author: Lewis, Ch. J.

text:
    In the Matter of Americo Migliaccio, Respondent, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Appellants.
    Argued October 4, 1954;
    decided November 18, 1954.

      Alvin McKinley" Sylvester, Philip Wilens and Emanuel D. Black for appellants.
    I. The testimony of the police officers constituted substantial, competent evidence to sustain the determination of the Authority. (Matter of Yacht Club Catering v. Bruckman, 276 N. Y. 44; Matter of Yates v. Mulrooney, 245 App. Div. 146; Matter of Avon Bar & Grill v. O’Connell, 301 N. Y. 150; Matter of Stork Restaurant v. Boland, 282 N. Y. 256; Matter of Radigan v. O’Connell, 304 N. Y. 396; Matter of Burke v. Bromberger, 300 N. Y. 248; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; People ex rel. Hirschberg v. Board of Supervisors, 251 N. Y. 156; People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25; Matter of Lynch’s Builders Restaurant v. O’Connell, 303 N. Y. 408.) II. The allegations of paragraph ‘ ‘ Eleventh ’ ’ of the petition and of the affidavits annexed thereto are improper, irrelevant and immaterial to the issues and it was error on the part of both Special Term and the Appellate Division to refuse to pass upon the Authority’s motion to strike this offensive matter from the petition. (Matter of Hickox v. Griffin, 298 N. Y. 365; Matter of Ogden v. Du Mond, 273 App. Div. 582.)

      James M. Fawcett for respondent.
    I. It would be a physical impossibility for either the manager of said restaurant due to the noise of conversation and the juke box or officer Harry Johnson accompanying officer Eosenzweig to hear conversation of Dorothy Rodriguez with officer Eosenzweig. It is not unusual for women patrons to sit or stand at a bar or talk to male patrons of the bar. II. The order of the Appellate Division annulling the determination of the State Liquor Authority was unanimous.
   Lewis, Ch. J.

In this proceeding under article 78 of the Civil Practice Act — which was transferred to the Appellate Division for disposition (Civ. Prac. Act, § 1296) — an appeal by the State Liquor Authority brings to us for review a record upon which the Appellate Division has unanimously annulled a determination by the Authority which revoked the petitioner-licensee’s restaurant liquor license and directed that, for a period of two years, no new license covering the premises involved should be issued. The revocation was based upon a finding that the licensee had violated subdivision 6 of section 106 of the Alcoholic Beverage Control Law which provides: “ 6. No person licensed to sell alcoholic beverages shall suffer or permit any gambling on the licensed premises, or suffer or permit such premises to become disorderly.”

The charge against the petitioner is as follows: “ That the licensee violated Section 106, subd. 6 of the Alcoholic Beverage Control Law by suffering or permitting the licensed premises to become disorderly in. that he suffered or permitted females on the licensed premises to solicit male patrons therein for immoral purposes on September 6, 1953.”

Accordingly, we are to determine whether — as now claimed by the appellants — there is evidence of record sufficient in law to sustain the charge, upheld by the Authority, that the petitioner-licensee “ suffered or permitted females on the licensed premises to solicit male patrons therein for immoral purposes on September 6, 1953 ” (emphasis supplied).

In considering what is implied by the phrase “ suffer or permit ” as employed in the statute quoted above, we are guided by what was written for this court (per Cardozo, J.) in People ex rel. Price v. Sheffield Farms (225 N. Y. 25, 30): Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence * * *.” Knowledge of disorderly behavior in licensed premises sufficient in law to justify the revocation of a restaurant liquor license must be the subject of substantial evidence; it must have as its basis something more than suspicion. Upon that subject we have said: “ * * * considerations of expediency ’ must not outweigh a lack of proof (People v. Wallace & Company, 282 N. Y. 417, 420). Similarly, a license to engage in the liquor business, even though frequently referred to as a privilege and not a right, when it has been issued and acted upon by the holder, should be subject to revocation or suspension only upon competent proof showing a clear violation of the applicable regulatory provision. * * * ” (Matter of Standard Food Products Corp. v. O’Connell, 296 N. Y. 52, 56.)

The record before us contains evidence from which it might be found: That at the time mentioned in the charge against the licensee unescorted women entered the licensed premises where they met, conversed and drank with men; that there were about fifteen people seated at the bar and there were people in the booths; that a juke box was playing; that among the men then in the licensed premises was a patrolman who, in the performance of police duties, engaged in conversation with two women one of whom, during the conversation, solicited him for immoral purposes; that thereafter the police officer arrested the woman upon a charge of violating subdivision 4 of section 887 of the Code of Criminal Procedure; that the woman thus arrested was subsequently acquitted after trial.

However, the record contains no substantial evidence that the licensee or his manager knew or should have known that there were prostitutes present in the licensed premises at the time mentioned in the charge; nor is there evidence that the licensee or any agent of his heard the conversation by which the police officer was solicited (Matter of Mihale v. O’Connell, 303 N. Y. 874; Matter of Stanwood United v. O’Connell, 306 N. Y. 749).

We therefore agree with the Appellate Division that the findings of the Authority, upon which the petitioner-respondent’s license was revoked, are not supported by substantial evidence (283 App. Div. 1112).

We are not unmindful of the Authority’s efforts to curb disorderly conduct in licensed premises. Where, however, premises are claimed to be disorderly within the purview of the statute, and the Authority asserts constructive knowledge on the part of the licensee, substantial evidence of disorderliness — beyond a brief single occurrence of which the licensee may or may not have been aware — should be presented so as to establish that the licensee should have known that a disorderly condition prevailed.

Accordingly, the order should be affirmed, with costs.

Conway, Froessel and Van Voorhis, JJ., concur with Lewis, Ch. J.; Desmond, Dye and Fuld, JJ., dissent and vote to reverse the order appealed from, with costs, and to reinstate the determination of the Liquor Authority, upon the ground that whether or not the bartender actually heard the language used by the women, he was put on notice, by their persistent behavior, that both of them were, in fact, soliciting male patrons for immoral purposes in the licensed premises and that he thus permitted the premises to become disorderly.

Order affirmed.


source: Caselaw Access Project

author: Dye, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Albert Francis Mason, Respondent. The People of the State of New York, Appellant, v. William Martin Rose, Respondent. The People of the State of New York, Appellant, v. Joseph A. Smith, Respondent.
    Argued October 5, 1954;
    decided November 18, 1954.

