May 18, 1936;
    decided June 2, 1936.)

      Bertram Boardman for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Alexander S. Aleinihoff of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Paul Jones, Respondent, against Charles A. Harnett, as Commissioner of Motor Vehicles, Appellant, Impleaded with Others.
    (Argued May 18, 1936;
    decided June 2, 1936.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Robert P. Beyer and Charles A. Schneider of counsel), for appellant.

      William T. Griffin and James J. Doyle for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Salvatore Camercio et al., Respondents, against James E. Finegan, Individually and as President of the Municipal Civil Service Commission of the City of New York, et al., Defendants, and Patrick Finnegan, Intervenor, Appellant.
    (Argued May 18, 1936;
    decided June 2, 1936.)

      Joseph A. Me Ñamara for appellant.

      David S. Romanov, Edward T. Beldegreen, Jacob Nass and Philip Bernstein for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    Catharine U. Kabatt, Appellant, v. The Board of Education of the City of Elmira, Respondent.
    (Argued May 19, 1936;
    decided June 2, 1936.)

      Anthony Kabatt for appellant.

      Halsey Sayles for respondent.
   Appeal dismissed, with costs. We find no constitutional question involved. No opinion.

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


text:
    In the Matter of Robert Keenan et al., Appellants, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    (Argued May 19, 1936;
    decided June 2, 1936.)

      Albert De Roode for appellants.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri and Paxton Blair of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Arverne Bay Construction Company, Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, et al., Respondents.
    (Argued May 19, 1936;
    decided June 2, 1936.)

      John P. McGrath and Edward A. Richards for appellant. Paul Windels, Corporation Counsel (Seymour B. Quel, Paxton Blair and Silas S. Lippmann of counsel), for Board of Standards and Appeals, respondent.

      Charles H. Pier for Dentave Realty Corporation, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of William Witte, Deceased. William J. Witte, Appellant; E. Marguerita Witte, as Executrix of William Witte, Deceased, Respondent.
    (Argued May 19, 1936;
    decided June 2, 1936.)

      Samuel Wasserman and Walter L. Bunnell for appellant.

      Fred L. Gross, Frederick A. Keck and Harry W. Moore for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of Terijon Weitling, Appellant. Julian A. Gregory et al., Copartners under the Firm Name of Gregory, Stewart & Montgomery, Respondents.
    (Argued May 19, 1936;
    decided June 2, 1936.)

      Milo 0. Bennett and F. Campbell Jeffery for appellant.

      W. Randolph Montgomery, Ben A. Matthews and Charles G. Stevenson for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The Chase National Bank of the City of New York, Respondent, v. Mary Turner et al., Defendants, and Kathleen N. O’D. Candee, Individually and as Executrix of William F. S. Hart, Deceased, Appellant.
    (Submitted May 25, 1936;
    decided June 2, 1936.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 269 N. Y. 397.)


text:
    Town of North Hempstead, Appellant, v. Myra C. Harper, as Administratrix of the Estate and as Trustee under a Trust of Wesley Harper, Deceased, et al., Respondents.
    (Submitted May 25, 1936;
    decided June 2, 1936.)

      Hartford N. Gunn for motion.

      Charles H. Kelby, Tracy S. Voorhees and Lawrence C. Hull, Jr., opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the questions sought to be reviewed cannot be raised on appeal.


text:
    W. A. Brockhurst Company, Inc., Respondent, v. The City of Yonkers et al., Appellants, and Thomas McVicar et al., Respondents, Impleaded with Another.
    (Submitted May 25, 1936;
    decided June 2, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 270 N. Y. 459.)


text:
    In the Matter of the Will of William Carroll, Deceased. Ralph C. Carroll, Appellant; Ralph C. Carroll, Jr., et al., Respondents.
    (Submitted May 25, 1936;
    decided June 2, 1936.)

      Daniel J. Mooney for motion.

      Benjamin F. Schreiber opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements as unnecessary. (Cf. Tague Holding Corp. v. Harris, 250 N. Y. 557.)


text:
    In the Matter of Abraham Finkel, Appellant, against Philip J. McCook, a Justice of the Supreme Court of the State of New York, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Terence J. McManus, Hugo I. Epstein and Edward Bohr for appellant. ■

      William C. Dodge, District Attorney (William B. Herlands, Thomas E. Dewey and Edward C. McLean of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Claim of Frank Stoddard, Respondent, against Clifford Stoddard et al., Appellants. State Industrial Board, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      F. A. W. Ireland for appellants.

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

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


text:
    In the Matter of the Claim of Catherine Costello, Respondent, against Frederick H. Levey Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Frank L. Ward for appellants.

      Paul J. Carr for claimant, respondent.

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

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


text:
    In the Matter of the Claim of the Industrial Commissioner, Respondent, against Underwood Elliott Fisher Co. et al., Appellants. State Industrial Board, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Frank L. Ward for appellants.

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

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


text:
    In the Matter of the Claim of Nathan Schwartz, Respondent, against The Jacobs Bros. Co., Inc., et al., Appellants. State Industrial Board, Respondent.
    (Submitted May 20, 1936;
    decided June 5, 1936.)

      Jeremiah F. Connor for appellants.

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

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


text:
    In the Matter of the Claim of Fred Wood, Respondent, against Seneca Iron and Steel Company et al., Appellants. State Industrial Board, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Horace C. Winch for appellants.

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

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


text:
    In the Matter of the Claim of Beatrice Davis, Respondent, against Edward J. Anderson et al., Appellants. State Industrial Board, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Charles P. Barre for appellants.

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

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


text:
    In the Matter of the Claim of Eleanor M. Brophy, against The Prudential Insurance Company of America, Appellant. State Industrial Board, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Manly Fleischmann and Alger A. Williams for appellant.

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

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


text:
    In the Matter of the Will of Charles Bartels, Deceased. Amelia B. Antony, Appellant; Elsa Bartels, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Terence J. Mullen and William H. Amend for appellant.

      Ivan E. Maginn for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Frederick Starr Contracting Company, Appellant, against August N. Gandia, as Treasurer of the City of Long Beach, Respondent.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Leo Guzik and Irving G. Warshaw for appellant.

      David B. Tolins, Corporation Counsel, for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Ramon Flores, Appellant.
    (Argued May 20, 1936;
    decided June 5, 1936.)

      Marc Hermelin, Max Bollt and Bernard Reiss for appellant.

      William Copeland Dodge, District Attorney (Felix C, Benvenga of counsel), for respondent.
   Judgment of conviction affirmed. No opinion.

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


text:
    In the Matter of The Westchester Electric Railroad Company et al., Respondents, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Appellants.
    (Argued May 21, 1936;
    decided June 5, 1936.)

      Sherman C. Ward and Russell B. Burnside for appellants.

      Alfred T. Damson, Addison B. Scoville and Victor McQuistion for respondents.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    The People of the State of New York ex rel. Nile E. Vail, Appellant, against Thomas H. Murphy, as Warden of Clinton Prison, Respondent.
    (Argued May 21, 1936;
    decided June 5, 1936.)

      Harold P. Hartrath for appellant.

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune and Caleb Cabdee Brown, Jr., of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Estate of Wilhelmina Schmidt, Deceased. Louisa Neubauer, as Administratrix with the Will Annexed of the Estate of Adolph Schmidt, Deceased, Appellant; John J. McInerney, as Executor of Wilhelmina Schmidt, Deceased, Respondent.
    (Argued May 21, 1936;
    decided June 5, 1936.)

      Charles B. Bechtold for appellant.

      John J. Mclnerney, in person, for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Charles M. Gibbs, Appellant, v. Tilgey Realty Corporation et al., Defendants, and Nathan Gold, Respondent.
    (Submitted May 21, 1936;
    decided June 5, 1936.)

      Effingham, L. Holywell for appellant.

      Benjamin Gross for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Morris Apter, Appellant, v. The Equitable Life Assurance Society of the United States, Respondent.
    (Argued May 21, 1936;
    decided June 5, 1936.)

      Isadore Rotheriberg for appellant.

      William G. Birmingham for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. William Sherman, Appellant.
    (Submitted May 22, 1936;
    decided June 5, 1936.)

