text:
    The People of the State of New York, Respondent, v. Emanuel Berson, Appellant.
    Argued March 7, 1955;
    decided April 21, 1955.

      Saul Stephan Davis for appellant.

      Edward S. Silver, District Attorney (Aaron E. Koota and Jerome G. Ditore of counsel), for respondent.
   Judgment affirmed. On this record defendant was properly convicted of a criminal contempt of court, although it is possible, and even probable, that his refusal to answer was because of a mistaken belief that he had a right so to do and, although it is possible, and even probable, that a truthful answer to the question would have shown his innocence of the alleged misconduct which the Grand Jury was investigating. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    Helene M. Beaumont, Appellant, v. Pennsylvania Railroad Company et al., Respondents.
    Argued March 10, 1955;
    decided April 21, 1955.

      Paul D. Compton and Robert T. Dawson for appellant.

      Edward F. Butler for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fttld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    The People of the State of New York, Appellant, v. Eugene E. Bacon, Respondent.
    Argued March 7, 1955;
    decided April 21, 1955.

      George Boldman, District Attorney, for appellant.

      Benjamin Evans Dean for respondent.
   Order affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Claim of Edwin W. Durlacher, Appellant, against Great Atlantic & Pacific Tea Company et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued March 11, 1955;
    decided April 21, 1955.

      Abraham Marlchoff for appellant.

      Robert N. Van Benthuysen and John J. Duggan for Great Atlantic & Pacific Tea Company and another, respondents.
   Order affirmed, without costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Froessel, Van Voorhis and Burke, JJ.


author: Per Curiam.

text:
    Herbert Rosen, Respondent, v. Bronx Hospital, Appellant.
    Argued March 8, 1955;
    decided April 21, 1955.

      Joseph P. Carey for appellant.

      Harry Stackell and Lewis B. StacTcell for respondent. >
   Per Curiam.

The defendant appeals from a judgment in an action for negligence arising out of an accident suffered by the plaintiff on the premises of the defendant hospital. Plaintiff was injured when a hospital door slammed shut on the third and fourth fingers of his left hand severing part of the final joints of those fingers. Plaintiff had been engaged in conversation with his back to the door, and in the course of emphasizing a point in a story he was telling, stretched out his arms and inadvertently inserted his fingers into the crevice between the door jamb and the hinge edge of the door. At that precise moment, the door slammed shut causing the injuries complained of.

The sole probative evidence introduced by plaintiff to establish negligence was the testimony of an expert witness who testified that the door-check mechanism was improperly maintained in that it required adjustment and fluid refilling.

No evidence was adduced on the trial to establish the existence of a duty running from the defendant to the plaintiff (Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339), nor was it shown that the injury sustained by the plaintiff was foreseeable. (O’Neill v. City of Port Jervis, 253 N. Y. 423; Collins v. Noss, 258 App. Div. 101.) Plaintiff likewise failed to establish constructive notice on the part of the defendant hospital. The sole evidence tending to show such notice consisted of speculation on the part of the expert locksmith that there had been no change in the mechanism ‘ ‘ in probably two years ’ ’ based on an otherwise unsupported guess that the door had not been painted for at least that period and that the mechanism had not been removed during that time. Such testimony is insufficient to support a finding of constructive notice.

Plaintiff has therefore failed to establish a prima facie case of negligence.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Conway, Ch. J., Desmond, Dye, Fuld, Feoessel, Van Voobhis and Bubke, JJ., concur.

Judgments reversed, etc.


text:
    Louis Amarando, Respondent, v. Anthony Delio et al., Appellants.
    Argued March 8, 1955;
    decided April 21, 1955.

      William L. Shumate and Frederick Mellor for appellants.

      Samuel Levitt and Louis E. Schwarts for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Frobssel, Van Voorhis and Burke, JJ.


text:
    Oliverio Giannotti et al., Respondents, v. William Peters, Defendant, and City of New York, Appellant.
    Argued February 24, 1955;
    decided April 21, 1955.

      Seymour B. Quel and Samuel D. Johnson for appellant.

      Milton H. Spiero and Robert H. Kilroe for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Taking no part; Burke, J.


text:
    Samuel G. Nicholas, Appellant, v. New York State Electric & Gas Corporation, Respondent, et al., Defendant. New York State Electric & Gas Corporation, Third-Party Plaintiff-Appellant, v. Michael Mathews et al., Individually and as Copartners Formerly Doing Business under the Name of Mathews & Kanelos Co., Third-Party Defendants-Respondents.
    Argued February 21, 1955;
    decided April 21, 1955.

      Michael Catalano for appellant.

      Hugh McM. Buss, Robert 8. Lesher and T. Kayler Jenkins for respondent and third-party plaintiff-appellant.

      Robert D. Fernbach and Bernard Katzen for third-party defendants-respondents.
   Judgment affirmed, with separate bills of costs to the defendant-respondent and the third-party defendants-respondents. No opinion.

Concur: Desmond, Dye, Fuld and Van Vookhis, JJ. Conway, Ch. J., Froessel and Burke, JJ., dissent and vote to reverse upon the ground that as to the defendant New York State Electric & Gas Corporation and as to the third-party defendants Michael Mathews and Gust G. Kanelos there were questions of fact presented requiring the consideration of a jury.


text:
    Larnie Richardson et al., Respondents, v. Cannold Holding Corp., Appellant and Third-Party Plaintiff-Respondent. Manhattan & Bronx Electric Wire & Cable Corp., Third-Party Defendant-Appellant.
    Argued March 8, 1955;
    decided April 21, 1955.

      Richard Formidoni and Leo M. Brimmer for appellant and third-party plaintiff-respondent.

      Victor Fiddler, Bernard K at sen, William B. Btieglitz, Barry Schechter and Raymond C. Green for third-party defendant-appellant.

      Benjamin B. Biff for respondents.
   Judgment affirmed, with separate bills of costs to the plaintiffs-respondents and the third-party plaintiff-respondent. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Feoessel, Van Voorhis and Burke, JJ.


text:
    Pietro Colello, Respondent, v. T. J. Stevenson & Co., Inc., et al., Defendants, and Kane Ship Repair Corp., Defendant-Appellant and Third-Party Plaintiff-Appellant. Stuart Marine Painting Corp., Third-Party Defendant-Respondent.
    Argued March 9, 1955;
    decided April 21, 1955.

      Edward J. Behrens, James A. Hageman, Charles H. Lawson and Mach Kreindler for appellant and third-party plaintiff-appellant.

      Bernard Meyerson and Samuel Spevach for respondent.

      John P. Carson for third-party defendant-respondent.

      Arthur V. Lynch for Alfred E. White, defendant.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Richard D. Epstein, an Infant, by His Guardian ad Litem, Ruth Epstein, et al., Appellants, v. Victor Epstein, Doing Business under the Name of Lucky’s Luggage Shop, Respondent.
    Submitted April 18, 1955;
    decided April 21, 1955.

      Wilbur M. Jones and John W. Trapp for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days appellants serve and file an undertaking on appeal and pay $10 costs, and within twenty days file the return, in which events motion denied.


text:
    Thomas J. Harris, Respondent, v. Allstate Insurance Co., Appellant, et al., Defendant.
    Submitted March 7, 1955;
    decided April 21, 1955.

      Sidney H. Harris for motion.

      Asher Marcus opposed.
   Motion denied upon condition that appellant reimburse respondent for his additional printing expenses by reason of the service of an additional brief by appellant.


text:
    Mae L. Lechner et al., Respondents-Appellants, v. Frank Lechner, Appellant-Respondent.
    Submitted April 11, 1955;
    decided April 21, 1955.
   Motions granted.


text:
    In the Matter of the Claim of Marion K. Graham, Appellant, against Nassau & Suffolk Lighting Company et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted April 11, 1955;
    decided April 21, 1955.
   Motion for reargument or, in the alternative, to amend the remittitur denied, with $10 costs. [See 308 N. Y. 140.]


text:
    In the Matter of George H. Hake, Appellant. Hake Manufacturing Company, Inc., Respondent.
    Argued March 10, 1955;
    decided April 21, 1955.

      Louis N. Blatt for appellant.

      Robert Boasberg for respondent.
   Appeal dismissed upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Town of Somers, Respondent, v. Edwin B. Covey, as Committee of the Person and Property of Nora Brainard, an Incompetent, Appellant.
    Submitted April 11, 1955;
    decided April 21, 1955.
   Motion staying the Town of Somers from proceeding with the sale of the subject property granted to and including May 25, 1955, to enable the appellant to apply to the Supreme Court of the United States or to a Justice thereof for a stay in connection with an application for writ of certiorari.


text:
    The People of the State of New York, Respondent, v. Roger C. Dales, Appellant.
    Submitted April 18, 1955;
    decided April 21, 1955.

      Joseph P. Leary for motion.
    No one opposed.
   Motion granted and case set down for argument during the May, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Louis J. Farone, Appellant.
    Submitted April 11, 1955;
    decided April 21, 1955.
   Motion in all other respects denied. [See 308 N. Y. 305.]


text:
    The People of the State of New York, Respondent, v. Henry Heimowitz, Now Known as Henry Hymes, Appellant.
    Submitted April 18, 1955;
    decided April 21, 1955.

      Edward T. Boyle for motion.

      Joseph F. Gagliardi, District Attorney (Warren J. Schneider of counsel), for the People of the State of New York.
   Motion granted and case set down for argument during the May, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Philip Orlando, Appellant.
    Submitted April 18, 1955;
    decided April 21, 1955.
   Motion for reargument denied. [See 304 N. Y. 805.]


text:
    The People of the State of New York, Respondent, v. Howard Prosser, Appellant.
    Submitted April 18, 1955;
    decided April 21, 1955.

      Howard Prosser, in person, for motion.
    No one opposed.
   Motion granted and John B. Corcoran, Esq., Walhridge Building, Buffalo, New York, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Leonardo Salemi, Appellant.
    Submitted April 15, 1955;
    decided April 21, 1955.
   Motion for an order vacating the order of the Court of Appeals dated March 11,1955, denied. [See 306 N. Y. 863; 308 N. Y. 883.]


text:
    Geraldine H. Kennedy, Respondent, v. Harry H. Kennedy, Appellant.
    Argued March 10, 1955;
    decided April 28, 1955.