      Charles E. Bowers, District Attorney (Roger W. Daniels of counsel), for appellant.
    I. The County Court’s finding that defendant was not properly warned pursuant to section 335-a of the Code of Criminal Procedure was erroneous. (Matter of Eckerson v. Macduff, 284 App. Div. 56; Matter of Bentley v. Macduff, 205 Misc. 454.) II. The County Court was without authority to discredit the return of the Justice of the Peace. The return was conclusive, not only upon the People and defendant, but also upon the court. (People v. Helmes, 144 Misc. 695; People v. Decker, 156 Misc. 156; People v. Newman, 137 Misc. 267; People v. Fuchs, 71 Misc. 67; People v. Scutt, 160 Misc. 25; People v. Chambers, 189 Misc. 502; People v. Freer, 171 Misc. 478; People v. Jackson, 191 Misc. 457.) III. In the first and second above-entitled actions the County Court’s finding that the blood test given to the defendant was illegal was erroneous. (People v. Decker, 156 Misc. 156; People v. Hildebrandt, 16 Misc. 195; People v. Fuchs, 71 Misc. 67; People v. Soloman, 57 Misc. 288; People v. Giles, 152 N. Y. 136; People v. Scherno, 140 App. Div. 95; People v. Jewett, 69 Hun 550; People v. Robarge, 142 Misc. 457, 235 App. Div. 896; People v. Dennis, 132 Misc. 410; People v. Helmes, 144 Misc. 695; People v. Napiorkowski, 197 Misc. 74.) IV. The assertions of other errors in defendants’ affidavits are without merit. (People v. McGann, 43 Hun 55; People v. Parker, 69 Hun 130; People v. Loomis, 65 Misc. 156; People v. Newman, 137 Misc. 267; People v. Hildebrandt, 16 Misc. 195; People v. Cook, 45 Hun 34; People v. Luczak, 10 Misc. 590.) V. In the third above-entitled action the County Court’s finding that defendant was not notified of his right to counsel was erroneous. (People v. Helmes, 144 Misc. 695; People v. Decker, 156 Misc. 156; People v. Newman, 137 Misc. 267; People v. Fuchs, 71 Misc. 67; People v. Scutt, 160 Misc. 25; People v. Chambers, 189 Misc. 502; People v. Freer, 171 Misc. 478; People v. Jackson, 191 Misc. 457.) VI. In the third above-entitled action the County Court’s finding that defendant was not properly informed of his right to bail was erroneous. (People v. Giles, 152 N. Y. 136; People v. Scherno, 140 App. Div. 95; People v. Jewett, 69 Hun 550; People v. Robarge, 142 Misc. 457, 235 App. Div. 896; People v. Dennis, 132 Misc. 410; People v. Helmes, 144 Misc. 695; People v. Napiorkowski, 197 Misc. 74.)

      Allan L. Gurley for respondent in first above-entitled action.
    I. The Justice of the Peace failed to advise defendant that his operator’s license must be suspended or revoked on conviction of the crime of driving an automobile while in an intoxicated condition. (People v. Spence, 176 Misc. 676; Matter of McCord v. Fletcher, 182 Misc. 447; Matter of Hudson v. Mealey, 176 Misc. 696; Matter of Nervo v. Mealey, 175 Misc. 952; Matter of Lauback v. Fletcher, 201 Misc. 602; Matter of Bush v. Fletcher,
      196 Misc. 134.) II. The Supreme Court of the State of New York recently has held that the provisions of section 71-a of the Vehicle and Traffic Law are violative of the constitutional requirements of due process, and, therefore, that said section is unconstitutional and void. A blood test of defendant, pursuant to said section, constitutes a reversible error. (Matter of Schutt v. Macduff, 205 Misc. 43.)

      James B. Ingram and Allan L. Gurley for respondent in second above-entitled action.
    I. The Magistrate failed to advise defendant that upon conviction of the crime charged that his operator’s license must be suspended or revolted. II. The blood test of defendant was improper, illegal and constituted a reversible error. III. The question of jurisdiction of a magistrate or court can always be raised on appeal, even though not previously raised in the court below.

      James J. Crowley for respondent in third above-entitled action.
    I. The County Court’s findings that defendant was insufficiently informed of his legal rights as to counsel, adjournment and bail were not erroneous. (People v. Palmer, 296 N. Y. 324; People v. McLaughlin, 291 N. Y. 480.) II. The Justice failed to properly inform defendant as to his rights and the punishment to which he would be subject in the event of being found guilty, as required by section 335-a of the Code of Criminal Procedure.
   Dye, J.

In each of the within cases the People appeal by permission from orders of the County Court, St. Lawrence County, reversing in each instance a judgment of a Court of Special Sessions convicting each defendant of operating an automobile while intoxicated, a misdemeanor in violation of subdivision 5 of section 70 of the Vehicle and Traffic Law. The cash fines that had been imposed and paid were remitted and the respective operator’s licenses restored. While the informations were not dismissed in so many words, it is clear that no further proceedings were contemplated. The appeals are deemed properly here (Code Crim. Pro., §§ 519, 520, subd. 3; Cohen and Karger, Powers of the New York Court of Appeals, pp. 728-729).

The appeals, although arising out of different circumstances and occurring at different times, present the same or similar questions of law, namely, whether the County Court, St. Lawrence County, erred as a matter of law in discrediting the Magistrate’s return as to proceedings had on arraignment.

For brevity and convenience, it can be said that the affidavits on appeal assigned substantially the same errors on arraignment such as failure of the Magistrate to accord and advise defendant of his legal and constitutional rights to counsel, method of. trial — whether by jury or by the court — and his right to adjournment for purposes of removing the case to the grand jury as well as for failure to instruct the defendant in the manner prescribed by section 335-a of the Code of Criminal Procedure (L. 1937, ch. 124, as amd. by L. 1953, ch. 288), and that blood tests taken without consent of Smith and Bose were illegal (Vehicle and Traffic Law, § 71-a).