      Howard Hilton Spellman for appellant.

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

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


text:
    In the Matter of the Claim of Anna Yannish, Appellant, against The New York Central Railroad Company, Respondent.
    (Argued May 22, 1936;
    decided June 5, 1936.)

      Charles J. O’Brien, Henry Redman Dutcher and Leonard Marafioti for appellant.

      Robert E. Whalen for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Clyde H. Sanford et al., Doing Business under the Firm Name of Stevens & Sanford, Respondents, v. Globe Brewing Company, Appellant.
    (Argued May 22, 1936;
    decided June 5, 1936.)

      William, R. Goldbas for appellant.

      Richard P. Byrne for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The City of Buffalo, Appellant, v. New York Central Railroad Company, Respondent.
    (Argued May 25, 1936;
    decided June 5, 1936.)

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

      Howard R. Sturtevant and Richard L. Wolf for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    E. T. C. Corporation, Respondent, v. Title Guarantee and Trust Company, Appellant.
    (Submitted June 1, 1936;
    decided June 5, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 271 N. Y. 124.)


text:
    In the Matter of Saul Kallman, Appellant, against Charles Gold, as Mayor and as Commissioner of Public Works of the City of Long Beach, et al., Respondents.
    (Submitted June 1, 1936;
    decided June 5, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 271 N. Y. 541.)


text:
    The Chase National Bank of the City of New York, as Successor Trustee under a Deed of Trust, Respondent, v. Chicago Title and Trust Company, as Executor of Edith R. McCormick, Deceased, et al., Appellants, and Fowler McCormick et al., Respondents, Impleaded with Others.
    (Submitted June 1, 1936;
    decided June 5, 1936.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 271 N. Y. 602.)


text:
    In the Matter of the Claim of Robert Bosdyck, Respondent, against Rochester Folding Box Company et al., Appellants. State Industrial Board, Respondent.
    (Submitted June 1, 1936;
    decided June 5, 1936.)
   Motion to amend remittitur 'denied. In its present form the remittitur awarded one bill of costs to be divided equally between the claimant and the State Industrial Board; each respondent, however, being entitled to tax disbursements. (See 271 N. Y. 549.)


text:
    In the Matter of The Bank of United States in Liquidation. Edward J. Quintal et al., as Trustees in Bankruptcy of Consolidated Factors Corporation, Appellants; Joseph A. Broderick, as Superintendent of Banks of the State of New York, Respondent.
    (Submitted June 1, 1936;
    decided June 5, 1936.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: "A Federal question was involved to the extent that it was decided that section 11-d of the National Bankruptcy Act did not apply to section 72 of the Banking Law of the State of New York, and was not in conflict with it, as that law was not a statute of limitations but contained a condition precedent to the filing of a claim.” (See 269 N. Y. 578.)


text:
    Mildred Terris, Respondent, v. Julian Food Corporation, Appellant, Impleaded with Others.
    (Submitted June 1, 1936;
    decided June 5, 1936.)

      Nathan J. Gottlieb for motion.

      Meyer Kivowitz and Adam Frank opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    In the Matter of Linden Farms Milk and Cream Co., Inc., Appellant, against Peter G. Ten Eyck, as Commissioner of the Department of Agriculture and Markets of the State of New York, Respondent.
    (Submitted June 1, 1936;
    decided June 5, 1936.)

      Henry S. Manley for motion.

      Herbert L. Maltinsky and Harry L. Marcus opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The City of New York, Appellant and Respondent, v. Isaac T. Flatto et al., Appellants, and Kittanning Sales Company, Inc., Respondent and Appellant.
    (Submitted June 1, 1936;
    decided June 5, 1936.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by providing that the defendant Flatto have costs in this court and in the Appellate Division against the defendant Kittanning Sales Company, Inc. (See 271 N. Y. 244.)


text:
    Marian S. Honeyman, Appellant, v. Herbert G. Hanan, as Executor of Herbert W. Hanan, Deceased, Respondent.
    (Submitted June 1, 1936;
    decided June 5, 1936.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: “A question under the Federal Constitution was presented and necessarily passed upon by this court. The plaintiff contended that chapter 794 of the Laws of the State of New York, enacted in 1933, as amended (Sections 1083-a and 1083-b of Civil Practice Act), impair the obligations of contracts, and thus violate article 1, section 10, of the Constitution of the United States. This court held that such laws do not violate said provision of article 1, section 10, of the Constitution of the United States.” (See 271 N. Y. 664.)


text:
    Alice C. Dickinson, Respondent, v. George E. Dickinson, Appellant. Cora S. Dickinson et al., Appellants; Frederic H. Cowden, as Receiver for the Benefit of Alice C. Dickinson, Respondent.
    (Submitted June 3, 1936;
    decided June 5, 1936.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 271 N. Y. 168.)


author: Hubbs, J.

text:
    In the Matter of City Bank Farmers Trust Company, as Trustee, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.

      (Argued June 2, 1936;
    decided July 8, 1936.)

      Rollin Browne, C. Alexander Capron and Carter T. Louthan for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   Hubbs, J.

The Farmers’ Loan and Trust Company, appellant’s predecessor, entered into a trust agreement with all present and future holders of certificates issued and to be issued ” thereunder, by which it established an investment fund known as The Farmers’ Loan and Trust Company Investment Fund (Number 1),” to consist of “ all sums which have been and which may hereafter be received by the trustee hereunder, which shall be held and managed by the trustee upon the terms and conditions ” set forth in the agreement. The trustee reserved the right to receive subscriptions to the fund in such amount or amounts and from such person or persons as the trustee in its discretion ” might deem desirable and each subscriber specifically agreed and recognized “ that such subscription shall be comingled, held, managed and invested with all other subscriptions as a single fund.” The legal title to the fund was vested in the trustee and the registered owners of certificates were deemed to be the owners of an equitable beneficial interest in the investment fund.” The fund was divided into shares of $100, each subscriber receiving a certificate. Management of the fund was exclusively within the hands of the trustee. The agreement named an auditor. The auditor was the representative of the certificate holders and provision was made for the naming by them of subsequent appointees.

The certificates were not transferable, except by assignment. An assignee could only require redemption of certificates held. In the case of death of a certificate holder his certificate could only be redeemed or assigned for redemption by his” personal representatives. The certificate holders were made liable for taxes required to be paid on income derived from the investment fund, other than income taxes. For taxes paid the trustee shall be entitled to reimbursement out of the investment fund.”

While the agreement contained many details, the foregoing fairly states the plan of operation of the fund. Its purpose was to obtain the greater security in the investment of their funds which will result if the funds of such clients so requiring investment are consolidated and invested as a single fund, thus giving to each investor greater diversity than would be practicable if such funds were invested separately.”

During the years 1928 to 1932 the trustee handled securities which ranged in value from $4,126,966.97 in 1928 to $2,980,499.29 in 1931. It realized profits of $125,921.96 during 1928 and $437,593.20 during 1929. It suffered losses during the year 1930 of $176,707.58 and during 1931 of $567,242.08. The State Tax Commission assessed certain taxes against appellant.

The questions presented are, first, whether the instant trust is an entity which the Legislature intended to tax under article 9-A of the Tax Law (Cons. Laws, ch. 60), and, second, if so, whether the statute violates the due process or equal protection clauses of the State and Federal Constitutions.

Sections 208 and 209 of the Tax Law provide:

“ § 208. Definitions. As used in this article:

1. The term corporation includes a joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by certificate or other written instrument; * * *.
§ 209. Franchise tax on corporations based on net income. For the privilege of exercising its franchise in this state in a corporate or organized capacity every domestic corporation, and for the privilege of doing business in this state, every foreign corporation, except corporations specified in the next section, shall annually pay in advance * * ■ * an annual franchise tax, to be computed by the tax commission upon the basis of its entire net income. * * * ”

The appellant contends that the trust possesses none of the essential characteristics of a quasi-corporation and does not operate in an organized capacity. That it was in fact conducting a business is reasonably clear. With profits and losses from the sale of securities in the amounts as stated above and the numerous transactions from which those profits and losses resulted, it was doing more than merely investing and reinvesting the trust fund and collecting and distributing the income as in an ordinary trust. The purpose of the trust Was to procure a greater income and security of investment by the commingling of the funds and their administration as a unit. The broad powers given to the trustee indicate that it was not the purpose of the. investors to limit the management of the fund to the receipt and distribution of income, with only incidental power to change investments and reinvest funds resulting from sales of securities. The purpose of the investors that the trustee shall engage in the business of buying and selling securities is clear, not only from the trust agreement but from the manner in which the fund was handled. If instead of investing their funds in such a trust the investors had incorporated and conducted similar transactions, the corporation would clearly have been engaged in business.”