      Alfred Rathheim, Harold M. Hoffman and David L. Sehreiber for appellant.

      George J. Todaro for respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Fuld, Fboessel and Bubke, JJ.; Dye and Van Voobhis, JJ., dissent and vote to reverse and reinstate the order of Special Term upon the dissenting opinion of Bbeitel, J., in the Appellate Division.


text:
    In the Matter of the Claim of Frank Neff, Appellant, against Franklinville Roofing Company et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued April 11, 1955;
    decided April 28, 1955.

      Edward M. Horey for appellant.

      Victor Fiddler, Bernard Katzen, George Hayes and William H. Stieglitz for Franklinville Roofing Company and another, respondents.
   Order affirmed, without costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Hugh K. Bennett et al., Respondents, v. Irving Trust Company, Appellant.
    Argued March 3, 1955;
    decided April 28, 1955.

      Jay Leo Rothschild for appellant.

      Arnold L. Fein for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke, JJ.


text:
    John R. McDonald, as Executor of Henry A. McDonald, Deceased, Respondent, v. Manufacturers Trust Company, Appellant.
    Argued March 1, 1955;
    decided April 28, 1955.

      Stephen P. Duggan, Jr., William J. Granger and William J. Manning for appellant.

      Joseph E. Guerin and Maxwell Perlman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Desmond, Dye, Fuld, Froessel and Burke, JJ. Conway, Ch. J., and Van Voorhis, J., dissent and vote to reverse under subdivision 3 of section 134 of the Banking Law.


text:
    Florence W. Brill et al., Suing for Themselves and All Other Stockholders of 551 Fifth Avenue, Inc., Similarly Situated, Appellants; Certificate Associates, Inc., et al., Intervenors-Respondents, and Phoebe C. Klein et al., Respondents, v. Charles N. Blakeley et al., Appellants.
    Argued March 2, 1955;
    decided April 28, 1955.

      George E. Netter, A. Joseph Geist, William Netter and Milton Waxenfeld for Florence W. Brill and others, appellants.

      Simon H. Bifkind, Paul J. Newlon and Jay H. Topkis for Fred F. French Investing Co., Inc., appellant,

      Max J. Rubin and Abraham, Levin for Charles N. Blakeley and others, appellants.

      Stephen S. Bernstein for respondents.

      David Regosin for Kurt E. Fontheim, intervenor-respondent.
   Order affirmed, with costs. First question certified answered in the negative; third question certified answered in the affirmative; second question certified not answered. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Frederick Weidner et al., Respondents, v. Florence C. Walsh et al., Appellants, and Walter Bruchhausen, Respondent.
    Argued April 13, 1955;
    decided April 28, 1955.

      Julian A. Ronan and Joseph A. Shields, appellant in person, for Florence G. Walsh and others, appellants.

      Jacquelin A. Swords, Edward A. Niles and William K. Zinke for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    In the Matter of the Estate of James E. Albright, Deceased. William W. Albright, as Executor of James E. Albright, Deceased, Respondent; Edith E. Falvey [Albright], Appellant.
    Submitted April 25, 1955;
    decided April 28, 1955.

      George Kent Weldon for motion.

      Edward W. Stitt for respondent.
   Motion granted.


text:
    Margarida De Clara, as Administratrix of the Estate of Francisco De Clara, Deceased, Appellant, v. Barber Steamship Lines, Inc., et al., Defendants, and New York Dock Company, Respondent.
    Submitted April 25, 1955;
    decided April 28, 1955.

      Thomas F. Grimes for motion.

      James B. Kelly and George A. Garvey opposed.
   Motion granted.


text:
    Sylvia Goldberg, Individually and as Administratrix of the Estate of Max Goldberg, Deceased, Appellant, v. Colonial Life Insurance Company of America, Respondent.
    Submitted April 25, 1955;
    decided April 28, 1955.

      Aaron Frank for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days appellant serves and files an undertaking on appeal and pays $10 costs and within twenty days files the return, in which events motion denied.


text:
    In the Matter of the Estate of Arlington C. Hall, Deceased. Laura E. Hall, Appellant; Harvey M. Hall et al., Respondents.
    Submitted March 7, 1955;
    decided April 28, 1955.

      James N. Vaughan for motion.

      Stephen S. Bernstein, Leo V. McLaughlin and William Jay Lippman opposed.

      Mortimer M. Kassell and Francis Kelliher for State Tax Commission opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    National City Bank of New York et al., as Trustees under the Will of George H. Norman, Deceased, Respondents, v. Edith H. Beebe, Individually and as Executrix and Trustee under the Will of Mabel N. Cerio, Deceased, et al., Respondents, and Frederick H. Prince, Jr., Individually and as Executor of Norman Prince, Deceased, et al., Appellants.
    Submitted April 25, 1955;
    decided April 28, 1955.

      Robert L. Glare, Jr., and George W. Foley for motion.

      Harrison Tweed, William Eldred Jackson, Richard S. Ritzel, Sidney W. Davidson and Leslie D. Dawson opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the matter within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Seymour Siskind, Appellant.
    Submitted April 28, 1955;
    decided April 28, 1955.

      Selig Lenefsky for motion.

      Frank 8. Hogan, District Attorney (Harold Roland Shapiro of counsel), for the People of the State of New York.
   Motion granted and case set down for argument during the May, 1955, session of the Court of Appeals.


text:
    In the Matter of the Arbitration between Stern, Morgenthau & Co., Inc., Appellant, and J. A. Kirsch Co., Respondent.
    Argued April 12, 1955;
    decided April 28, 1955.

      Leonard Feldman for appellant.

      J. Bertram Wegman and Myron L. Shapiro for respondent.
   Appeal dismissed, with costs, upon the ground that no substantial constitutional question is presented.


text:
    Universal Carloading & Distributing Co. Inc., Respondent, v. Loren Hendrix, as Receiver of Midwest Haulers, Inc., Appellant. (Actions Nos. 1, 2 and 3.)
    Submitted April 11, 1955;
    decided April 28, 1955.

      Joseph Kane for motion.

      James M. Hughes opposed.
   Motion dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Arbitration between Wm. Penn Fire Insurance Co., Appellant, and Companhia de Seguros A Mundial, Respondent.
    Argued April 11, 1955;
    decided April 28, 1955.

      Joshua Binion Cahn for motion to dismiss appeal.

      Kenneth J. Mullane opposed.
   Motion to dismiss appeal granted and appeal dismissed upon the ground that no substantial constitutional question is directly involved.

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

Motion for stay denied.


text:
    Else M. Axelrad, Appellant, v. John Axelrad, Respondent.
    Submitted May 23, 1955;
    decided May 24, 1955.

      William Bosenfeld for motion.

      Chester A. Lessler opposed.
   Motion for adjournment of argument until the October, 1955, session of the Court, of Appeals denied and case set down for argument during the third week of the present session.

Motion for an extension of time to serve and file respondent’s brief granted to the extent that the brief may be served and filed no later than June 3, 1955.


text:
    Elsie S. Fullerton, Appellant, v. City of Schenectady, Respondent. Walter A. Fullerton, Jr., Appellant, v. City of Schenectady, Respondent.
    Submitted May 23, 1955;
    decided May 24, 1955.

      Charles Ward Brown, Corporation Counsel, for motion.

      Walter A. Fullerton opposed.
   Motion denied and case set down for argument during the third week of the present session.


text:
    In the Matter of Mollie Rosenberg, Appellant, against City of New York, Respondent.
    Submitted May 23, 1955;
    decided May 24, 1955.

      Stanley Tessel for motion.
    No one opposed.
   Motion granted.


text:
    Mary K. McNamee, Respondent, v. Ruth A. Griffin, Appellant.
    Submitted May 23, 1955;
    decided May 24, 1955.

      Abraham, M. PerJms for motion.

      Mortimer Goodman opposed.
   Motion for a stay granted on condition (1) that within five days appellant serve and file the undertaking on appeal pursuant to section 593 of the Civil Practice Act, together with a further undertaking in the sum of $1,000, to the effect that if the judgment appealed from is affirmed, or the appeal is dismissed, she will pay the sum directed to be paid by the judgment in excess of the $15,000 now on deposit, and (2) that the appeal be argued during the third week of the present session; otherwise, motion denied.


text:
    The People of the State of New York, Respondent, v. Edward A. Boehm and Fritz Boehm, Appellants.
    Submitted May 23, 1955;
    decided May 24, 1955.

      William H. McKeon for motion.

      John F. Dwyer, District Attorney (Robert A. Burrell of counsel), for the People of the State of New York.
   Motion granted and case set down for argument during the October, 1955, session of Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Edmund C. Buehler, Appellant.
    Submitted May 23, 1955;
    decided May 24, 1955.

      Leo E. Sherman for" motion.

      Frank S. Hogan, District Attorney (Paul A. Stone of counsel), opposed.
   Motion denied, with leave to renew the application upon filing of proper affidavits.


text:
    The People of the State of New York, Appellant, v. Max Shapiro, Respondent.
    Submitted May 23, 1955;
    decided May 24, 1955.

      Peter Campbell Brown, Corporation Counsel (Seymour B. Quel of counsel), for motion.
    No one opposed.
   Motion granted and case set down for argument during the present session of the Court of Appeals.


text:
    Arthur Stone, Respondent, v. Bigley Bros., Inc., Appellant.
    Submitted May 23, 1955;
    decided May 24, 1955.

      Thomas E. Dewey for motion.
    No one opposed.
   Motion denied.


text:
    Katherine S. Ellsworth et al., as Administrators of the Estate of Bernice E. Pulver, Deceased, Appellants, v. Leo J. Couture, Jr., et al., Respondents.
    Argued April 12, 1955;
    decided May 26, 1955.

      Harry H. Hill, Jr., for appellants.

      John L. Palisi for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Accounting of City Bank Farmers Trust Company, as Trustee under the Will of George S. Nicholas, Deceased, Respondent. John Tucker et al., as Executors and Trustees under the Will of George S. Nicholas, Jr., et al., Respondents; Virginia T. Nicholas et al., Appellants.
    Submitted April 12, 1955;
    decided May 26, 1955.