The respective Magistrates filed returns in each appeal definitely meeting and controverting the allegations of error assigned in the affidavits; nonetheless, the County Court chose to credit the allegations of the affidavits and accepted them as a basis for the reversal. In so doing, it erred as a matter of law. In dealing with these appeals the County Court was not faced with a problem of credibility, but with a consideration of such legal errors as appeared in the returns (Code Crim. Pro., §§ 756, 763). It was without power to discredit the returns as filed. When the appellant submitted his appeal without having previously pointed out wherein the return — as filed — was defective, he must be deemed to have admitted its sufficiency and correctness (Code Crim. Pro., §§ 757-758). Here, no such application having been made, the Magistrate’s return as filed in each instance was conclusive as to all controverted matters within the Magistrate’s knowledge, not only on the County Court but on the defendant and the People as well.

According to the returns, the provisions of section 335-a were sufficiently complied with when Mason and Bose were respectively instructed that upon conviction their drivers’ licenses “ would be suspended or revoked as prescribed by law ”, since the statute in that regard uses the phrase “ are subject to suspension and revocation ” and were complied with as to Smith when the statute was not only read to him but also explained (cf. Matter of Eckerson v. Macduff, 284 App. Div. 56, revg. 204 Misc. 698; Matter of Bentley v. Macduff, 205 Misc. 454).

The alleged illegality of the blood test taken pursuant to section 71-a of the Vehicle and Traffic Law without the consent of Smith or Bose poses no question for review. Such tests were not used or relied on to sustain the judgment of conviction. That depended on defendant’s plea of guilty, which plea, by well-established practice and authority, admits the allegations of the information rendering further proof of such allegations unnecessary and immaterial (People ex rel. Carr v. Martin, 286 N. Y. 27), including the locale of the crime (People v. Fosella, 304 N. Y. 667; People v. Harmor, 185 Misc. 596). The information having charged a misdemeanor, the defendant’s plea of guilty rendered it unnecessary for the Magistrate to inform defendant as to alternate methods of trial.

The orders of the St. Lawrence County Court are reversed and the judgment of conviction affirmed as to each defendant.

In each case: The order of the County Court should be reversed and the judgment of the Court of Special Sessions reinstated.

Lewis, Ch. J., Conwat, Desmond, Fuld, Froessel and Van Voorhis, JJ., concur.

Orders reversed, etc.


author: Conway, J.

text:
    Herman J. Single, Respondent, v. Edward S. Whitmore, Jr., Appellant.
    Argued October 5, 1954;
    decided December 2, 1954.

      Victor Levine for appellant.

    I. The front of a corner lot is its narrow side. (Clark v. New York Life Ins. & Trust Co., 64 N. Y. 33; Schoonmaker v. Heckscher, 171 App. Div. 148; Rollins v. Armstrong, 251 N. Y. 349.) II. The release of defendant from all future liability under the agreement sued upon is a complete defense to the action. (Miller v. Schloss, 159 App. Div. 704; Farnham v. Farnham, 204 App. Div. 573; Celmar v. Feinborough Homes, Inc., 253 App. Div. 832.) III. The building line provisions of the zoning ordinance of the Village of North Syracuse have not been violated by defendant. IV. Plaintiff is not entitled to enjoin a claimed violation of the ordinance because it failed to show that he was being damaged thereby. (Marcus v. Village of Mamaroneck, 283 N. Y. 325; Atkins v. West, 222 App. Div. 308; Simmons v. Pinsky, 185 Misc. 549; Buckley v. Baldwin, 230 App. Div. 245.) V. The building line provision of the zoning ordinance is invalid. (City of Utica v. Hanna, 202 App. Div. 610; Matter of Ballard v. Roth, 141 Misc. 319.) VI. An injunction should have been denied to plaintiff because it will bear down heavily on defendant without benefiting plaintiff. (Forstmann v. Joray Holding Co., 244 N. Y. 22.)

      Lawrence M. Rulison for respondent.
    I. Defendant has violated the setback restriction as contained in the agreement. (Clark v. New York Life Ins. & Trust Co., 64 N. Y. 33; Schoonmaker v. Heckscher, 171 App. Div. 148.) II. The dwelling constructed by defendant is in violation of the ordinances of the Village of North Syracuse. III. The release cannot operate as a defense to this action. (Matter of Quick, 147 Misc. 28; Dworkin v. Dworkin, 247 App. Div. 213; Celmar v. Feinborough Homes,

      Inc., 253 App. Div. 832; Simon v. Simon, 274 App. Div. 447.) IV. Defendant could have easily complied with the provisions of the agreement without injury to himself. V. Plaintiff should, be granted equitable relief. (Forstmann v. Joray Holding Co., 244 N. Y. 22; Neilson v. Hiral Realty Corp., 172 Misc. 408.)
   Conway, J.

For many years the plaintiff had owned a tract of land known as the Single Farm in North Syracuse, New York. In 1950 he surveyed and laid out for building lots certain portions of the Single Farm, calling this area the Chestnut Knol] Tract. On February 18, 1950, he and his wife executed two written contracts with the defendant which gave the latter the option to purchase certain specified lots in the Chestnut Knoll Tract. One contract (Exhibit 4) dealt exclusively with Lots 19 to 27 in Block “ B ” and Lots 4 to 12 in Block “ C ” of the tract, and the other contract, the general contract (Exhibit 14), dealt with all the other lots in the tract with the specific exception of the lots enumerated in Exhibit 4 and certain other lots reserved to the plaintiff. Both instruments, apparently, were part and parcel of one single transaction because the general contract specifically excepts from its coverage the lots involved in Exhibit 4 for the reason that the latter, a separate agreement of the same date, dealt only with those lots. Both contracts contained substantially the same limitations, conditions and restrictions, though the general contract also contained a requirement that the plaintiff demolish a barn standing somewhere on the tract. Both contracts contained an identical setback restriction which reads as follows: " Buyer agrees that all dwellings constructed by him shall have the front line of the foundation a minimum of thirty-five feet (35) from the front of the lot npon which the dwelling is constructed. ’ ’

The contracts gave the defendant, as already stated, the right to buy any or all of the lots numbered 19 to 27 in Block “ B ” of the Chestnut Knoll Tract. In the preliminary map existing at the time of the execution of those contracts, the western flank of all of Lots 19 to 27 faced on Herman Drive. No other side of any one of them abutted on a street, but they were closed in by the adjoining lots of the block.

On June 14, 1950, certain of the lots in Block “ B ” were redelineated and redefined and all of them were renumbered by the plaintiff in order to facilitate the laying out of streets by the Village of North Syracuse. A copy of the preliíninary úiap and of the revised map is reproduced below alld graphically illustrates the changes.