The question is, therefore, as to whether the business so conducted was conducted in a corporate or organized capacity. The appellant contends that because the certificate holders delegated to the trustee the entire management without reserving the right of substitution of such trustee or to control its action, and because the certificates were transferable only* in a limited way, the relation between the subscribers falls short of constituting an association.

The statute says nothing about transferability of certificates. The wording is interest or ownership is evidenced by certificate or other written instrument.”

It is also clear from a consideration of the terms of the trust agreement that there was an association ” of the certificate holders. They were to be entitled to meet and select an auditor who was to represent them in the examination and auditing of the accounts of the trustee. Their relations to each other differed from the ordinary relation of stockholders to a corporation and its directors, but it cannot be said that the certificate holders were not operating to a degree in an organized capacity. It is quite clear that the certificate holders, through a trustee, were conducting a business in an organized capacity..

That such a conclusion is correct is substantiated in principle by recent decisions in this State and in the Federal courts dealing with taxes of various kinds imposed upon trusts having somewhat similar features.

In People ex rel. Guaranty Trust Co. v. Lynch (265 N. Y. 593) we considered a franchise tax assessed under article 9-A of the Tax Law against United States Shares Corporation, Assignatory Corporation, Series A,” an investment trust, created by an agreement which provided that the grantor would transfer certain designated units of stock to the trustee and that the trustee would hold the stocks upon the trust set forth in the agreement and upon, receipt of each unit would deliver to the grantor 1,000 trust shares or certificates of beneficial interest. The trustee was to hold the securities constituting the trust res, to collect the dividends paid thereon, and to make a semi-annual distribution thereof to the certificate holders. The stock held by the trustee could be sold under certain designated conditions and if sold the proceeds were to be reinvested in other stock or held by the trustee and credited to the proper unit. The questions presented were whether the trust involved was in fact doing business in this State and, therefore, subject to the franchise tax. We affirmed the final determination of the Tax Commission assessing franchise taxes. The trustee was in fact a corporation, but the tax was not assessed upon it as a corporation but upon the income of the trust.

The appellant says that there the trust possessed two important distinguishing characteristics of the corporate form of organization which are absent in the case at bar — that there the certificates of beneficial interest were transferable, giving to the organization a freely shifting personnel and a continuity of existence as a separate entity. In that case, as in the instant case, the tax was not upon a corporation but upon an investment fund in which the corporation had an interest and which it handled or caused to be handled in a quasi-corporate form. The difference, if difference of importance exists, is only in matter of degree.

In that case the certificates Were assignable or transferable to a limited extent, that is, to other trusts represented in the fund, and there was a different period of existence of the trust, resulting from the assignability of certificates, not present in the case at bar. Since, however, the certificates were transferable to other trusts only, the life of the fund could be perpetual only if new trusts continued to be added, which is the situation here. The statute does not require that the certificates be transferable to constitute doing business, and there is no requirement that the existence of the organization shall be perpetual. The life of the organization in the case at bar was dependent upon the will of the trustee. Despite the power existing in the trustee to terminate the trust, the fact remains that while it continued to conduct the business of the trust, the organization and association of the certificate holders continued, and during such period the fund continued to possess, to a limited degree, some of the features of corporate organizations. Its members were not a partnership. The fund and the trustee alone were responsible to creditors. That the franchise tax does not apply to an ordinary trust but is intended to reach a business of the nature of that conducted under the trust in the case at bar has been decided in the Guaranty Trust Company case and there is nothing in the facts of that case which affords a ground for the contention that the tax is not applicable in the circumstances here involved.

In Brooklyn Trust Co. v. Commissioner of Internal Revenue (80 Fed. Rep. [2d] 865, 868; certiorari denied April 13, 1936, 298 U. S. 659) the Circuit Court of Appeals had under consideration the appHcability of the Federal income tax (Revenue Act, 1928 ; 45 U. S. Stat. 878) to Composite Fund, Series A,” established by the Brooklyn Trust Company for the purpose of handling a composite fund made up of trust funds of individual investors. The fund was divided into units of a face value of $100. The certificates were assignable to other trusts of the bank and were redeemable in cash at the option of the bank or holder. The bank had no interest in the composite fund and received no compensation for managing it, although it did receive commissions for acting as trustee under each personal trust. It made a large number of purchases and sales each year. The statute provided that the tax should be applicable to an association and Judge Mantón, speaking for a majority of the court, held the trust to be an association within the meaning of the act. He said: To keep such a fund invested in securities to the best advantage was to engage in business in the fullest sense. * * * The fact that there is but one trustee does not preclude the finding that an association exists between the investors and their trustees or among the investors alone. * * * Moreover, the composite fund is separable from the individual trust estates from which the money invested in the fund came.”

While in that case the tax involved was the Federal income tax, the decision is authority to the effect that the trust here involved was doing business in an organized capacity. That the decision is in harmony with the attitude of the United States Supreme Court is evidenced by a series of cases involving the Federal Income Tax Law, recently decided with opinions by the Chief Justice.

In Morrissey v. Commissioner of Internal Revenue (296 U. S. 344, 357) the Chief Justice reviewed at length the history of the legislation leading up to the act in question and stated that the question was not one of the power of Congress to impose the tax upon the petitioners but was simply one of statutory construction. He said: But the nature and purpose of the cooperative undertaking will differentiate it from an ordinary trust. In- what are called ' business trusts ’ the object is not to hold and conserve particular property, with incidental powers, as in the traditional type of trusts, but to provide a medium for the conduct of a business and sharing its gains. Thus a trust may be created as a convenient method by which persons become associated for dealings in * * * securities or other personal property; * * * where those who become beneficially interested * * * seek to share the advantages of a union of their interests in the common enterprise. * * * The inclusion of associations with corporations implies resemblance; but it is resemblance and not identity. * * * it cannot be considered to be essential to the existence of an association that those beneficially interested should hold meetings or elect their representatives. Again, while the faculty of transferring the interests of members without affecting the continuity of the enterprise may be deemed to be characteristic, the test of an association is not to be found in the mere formal evidence of interests or in a particular method of transfer.”

In Helvering v. Coleman-Gilbert Associates (296 U. S. 369, 373), an income tax case, the court held that the trust constituted an association within the meaning of the Revenue Act; that a few persons as well as many may form an association to conduct a business for their common profit; that the absence of provision for control by the beneficiaries was not determinative; that the fact that the enterprise was confined to dealings in real property, its management and improvement, did not prevent its being classed as an association, and that the fact that there had been no meetings and no records, and the acts of the trustees were not determined by a majority vote, or that they had conducted the business in the same manner as before the trust was formed, did not change the character of the enterprise. The court said: “ The significant resemblance to the action of directors does not he in the formalities of meetings or records but in the fact that, by virtue of the agreement for the conduct of the business of a joint enterprise, the parties have secured the centralized management of their undertaking through designated representatives.” (See, also, Swanson v. Commissioner of Internal Revenue, 296 U. S. 362; Helvering v. Combs, 296 U. S. 365; Hecht v. Motley, 265 IT. S. 144.)

We have reached the conclusion that the trust is a business enterprise of the kind contemplated by the act and has been properly taxed as such. It should be noted that our statute is much broader than the statutes under consideration in the Federal cases.