      Joseph H. Choate, Jr., and William A. Moore for appellants.

      Orison 8. Marden, Kenneth C. Johnson and Malcolm J. Bdgerton, Jr., for John Tucker and others, respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Bxjrke, JJ.


text:
    Great River Realty Corp., Respondent, v. Rector, Churchwardens and Vestrymen of Emanuel Church, Great River, N. Y., Appellant.
    Argued April 13, 1955;
    decided May 26, 1955.

      Stanley Gray Horan for appellant.

      Richard W. Walser, Guy O. Walser and Howard J. Grace for respondent.
   Judgment affirmed, with costs. This disposition is subject to the right of appellant to remove the building within such time as may be permitted by Special Term provided that an application for an extension of time for that purpose shall be made to Special Term within twenty days from the service of a copy of the judgment to be entered on the remittitur with notice of entry. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Bxjrke, JJ.


text:
    Selma Rosenbaum, Respondent, v. Salo Rosenbaum, Appellant.
    Submitted May 23, 1955;
    decided May 31, 1955.

      Marvin George Florman for motion.

      Jacob Rabinowits opposed.
   Motion denied.


text:
    The People of the State of New York, Respondent, v Leonardo Salemi, Appellant.
    Submitted May 23, 1955;
    decided June 1, 1955.
   Motion for reargument granted and case directed to be reargued on June 9, 1955, upon the original typewritten record of the testimony taken on the motion for a new trial. [See 306 N. Y. 863.]


text:
    The People of the State of New York, Respondent, v. Ronald Auslander, Appellant.
    Argued April 20, 1955;
    decided June 2, 1955.

      Irving Eatterer and Samuel Sumner Goldberg for appellant.

      Daniel V. Sullivan, District Attorney (Jolm B. Lee and Walter E. Dillon of counsel), for respondent.
   Judgments reversed and information dismissed upon the ground that the proof failed to establish the guilt of defendant beyond a reasonable doubt. See People v. Gaskin (306 N. Y. 837). No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Theresa M. O’Connell, Appellant, v. Thomas J. O’Connell et al., Individually and as Executors of Michael E. O’Connell, Deceased, Respondents, et al., Defendant.
    Argued April 20, 1955;
    decided June 2, 1955.

      Abraham Wilson, Warren 8. Tenney and Donald T. Mullane for appellant.

      William F. Gassin for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Lyra C. Brown, as Administratrix of the Estate of Mayo Brown, Deceased, Respondent, v. State of New York, Appellant. Lyra C. Brown, Respondent, v. State of New York, Appellant.
    (Claim No. 28838.)
    (Claim No. 28839.)
    Argued April 14, 1955;
    decided June 2, 1955.

      Jacob K. Javits, Attorney-General {Henry 8. Manley of counsel), for appellant.

      Wilfred E. Hoffmann, James J. Barrett and Edmund J. Hoffmann for respondent.
   In each action: Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Feoessel, Van Yooehis and Burke, JJ.


text:
    In the Matter of Hillman Periodicals, Inc., Appellant, against Lawrence Gerosa, as Comptroller of the City of New York, et al., Respondents.
    Argued April 19, 1955;
    decided June 2, 1955.

      James Carroll for appellant.

      Peter Campbell Brown, Corporation Counsel (Solomon Port-now and Stanley Buchsbaum of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ. Taking no part: Bubke, J.


text:
    Anchin, Block & Anchin, Respondent, v. Pennsylvania Coal and Coke Corporation, Appellant.
    Argued April 20, 1955;
    decided June 2, 1955.

      Osmond K. Fraenkel, Harold Epstein and Seymour Heilbron for appellant.

      Edward Boss Aranow and Alfred Miller for respondent.
   On appeal from judgment: Judgment affirmed, with costs. On appeal from order: Appeal dismissed, upon the ground that the Civil Practice Act (§ 588, subd. 3) does not authorize an appeal to this court by a party in whose favor the Appellate Division has reversed a judgment and granted a new trial. (See Gibbons v. Schwartz, 288 N. Y. 612; Lee v. Gander, 271 N. Y. 568; see, also, Cohen and Karger, Powers of the New York Court of Appeals [1952], pp. 281-282.) No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    H. Roy Penzell, Appellant, v. John O. Ekblom, Respondent.
    Argued April 21, 1955;
    decided June 2, 1955.

      Theodore S. Jaffin, Jerome Handler and Herbert Feiler for appellant.

      John Logan O’Donnell, Leo P. Arnaboldi, Jr., and David Pa.ae Seaman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Yoorhis and Burke. JJ.


text:
    Emanuel Gordon, Suing on Behalf of Himself and All Other Similarly Situated Pawnbrokers in the City of Buffalo, Appellant, v. J. Raymond McGovern, as Comptroller of the State of New York, Respondent.
    Argued April 25, 1955;
    decided June 2, 1955.

      Herbert Shafer and Robert P. Freedman for appellant.

      Jacob K. Javits, Attorney-General (Ruth Kessler Toch and Henry S. Manley of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhís and Burke, JJ.


text:
    Rose Leeds, Appellant, v. Max K. Leeds, Respondent.
    Argued April 19, 1955;
    decided June 2, 1955.

      Paul L. Boss for appellant.

      Charles H. Griffiths and William Allan Donovan for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fudd, Fboessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of Richard L. Schroeder et al., Respondents, against Thomas D. Kreuter et al., as Members of the Board of Appeals of the City of New Rochelle, Appellants, and Leonard Markel et al., Intervenors-Appellants.
    Argued April 15, 1955;
    decided June 2, 1955.

      Murray G. Fuerst, Corporation Counsel (John A. Bodmer of counsel), for appellants.

      Frank H. Connelly for intervenors-appellants.

      Harold M. Miller and Benjamin Burstein for respondents.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fboessel, Van Vooehis and Btjeke, JJ. Fuld, J., dissents and votes to reverse.


text:
    Olaf Larsen, Jr., Respondent, v. Aston G. Clark, Respondent; Dominick J. Ambrose, Appellant, et al., Defendant.
    Argued April 20, 1955;
    decided June 2, 1955.

      John J. Crnmeen for appellant.

      Benjamin H. Siff and Sidney R. Siten for Olaf Larsen, Jr., respondent.

      Henry R. Bright and Hobart R. Marvin for Aston Q-. Clark, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Claim of Adam Di Sarro, Respondent, against Abraham Stone et al., Doing Business as Stone Liquor Distributors, et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 21, 1955;
    decided June 2, 1955.

      Charles P. Barre for appellants.

      Jacob K. Javits, Attorney-General (Barry Pastor, Henry 8. Manley and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order of the Appellate Division reversed and award of the Workmen’s Compensation Board annulled, with costs in this court and in the Appellate Division against the Workmen’s Compensation Board, and the claim dismissed upon the ground that there is an absence of substantial evidence to establish an industrial accident. No opinion.

Concur: Desmond, Fuld, Van Voobhis and Bubble, JJ. Conway, Ch. J., Dye and Fboessel, JJ., dissent and vote to affirm.


text:
    John J. McCloskey, as Sheriff of the City of New York, et al., Appellants, v. Chase National Bank of the City of New York, Respondent.
    Argued April 18, 1955;
    decided June 2, 1955.

      Bene Loeb, Daniel Scheyer and Leonard Wacksman for appellants.

      A. Donald MacKinnon, William Eldred Jackson and Janet P. Kane for respondent.
   On appeal from judgment: Judgment affirmed, with costs. No opinion.

On appeal from order: Order affirmed. Question certified answered in the affirmative. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Field, Fboessel, Van Voobhis and Bubke, JJ.


text:
    Sada M. Abrahams et al., Appellants, v. American Steel & Wire Co. et al., Respondents, et al., Defendants.
    Submitted May 23, 1955;
    decided June 2, 1955.

      Charles Ettinger, H. Bartow Farr, Jr., and William P. McHale, for motion.

      Irving A. Thau opposed.
   Motion granted and. appeal dismissed, with costs and $10 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Freda K. Berger, Appellant, v. City of New York et al., Respondents.
    Submitted May 31, 1955;
    decided June 2, 1955.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, as follows: Whether the Building Zoning Resolution, adopted May 25, 1916, and amendments thereto are, on this record, confiscatory, arbitrary and unreasonable as to plaintiff’s property in derogation of the Fourteenth Amendment. The Court of Appeals held that there was no denial of any constitutional right of plaintiff. [See 308 N. Y. 830.]


text:
    In the Matter of Theresa Bobinski, Appellant, against Konrad Bobinski, Respondent.
    Submitted May 23, 1955;
    decided June 2, 1955.

      Solomon Raffe for motion.

      Bernard Meyerson opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order sought to be appealed from is not appealable by permission of the Court of Appeals (Civ. Prac. Act, § 589, subd. 1, par. [b]).


text:
    In the Matter of the Estate of Herman M. Braloff, Deceased. Herbert S. Greenberg et al., as Executors of Herman M. Braloff, Deceased, Appellants; Morris Braloff, as Coexecutor, Respondent.
    Submitted April 18, 1955;
    decided June 2, 1955.

      Monroe J. Cahn for motion.

      Harold M. Sichel opposed.
   Motion denied, with $10 costs and necessary printing disbursements, upon the ground that the issues are moot.


text:
    In the Matter of the Claim of Angelo Malaspina, Appellant. Edward Corsi, as Industrial Commissioner, Respondent.
    Submitted May 23, 1955;
    decided June 2, 1955.

      J. Howard Bossbach for motion.
    No one opposed.
   Motion granted.


text:
    In the Matter of the Estate of Flora Littauer, Deceased. Ann H. Mowder, Appellant; Walter W. Richard et al., Respondents.
    Submitted May 31, 1955;
    decided June 2, 1955.
   Application to resettle order of the Court of Appeals dated April 14, 1955 [denying motion for leave to appeal (Matter of Littauer, 285 App. Div. 95, 308 N. Y. 1052)] so as to strike out the award of costs and printing disbursements, granted.


text:
    In the Matter of the Estate of John E. Wilson, Deceased. Frederick E. Wilson, as Executor of John E. Wilson, Deceased, Respondent; George S. Ludwig et al., Appellants.
    Submitted May 23, 1955;
    decided June 2, 1955.