As these maps show, the changes made by plaintiff resulted in a reduction of the number of lots in Block “B” and in a rearrangement and redelineation of the lots at the south end of Block B ”. As the plaintiff has stated, new Lot 12 (the only lot with which we are concerned here), whose position is different from that of old Lot 19 in that its long side rather than its short end fronts on Herman Drive, has taken the place of old Lot 19.

In January of 1951, the defendant demanded that plaintiff convey Lot 12 to him, and on March 9,1951, the plaintiff and Ms wife deeded to the defendant the new Lot 12 by an instrument which contained no restrictions with regard to setback lines. Furthermore, it was stipulated by both parties that the filed map of the Chestnut Knoll Tract did not contain any setback lines, and that no setback restrictions were on file in the Onondaga County Clerk’s office with reference to Lot 12.

In March, 1952, the defendant spoke to the plaintiff about a proposed house to be erected on Lot 12 of Block “ B ”. Defendant desired to construct that dwelling closer to Herman Drive than tMrty-five feet. The plaintiff refused permission. On or about April 1, 1952, the defendant commenced building a house on Lot 12 closer than thirty-five feet from Herman Drive, and in a position running more or less diagonally from North to South across that lot, with the northwest corner of the bMlding closer to Herman Drive than the southwest corner. As planned and constructed, there are steps and an entrance door, as well as large ■picture windows and the door of an attached garage, facing out toward Herman Drive. There is no entrance to the house on the side wMch faces toward Palmer Drive.

On April 29, 1952, the plaintiff commenced tMs action by service of a summons and verified complaint. At that time the foundation of the house on Lot 12 was incomplete, having been constructed to a height of only six or seven concrete blocks. Since then construction has continued towards completion.

Plaintiff sued to restrain defendant from constructing any building on Lot 12 within thirty-five feet of Herman Drive. By its decree, Special Term permanently restrained defendant from erecting any building on Lot 12 closer than thirty-five feet from Herman Drive, and, also, ordered defendant to move the entire newly constructed house, or remove so much thereof as necessary, in order that no portion of it be closer than thirty-five feet from Herman Drive. The Appellate Division, Fourth Department, has affirmed, two Justices dissenting. The issue to be decided by us is whether or not defendant has violated the setback restriction.

At the time the 1950 contracts were executed, all of the lots in Block “ B ” which the defendant was entitled to purchase pursuant to Exhibit 4, including Lot 19, now Lot 12, had their only street frontage on Herman Drive. Therefore, that end of the lot, which was its short side, was the “ front ” within the intention of the parties. That being so, the restriction prohibited defendant from building within thirty-five feet of the short edge of the lot which faced on Herman Drive. Only about 22% of the lot was thereby rendered unusable for building purposes. If plaintiff be correct that the “ front ” end of Lot 12 is the long edge which abuts on Herman Drive —"as a result of his unilateral action in revising the map — over 55% of the total area will be unavailable for building. That would mean, of. course, that plaintiff has imposed a more serious limitation upon the use of the land than was originally contemplated. In effect, he would, therefore, have conveyed less usable area than was provided for in the contract.

It is well established that a covenant restricting the use of land is to be construed strictly against the grantor who imposed it (Reformed Prot. Dutch Church v. Madison Ave. Bldg. Co., 214 N. Y. 268), and that, before a serious interference with one’s right of property is justified, something more than a doubtful right must be shown by the one seeldng to impose such limitation. (Clark v. New York Life Ins. & Trust Co., 64 N. Y. 33.) In the Clark case, we held that, since there was a doubt as to the true construction of the setback restriction there involved, the short side of the lot, rather than its long side, was to be treated as the front ”. Here, as we have said, the parties originally intended that the short side of the lot, rather than its long side, was to be treated as the “ front ”. There has been no subsequent bilateral modification of that intent.

Even if it were reasonable to construe the ‘ front ’ ’ of Lot 12 to be the long edge which abuts on Herman Drive, we would still reach the same conclusion, for it is established that where a restrictive agreement is reasonably capable of two constructions, the construction which limits the restriction, rather than the one which extends it, should he adopted. (Schoonmaker v. Heckscher, 171 App. Div. 148, and cases cited, affd. 218 N. Y. 722.) The construction which we here give to the restrictive agreement is the more reasonable one.

Plaintiff contends that the ‘ ‘ front " of Lot 12 is that side abutting on Herman Drive since the building erected thereon faces on that street. That argument is without merit, however, for the physical position in which the house is set does not determine which side of the lot is the “ front ”. In Rollins v. Armstrong (251 N. Y. 349) we held that the front of a building is not determined by the position in which that building is erected on the lot. So, too, the mere position in which a building is placed cannot determine the “ front ” of the land.

To entitle himself to the extraordinary equitable relief of injunction, plaintiff must show that defendant was clearly obligated by the setback restriction. Not only has he failed to do this, but he has similarly failed to demonstrate any present or threatened damages. Indeed, the uncontradicted testimony of the real estate expert J oily is to the effect that the house as built enhances the value of the other lots and the property in the surrounding area.

Plaintiff further argues that there was a setback restriction imposed on the use of Lot 12 by reason of a zoning ordinance of the Village of North Syracuse. By its terms, however, that ordinance applied only where 60% of the lots in any block are occupied by houses. According to plaintiff’s own Exhibit 5 (the revised map of the Chestnut Knoll Tract), only eleven lots including Lot 12 of the twenty-one numbered lots in Block B ” were occupied. This is slightly more than 50%, hence the ordinance is, by its terms, inapplicable.

There is another reason for reversal: on the day after the deed to Lot 12 had been transferred, the parties executed what purported to be a release. Although defendant was entitled by Exhibit 4 to buy no more lots after he had purchased Lot 12, both he and the plaintiff were still obligated by that instrument to perform certain duties, if indeed those duties survived the delivery of the deed, including the following: (1) the houses were to be constructed under defendant’s sole management and supervision, (2) plaintiff was actively to assist in expediting the installation of utilities, and (3) the houses were to be built not closer than thirty-five feet from the “ front ” of the lot.