To the remaining question as to whether, if the statute be construed as imposing a tax upon the trustee, it is to that extent void and unconstitutional in that it attempts to deprive the trustee and the beneficiaries of their property without due process of law and denies to them the equal protection of the laws, in violation of the provisions of the Fourteenth Amendment to the United States Constitution and section 6 of article I of the New York Constitution, the answer seems clear. No tax has been imposed upon the trustee. The tax imposed is upon the business conducted by the trustee. (State Board of Tax Commissioners V. Jackson, 283 U. S. 527.)

In People ex rel. Salisbury Axle Co. v. Lynch (259 N. Y. 228, 240) the court said: “ as was said in New York v. Latrobe (279 U. S. 421, 427): ‘Although permissible, a franchise tax need not be based solely on the amount of business done or property owned within the State. It may be rested on the nature of the business * * * or the particular form in which it is carried on * * * so long as it bears some * * * relationship to the privilege granted or to the protection of the interests of the State.’-”

The facts in this case do not distinguish it from the trust under consideration in People ex rel. Guaranty Trust Co. v. Lynch (supra). The situation in the two cases is practically identical. The differences are of degree rather than of character, and the purpose of the trust in each case was the same, to procure management of individual trust funds by having them commingled and handled as a single fund for the purpose of producing greater profit and income.

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

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

Order affirmed.


author: Crane, Ch. J.

text:
    In the Matter of Central High School District No. 1 of the Town of Hempstead et al., Respondents, against Union Free School District No. 13 of the Town of Hempstead et al., Appellants.
    (Argued June 4, 1936;
    decided July 8, 1936.)

      Raymond Reisler for appellants.

      William J. Sullivan for respondents.
   Crane, Ch. J.

Appellant, Union Free School District, owed respondent, Central High School District, the sum of $15,000, and on March 3, 1933, delivered to respondent a check dated March 1 for that amount, drawn on the Bank of Valley Stream, which is a State banking institution, and in which appellant, Union Free School District, then had a balance of $39,000. Respondent deposited it for collection in the Valley Stream National Bank and Trust Company, and on the same day, March 3, that bank presented it for payment to the drawee, Bank of Valley Stream, which stamped it paid, debited the amount of the check against appellant’s account and delivered to the Valley Stream National Bank and Trust Company a draft drawn upon the Chase National Bank payable to the order of the collecting bank which the Valley Stream National Bank and Trust Company forwarded to the Federal Reserve Bank in New York for collection. The collecting bank credited respondent’s account with the amount of the check. The draft was never paid. The following day, March 4, all banks of the State were closed by proclamations of the Governor and the President. The draft on the Chase Bank was returned and the drawee bank canceled its entry of payment of the check. Later the Superintendent of Banks took over the Bank of Valley Stream, the drawee bank, for liquidation.

The issue of law is whether the acceptance of the draft by the collecting bank discharged the drawer of the check, and the courts below, relying upon Thomas v. Supervisors of Westchester County (115 N. Y. 47), have held that it did not.

I do not consider Thomas v. Supervisors of Westchester County (supra) to lay down any rigid rule that a collecting bank may accept a draft instead of cash as payment. The duty of the collecting bank has always been to accept cash, and I do not understand that we in this State have taken a definite and final stand that collecting banks may accept upon the presentation of checks or drafts other checks or drafts in payment. The Thomas case involved many facts which distinguished it from People ex rel. Port Chester Sav. Bank v. Cromwell (102 N. Y. 477), and Judge Finch, in writing his opinion, states these facts, including a statement that there was no agreement that a draft should be considered payment. This, however, I take it does not establish the rule that there must always be an agreement to accept a draft as payment before it will be considered such. One of the leading facts in. the Thomas case was that the draft was worthless when it was received, and Judge Finch discusses this fact at length in calling it a mistake of fact regarding the worth of the draft. No reason exists why our court should not be in harmony with the almost universal rule as expressed in Federal Reserve Bank v. Malloy (264 U. S. 160).

That this is the law of our State is quite clear to my mind, by reason of article 19-A of the Negotiable Instruments Law (Cons. Laws, ch. 38), section 350-1, subdivision 2: “ Except in cases where an item or items is treated as dishonored by nonpayment as provided in section three hundred and fifty-j, when a drawee or payor bank has presented to it for payment an item or items drawn upon or payable by or at such bank and at the time has on deposit to the credit of the maker or drawer an amount equal to such item or items and such drawee or payor shall fail or close for business as above, after having charged such item or items to the account of the maker or drawer thereof or otherwise, discharged his liability thereon but without such item or items having been paid or settled for by the drawee or payor either in money or by an unconditional credit given on its books or on the books of any other bank, which has been requested or accepted so as to constitute such drawee or payor or other bank debtor therefor, the assets of such drawee or payor shall be impressed with a trust in favor of the owner or owners of such item or items for the amount thereof, or for the balance payable upon a number of items which have been exchanged, and such owner or owners shall be entitled to a preferred claim upon such assets, irrespective of whether the fund representing such item or items can be traced and identified as part of such assets or has been intermingled with or converted into other assets of such failed bank.”

How can there possibly be a preference given in the nature of a trust upon the drawee’s or payor’s assets if there has been no payment in effect, and the original debtor is still liable for the full amount of the debt which he has paid or is supposed to have paid by the original check or draft? The inconsistency between giving this preference against the funds of the drawee bank and considering all the transactions as though they had never happened, and the original debtor Hable as though no paper had ever existed is, to my mind inexpHcable, unless the drawee’s draft was payment of the original debt.

The orders of the Appellate Division and of the Special Term should be reversed and the application for an order of mandamus denied, with costs in all courts.

Lehman, Hubbs and Finch, JJ., concur; O’Brien, Crouch and Loughran, JJ., dissent.

Orders reversed, etc.


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    In the Matter of the Application of George J. Gillespie et al., Constituting the Board of Water Supply of the City of New York, Appellants, to Acquire Real Property in the Towns of Shandaken, Woodstock and Olive. The New York Central Railroad Company, Respondent.

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

      Paul Windels, Corporation Counsel (George S. Parsons, Paxton Blair and John D. Van Wagoner of counsel), for appellants.

      Harry H. Flemming for respondent.
   Crane, Ch. J.

The Board of Water Supply of the City of New York on the 8th day of October, 1935, petitioned the Supreme Court for the appointment of commissioners to condemn certain rights in lands and the Esopus creek for use by the city for its water supply. All power for these proceedings is given by chapters 723 and 724 of the Laws of 1905, as amended. The Corporation Counsel prepared and presented this petition at the command of the court. On September 21, 1934, a peremptory order of mandamus was made at Special Term directing him to file maps and apply for the appointment of commissioners “ to hear and determine claims for any and all legal damages to person or property, whether direct or indirect, caused by the increased flow in the Esopus Creek, resulting from the additional quantities of water therein, caused by the water from the tunnel, and the approval and execution of the plans of the said City of New York, as provided for by Chapters 723 and 724 of the Laws of 1905 as amended.”

The petition stated the rights in and to Esopus creek and the adjoining property sought to be taken and to be valued as follows: “ The right in perpetuity to interfere with or otherwise affect the natural and usual flow of the waters of the Esopus Creek in that portion of said Creek lying between the point in the Town of Shandaken, Ulster County,. New York, where the outlet of the Schoharie Water Tunnel, maintained by the Department of Water Supply, Gas and Electricity of the City of New York, joins said Esopus Creek and the point southerly therefrom, where said Esopus Creek flows into the Ashokan Reservoir in the Town of Olive, Ulster County, New York, to the extent that such natural and usual flow of the waters of said Creek is, or may hereafter be, interfered with or otherwise affected by the induction into said Creek, in the portion thereof above described, either continuously or from time to time, and in such quantities as the operating needs of such Department may require, of the water of said Schoharie W ater Tunnel, not exceeding the maximum flow of water which may be carried or conducted through the said tunnel; such tunnel having a height of 11-1 /2 feet and a width of 10 feet, three inches, an elevation at its northerly end of 1050 feet and at its southerly end of 970 feet, both above mean sea level of the Atlantic Ocean; a slope southerly of 4.4 feet per mile, and a maximum capacity of about 687,000,000 gallons daily, flowing at a maximum rate of about 1063 cubic feet per second.”