      Thomas L. Kelly for motion.
    No one opposed.
   Motion granted.


text:
    The People of the State of New York, Respondent, v. William Byers, Also Known as William Snyder, Appellant.
    Submitted May 31, 1955;
    decided June 2, 1955.

      J. Michael Solomon, Ralph W. Kerbs and Darwin W. Telesford for motion.

      Frank S. Hogan, District Attorney, for the People of the State of New York.
   Motion granted and case set down for argument during the October, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. William D. Caracelli, Appellant.
    Submitted May 31, 1955;
    decided June 2, 1955.

      William D. Garacelli, in person, for motion.

      T. Vincent Quinn, District Attorney, for the People of the State of New York.
   Motion granted.


text:
    The People of the State of New York, Respondent, v. Michael Conforti, Appellant.
    Submitted May 23, 1955;
    decided June 2, 1955.

      Wolfgang F. Cribari and William F. Horan for motions.

      Fred A. Dickinson, District Attorney, for the People of the State of New York.
   Motion to have appeal heard upon the original record granted. Motion for enlargement of time granted and case set down for argument during the October, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Michael Du Byk, Appellant.
    Submitted May 23, 1955;
    decided June 2, 1955.

      Nancy Carley for motion.

      Daniel V. Sullivan, District Attorney (John B. Lee of counsel), for the People of the State of New York.
   Motion granted.


text:
    The People of the State of New York, Appellant, v. Anniello Ercole, Also Known as “ T ”, Respondent.
    Submitted May 23, 1955;
    decided June 2, 1955.
   Motion for reargument denied. [See 308 N. Y. 425.]


text:
    The People of the State of New York, Respondent, v. Philip Orlando, Appellant.
    Submitted May 23, 1955;
    decided June 2, 1955.
   Motion to amend remittitur denied. [See 304 N. Y. 805; 308 N. Y. 943.]


text:
    The People of the State of New York, Respondent, v. Christopher Romano, Appellant.
    Submitted May 23, 1955;
    decided June 2, 1955.

      Daniel V. Sullivan, District Attorney (Walter E. Dillon of counsel), for motion.

      Christopher Romano, in person, opposed.
   Motion granted and appeal dismissed upon the ground that the application for permission to appeal was not timely made (Code Crim. Pro., § 521).


text:
    The People of the State of New York, Respondent, v. Albert F. Shaw, Appellant.
    Submitted May 31, 1955;
    decided June 2, 1955.

      Albert F. Shaw, in person, for motion.
    No one opposed.
   Motion granted and Hayden H. Dadd, Esq., Main Street, Attica, New York, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Frederick Spillman, Alias Robert Sunderland, Frederick Leo Spellman and Fred Williams, Appellant.
    Submitted May 31, 1955;
    decided June 2, 1955.

      Frederick Spillman, in person, for motion.

      T. Vincent Quinn, District Attorney (George J. Began of counsel), for the People of the State of New York.
   Motion granted and John McKim Minton, Esq., 295 Madison Avenue, New York City, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Donald B. Winship, Appellant.
    Submitted May 23, 1955;
    decided June 2, 1955.

      John W. Condon, Jr., for motion.
    No one opposed.
   Motion granted.


text:
    Roman Szczygiel, Appellant, v. Isthmian Steamship Company, Respondent.
    Submitted May 31, 1955;
    decided June 2, 1955.

      Donald S. Sherwood for motion.
    No one opposed.
   Motion granted.


text:
    Kenneth Turner, Respondent, v. County of Clinton, Appellant.
    Submitted May 23, 1955;
    decided June 2, 1955.

      Thomas A. Robinson for motion.

      Armond A. Mancuso opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Estelle Weill, Respondent, v. Leon Weill, Appellant.
    Submitted May 31, 1955;
    decided June 2, 1955.

      David J. Colton and Spencer Pinlcham for motion.

      Herbert M. Fern opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Dagney E. Chabala, Respondent, against County of Westchester et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 28, 1955;
    decided June 9, 1955.

      Harry G. Herman, County Attorney (Anthony J. Caputo and Ogden C. Noel of counsel), for County of Westchester and another, appellants.

      Anthony J. Caputo and Ogden C. Noel for Interboro Mutual Indemnity Insurance Company, appellant.

      Jacob K. Javits, Attorney-General (Roy Wiedersum and Henry 8. Manley of counsel), for Workmen’s Compensation Board, respondent.

      Paul L. Bleakley for claimant-respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Claim of Alice W. Pilger, Respondent, against County of Westchester et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 28, 1955;
    decided June 9, 1955.

      Harry G. Hermcm, County Attorney (Ogden C. Noel and Anthony J. Caputo of counsel), for County of Westchester, appellant.

      Ogden C. Noel and Anthony J. Caputo for Interboro Mutual Indemnity Insurance Company, appellant.

      Jacob K. Jgvits, Attorney-General (Boy Wiedersum, Henry 8. Manley and Milton Alpert of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Frank J. Brilbeck, Respondent, v. City of Syracuse, Appellant. Daniel Brilbeck, an Infant, by Frank J. Brilbeck, His Guardian ad Litem, Respondent, v. City of Syracuse, Appellant.
    Submitted May 23, 1955;
    decided June 9, 1955.

      Vincent A. O’Neil for motion.
    No one opposed.
   Motion granted and appeals dismissed, with costs and $10 costs of motion, unless, in each action, defendant files a stipulation for judgment absolute within ten days after service of this order with notice of entry thereof.


text:
    Constance Hurley, Appellant, v. Edward R. Tolfree et al., Respondents.
    Submitted June 6, 1955;
    decided June 9, 1955.
   Motion for reargument or, in the alternative, to amend the remittitur denied, with $10 costs. [See 308 N. Y. 358.]


text:
    M. Kraus & Bros., Inc., Respondent, v. William Bergman, as President of Manhattan Window Cleaners Union, an Unincorporated Association, et al., Appellants.
    Submitted May 31, 1955;
    decided June 9, 1955.

      Morris Bauman for motion.

      Frederic 8. Berman opposed.
   Motion denied.


text:
    Mary K. McNamee, Respondent, v. Ruth A. Griffin, Appellant.
    Submitted June 6, 1955;
    decided June 9, 1955.

      Abraham M. Perkus and Joseph Winston for motion for reargument and in opposition to cross motion.

      Mortimer Goodman for cross motion and in opposition to motion for reargument.
   Motion granted, and, upon reargument, motion for a stay granted on condition (1) that within ten days appellant serve and file an undertaking in the sum of $1,000 to the effect that if the judgment appealed from is affirmed, or the appeal is dismissed, she will pay the sum directed to be paid by the judgment in excess of the $15,000 now on deposit, and (2) that the appeal be argued during the October, 1955, session of the Court of Appeals; otherwise, motion denied. Cross motion denied.


text:
    The People of the State of New York, Respondent, v. Edmund C. Buehler, Appellant.
    Submitted June 6, 1955;
    decided June 9, 1955.

      Leo E. Sherman for motion.

      Frank S. Hogan, District Attorney (Paul A. Stone of counsel), in opposition to motion to have appeal set down for argument during present session.
   Motions granted.


text:
    The People of the State of New York, Respondent, v. Norman Roye, Appellant.
    Submitted June 6, 1955;
    decided June 9, 1955.

      Harris B. Steinberg for motions.
    No one opposed.
   Motion for assignment of counsel granted and Messrs. Harris B. Steinberg, Irving Mendelson and Sylvester Cosentino, all of New York City, assigned as counsel to defendant on the appeal herein. Motion for enlargement of time granted and case set down for argument during the October, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Ernest Lee Edwards, Appellant.
    Submitted June 6, 1955;
    decided June 9, 1955.

      Harris B. Steinberg for motions.

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for the People of the State of New York.
   Motion for assignment of counsel granted and Messrs. Harris B. Steinberg, Abraham M. Brodsky and Emanuel Steinberg, all of New York City, assigned as counsel to defendant on the appeal herein. Motion for enlargement of time granted and case set down for argument during the October, 1955, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Submitted June 9, 1955;
    decided June 9, 1955.
   Motion for orders pursuant to section 503 of the Code of Criminal Procedure granted. [See 303 N. Y. 856; 306 N. Y. 867; 307 N. Y. 253.]


text:
    Arthur E. Knapp et al., Appellants, v. Walter Fasbender, as Supervisor of the Town of Huntington, et al., Respondents.
    Argued April 12, 1955;
    reargument ordered June 9, 1955.
   Reargument ordered during the first week of the next session of the Court of Appeals, particularly with reference to whatever effect chapter 816 of the Laws of 1952 may have upon the subject matter of the action.


text:
    In the Matter of the Claim of Suzanne Clynes, Respondent, against Dobler Brewing Company et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 21, 1955;
    decided June 10, 1955.

      Kenneth J. Dugan and Thomas J. Burke for appellants.

      Jacob K. Javits, Attorney-General (Daniel Polansky, Henry 8. Manley and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opirnon.

Concur: Conway, Ch. J., Desmond, Dye and Froessel, JJ. Fuld, Van Voorhis and Burke, JJ., dissent and vote to reverse and to annul the award and to dismiss the claim upon the ground that there is no substantial evidence to sustain the findings of the Workmen’s Compensation Board.


text:
    Stella Flour & Feed Corp., Appellant, v. National City Bank of New York, Respondent.
    Argued April 25, 1955;
    decided June 10, 1955.

      Henry E. Otto and Samuel C. Otto for appellant.

      Herman E. Compter and Charles C. Parlin,Jr., for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fttld, Froessel, Van Voorhis and Burke, JJ.


text:
    105 Franklin Street Corp., Appellant, v. Samuel Seratoff et al., Respondents.
    Submitted April 26, 1955;
    decided June 10, 1955.

      Nathan Schwarts and William, S. Klinger for appellant.

      Irving Lederman for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fold, Froessel, Van Voobhis and Burke, JJ.


text:
    In the Matter of the Claim of Fred W. Kriete, Respondent, against Todd Shipyards et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 28, 1955;
    decided June 10, 1955.