The wording of that release, so far as it is applicable, is as follows:

“ * * * whereas said parties entered into a written agreement on the 18th. day of February, 1950 for the sale and purchase of the lots of the Chestnut Knoll Tract, Town of Clay, Village of North Syracuse, New York.

“ And whereas said parties now desire to release each other from any future liability arising from said agreement.

“Now therefore, the parties to said agreement * * * do hereby release each other * * * of and from all future liability * * * covenants, contracts, controversies, agreements, promises * * * claims and demands whatsoever, in law or in equity.” (Emphasis supplied.)

Those words are certainly clear and unmistakable, hence effect must be given to the intent of the parties as indicated by the language they employed. (Cf. Matter of Western Union Tel. Co. [American Communications Assn.], 299 N. Y. 177.) There may have existed obligations and limitations which bound the parties even after the last lot involved in Exhibit 4 had been conveyed; and, in our judgment, the only reasonable construction of the above-quoted release is that it absolved the signatories from the duties and restrictions listed above.

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

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

Judgments reversed, etc.


author:
      Per Curiam.
     Dye, J.

text:
    Yetta Sagorsky et al., Copartners Doing Business under the Name of I. S. Sagorsky & Son, Appellants, v. B. H. Malyon, as One of the Underwriters at Lloyd’s, London, Subscribing Policy No. 49/30726, Respondent.
    Argued October 6, 1954;
    decided December 2, 1954.

      Paul D. Compton and Eugene Wolían for appellants.
    I. Plaintiffs’ prima facie case was established by undisputed evidence. II. The Appellate Division erred in dismissing the complaint. (Holtfoth v. Rochester Gen. Hosp., 304 N. Y. 27; Faber v. City of New York, 213 N. Y. 411; Osipoff v. City of New York, 286 N. Y. 422; De Wald v. Seidenberg, 297 N. Y. 335; Dunham v. Village of Canisteo, 303 N. Y. 498.)

      Brendan C. Kelly for respondent.
    I. Plaintiffs failed to prove that the alleged loss of jewelry was covered by the terms and provisions of Jeweller’s Block Policy No. 49/30726 and specifically failed to show that the loss was not excluded by paragraph 9 of the exceptions contained in said policy. (Hallas v. North Riv. Ins. Co. of N. Y., 279 App. Div. 15, 303 N. Y. 903; Greenberg v. Rhode Is. Ins. Co., 188 Misc. 23; Kelly v. Supreme Council of Catholic Mut. Benefit Assn., 46 App. Div. 79; Ruvelson v. St. Paul Fire & Marine Ins. Co., 235 Minn. 243; Kinscherf Co. v. St. Paul Fire & Marine Ins. Co., 234 App. Div. 385; Drieblatt v. Taylor, 188 Misc. 199; Fidelity & Deposit Co. of Maryland v. Spokane Interstate Fair Assn., 8 F. 2d 224; Seelig v. St. Paul Fire & Marine Ins. Co., 109 F. Supp. 277; Krantz v. Piedmont Fire Ins. Co., 196 Misc. 849; Princess Ring Co. v. Home Ins. Co., 52 R. I. 481.) II. The verdict of the jury is contrary to the weight of the evidence submitted by defendant. (Bath Nat. Bank v. Sonnenstrahl, Inc., 249 N. Y. 391; Murtha v. Ridley, 232 N. Y. 488; People v. Davis, 231 N. Y. 60.) III. A jury is not permitted to base its verdict on guesswork, speculation or surmise. (Matter of 54 Cafe & Restaurant v. O’Connell, 274 App. Div. 428, 298 N. Y. 883; Matter of Case, 214 N. Y. 199; Manufacturers Trust Co. v. Gray, 278 N. Y. 380; Matter of Roessler, 171 Misc. 306; Demjanik v. Kultau, 242 App. Div. 255; Von Reitzenstein v. Tomlinson, 249 N. Y. 60; Lucas v. International Paper Co., 131 App. Div. 368; Holtfoth v. Rochester Gen. Hosp., 304 N. Y. 27; Dunham v. Village of Canisteo, 303 N. Y. 498; De Wald v. Seidenberg, 297 N. Y. 335.)
   Per Curiam.

Plaintiffs sued defendant on an insurance policy which insured them in the sum of $40,000 against the loss of jewelry belonging to them “ arising from any cause whatsoever ”. The policy excepted from coverage a case where the loss occurred while the property was in or upon any automobile unless at the time of loss there was actually in or upon such vehicle the assured or a permanent employee of the assured, or a person whose sole duty it was to attend the vehicle. The Trial Judge charged the jury that the sole question was whether, at the time of loss of the jewelry — by theft — the automobile in which one of the plaintiffs had placed the jewelry was attended by the assured or a permanent employee of the assured, or a person whose sole duty it was to attend the vehicle. The jury resolved that- question in favor of plaintiffs. The Appellate Division reversed, upon questions of law and fact, and dismissed the complaint on the grounds: (1) that the verdict is against the weight of the evidence, and (2) that the evidence leads inevitably to the conclusion that at the time of the theft there was not actually in or upon ” the vehicle in question “ a person whose sole duty it was to attend the vehicle.”

The Appellate Division is without power to dismiss a complaint upon the ground that the verdict of the jury is against the weight of evidence when plaintiff has made out a prima facie case. Its power in such a case is limited to the ordering of a new trial. (See Caldwell v. Nicolson, 235 N. Y. 209, 212; Imbrey v. Prudential Ins. Co., 286 N. Y. 434, 440-441.) The issue to be resolved, then, is whether the plaintiffs made out a prima facie case. In determining that question in favor of plaintiffs, we have been guided by the rule that the facts adduced at the trial are to be considered in the aspect most favorable to plaintiffs and that plaintiffs are entitled to the benefit of every favorable inference which can reasonably be drawn from those facts (De Wald v. Seidenberg, 297 N. Y. 335, 336-337; Osipoff v. City of New York, 286 N. Y. 422, 425; Faber v. City of New York, 213 N. Y. 411, 414).

We pass upon no other question.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Dye, J.

(dissenting). The only issue in this case turns on whether the loss of the valuable ease of jewelry from the assured’s rented automobile occurred “ whilst * * * there [was] actually in or upon such vehicle, the Assured or a permanent employee of the Assured, or a person whose sole duty it is to attend the vehicle ”. (Jewellers’ Block Policy, #49/30726, Exception, par. 9; emphasis supplied.)