This description was well understood as the user sought to be legalized had in fact existed and continued since February of 1924, which was the reason why the property owners adjoining Esopus creek applied for and obtained a mandamus compelling the city to initiate proceedings to pay them for the rights taken.

The New York Central Railroad Company, the present owner of the railroad properties formerly belonging to the Ulster and Delaware Railroad Company, has a railroad line along the banks of Esopus creek at certain points and is the owner of fourteen damage parcels designated on the condemnation map accompanying these proceedings. It filed an answer asking for a dismissal of the petition because no effort had been made to agree upon compensation: and because the use of the water as proposed “ would in times of high or flood waters so add to the volume of water in the Esopus Creek * * * to cause irreparable and continuous injury to the property of this respondent.”

The Special Term struck out the answer; the Appellate Division reversed and dismissed the petition.

Chapter 314 of the Laws of 1906 provides: “ Where loss, damage or expense, direct or consequential, has resulted to any duly incorporated railroad corporation, operating a steam railroad in any county in which land shall be acquired in pursuance of the provisions of this act * * * the board of estimate and apportionment of the city of New York, is hereby authorized and empowered to agree with such railroad corporation upon the compensation which shall be made to it for such loss * * *. In the event of no agreement being reached between said board and such railroad corporation, the commissioners of appraisal * * * [are] authorized and directed to pass upon such claim and to make awards therefor as provided in this act.” (§ 3.)

This law does not require the city to make an effort to agree upon compensation before resorting to the courts; it may do so but is under no compulsion. In this respect this case differs from Matter of Lockport & Buffalo R. R. Co. (77 N. Y. 557), upon which the Appellate Division relied. The Laws of 1850, chapter 140, governing that case, read: “ * * * if the two corporations cannot agree upon the amount of compensation to be made therefor * * * the same shall be ascertained and determined by commissioners, to be appointed by the court.” (§ 28, subd. 6.) The petition must state the inability to agree and the reason of such inability.” (§ 14.)

The petition in this case was sufficient, and not defective for failing to allege an effort to agree.

We are also of the opinion that the rights or property sought to be acquired were stated with sufficient precision and clarity. We have quoted this part of the petition above and note that no portion of the railroad itself is taken. The user of the creek for additional water bad existed for twelve years; the city desires to legalize this use gnd pay the damage as found by the Commissioners.

We are agreed that the city of New York may not hereafter be held to answer in damages for the exercise of whatever right it shall acquire in this proceeding. The respondent railroad alleges in its answer: “ That the rights sought to be acquired by the petitioner herein would in times of high or flood waters so add to the volume of water in the Esopus Creek * * * a sufficient quantity to cause irreparable and continuous injury to the property of this respondent. * * * ”

But the city does not here petition for the right thus to injure the property of the respondent railroad. As its petition recites, the city is seeking The right in perpetuity to interfere with or otherwise affect the natural and usual flow of the waters of the Esopus Creek * * * either continuously or from time to time, and in such quantities as the operating needs of such Department [of Water Supply of the city] may require, of the water of said Schoharie Water Tunnel, not exceeding the maximum flow of water which may be carried or conducted through the said tunnel. * * * ”

We suppose that the natural and usual flow of the waters of the Esopus Creek ” is a fact capable of establishment by trustworthy engineering data that is doubtless already in the possession of the city. Certainly the volume of the stream in times of high or flood waters ” cannot be said to be its “ natural and usual flow.” Nothing in this petition, then, will justify the city in so increasing the volume of the Esopus creek in unusual or abnormal conditions of flood or high water as to injure the property of the respondent railroad. Such an interference with the stream will not be sanctioned by any right that the city can acquire under this petition.

The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division. (See 272 N. Y. 502.)

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

Ordered accordingly.


text:
    Metropolitan Life Insurance Company, Respondent, v. Conrad Hellinger, Appellant.
    (Argued June 3, 1936;
    decided July 8, 1936.)

      Emanuel H. Reichart for appellant.

      Julius C. Krause and Henry Sillcocks for respondent.

      James A. Gifford, Charles L. Woody, Herbert P. Carter and C. Lansing Hays, amici curise.

   Per Curiam.

We do not reach the question of what defendant’s obligations, if any, would have been had there been a mere technical surrender of the master lease and nothing more. The terms of the agreement of September 13, 1930, clearly and as matter of law disclose an intent that the subleases were to be kept alive and that the owner should stand in the shoes of the defendant’s immediate lessor. In effect there was an assignment of the subleases. Any narrower interpretation would be inequitable. Under such circumstances the doctrine of merger is inapplicable. (Beal v. Boston Car Spring Co., 125 Mass. 157; Appleton v. Ames, 150 Mass. 34; cf. 13 Columbia Law Rev. 245.)

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

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

Order affirmed.


text:
    Transit Commission, Respondent, v. The Long Island Railroad Company, Appellant. The City of New York, Respondent.
    (Argued July 8, 1936:
    decided July 8, 1936.)

      Martin Conboy, John Vance Hewitt, Parker McCollester, Gilman L. Sessions and Louis J. Carruthers for appellant.

      George H. Stover and Philip Hodes for Transit Commission, respondent.

      Paul Windels, Corporation Counsel (Joseph L. Weiner, Arthur A. Segall and Robert W. Lishman of counsel), for City of New York, respondent.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, John F. X. McGohey and John C. Crary of counsel), for State of New York.
   Per Curiam.

We are of opinion that the classification made by section 57-a of the Railroad Law (Cons. Laws, ch. 49) may not on this record be said to be based solely on the ownership of the capital stock of domestic railroad corporations affected thereby. Without passing upon the validity of any of the suggested bases for that classification, we conclude that grounds reasonably to have been conceived so far bear out the presumption of the constitutionality of the statute as to have warranted the award of the discretionary relief granted.

We are also of opinion that the statute has not been shown to violate the provisions of the Constitution of the State invoked by the appellant.

It is our opinion also that the Supreme Court had jurisdiction to grant the relief awarded.

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

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

Order affirmed, etc.


text:
    In the Matter of Edward J. Mooney, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Appellants.

      (Argued October 1, 1936;
    decided October 6, 1936.)

      Thomas D. Thacker, Joseph P. Chamberlain and Laurence Arnold Tamer for New York City Charter Revision Commission, appellant.

      Paul Windels, Corporation Counsel (Joseph L. Weiner, Paxton Blair and Leonard M. Wallstein, Jr., of counsel), for The Board of Elections in the City of New York et al., appellants.

      Michael Potter and Walter M. Weis for City Fusion Party, amicus curise.

      Jackson A. Dykman and Maximilian Moss for respondent.

      Albert de Roode, amicus curiae.

      Stewart Browne, amicus curiae.

   Crane, Ch. J.

That the Legislature may draft a charter or optional forms of government for cities and make their adoption dependent upon the vote of the city electorate has been determined in Cleveland v. City of Watertown (222 N. Y. 159).

That the Legislature could not heretofore submit to a city or the electorate of a city the framing of their own charter and its adoption by the vote of its citizens is and was due to the provisions of the Constitution which said: “ The legislative power of this State shall be vested in the Senate and Assembly.” (Art. Ill, § 1.)

It is because of this provision of the Constitution that this court has repeatedly held that the Legislature cannot delegate its authority and pass on its law-making functions to other bodies or communities. It cannot abdicate its constitutional powers and duties. (Matter of Trustees of Vil. of Saratoga Springs v. Saratoga Gas, Elec. L. & P. Co., 191 N. Y. 123-145.)

However, there is another constitutional provision, known as the Home Rule provision of the Constitution, which has restricted the legislative powers of the Senate and the Assembly, and has vested power in the cities. Article XII of the Constitution provides that as to the “property, affairs or government of cities” (§2), the Legislature shall not pass any law which shall be special or local either in its terms or in its effect. It may pass general laws, affecting all cities alike, but it cannot pass any local law — such for instance, as a law relating to the city of New York which touches the property, affairs or government of that city, except on emergency message. In other words, the legislative power is now limited in this particular.