      George J. Hayes, Bernard Katzen and Victor Fiddler for appellants.

      Jacob K. Javits, Attorney-General (John J. Quinn, Henry 8. Manley and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Burke, JJ. Van Voorhis, J., dissents and votes to reverse and to annul the award and to dismiss the claim upon the dissenting memorandum of Halpern, J., in the Appellate Division.


text:
    New York Central Railroad Company, Appellant, v. State of New York, Respondent.
    (Claim No. 28761.)
    Argued April 26, 1955;
    decided June 10, 1955.

      William R. Stevens, Gerald E. Dwyer and James L. More for appellant.

      Jacob K. Javits, Attorney-General (John R. Davison and Henry S. Manley of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Claim of Anna Malloy, Respondent, against Cauldwell Wingate Co. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 28, 1955;
    decided June 10, 1955.

      Ralph 8. Stowell and Joseph B. Edwards for appellants.

      Jacob K. Javits, Attorney-General (Harry Pastor, Henry 8. Manley and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye and Fuld, JJ. Froessel, Van Voorhis and Burke, JJ., dissent and vote to reverse and to annul the award and to dismiss the claim upon the dissenting memorandum of Halpern, J., in the Appellate Division.


text:
    The People of the State of New York, Respondent, v. John G. Broady, Appellant.
    Argued April 21, 1955;
    decided June 10, 1955.

      Mordecai Konowits and Emanuel Lewis Greene for appellant.

      Frank S. Hogan, District Attorney (Frank Brenner of counsel), for respondent.
   Judgments reversed, the fine remitted, and a new trial ordered upon the ground that defendant’s rights were substantially prejudiced by the erroneous refusal of the court to permit witness Delaney to be cross-examined concerning alleged inconsistent statements made by him in a recorded conversation before the trial. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Fboessel, Van Voobhis and Btjbke, JJ.


text:
    Helen McCarthy, Respondent, v. Daniel J. McCarthy, Appellant. Daniel J. McCarthy, Appellant, v. Helen McCarthy, Respondent. (Consolidated Action.)
    Argued April 28, 1955;
    decided June 10, 1955.

      0. Lester W. Curry for appellant.

      Alfred E. Santcmgelo for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    The People of the State of New York, Respondent, v. Charles Indiviglio, Defendant, and Anthony C. Ricco, Appellant.
    Argued April 25, 1955;
    decided June 10, 1955.

      Joseph Lonardo and Henry K. Chapman for appellant.

      Frank S. Hogan, District Attorney (Harold Boland Shapiro of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    The People of the State of New York, Respondent, v. Edward J. Nichols and Clarence Marshall Reed, Appellants.
    Argued April 27, 1955;
    decided June 10, 1955.

      Rudolph Stand, Thornton J. Meacham, Jr., Alfred Noriole and. Anthony J. Grasiano for Edward J. Nichols, appellant.

      Gilbert S. Rosenthal, James W. Randolph and Sylvester Cosentino for Clarence Marshall Reed, appellant.

      Frank S. Hogan, District Attorney (Richard G. Denser and Sidney M. Fruhling of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fund, Froessel, Van Voorhis and Burke, JJ.


text:
    The People of the State of New York, Respondent, v. Ammon Hennacy, Appellant.
    Argued April 25, 1955;
    decided June 10, 1955.

      Emanuel Redfield for appellant.

      Franh S. Hogan, District Attorney (Harold Roland Shapiro of counsel), for respondent.
   Judgments reversed and complaint dismissed, upon the ground that the People failed to prove that defendant was selling books in the street as a commercial venture (People v. Barber, 289 N. Y. 378). No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    The People of the State of New York, Respondent, v. Marvin Dancyger, Appellant.
    Argued April 27, 1955;
    decided June 10, 1955.

      Sidney 0. Sparrow for appellant.

      T. Vincent Quinn, District Attorney (George J. Began of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ.


text:
    In the Matter of Breswick & Company, Respondent, against Greater New York Industries, Inc., et al., Appellants.
    Argued April 20, 1955;
    decided June 10, 1955.

      Hyman D. Lehrich, appellant in person, and Kenneth J. Mullane for Greater New York Industries, Inc., and another, appellants.

      Daniel S. Berman for respondent.
   Per Curiam.

Upon this record, triable issues of fact are raised as to the good faith of petitioner and as to its purpose in seeking the inspection, which should be determined before a final order issues (Civ. Prac. Act, § 1295; Matter of Schulman v. Dejonge & Co., 270 App. Div. 147; Matter of Tate v. Sonotone Corp., 272 App. Div. 103).

Accordingly, the order of the Appellate Division should be reversed and the matter remitted to Special Term for a trial of the aforesaid issues, in accordance with the provisions of section 1295 of the Civil Practice Act, with costs to abide the event.

Conway, Ch. J., Desmond, Dye, Fuld, Frobssel, Van Voorhis and Burke, JJ., concur.

Order reversed, etc.


text:
    In the Matter of the Application of Inter-City Associates, Inc., Appellant, to Quash Subpœna Duces Tecum in a Proceeding Entitled The People of the State of New York v. John Doe. The People of the State of New York, Respondent.
    Argued June 6, 1955;
    decided June 10, 1955.

      Samuel L. Melts for appellant.

      T. Vincent Quinn, District Attorney (Lawrence Peires and Eugene S. McQuade of counsel), for respondent.
   Per Curiam.

Inasmuch as this application to quash a subpoena duces tecum was made in the Supreme Court, it is a civil proceeding, and is accordingly appealable (People v. “ Doe ” [Byk], 247 App. Div. 324, affd. 272 N. Y. 473; Matter of Ryan [Hogan], 306 N. Y. 11; Civ. Prac. Act, § 588, subd. 1, par. [a]).

The Appellate Division has dismissed the appeal, but in its opinion stated that if it “ had jurisdiction to entertain the appeal on the merits, it would affirm the order ”. We agree that the Special Term order should be affirmed (Matter of Manning v. Valente, 272 App. Div. 358, affd. 297 N. Y. 681; Matter of Mohawk Overall Co., 210 N. Y. 474, motion to dismiss granted 235 U. S. 685).

Accordingly, the order of the Appellate Division should be reversed and that of Special Term affirmed, with directions to Special Term to fix a new return date.

Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ., concur.

Ordered accordingly.


text:
    Harry Gilbert, Appellant, v. William J. Van Kleeck, as Administrator of the Estate of Samuel J. Van Kleeck, Deceased, and as Administrator with the Will Annexed of John D. Van Kleeck, Deceased, et al., Defendants, and Crosby-Mertz, Inc., Intervenor-Respondent.
    Submitted June 8, 1955;
    decided June 10, 1955.

      John E. Egan for motion.

      Samuel W. Eager, Jr., opposed.
   Motion denied, with $10 costs.


text:
    In the Matter of 116 East 57th Street, Inc., Appellant.
    Submitted April 25, 1955;
    decided June 10, 1955.

      116 East 57th Street, Inc., by Carlyle Finkelstein, its president and director, appellant, in person.

      Jacob K. Javits, Attorney-General (Ruth Kessler Toch and Henry S. Manley of counsel), in his statutory capacity under section 71 of the Executive Law.

      George B. Adams, Abraham N. Davis and Isidor Enselman for New York County Lawyers’ Association, amicus curiae, in support of the Attorney-General’s position.
   Appeal dismissed, with costs, upon the ground that an ex parte order does not finally determine a proceeding within the meaning of the Constitution.


text:
    In the Matter of Robert Saltzman et al., Copartners Doing Business as Grant Square Liquor Store, et al., Respondents, against John F. O’Connell et al., Constituting the State Liquor Authority, et al., Appellants.
    Submitted May 31, 1955;
    decided June 10, 1955.

      William, I. Cohen and Jack Beinstein for motion.

      Frank Leavitt and Paul Blank opposed.
   Motions for leave to appeal by Esquire Liquor Shop, Inc., Irving Rich and Abraham Weissman, and for stay granted.

I


author: Desmond, J. Burke, J.

text:
    Sea Modes, Inc., et al., Respondents, v. Louis C. Cohen, Appellant.
    Argued March 10, 1955;
    decided June 9, 1955.

      Frank Kreitsberg for appellant.
    I. With respect to the unreported sales, the monthly statements were not and could not become final, conclusive and binding accounts stated. (Bailey v. Robinson Mfg. Co., 270 App. Div. 986; Corr v. Hoffman, 256 N. Y. 254; Rodkinson v. Haecker, 248 N. Y. 480; Matter of Bartlett, 272 App. Div. 1068; Daintrey v. Evans, 148 App. Div. 275.) II. The record presents an issue of fact with respect to the action on the check (fifth cause of action), and summary judgment was therefore wrongfully awarded.

      Jacob B. Lindner and Henry B. Selkowe for respondents.
    I. Appellant’s affidavit in opposition to the motion for summary judgment is devoid of evidentiary facts creating any issue which would justify a trial. (Anderson v. City of New York, 258 App. Div. 588; Dodwell & Co. v. Silverman, 234 App. Div. 362.) II. The retention by appellant of the statements rendered to him monthly by respondents, without any objection, is tantamount to an account stated. (Bailey v. Robinson Mfg. Co., 270 App. Div. 986; Corr v. Hoffman, 256 N. Y. 254; Rodkinson v. Haecker, 248 N. Y. 480; Matter of Bartlett, 272 App. Div. 1068; Daintrey v. Evans, 148 App. Div. 275; McClain v. Schofield, 74 Hun 437, 148 N. Y. 733; Bradley v. McDonald, 157 App. Div. 572, 218 N. Y. 351.) III. The parties by their agreement established “ the law of the case ”. (Matter of New York, Lackawanna & Western R. R. Co., 98 N. Y. 447; Morse v. Morse Dry Dock & Repair Co., 249 App. Div. 764; Faruolo v. Faruolo, 253 App. Div. 750; Matter of Malloy, 278 N. Y. 429; Buda v. State of New York, 278 App. Div. 424; Mann v. Simpson & Co., 286 N. Y. 450; Matter of Whalen v. Corsi, 279 App. Div. 1113; Pines v. Beck, 300 N. Y. 181; First Nat. Bank of East Islip v. National Sur. Co., 228 N. Y. 469; Halsted v. Globe Ind. Co., 258 N. Y. 176; Manson v. Curtis, 223 N. Y. 313; Central Union Trust Co. of N. Y. v. Trimble, 255 N. Y. 88.) IV. The Court of Appeals will not pass on issues not raised in the court below. (Maloney v. Hearst Hotels Corp., 274 N. Y. 106; Flagg v. Nichols, 307 N. Y.
      96; Matter of City of New York [Northern Blvd.], 270 N. Y. 652; Matter of City of New York [East Riv. Drive], 264 App. Div. 555, 298 N. Y. 843.)
   Desmond, J.