Concededly, when the loss occurred the “ Assured ” or “ a permanent employee of the Assured ” was not actually in or upon the rented automobile, thus leaving only the single question of whether the garage employee to whom the assured had entrusted the automobile containing the case of jewelry was “ actually in or upon such vehicle ” and was “ a person whose sole duty it is to attend the vehicle ’ ’. The evidence as to these prerequisite essentials for recovery shows that the garage employee was at the time engaged in performing the duties incident to his job as garage manager, in the course of which he left the automobile unattended, a fact which counsel for plaintiffs concedes, “ except for not more than one minute ”. There is in addition uncontradicted testimony of two disinterested third persons who had parked their respective automobiles on the public street near the garage entrance and were able to observe that while the assured’s rented car was standing unattended in the doorway of the garage, a man opened the door, took out a case (similar in appearance to the jewelry case that was lost) and walked hurriedly down the street.

The only reasonable inference to be drawn from such evidence, and here there is no basis for denying its conclusiveness (Hull v. Littauer, 162 N. Y. 569), is that at the time of the theft the vehicle was unattended.

In such a state of the record the trial court erred as a matter of law in failing to grant defendant’s motion for a dismissal of the complaint and when this was denied, for a directed verdict in its favor. For such failure the reversal in the Appellate Division was proper. Nothing to the contrary turns on the circumstance that in dismissing the plaintiffs’ complaint the court below used the phrase “ The verdict is against the weight of the evidence ” since the reversal was upon “ questions of fact and of law”. "When they stated that The evidence leads inevitably to the conclusion that at the time of the theft ” the vehicle was unattended, they thereby recognized as a matter of law that the exception of the exclusion clause had not been successfully overcome, which required a dismissal of the complaint rather than the granting of a new trial.

The most favorable inference rule cannot serve to justify the granting of a new trial in this instance. That is available to an appellant only when there is evidence presenting a question of fact (De Wald v. Seidenberg, 297 N. Y. 335). Here, as the record shows, there is not a scintilla of evidence to support an inference that the loss occurred within the coverage of the policy. It all points to the simple conclnsory fact that the loss occurred while the vehicle was, in fact, unattended. It has long been the rule — and still is — that “ ‘ insufficient evidence is, in the eye of the law, no evidence.’ ” (Matter of Case, 214 N. Y. 199, 203.)

We do not read the Caldwell and Imbrey cases cited in the majority opinion as compelling the granting of a new trial. Here the uncontroverted testimony negates plaintiffs ’ right to recover and requires dismissal of the complaint. We note that in each of the cited cases issues of fact were presented which had not been disposed of, thereby rendering a dismissal of the complaint improper.

The judgment dismissing the complaint should be affirmed, with costs to the respondent.

Lewis, Oh. J., Conway, Desmond and Froessel, JJ., concur in Per Curiam opinion; Dye, J., dissents in opinion in which Van Voorhis, J., concurs; Fuld, J., taking no part.

Judgment reversed, etc.


author: Desmond, J.

text:
    The People of the State of New York, Respondent, v. John Alden Harvey, Jr., Appellant.
    Argued October 13, 1954;
    decided December 2, 1954.

      Stanley S. Corwin for appellant.
    The Special Sessions erred in failing to grant appellant’s motion to dismiss the information for insufficiency; in not directing acquittal, and in failing to dismiss the information at the close of the People’s case and the whole case. Appellant was not proved to be guilty beyond a reasonable doubt as a matter of law. The verdict was contrary to law and against the weight of evidence as a matter of law. (People v. Nixon, 248 N. Y. 182; People v. Houskeeper, 304 N. Y. 925; People v. Bergen, 209 N. Y. 517; People v. Tylkoff, 212 N. Y. 197; Griessman v. Fisher, 252 N. Y. 580; People v. Kunz, 300 N. Y. 273.)

      Harry C. Brenner, District Attorney (Henry Tasker of counsel), for respondent.
    I. The acts of appellant were in violation of section 720 of the Penal Law. (People v. St. Clair, 90 App. Div. 239; People v. Houskeeper, 304 N. Y. 925; People v. Davis, 303 N. Y. 235; People v. Feiner, 300 N. Y. 391; People. v. Chesnick, 302 N. Y. 58.) H. The information is sufficient as a matter of law. (People v. Zambounis, 251 N. Y. 94.)
   Desmond, J.

Section 720 of the New York Penal Law brands as . guilty of the misdemeanor of disorderly conduct, “ Any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place ’ ’. After a disturbance in a tavern, this defendant left there at the request of a police officer, then, when those two and others had gone outside, defendant tried to take the policeman’s night stick away from him. Surely, that could not unreasonably be' called, an “ offensive ”, “ disorderly ” and “ annoying ” act, if those terms have any meaning at all.

Defendant, however,, makes two points that should be answered. First, he points out that “ disorderly conduct ” may be, by the statutes, prosecuted as a misdemeanor (a-s was done here) under section 720 of the Penal Law, or treated as a mere “ offense ”, under section 722 of that law. The definitions in the two sections, says defendant, are so similar as to be indistinguishable, or, at least, as to leave it to the whim of prosecutor or policeman as to which accusation to use,, in any instance. A “breach of the peace” affecting a community may, says defendant, be dubbed a mere offense under section 722, while, a minor annoyance to a single person may be charged as a misdemeanor" under section 720. Certainly, there are similarities between the wordings of the two statutes (compare §- 720 with § 722, subd. 2) but difference- in purpose and coverage is apparent, and has been noticed by the-New York courts. The, substance, of section 722 is that the acts- charged must be such as are public in character and breach the public peace, or tend so to. do (People v. Chesnick, 302 N. Y. 58, 60; People v. Feiner, 300 N. Y. 391, 399, affd. sub nom. Feiner v. New York, 340 U. S. 315). Such a “ breach of the peace ” was criminally punishable at common law (People v. Most, 171 N. Y. 423; People v. Nixon, 248 N. Y. 182). On the other hand, section 720 (the misdemeanor section) deals rather with acts or language, offensive or disorderly, of one person which annoy or interfere with some one other person (People v. Weiler, 89 App. Div. 611, revd. on other grounds 179 N. Y. 46; People v, St. Clair, 90 App. Div. 239, revd. 179 N. Y. 578 on the authority of People v. Weiler). As circumstances vary, an actual or likely breach of the peace may be a more, or a less, grave wrong than annoying, or interfering with, a particular person. But sections 720 and 722 deal wfith two kinds of fact situations, or, at least, with fact patterns Viewed from different aspects or treated with varying emphases. And the Legislature actually has made acts which are “seriously” disturbing to. or which seriously endanger, the public peace, misdemeanors by another statute (Penal Law, § 43) which was at one time bracketed with what is now section 720 to describe two kinds of misdemeanor disorderly conduct (see L. 1891, ch. 327). Choosing the grades to be assigned to wrongdoing is a legislative function. “ When the legislature itself names the offense, then there is no place for controversy; it is of whatever grade the legislature provides, unless so to hold would violate some statutory provision ” (22 C. J. S., Criminal Law, § 6, p. 56, and cases cited). Disorderly conduct has been a misdemeanor in New York at least since 1882 (see L. 1882, ch. 384, amdg. Penal Code, § 675). Since 1923 only, have some forms thereof been styled “ offenses ” (L. 1923, ch. 642, amdg. Penal Law, § 722, applicable to City of New York only, made State-wide by L. 1931, ch. 793). So long as the meaning of these several enactments can be worked out, the courts must leave to the Legislature the consistency or logic of the classification.