What has been the result of this constitutional amendment? We have a body of laws enacted by the city authorities which are just as binding as the acts of the Legislature of the State of New York and which have been enacted under this provision of the Constitution. These are laws which affect the property, affairs or government of the city. (Browne v. City of New York, 241 N. Y. 96.) Under the old Constitution, this would have been illegal. The Legislature could not give the cities any such power as it would have been an abdication of its own duties and delegation of its functions.

The Legislature was the law-making body. This has been changed in part by the constitutional amendments. The Municipal Assembly has become the legislative body for the city of New York, and passes laws like the Legislature. For instance, the law-making body of the city of New York, the Municipal Assembly, could prepare a charter or a change in the form of city government and submit it to the people for approval under the authority of Cleveland v. City of Watertown (supra).

In fact, this is what section 20 of the City Home Rule Law (Cons. Laws, ch. 76; Laws of 1924, ch. 363) provides. This section deals with “ a new charter and authorizes the legislative body of a city to submit to the electors the proposition of having a Charter Commission, and if this be voted then the legislative body is authorized to submit the proposed charter to the electors for approval. The respondent finds no fault with this law, but insists, in fact it is his main point, that as the legislative body of the city has the right to submit a new charter to the electorate, the Legislature of the State has no authority to authorize a Charter Commission to do it.

The respondent overlooks the power which is reserved to the Legislature over cities. By a general law or by an emergency local law, the Legislature can change the agency for the submission of a city charter from the legislative body to a commission.' The Constitution of the State provides that the legislative power of the State shall rest in the Senate and Assembly. There is no constitutional provision that the legislative body for passing ordinances or laws of a city shall rest in an assembly or a board of aldermen or any other body, and we find no such provision in the Home Rule Amendment. Section 3 of article XII gives to every city the power to adopt and amend local laws, not inconsistent with the Constitution and laws of the State, relating to many matters which are therein considered to be the property, affairs or government of the city. No limitation is here found upon the method by which these local laws shall be adopted, and no replica of the State Senate and Assembly is necessary.

The city, therefore, having the power — and it is conceded — to amend the charter, the Legislature of the State could designate the agency to exercise the power. This it has done by the law in question (L. 1934, ch. 867, amd. L. 1935, ch. 292) authorizing the Mayor to appoint a commission to revise the charter instead of having it done under the Home Rule Law, section 20, by the local legislative body.

The interpretation which the respondent places upon section 3 and section 5 of article XII of the State Constitution is entirely too rigid. The last sentence of section 3 reads: “ The legislature shall, at its next session after this section shall become part of the constitution, provide by general law for carrying into effect the provisions of this section.” Respondent claims that having enacted the City Home Rule Law, the Legislature could only change its provisions by other general laws, ignoring that section 2 of the same article gives the Legislature the right to pass any law relating to the property, affairs or government of a single city where it is done upon an emergency message from the Governor, with the concurrent action of two-thirds of the members of each house of the Legislature.

Section 20 of the City Home Rule Law, relating to new charters, has thus been changed by an emergency local law relating to the city of New York, transferring the power of revision from the legislative body to a revision commission. This is not unconstitutional.

The order should be reversed and the motion denied, without costs. (See 272 N^ Y. 597.)

Lehman, O’Brien, Hubbs, Crouch, Loughran and Pinch, JJ., concur.

Order reversed, etc.


author: Finch, J. Crane, Ch. J.

text:
    In the Matter of The Village of Boonville, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.

      (Argued May 20, 1936;
    decided October 6, 1936.)

      Sherman C. Ward for Public Service Commission, appellant.

      Paul Shipman Andrews for respondent.
   Finch, J.

The Public Service Commission appeals from an order of the Appellate Division, third judicial department, annulling by a divided court a determination and order of the Public Service Commission fixing the rates to be charged by the municipal lighting plant of the village of Boonville within the village and in adjacent territory. The Appellate Division granted leave to appeal to this court and certified the following question: Did the Public Service Commission in its determination fixing rates in this proceeding properly decide that as matter of law such rates should not include a return on the value of the property owned by the village and used and useful in the public service? ”

Upon this appeal the facts are not in dispute» The Public Service Commission in two opinions specifically refused to make any determination as to the present value of the Boonville electric plant and fixed rates designed to produce no return as such upon any valuation. The single question presented to the Appellate Division was whether the Public Service Commission as a matter of law could legally deny any return on the value of the property owned by the village, used and useful in the public service in providing electricity.

The Public Service Commission made certain findings of fact which are not questioned upon this appeal. In brief the determination of the Commission was aimed to produce rates which, although uot permitting any return to the village on the value of the property, were sufficient to cover all operating expenses and costs, including an amount considered ample for any service provided by municipal officers or employees and the value of all supplies and office space furnished by the village. Also an allowance was made for uncollectible bills and an amount estimated to be equal to all taxes which would have been paid to the village by a private plant of the same extent and character as the municipal plant. In addition there was an allowance to compensate the taxpayers of the village for the risk in the construction of the plant, particularly as to that part of the plant which lies outside the municipal limits, and an amount allegedly sufficient for renewals or minor extensions so as to avoid the necessity of repeated small issues of securities. In short, the Commission claimed that the rates fixed were sufficient not only to produce sums equal to all necessary expenses but to permit in addition a return of approximately $3,400 annually over this amount to take care of unforeseen contingencies.

A short history of the Boonville municipal lighting plant is pertinent.

In 1901 the voters of the village of Boonville adopted a proposition for the construction of a municipal lighting plant. In 1903 village bonds in the sum of $45,000 were sold and the lighting plant was constructed from the proceeds to furnish service both to residents and business in the village. Originally the village plant generated all the electrical energy needed, but with the growth of the demand this plant proved inadequate and arrangements were made to purchase additional current from another utility company. Shortly after the establishment of the village lighting system there arose a considerable demand for service from persons residing in adjacent towns. To provide this service rural lines were constructed by the village until the latter now owns and operates seventy-eight miles of distribution wires outside the village.

From the first and continuously thereafter the electric plant has been a financial success. The original bond issue was completely retired and no other issue has been necessary. All extensions and improvements have been paid for from operating profits or by short-term loans which have been completely repaid from operating profits. Since 1931 the village has had outstanding no lighting plant securities. In addition to retiring the original bond issue and financing all improvements and extensions to the plant, the profits have enabled the village to accumulate by 1934 a surplus of $249,000 and a fixed capital account of $220,088 besides turning over to the general village fund for the expenses of the village $5,000 in each of the last two fiscal years. In addition to these earnings the village for the last five years has provided free both municipal service and street lighting.

In 1932 two bodies of consumers, one living within the village and the other outside the village, filed complaints against the village with the Public Service Commission seeking to reduce the cost of electric service to consumers, claiming that the village when it undertook to render this essential service for the benefit of its inhabitants had, been restricted by the Legislature so that as a matter of law it could not charge a rate, however reasonable as a matter of fact, which would be sufficient to include any return, however small, on the value of the property owned by the village and used and useful in the public service.

These two sets of complaints filed with the Public Service Commission were consolidated into this one proceeding. Hearings in the consolidated case were had at various times over a period of three years. During these hearings the village offered to show that the revenue received- during the year ending September 30, 1934, from its municipal lighting plant would equal a return of six and one-tenth per cent upon its original cost and four and one-tenth per cent on a reproduction cost basis. The village also offered to show cost of reproduction new less depreciation of the plant, going concern value, and fair and reasonable value. This evidence the Commission refused to receive. In 1934 the Commission wrote an opinion and a further opinion in 1935 holding in substance that the village was restricted by law to furnishing electricity at cost to consumers and that no return as such may be earned upon the value of the property used in furnishing this service. In its opinion dated February 28, 1935, the Commission said: “ The profit motive should not enter into the consideration * * * It is believed that a just and reasonable rate to be charged for electricity by a municipal plant should be based strictly upon actual costs, including proper and necessary reserves. * * * Again the Commission believes that the making of rates for municipalities should not be encumbered with all the proof as to reproduction cost and the many imaginary and conjectural elements that have been presented to regulatory bodies making rates for private companies.” The Commission further held that it was against sound public policy to permit a municipality to accumulate profit over and above suitable reserves so that such profit might be used to relieve the general tax burden or to promote other municipal projects. The interest of the consumer, so held the Commission, must be paramount to all other interests.