Defendant, from October, 1949, to December, 1951, was employed by plaintiffs as a salesman, Ms agreed compensation being 5fo of Ms “ net sales ”. He was, by the terms of the written employment agreement, to receive $200 per week as an advance against earmngs ”, to be applied against commissions earned. Any excess of advances over actual commissions earned was to be repaid by defendant to plaintiffs on demand. During the period of defendant’s employment, the total of those weekly advances to defendant, plus moneys borrowed by defendant from plaintiffs and not repaid, exceeded the amount, as computed by plaintiffs, of defendant’s commissions. When defendant failed to pay that alleged excess, plaintiffs sued him therefor, the complaint demanding judgment, also, for the amount of a dishonored check, and for damages for alleged breaches of contract. Defendant retaliated with a suit against plaintiffs for $10,000 for commissions allegedly due him and unpaid. The two suits were then consolidated under the above title.

Plaintiffs ’ alleged causes of action for breach of contract have been severed and are not involved in this appeal. The Appellate Division has granted plaintiffs’ motion for summary judgment in their favor on the other counts of their complaint (that is, for the alleged overpayments and the dishonored check), and dismissing defendant’s complaint. We concur in that disposition.

As to plaintiffs’ fifth cause of action (dishonored check) defendant exMbited no defense and summary judgment was clearly indicated. As dispositive of the other (overpayment) counts, plaintiffs and the Appellate Division relied on tMs provision of the agreement by wMch plaintiffs Mred defendant: We [plaintiffs] will render to you statements monthly showing business done and re-orders received from your accounts and unless you submit objections or corrections to such statements within 10 days from the date when they are rendered to you, the same shall be deemed conclusive and binding upon both of us and shall form the basis upon which computation of your compensation shall be made.”

During his employment defendant received such statements monthly (and a final statement when his employment ended), and to none of those statements did he at any time submit any objection or correction. Never did he assert that the statements were in any manner incorrect, until plaintiffs sued him in March, 1952, three months after he had stopped working for plaintiffs. All that defendant now avers is that he is entitled to an additional sum for commissions on sales made by him and not credited to him by plaintiffs. Plaintiffs swear that they paid him in full (and overpaid him) and that, for various reasons, the additional sales described by defendant in his countersuit were not subject to commissions. Defendant disputes that latter assertion but by so doing he, we hold, is raising a contention which is not available to him under his stipulation, above quoted, that the monthly statements were to be “ conclusive and binding upon both parties Defendant is attempting to do exactly what that agreement says he may not do.

Under Rodkidson v. Haecker (248 N. Y. 480, 485) and cases cited therein, and Corr v. Hoffman (256 N. Y. 254), these accounts as so stated between these parties become binding contracts and are absolutely enforcible as such unless fraud, mistake or other equitable considerations be shown such as to make them improper to be enforced (Rodkidson opinion, p. 285). There are no such equitable considerations here. There was no fiduciary relationship in this arms-length bargaining. There is nothing in the record to show that defendant could not have investigated, or was prevented from investigating, the facts as to sales made by his employers. When he failed so to do, and received and held the accounts without making objection during the time specified or at any other time, he assented to the statements, and foreclosed himself from later taking the position that the accounts were not correct. Otherwise, the contract would be without purpose or effect.

The judgment should be affirmed, with costs.

Burke, J.

(dissenting). The defendant, a salesman calling on large national accounts as an employee of the plaintiffs, contends that the plaintiffs are guilty of mistake, misunderstanding or overreaching in failing to include in the monthly statements rendered to the defendant pursuant to the agreement, the sales to, and reorders from, Ms accounts in an amount of about $180,000. The plaintiffs concede that the sales and reorders were not included in the monthly statements rendered to the defendant, but allege that the defendant was not entitled to commissions thereon in that (1) the orders were not obtained by the defendant, (2) that the orders were obtained from departments which were parts of some of the defendant’s accounts which the defendant never solicited but were solicited by other salesmen in the employ of the plaintiffs, and (3) that buyers employed by defendant’s accounts gave their orders to other salesmen in the employ of the plaintiffs. The agreement does not set forth any such exceptions or conditions. It states: We will render to you statements monthly, showing business done and re-orders received from your accounts ”.

There can be no doubt that the conflicting claims present questions of fact which in the usual case would warrant the denial of summary judgment. The question presented for determination is whether the court should apply the legal presumption resulting from the rendition and retention of monthly statements without objection.

It is well known that the general rule is that “ A party will not be allowed to impeach an account stated, on the ground of fraud or mistake, if he assented to it with full knowledge of the facts and circumstances attending it, or if, with ample means of knowledge at hand, he failed to ascertain the facts.” (1 C. J. S., Account Stated, § 51, subd. d, p. 731.) In the cases of Rodkidson v. Haecker (248 N. Y. 480, 489, 490), a suit between attorney and client, and Corr v. Hoffman (256 N. Y. 254, 259), a suit between partners, the person receiving the accounts had equal power or control over the books of account or had personal knowledge of the services rendered. Therefore, this court properly held that the accounts stated were conclusive and binding-contracts. In tMs case, however, the defendant was one member of a sales force, not a person with power or control over the books of account or one in a position to have personal knowledge of all the transactions between Ms employer and the large national accounts. He obviously could not verify the statements from the books and accounts of the customers. Consequently, he did not have the means at hand necessary to ascertain the facts. With just such circumstances in mind, this court held in Rodkidson v. Haecker (supra) that a party may plead and prove equitable considerations that may show that an account stated should not be enforced. The agreement is evidence that the clear intention of the parties was that the plaintiffs would render statements showing all sales to, and all reorders from, the defendant’s accounts. Since the plaintiffs conceded that certain sales of plaintiffs’ goods to the defendant’s accounts were not included in the monthly statements for reasons now disputed, the defendant is entitled to have the questions of fact disposed of at a trial.

Therefore, the judgment to the extent that it dismisses the defendant’s complaint and directs judgment in the plaintiffs’ favor on the first and second causes of action should be reversed, and affirmed as to the fifth cause of action.

Dye, Full, Fboessel and Yak Yoobhis, JJ., concur with Desmokd, J.; Bubke, J., dissents in an opinion in which Cokway, Ch. J., concurs.

Judgment affirmed.


author: Fuld, J.

text:
    The People of the State of New York, Appellant, v. John Donahue, Respondent.
    Argued April 26, 1955;
    decided June 10, 1955.

      Edward 8. Silver, District Attorney (Frank Di Lalla of counsel), for appellant.
    A prima facie case was presented to the grand jury. (People v. Glen, 173 N. Y. 395; People v. Sexton, 187 N. Y. 495; People v. Bob, 233 App. Div. 94; People v. Masiano, 253 App. Div. 454; People v. Peary, 249 App. Div. 851; People v. Viola, 264 App. Div. 38; People v. Toland, 217 N. Y. 187; People v. Friedman, 149 App. Div. 873; People v. Galbo, 218 N. Y. 283.)
    No appearance for respondent.
   Fuld, J.

The evidence contained in the grand jury minutes would justify a finding by a trial jury that defendant knowingly aided and abetted an accomplice in committing the burglary and the stealing of certain merchandise from a factory, as charged in the indictment. That defendant’s accomplice actually effected an entry into the burglarized premises after all of its doors and windows had been closed and locked and that he handed stolen merchandise through the door to defendant, who apparently stood outside, is sufficient to support the conclusion that there was the requisite breaking and entry to spell out the crime of burglary (Penal Law, § 404, subd. 1).

It may well be that defendant did not, as he claims, intend to commit a theft and it is possible that he may successfully urge some other defense. However, a court may not accept defendant’s contention as fact; any defense that he may have must he offered at the trial for the appraisal and decision of the jury. A court has no alternative but to deny a motion to set aside an indictment on the ground that there was insufficient evidence before the grand jury, when that body has acted upon evidence sufficient, “ if unexplained or uncontradicted ” (Code Crim. Pro., § 258), to warrant a conviction by the trial jury.

The order of the Appellate Division should he reversed and the motion to dismiss the indictment denied.

The orders should he reversed and the indictment reinstated.

Conway, Ch. J., Desmond, Dye, Froessel, Van Voorhis and Burke, JJ., concur.

Orders reversed, etc.


author: Desmond, J.

text:
    In the Matter of the Claim of Timothy Dunleavy, Appellant, against Walsh, Connelly, Senior & Palmer et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued April 25, 1955;
    decided June 10, 1955.

      Louis Mendelson and William Doblin for appellant.
    I. The compensation referee’s decision and award to claimant was correct in law and should not have been reversed by the board. (Matter of Emslie v. Fuller Co., 277 App. Div. 815.) II. Total disability under the Workmen’s Compensation Law is not limited in meaning to a medical disability. (Matter of McCann v. Walsh Constr. Co., 282 App. Div. 444; Matter of Glavy v. Bethlehem Steel Co., 271 App. Div. 906, 296 N. Y. 998, 271 App. Div. 1040, 298 N. Y. 594; Matter of Duebel v. Buffalo Pottery, 278 App. Div. 1030, 283 App. Div. 542; Matter of Higgins v. August Krazeise, Inc., 281 App. Div. 907; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65.)