Defendant next argues, or states the same argument in somewhat different terms, that the definition in section 720, of the misdemeanor, is so vague as to be invalid for lack of objective standards. We think, however, that the statutory intent of present section 720 is clear enough, as it was clear to the courts in People v. St. Clair (90 App. Div. 239, 243, supra): “As we view it, the Legislature intended to prohibit one person from, by any offensive or disorderly act or language, annoying or interfering with another m a public place. Two things must occur to constitute the crime. One of these relates to the conduct of the accused, and the other to the effect of such conduct upon the complainant. There must be an annoyance to or interference with some person in a public place by act or language which is either offensive or disorderly ”. St. Clair’s conviction, affirmed by the Appellate Division, was reversed by this court (179 N, Y. 578), not because of any lack of ascertainable statutory standards, but because the proof did not rise to the standards set.

Defendant argues that words like “ offensive ”, “disorderly ”, “annoying” and “interfering” make criminality depend not on the objective nature of words or acts, but on a complainant’s reaction thereto. For instance, says defendant, political oratory is annoying and offensive to many but should not, for that sole reason, be punishable as a crime. We do not think that the statute gouges criminality by the impressions made on an annoyed or disgruntled citizen. Common sense (and decisions like People v. St. Clair and People v. Weiler, supra) dictate that language or conduct is to be adjudged to be disorderly, not merely because it offends some supersensitive or hypercritical individual, but because it is, by its nature, of a sort that is a substantial interference with (our old friend) the reasonable man. As Chief Judge Bartlett pointed out in People v. Tylkoff (212 N. Y. 197, 200), annoying language (and, presumably, annoying conduct) must, to be a violation of section 720, amount to a nuisance.

The judgment should be affirmed.

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

Judgment affirmed.


text:
    In the Matter of the Claim of Peter Mastrodonato, Respondent, against Pfaudler Co. et al., Appellants, and Special Disability Fund, Respondent. Workmen’s Compensation Board, Respondent.
    Argued October 20, 1954;
    decided December 2, 1954.

      Victor Fiddler, Bernard Katzen and George J. Hayes for appellants.
    The Appellate Division erred as a matter of law in affirming the board’s decision, which denied appellants’ request for reimbursement from the special fund for all medical benefits provided beyond the first 104 weeks of established disability. (Matter of De Maroney v. Bennett Junior Coll., 282 App. Div. 538; Matter of Kaplan v. Model Iron & Aluminum Corp., 279 App. Div. 694; Matter of Wason v. Moyer & Pratt, 274 App. Div. 313; Matter of Weil, 280 App. Div. 100; Matter of Long v. Jerzewski, 235 App. Div. 441; Matter of Kennedy, 151 Misc. 292;
      Matter of River Brand Rice Mills v. Latrobe Brewing Co., 305 N. Y. 36; Matter of Cook v. New York Central R. R. Co., 296 N. Y. 576.)

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    Appellants were not entitled to reimbursement for medical expenses on the uncontradicted evidence which established that they had paid less than the minimum of 104 weeks of compensation to the claimant for his disability. Under subdivision 8 of section 15 of the Workmen’s Compensation Law, reimbursement is allowed only after the payment by the employer and carrier of compensation for 104 weeks of disability. (Matter of Marhoffer v. Marhoffer, 220 N. Y. 543; Matter of Schurick v. Bayer Co., 272 N. Y. 217; Matter of De Maroney v. Bennett Junior Coll., 282 App. Div. 538.)
   Lewis, Ch. J.

On this appeal, arising out of a workmen’s compensation proceeding, we are concerned only with a claim by the. employer and insurance carrier for reimbursement from the Special Disability Fund (Workmen’s Compensation Law, § 15, subd. 8, par. [d]).

The claimant, Peter Mastrodonato, was employed as a “ saw man” by the Pfaudler Company of Rochester, New York — makers of “ glass enamel lined steel equipment.” He was injured on August 6,1945, in an industrial accident when a steel pipe fell from a truck, pulling him down in its descent. The resulting injury to the employee was a herniated invertebral disc in the fifth lumbar region requiring surgery which left him permanently partially disabled.

A compensation award was made for 28 and ⅚ths weeks’ disability between August 7, 1945, and February 25, 1946. On the date last mentioned claimant resumed work, but the board has found as a fact that he still “ requires medical care and treatment.”

Section 15 (subd. 8, par. [d]) of the Workmen’s Compensation Law provides — as we have seen — that an employer or his insurance carrier shall be reimbursed from the Special Disability Fund for " all compensation and medical benefits subsequent to those payable for the first one hundred four weeks of disability ” in certain cases where claimants have suffered pre-existing permanent physical impairment.

Appellants — the employer and its carrier — filed an application for reimbursement of medical expenses — pursuant to that statute — upon the ground that prior to his accident in 1945, claimant — a veteran of World War II — had suffered from battle fatigue due to shell shock. In fact, claimant still receives a Federal disability pension for his war injury. The application for reimbursement was made after 104 weeks had elapsed from the date of the employee’s disability — during which time claimant suffered medical disability only — although disability payments had been made for 28 and ⅚ths weeks of that time. It is not here disputed that claimant is suffering from a permanent physical disability — caused by both injuries — that is " materially and substantially greater ’ ’ than that which would have resulted solely from the later of the two injuries.