Thereafter the Commission, by order, imposed upon the village a lower schedule of rates. Application was made to the Commission for a rehearing but it was denied. The village then obtained an order of certiorari to review the proceedings of the Public Service Commission. The Appellate Division, third department, as noted, annulled the order and remitted the matter to the Commission (245 App. Div. 468).

The village contends that the Public Service Commission in taking the position that a municipally owned and operated plant must operate at cost and may not earn a profit as such on the value of the property used and useful in the public service has exceeded the powers granted to the Commission by the Legislature and has deprived the village of its property without due process of law in contravention of the provisions of the State and Federal Constitutions.

We note that the village owns and operates its lighting plant in its proprietary as contrasted with its governmental capacity but it is unnecessary to consider the effect, if any, of this distinction. We reserve any questions which may arise under the State or Federal Constitutions since the case at bar turns solely on the construction to be given to the Public Service Law (Cons. Laws, ch. 48). More specifically the question presented here is whether the Legislature has conferred upon the Public Service Commission power and authority to determine as a matter of policy whether rates charged by a municipally owned plant should include any return on the value of the property owned by the village and used and useful in the public service. In other words, is a rate fixed by a municipally owned utility unreasonable solely because it includes in addition to all necessary operating expenses and, an amount for reserves and depreciation, a return by way of profit upon the reasonable value of the property used in the public service?

Apparently this question has never been adjudicated by the courts of this State, although many other jurisdictions have held that a return by way of profit may be obtained.

In the consideration of the powers granted to the Public Service Commission we start with the settled principle that the Commission may exercise only such powers as are conferred upon it by the Legislature. (People ex rel. Municipal Gas Co. v. Public Service Commission, 224 N. Y. 156, 165.)

The power of the Commission with reference to rates charged for electricity by the village of Boonville is found in the Public Service Law, article 4, section 66, subdivision 5: “Whenever the commission shall be of opinion * * * that the rates * * * of any such person, corporation or municipality are unjust, unreasonable * * * the commission shall determine * * * in the manner provided by and subject to the provisions of section seventy-two of this chapter the just and reasonable rates * * * thereafter to be in force for the service to be furnished.”

Section 72 of said law provides in part: “ * * * In determining the price to be charged for * * * electricity the commission may consider all facts * * * with due regard among other things to a reasonable average return upon capital actually expended and to the necessity of making reservations out of income for surplus and contingencies.”

Section 364 of the General Municipal Law (Cons. Laws, ch. 24) provides: “ * * * all of the provisions of * * * the public service law, so far as the same are appficable, shall apply to a municipal corporation.”

The viHage of BoonviHe concedes the jurisdiction of the PubEc Service Commission to regulate rates charged by it for electricity so as to prevent unreasonable rates. Even without this concession the right to regulate utility rates against unreasonable and unjust charges is a power vested in the State and may be delegated to the Public Service Commission. (Matter of Trustees of Vil. of Saratoga Springs v. Saratoga Gas, Elec. L. & P. Co., 191 N. Y. 123.)

It is elementary that privately owned utilities must be allowed a fair return on the value of their property used and useful in the public service. (Smyth v. Ames, 169 U. S. 466; Municipal Gas Co. v. Public Service Commission, 225 N. Y. 89; Minnesota Rate Cases, 230 U. S. 352.)

The State has authorized villages to establish electric light plants (Village Law; Cons. Laws, ch. 64, art. 10) and has given to the villages the power in the first instance to fix rates (Village Law, § 246). The Public Service Commission may only interfere when the rates so established are unjust or unreasonable. (Public Service Law, § 66, subd. 5.) The statute imposes a duty on the Public Service Commission to supervise rates for the same reason in the case of a municipally owned utility as in the case of a privately owned utility, namely, to prevent the fixing of rates that are unjust and unreasonable. Also the statute provides that the rate must be fixed by the Public Service Commission in each instance “ * * * with due regard among other things to a reasonable average return upon capital actually expended and to the necessity of making reservations out of income for surplus and contingencies.” (§ 72.) These words of the statute negative the claim of the Public Service Commission that in the case of a municipality it may disregard entirely any return on capital actually expended. The Public Service Commission justifies its action because the municipality has paid back the capital which it borrowed. But if a privately owned utility had paid off its indebtedness, it would still be entitled to a fair return upon the value of the property.. In the absence of any statutory prohibition a municipally owned electric plant may not be penalized for its thrift in putting back as invested capital all or a portion of its earnings. Nothing in the statute authorizes the Public Service Commission to treat differently a privately owned and a municipally owned Utility so as to allow the former a reasonable profit and the latter no profit. E power is given to the Public Service Commission to deny any return by way of profit to a municipally owned utility such authority must be found in the statute. Yet not only do we find no attempt by the Legislature, to state a different rule but on the contrary identical language is used as to each class of utility.

We are only in a position now to determine upon this record that there must be allowed some return to the municipality upon the value of its electric plant used and useful in the public service. The rate of return and the method of arriving at this value we leave in the first instance to the Public Service Commission as the expert fact finding body. Upon this record before us the sole issue is whether or not any return at all should be allowed, and the facts have been collated and presented with this issue solely in view. Upon this data and this record the Public Service Commission has decided that as between no return by way of profit and some return, as a matter of law no return should be allowed. The issue should not have been between no return and some return but what is a reasonable return to the municipality. A court obviously is not equipped to collate the necessary data and facts upon these issues and, therefore, the matter must be remitted to the Public Service Commission.

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

Crane, Ch. J.

(concurring in result). The right of a village to construct and maintain its own municipal electric light plant is dependent upon the will of the Legislature. By article 14-A of the General Municipal Law (Cons. Laws, ch. 24) this right has been specifically conferred upon municipalities. As the right originates with the Legislature it may limit the use and exercise of this right as it sees fit. A village is not deprived of its property, within the meaning of the Federal Constitution, when the Legislature or any of its agencies fixes the rates which municipal light plants may charge. If, therefore, the Legislature should provide that municipalities taking over the electric light business should run it at cost, and that the consumers should not be charged such a rate as to give to the municipality a profit over and above cost of operation, such an enactment would be legal and constitutional.

I can find no limitation which the Legislature has placed upon the municipalities regarding rates, except that contained in the Public Service Law (Cons. Laws, ch. 48). The power of the Commission, with reference to the rates charged for electricity by villages, may be found in article 4, section 66, subdivision 5 of this law, which reads in part as follows: “ * * * Whenever the commission shall be of opinion, after a hearing had upon its own motion or upon complaint, that the rates, charges or classifications or the acts or regulations of any such person, corporation or municipality are unjust, unreasonable, unjustly discriminatory or unduly preferential or in anywise in violation of any provision of law, the commission shall determine and prescribe in the manner provided by and subject to the provisions of section seventy-two of this chapter the just and reasonable rates, charges and classifications thereafter to be in force for the service to be furnished * * *.”

[V Article 4, section 72, of the Public Service Law, which is the section referred to in the excerpt just quoted, provides in part: .

“ * * * After a hearing and after such an investigation as shall have been made by the commission or its officers, agents, examiners or inspectors, the commission may, by order, fix just and reasonable prices, rates and charges for gas or electricity to be charged by such corporation or person, for the service to be furnished * * *. “ * * * In determining the price to be charged for gas or electricity the commission may consider all facts which in its judgment have any bearing upon a proper determination of the question although not set forth in the complaint and not within the allegations contained therein, with due regard among other things to a reasonable average return upon capital actually expended and to the necessity of making reservations out of income for surplus and contingencies.”

Apparently the Legislature has treated municipalities and private enterprises alike and the rate is to be determined in the same way and according to the same elements in both cases.

The appellants strenuously urge that when the Legislature permitted municipal corporations to establish electric light plants and enter into this kind of public service, it did so for the purpose of reducing rates to consumers upon a co-operative plan, furnishing them electric current at cost and without any idea or purpose that the municipality was to enter into a business venture for profit. If this were the idea, the Legislature has failed to express it. We should wait until the Legislature’s intention becomes quite apparent, and not give a strained construction to the Public Service Law for the purpose of accomplishing what we may think the State of New York intended to do.