      Albert P. Thill for Walsh, Connelly, Senior & Palmer and another, respondents.
    I. Substantial evidence supports the board’s decision herein appealed from. (Matter of Dennison v. Peckham Road Corp., 295 N. Y. 457.) II. The state of total disability under the Workmen’s Compensation Law is a factual question to be determined by the board on all the facts. (Lee v. Minneapolis St. R. R., 230 Minn. 315; Elliott v. Gooch Feed, 147 Neb. 309; Berg v. Saddler, 235 Minn. 214; National Fuel v. Arnold, 121 Col. 220; Kuhnle v. Department of Labor, 12 Wn. 2d 191; Cardiff v. Hall, 1 K. B. 1009; Cornett-Lewis v. Day, 312 Ky. 221; Matter of Slawinski v. Williams & Co., 298 N. Y. 546; Matter of Cole v. Saranac Lake Gen. Hosp., 282 App. Div. 626.)
   Desmond, J.

The question of law is this: may a workman’s compensation claim for total disability from silicosis be denied as against Ms latest employer in a dust-exposure employment, because of expert testimony that he had become, medically, totally disabled while working for a different employer, some two years earlier Í The evidentiary facts are not disputed. Claimant’s work since about 1923, as a sandhog, had subjected him to various exposures of silica dust. In March, 1950, while so employed by an employer other than this respondent, he entered a hospital for treatment for thrombophlebitis, but a routine chest X ray revealed the presence, or probable presence, of tuberculosis and silicosis. There is no proof that claimant was then told that he was totally disabled or unable to work at his regular trade. After his discharge from the hospital, claimant worked as a lock tender and watchman until October, 1951. In December, 1951, he applied to respondent for work as a sandhog and, after examination by respondent’s physician, was so employed at the regular duties of a sandhog on 28 days between December 10, 1951, and February 12, 1952, earning a total of $721. On the latter date he had to give up work permanently, and it is not disputed that he has since been totally and permanently disabled. His claim against respondent was, however, dismissed on a finding by the board that he had become totally disabled, from silica tuberculosis, before he had begun to work for respondent. That finding was based on the testimony of a specialist called by the board as its impartial examiner. That physician, after examining the X rays of claimant’s chest taken at the hospital in March, 1950, gave it as Ms opinion that claimant at that time was totally disabled, medically ” speaking.

The Appellate Division, treating as one of fact the board’s finding that claimant was totally disabled in March, 1950, affirmed the decision. Thus, we have this incongruous result: a worker, when finally laid low by an occupational disease, is derned compensation because he was really, although without Ms own knowledge, totally disabled long before, even though he continued working at the same hazardous job. We tMnk a proper application of the statutes, to the facts as found, dictates a different result.

The hoard’s fact findings, read against the background of the proof, may be thus summarized: claimant, after being harmfully exposed to dust in the latest as well as in his earlier employments, and having obtained this latest job without willfully or falsely misrepresenting his previous physical condition, was forced, in February, 1952, to leave that employment because of advanced silica tuberculosis, but he had in fact become totally disabled (medically) before beginning to work for this employer in December, 1951.

On its face, the first sentence of section 44-a of the Workmen’s Compensation Law (one of a group of enactments in 1947 as to dust disease compensation) applies directly and immediately to this case. The sentence reads: The employer in whose employment an employee was last exposed to an injurious dust hazard shall be liable for the payments required by this chapter when disability or death of the employee shall be due to silicosis or other dust disease ”. Respondent counters with a reference to sections 38 and 42, which say that disablement from an occupational disease shall be treated as the happening of an accident and that the date of disablement shall be such date as the board may determine on the hearing of the claim.” The board, says respondent, has fixed the date of total disablement here, and that is the end of it. We do not think it is as simple as that. Recognizing the “ progressive character ” and prevalence * * * in basic industries ” of silicosis (see Govenor Dewey’s message, N. Y. Legis. Ann., 1947, p. 211), the Legislature has given unusual care and special treatment to the question of workmen’s compensation for sufferers from dust diseases. No compensation at all is payable for partial disability from such ailments (Workmen’s Compensation Law, § 39; Cifolo v. General Elec. Co., 305 N. Y. 209). When a worker becomes totally unable to work, the compensation is paid in the first instance by his latest employer’s insurance carrier but, after 260 weeks, that carrier is reimbursed from a “ Special Disability Fund ” (Workmen’s Compensation Law, § 15, subd. 8, par. [ee]; § 44-a). Tying together those associated enactments, we think that the Legislature meant this: because of the slow and insidious progress of dust diseases, it is impractical or impossible to pay compensation therefor until disability finally and actually becomes total, but when that time comes, an award must go against the latest employer (or his carrier) with reimbursement to the latter, from a special fund, after five years. Such was the Legislature’s method of seeing to it that the worker, when at last he must quit work forever, is not deprived of compensation which, by a rough formula, is charged against the total of insurance carried by all employers in such harmful employments.

In other situations, it may be proper to hold that actual subsequent work does not forbid a finding of earlier total disability. But in silicosis cases, as it seems to us, the Legislature must have intended that no compensation be paid until actual inability to work, and that it then be awarded against the latest employer. Protection to employers against frauds is furnished, to some extent, by section 43 of the act which denies compensation to an employee who, at the time of his employment, £< wilfully and falsely represents in writing that he has not previously suffered from the disease which is the cause of disability or death ”. But, as the board held, section 43 does not apply here, since, although there is some testimony that claimant signed a form in which his previous ailments were omitted from the answers, the board apparently considered that such omission was, if inaccurate, not willfully false. That conclusion of the board was justified on this record since there is nothing to show that claimant, at the end of his 1950 hospitalization, knew or learned any more than that he had 4 4 a touch of silicosis ” and should be X-rayed regularly. Our conclusion is that the board’s findings of fact should have led not to a dismissal of the claim, but to an award against these respondents.

The order appealed from should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to the Workmen’s Compensation Board with directions to make an award against the respondent herein.

Conway, Ch. J., Dye, Fuld, Froessel, Van Voorhis and Burke, JJ., concur.

Order reversed, etc.


author: Dye, J.

text:
    In the Matter of the Arbitration between Princeton Rayon Corp., Appellant, and Gayley Mill Corporation, Respondent.
    Argued April 20, 1955;
    decided June 10, 1955.

      Martin N. Whyman, Frederick E. M. Ballon and Henry Winestine for appellant.
    I. The court below erred in that it misconceived the scope of the authority vested in it by section 1450 of the Civil Practice Act. II. The agreement to arbitrate controversies, rather than to submit them to the courts for determination, should not be lightly construed. (Blossom v. Dodd, 43 N. Y. 264; Klar v. H. & M. Parcel Room, 270 App. Div. 538, 296 N. Y. 1044; Dery v. Blate, 209 App. Div. 467, 239 N. Y. 203; Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Eagar Constr. Corp. v. Ward Foundation Corp., 255 App. Div. 291; Matter of Tanenbaum Textile Co. v. Schlanger, 287 N. Y. 400; Matter of Albrecht Chem. Co. [Anderson Trading Corp.], 298 N. Y. 437; Matter of Arthur Philip Export Corp. v. Leathertone, Inc., 275 App. Div. 102; Matter of Pavia & Co. [Fulton Co. Silk Mills], 284 App. Div. 391.)

      Melvin Liebowite, Aaron Rosen and Harold V. Kennedy for respondent.
    I. A contract to arbitrate may be accepted in any way provided by the parties. (Matter of Helen Whiting, Inc. [Trojan Textile Corp.], 307 N. Y. 360.) II. Princeton has not set forth evidentiary facts to raise a substantial issue as to the making of the contract. (Matter of Levy [Hirsch], 271 App. Div. 431, 296 N. Y. 837; Matter of Finsilver, Still & Moss v. Goldberg, Maas & Co., 253 N. Y. 382; Matter of Kramer & Uchitelle [Eddington Fabrics Corp.], 288 N. Y. 467; Matter of Local 853, Retail Furniture & Floor Covering Employees Union, R. W. D. S. U., C. I. O. [Zimmerman], 281 App. Div. 681; Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82.)
   Dye, J.

In this proceeding to stay arbitration, a substantial issue of fact is presented as to the making of an agreement to arbitrate, which should not be determined on affidavits but after a trial in the usual manner (Civ. Prac. Act, § 1450; Matter of Siracusa v. 421-425 W. 54th St. Corp., 237 N. Y. 572). The intentian to arbitrate must be clearly expressed (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288).

The order of the Appellate Division and that of Special Term should be reversed, with costs in this court and in the Appellate Division, and motion to stay arbitration granted, without prejudice to an appropriate trial of the issue of the making of an agreement to arbitrate pursuant to section 1450 of the Civil Practice Act.

The order of the Appellate Division and that of Special Term should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.

Conway, Ch. J., Fuld, Froessel, Van Voorhis and Burke, JJ., concur with Dye, J.; Desmond, J., dissents and votes to affirm.

Orders reversed, etc.


text:
    In the Matter of Adam McQuillan et al., Respondents, against Joseph G. Schechter et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants, and James Tubman et al., Intervenors-Appellants.
    Argued April 18, 1955;
    decided June 10, 1955.

      Peter Campbell Brown, Corporation Counsel (Anthony Curreri and Seymour B. Quel of counsel), for appellants.
    As returning disabled veterans, intervenors were entitled to an absolute constitutional preference over all veterans and non-veterans on the original officer eligible list. The form this preference took was properly the grant of retroactive seniority credit dating back to the date when a nonveteran was appointed from that list after the intervenors were inducted into military service. The commission’s determination to correct its original error was not only proper, but required. (Matter of Farrell v. Watson, 279 App. Div. 376, 304 N. Y. 630; Matter of Cotter v. Watson, 282 App. Div. 292, 306 N. Y. 681.)

      Leo Brown for intervenors-appellants.
    Inasmuch as nonveterans had been appointed as correction officers from the original eligible list while intervenors-appellants were in military service, intervenors-appellants, as disabled veterans, are entitled to retroactive seniority credit for promotion from the date when the first nonveterans were appointed after their induction. The determination of the municipal civil service commission granting them such seniority credit was, therefore, entirely proper. (Matter of Cotter v. Watson, 282 App. Div. 292, 306 N. Y. 681; Matter of Farrell v. Watson, 279 App. Div. 376, 304 N. Y. 630; Matter of Carey v. Morton, 297 N. Y. 361; Matter of Bateman v. Marsh, 188 Misc. 189, 271 App. Div. 813, 296 N. Y. 849; People ex rel. Weintz v. Burch, 79 App. Div. 156; People ex rel. Qua v. Gaffney, 142 App. Div. 122.)

      Paul Windels and John K. Clarh, Jr., for respondents.
    I. Under the Military Law (§ 246 [now § 243], subd. 7), intervenors were not entitled to retroactive seniority credit as “ officers ”. II. Matter of Farrell v. Watson (279 App. Div. 376, 304 N. Y. 630) did not change the statutory rule. (Matter of Knapp v. Duffey, 169 App. Div. 794; People ex rel. Robesch v. President of Borough of Queens, 190 N. Y. 497; Matter of Carey v. Morton, 297 N. Y. 361; Matter of Goldberg v. Morton, 299 N. Y. 559; Matter of Cotter v. Watson, 282 App. Div. 292, 306 N. Y. 681.) III. Intervenors, because of lack of three years’ seniority or experience, were not eligible for the 1947 promotion examination. IV. Intervenors were granted their constitutional rights to pi iority in appointment as ‘ ‘ officers ’ ’. Under any circumstances, that question does not affect this issue.
   Desmond, J.

Respondents-appellants, being the New York City municipal civil service commission, and intervenorsrespondents-appellants Tubman, Judge and La Courte, appeal from a reversal, on the law, by the Appellate Division, First Department, of an order made at Special Term dismissing the proceeding. The Appellate Division’s order grants the application of petitioners-respondents and, accordingly, directs the municipal civil service commission to cancel a determination made by that commission in February, 1954, which commission determination, thus cancelled, had granted retroactive seniority credit to appellants Tubman, Judge and La Courte on a June, 1953, civil service promotional eligible list for the position of captain in the New York City department of correction. The Appellate Division order further directed the commission to reinstate an earlier determination by the commission which had granted seniority credit to Tubman, Judge and La Courte, as of the date of their actual first employment only, in the city correction department. All three of these intervenors, as well as the three petitioners, were successful in 1943, before any of them went into military service and before any of them, were in public employment, in passing an open competitive examination for the position of correction officer in the New York City department of correction, a position of lower rank in that department than the position of captain for which they are contending here. All of the petitioners-respondents (McQuillan, Jones and Lance) passed higher on that list than did any of the intervenors (Tubman, Judge and La Courte). Before any of the intervenors could he reached for appointment as correction officers from the list, all three intervenors went into military service and, eventually, all three intervenors were honorably discharged on various dates in 1944,1945 and 1946. After their discharges, each of the intervenors was duly certified as a disabled veteran. In October, 1946, all three intervenors were appointed from the list as officers. Those appointments were made when, and only when, the respective names of intervenors were reached in regular numerical order on the list. Previously, and while intervenors had been in military service, a number of nonveterans and one nondisabled veteran had been appointed from the list in regular numerical order. In January, 1947, after each of the intervenors had held the position of officer for about three months, the municipal commission advertised a promotional examination for captain in the same department to be held in June, 1947, the eligibility requirements including at least three years of service as officers, which requirement, of course, none of the intervenors could actually meet. When these intervenors filed applications to take the promotion examination they were declared by the commission to be ineligible therefor, since they had not served the required three years as officers. However, intervenors had previously claimed, and continued and still continue to claim, that they were, in fact, eligible to take that promotion examination under the provisions of the then section 246, now section 243, of the Military Law which, in subdivision 7, says, in effect, among other things, that any person whose name is on any eligible list shall, while on military duty, retain his rights and status on such list. Subdivision 7 goes further, too, and says that if any such person is reached for certification while on military duty, his name shall be placed on a special eligible list in the order of his original standing, and that, on his request, his name shall remain on such special eligible list for two years after termination of military duty, and that, when and if appointed, he shall, as to seniority credit, “ be deemed to have been appointed on the earliest date upon which any eligible, who was the lower on such original eligible list, was appointed ” (note the word “ lower ”, the meaning of which, on these particular facts, is really our problem here). Intervenors say (and Special Term and the dissenters in the Appellate Division agreed) that since, as disabled veterans, they were entitled retroactively to an absolute preference at the head of the original officer’s list, they therefore should have been treated in all respects as if they were at the top of that earlier eligible list, including treatment as if they had been appointed from that list at the time of the first appointment of any non-veteran therefrom.

After, as aforesaid, the municipal commission had refused to permit intervenors to take the 1947 promotional examination for captain on the ground that they did not have three years’ experience and were not entitled to credit for such, that promotional examination was held without the participation of these intervenors. However, five years later, in June, 1952, this court handed down Matter of Farrell v. Watson (304 N. Y. 630, affg. 279 App. Div. 376) to which reference will be made hereafter. Thereupon, the commission, considering that the Farrell decision constrained it so to do, reconsidered and amended its previous determination and granted to intervenors Tubman, Judge and La Courte retroactive seniority back to certain dates in April and May, 1944, on which dates the first nonveterans had been appointed as correction officers from the aforesaid eligible list after intervenors had gone into service.

After the commission had thus amended its earlier determination and had given intervenors the retroactive seniority they demanded, the commission, since it had prevented intervenors from taking the promotional examination in 1947, considered that it was its duty under section 243 of the Military Law {sufra) to set up a special examination for these intervenors, and others in similar position, and the commission did so. Actually, the commission did not set up a separate special military examination for these intervenors but it directed that the 1953 promotion examination, which these intervenors had taken and passed, be treated and considered as a special military examination as of 1947, on the ground that the commission should have permitted intervenors to take the 1947 promotion examination. The list from the 1947 promotional examination, which intervenors had not been permitted to take, had meanwhile expired before 1953, and so, to enforce fully what the commission considered to be the rights of these intervenors, the commission ordered, in effect, that these intervenors be treated as being on a special 1947 promotion list with the marks they obtained in the actual 1953 promotion examination. The result of this is that intervenors, being theoretically at the top of an earlier list, are ahead of everybody on the 1953 promotional examination list.

The present proceeding was then begun by these three petitioners, two of whom are honorably discharged veterans and the third of whom is an honorably discharged disabled veteran. They took the 1953 promotional examination for captain and all of them passed high on it. They object to the presence on the list of any of the intervenors since, they say, the commission erred in granting intervenors such retroactive seniority as to entitle them to be put ahead of petitioners on the list. As of the time this proceeding was brought in June, 1954, none of the petitioners and none of the intervenors had been promoted.

Matter of Farrell v. Watson (supra) is not directly in point here, but it did hold this: that when men already in the municipal service went to war and a promotional examination was held, for which they would have been eligible if present, and when they, on their return, took and passed a comparable examination, and when there was held, after their return, another promotional examination to which they would have been eligible had they been in service and promoted, they were entitled, after getting the first promotion as the result of a special military examination, to a second special promotional examination. Another case to which attention should be called is Matter of Cotter v. Watson (306 N. Y. 681). In the Cotter case, we gave fullest force to the statutory requirement (supra) that if an eligible is away in service at a time when he would be reached on a list, he is to be treated, for seniority purposes, as if then appointed. We went so far in the Cotter case as to say that when, because of war conditions and pursuant to statute, temporary appointments of city firemen were made, but not from any competitive list, those latter were to be treated as if they had been appointments, from a competitive list, of persons lower than petitioner on that list, and that such appointments of temporary firemen (in the Cotter case) fixed the date for all purposes of Cotter’s retroactive seniority. Both the Farrell and Cotter cases (supra) have to do with the rights after return from military service of persons who were in civil service before going to war, but we do not think that difference is controlling. The statutes are intended to give fullest protection, not only to those who are in civil service when inducted but to those also who are merely on competitive lists when taken into military service.

The choice here is between a broad and a narrow construction of the preference statutes, particularly subdivision 7 (supra). As of 1946 and 1947, section 6 of article V of the Constitution (which section was repealed or extensively amended effective 1950) provided, among other things, that a disabled veteran, as to civil service lists, “ shall ” be entitled to preference and shall be appointed or promoted before any other appointments or promotions are made, without regard to his or her standing on any list from which such appointment or promotion may be made.” These interveners, all disabled veterans, were in military service from early in 1944 until various dates in 1944, 1945 and 1946, but none of them were appointed to the lower position of officer until 1946, although nonveterans had previously been appointed from the list. If interveners had returned from military service early enough to have been present, and so had been appointed instead of and at the time the nonveterans were appointed, then, in 1947, when the first promotional examination was held, these interveners would have had three years’ seniority, would have taken that examination, and, as disabled veterans, would have gone to the top of the list. We, accordingly, agree with the dissenting Justices at the Appellate Division that the carrying out of the retroactive seniority provisions of the statute, plus the letter and spirit of the Constitution, plus the approach demonstrated in the Farrell and Cotter cases (supra), point to a reversal here. It seems to us that the commission has worked out, and applied, a proper formula for giving these intervenors their full legal rights. The argument against this, as found in the majority opinion at the Appellate Division and in the brief of petitioners here, seems, in part, to be based on an idea that subdivision 7 of section 243 of the Military Law (supra) confers no real benefits on persons who go into service while on an eligible list but before actually having been in public service. There is no basis in the statute for any such distinction. The other argument for affirmance here goes something like this: that the statute (supra), as to seniority credit for veterans, requires only that they shall, on appointment, get seniority dated back to the date on which any person, actually lower by marking than they, on the list, was appointed. The argument is that the persons who were appointed as officers from the eligible list while intervenors were away in service were not “lower” on the list since their marks were better. The answer is that we must read that statute with the constitutional provision which puts disabled veterans to the top of any list. Thus, since, when intervenors returned from service and were certified as disabled, they vaulted to the very top of the officer list, their rights could be protected only by considering that those persons with higher marks on the list than intervenors who had been appointed when intervenors were away were actually “ lower ” than the positions on the list to which intervenors were entitled as disabled veterans.

The order appealed from should be reversed and the petition dismissed, with costs in this court and in the Appellate Division.

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

Conway, Ch. J., Dye and Froessel, JJ., concur with Desmond, J.; Fuld and Van Yoorhis, JJ., dissent and vote to affirm upon the opinion of the Appellate Division; Burke, J., taking no part.

Order reversed, etc.