For these reasons I am for the afiirmance of the determination of the Appellate Division. The question certified should be answered in the negative.

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

Order affirmed, etc.


text:
    In the Matter of the Application of The Board of Transportation of New York, Respondent, Relative to Acquiring Title to Real Property Required for Rapid Transit Purposes in the Borough of Manhattan. Joseph N. Early et al., Appellants.
    (Argued September 29, 1936;
    decided October 13, 1936.)

      James F. Donnelly, Walter J. McNichols and Charles M. Early for appellants.

      Paul Windels, Corporation Counsel (Paxton Blair and Alfred D. Jahr of counsel), for respondent.
   Crane, Ch. J.

Pursuant to authority conferred by section 43 of the Rapid Transit Act (L. 1891, ch. 4, as amd.; L. 1915, ch. 604, § 2; L. 1932, ch. 390, § 3), the Board of Transportation, after due publication of the notice of intention to condemn, applied to the Supreme Court for an order providing for the determination, by the court without a jury, of the compensation which should justly be made to the owners of the property condemned. The Sixth Avenue Subway is to run from Carmine street to Fifty-third street, and the property here in question is located at Sixth avenue and Forty-sixth street to be used for the construction of a working shaft and plant. The order was granted March 9, 1936, which thereupon, pursuant to the provisions of law, vested title in the city. (Rapid Transit Act, § 47.)

The owner of the property mentioned has appealed from the affirmance by the Appellate Division (one justice ■ dissenting) and seeks to present the objection that the use for which his property is taken is not justified by the act or public within the meaning of the Constitution. The city has moved to dismiss the appeal as the order of the Special Term is not a final order, no award having as yet been made. The motion must be granted.

Section 55 of the Rapid Transit Act, as amended by chapter 612 of the Laws of 1917, reads:

“Appeal to the Appellate Division. Said city, or any party or person affected by the said proceeding and aggrieved by the final decree of the court therein, may appeal to the appellate division of the said court. * * *”

Section 56 of the Rapid Transit Act, added by chapter 604 of the Laws of 1915, permits an appeal to the Court of Appeals from the order of the Appellate Division as in other special proceedings.

The final decree ” in these condemnation proceedings is defined in section 49 of the Rapid Transit Act, added by chapter 604 of the Laws of 1915, and is the order or decree entered after and including the amount of the awards and the names of the owners to whom payable.

There is no constitutional right to an appeal in proceedings to take property for public use. (Matter of Mayor, etc., of City of New York, 99 N. Y. 569.) Notice and hearing constitute due process or a compliance with the constitutional provisions. The Legislature may or may not allow an appeal, and when it does the courts are bound by the conditions, if any. Here the appeal is limited to the final decree ” as explained and defined by the act.

Our rulings on final orders in Percy v. Huyck (252 N. Y. 168) and in Maggi v. Sabatini (250 N. Y. 296) have no application.

The appeal should be dismissed, with costs.

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

Appeal dismissed.


author: Crouch, J.

text:
    In the Matter of William C. Osborn, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections in the City of New York, et al., Respondents.

      (Argued October 2, 1936;
    decided October 13, 1936.)

      H. H. Nordlinger, Harold Riegelman and J. M. Dinnes for appellant.

      Paul Windels, Corporation Counsel (William C. Chanler of counsel), for S. Howard Cohen et al., constituting the Board of Elections in the city of New York, respondents.

      Alfred J. Talley, Charles Lamb and James A. Me Kaigney for Vincent J. Kane, individually and as president of Uniformed Firemen’s Association, etc., respondent.
   Crouch, J.

It is the law of the State (State Const, art. XII, § 2) that the Legislature may not pass any law relating to the property, affairs and government of a city which is special or local, either in terms or effect, except on an emergency message from the Governor and the concurrent action of two-thirds of the members of each house of the Legislature.

The question here is whether chapter 886 of the Laws of 1936 is unconstitutional because it was not passed in that way. This statute adds a new section to chapter 226 of the Laws of 1922. It directs the submission to the qualified voters of every city having a population of one million or more inhabitants, at a general election to be held this year, of the question whether the three platoon system for members and officers of the fire department shall be adopted; and provides, in case of a majority affirmative vote, that the fire commissioner of the city shall divide the employees into three platoons, with an eight-hour day and one day of rest in seven, and that the local legislative body shall enforce the act and provide all necessary funds. Under the act of 1922, the officers and employees of the fire departments in cities of the first class are divided into two platoons, one of which is on duty not to exceed ten hours and the other not to exceed fifteen hours.

Without deciding whether the new statute, though general in terms, was in effect local to the city of New York, the court below held that it did not relate in a legal sense to the property, affairs or government of cities because its subject is in a substantial degree a matter of State concern. The rationale was in substance this: the working hours of firemen will, by the act, be reduced to a point less wearing to their mental and physical resources; their health will thus be improved and their efficiency increased; thereby the safety and welfare of the city and its large population, resident and transient, will be materially subserved, with reflected benefits in a substantial degree to the people of the entire State; hence the statute’s subject is a matter of State concern.

We find no support in the decided cases for a conclusion so drily logical drawn from asserted facts without foundation in the record. In allocating a particular statute to the one category or the other, no doubt “ the degree of interest on the part of sections of the state, outside of the city or cities directly affected by a statute, may be a relevant factor.” (Lehman, J., in Adler v. Deegan, 251 N. Y. 467, 496.) But it is not the essential or fundamental factor. Historically and traditionally the State has functioned in certain fields of government, the municipalities in certain other fields. While always and unavoidably there has been an obscure zone between the two fields, the basic distinction between them remains. Let us,” said Crane, J., in Adler v. Deegan (p. 478), recognize in our decision the useful division which custom and practice have made between those things which are considered State affairs, and those which are purely the affairs of cities.” So, in that case, the subject of the statute, which at first blush seemed to relate only to the affairs of cities, was held to be of State concern, since it dealt with the maintenance of life and health. “ The advancement of that interest, like the advancement of education, is a function of the State at large.” (Cardozo, Ch. J., Adler v. Deegan, p. 485.) The holding in Robertson v. Zimmermann (268 N. Y. 52) rested upon the same foundation. Transportation (Admiral Realty Co. v. City of New York, 206 N. Y. 110; Matter of McAneny v. Board of Estimate, 232 N. Y. 377) and widespread unemployment (New York Steam Corp. v. City of New York, 268 N. Y. 137), like health and education, have been, by custom, tradition and practice, considered as matters of State concern.

Not so, however, the establishment and control of fire departments. Historically and as matter of common knowledge, fire departments have been recognized agencies of municipal governments, and their organization, operation and administrative control have been deemed matters of local concern. (Cf. Trustees of Exempt Firemen’s Benevolent Fund v. Roome, 93 N. Y. 313; Exempt Firemen’s Association v. Trustees of Exempt Firemen’s Benevolent Fund, 34 App. Div. 138; Simpson v. Paddock, 195 Mich. 581.) The Legislature so considered the fire department of the city of New York in enacting the provisions of chapter 15 of the City Charter (Laws of 1901, ch. 466, as amd.); and more recently by enacting as an emergency law, chapter 202 of the Laws of 1929, relating to the minimum wage of first grade firemen. So, indeed, did the people of the State by adopting the Home Rule Amendment to the Constitution, which by section 3 gives to every city the power to adopt and amend laws relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all officers and employees of the city.” The statute in question deals with nothing but the duties of firemen, by shortening their hours of work, and with their numbers, by necessarily making a large increase therein. Those are matters which clearly relate to the affairs of cities. If the Legislature is to deal with them, it must do so in accordance with the fundamental law. This it has done if the statute may be said to be general both in terms and in effect. That, we think, cannot be justly said. (Matter of Mayor, etc., of New York [Elm St.], 24fi N. Y. 72.)

| The order appealed from should be reversed, without costs, and the application for a peremptory order of mandamus granted.

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

Order reversed, etc.