The appeal to this court is pursuant to our leave from a unanimous order of the Appellate Division affirming a decision of the Workmen’s Compensation Board denying to appellants reimbursement for claimant’s medical care and expenses incurred subsequent to 104 weeks following the injury.

Respondents — the Special Disability Fund and the Workmen’s Compensation Board — contend that a claimant must actually receive 104 weeks of compensation, plus medical benefits, before the reimbursement provisions of section 15 (subd* 8, par. [d]) of the Compensation Law become operative»

Appellants contend that the purpose of the statute to provide limited liability to employers of disabled civilians and veterans would be frustrated by respondent’s construction thereof. They also argue that the word “ disability ” in the phrase “ subsequent to * * * one hundred four weeks of disability ” in the statute, can mean only medical disability, and that in the present case claimant was medically disabled for more than 104 weeks, even though disability compensation was not paid for that full period because claimant returned to work while still disabled to the extent of requiring medical care.

In affirming the denial of reimbursement for medical expenses incurred after August 6, 1947 (104 weeks after the date of disability) the Appellate Division ruled that: “ Paragraph (d) of subdivision 8 of section 15 provides for reimbursement ‘ for all compensation and medical benefits subsequent to those payable for the first one hundred four weeks of disability. ’ The word ‘ and ’ is not designed to be read as a disjunctive ” (283 App. Div. 752, 753). The Appellate Division also cited Matter of De Marony v. Bennett Junior Coll. (282 App. Div. 538, 539), where it was said: * * * it is apparent from the whole scheme of the statute that the 104 weeks run only during a period in which compensation is due the claimant.”

Before the enactment of the present statute, a claimant was required to prove the extent to which the second injury resulted in greater disability than would have obtained had there been no previous disability. Award in such case was made only for the number of weeks of disability which would have occurred had there been no prior disability, and the special fund would pay the award for any additional period (L. 1944, ch. 749, repealed by L. 1945, ch. 872).

Apparently recognizing the difficulties of proof required to demonstrate what portion of the disability is attributable to the second injury, the Legislature, by the present statute (L. 1947, ch. 431), has allocated the first 104 weeks of disability to the second injury, and directed that the payment of subsequent compensation be reimbursed out of the special fund.

The declaration of the Legislature’s intent — enacted into the statute as paragraph (a) of subdivision 8 — shows clearly the legislative objective: “ * * * That any plan which will reasonably, equitably and practically operate to break down hindrances and remove obstacles to the employment of partially disabled persons honorably discharged from our armed forces, or any other physically handicapped persons, is of vital importance to the state and its people and is of concern to this legislature; * * * That it is the considered judgment of this legislature that the system embodied in this subdivision, which makes a logical and equitable adjustment of the liability under the workmen’s compensation law which an employer must assume in hiring employees, constitutes a practical and reasonable approach to a solution of the problem for the employment of physically handicapped persons ” (emphasis supplied).

In our view, the statutory direction for reimbursement of ‘ all compensation and medical benefits subsequent to those payable for the first one hundred four weeks of disability ” does not express a legislative intention that a claimant must have received both compensation and medical benefits for 104 weeks, if the carrier is to be reimbursed for further payments of either.

Our conclusion, based upon the Legislature’s declaration of policy (quoted supra) and other indications of legislative intent, is that where, as here, a veteran, injured during the war, or a disabled nonveteran, suffers thereafter an industrial injury which necessitates medical benefits, the policy of the State is to reimburse the employer or his carrier for the payment of such benefits beyond 104 weeks. Reimbursement may be had under the statute for compensation, if any, beyond 104 weeks, and for medical benefits, if any, beyond 104 weeks, or for either one of those payments. We find no clearly expressed indication in the statute that reimbursement must be had for both or for none at all.

In our view, the Legislature intended to relieve employers of the risk of the possible burden of added costs when they hired disabled persons. To require the employer or his carrier to pay the medical expenses of an employee who has suffered industrial injury following prior permanent partial disability would frustrate the purpose of the statute, and would inhibit the employment of disabled persons.

Respondents contend that the term " disability ’ ’ in the statutory phrase last quoted above must be a reduction in wage-earning capacity, and not simply a medical disability. In Matter of Schurick v. Bayer Co. (272 N. Y. 217, 220) we said (per Crouch, J.), that a disability “ is generally reflected in wage earning capacity ” (my emphasis). It is quite true that generally ” disability is reflected in a diminution of wage-earning ability. However, such is not the case exclusively; it is not the case where disability is reflected in medical care required — as in our present case — for what is now more than a seven-year period. Where an employee is physically impaired as a result of an accident, it is not amiss to refer to such impairment as a disability. Our conclusion is that the term disability ” in the statute here involved refers to medical as well as financial impairment.

The order of the Appellate Division should be reversed, and the matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent with this opinion.

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

Order reversed, etc.

       Workmen’s Compensation Law (§ 15, subd. 8, par. [d]) provides as follows: “ (d) If an employee of an employer who has secured the payment of compensation as required under the provisions of section fifty of this chapter, who has a total or partial loss or loss of use of one hand, one arm, one foot, one leg or one eye, or who has other permanent physical impairment incurs a subsequent disability by accident arising out of and in the course of his employment or an occupational disease arising therefrom, resulting in a permanent disability caused by both conditions that is materially and substantially greater than that which would have resulted from the subsequent injury or occupational disease alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation and all medical expense provided by this chapter, but such employer or his insurance carrier, except as specifically provided in paragraph (ee) of this subdivision [relating to silicosis], shall be reimbursed from the special disability fund created by this subdivision for all compensation and medical benefits subsequent to those payable for the first one hundred four weeks of disability.”


text:
    The People of the State of New York ex rel. New York State Realty and Terminal Company, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents. [299 Park Ave., Borough of Manhattan.] The People of the State of New York ex rel. New York Central Railroad Company, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents. [Park Lane Way, Borough of Manhattan.] The People of the State of New York ex rel. New York Central Railroad Company, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents. [Lexington Ave., Borough of Manhattan.]
    Argued January 14, 1954;
    decided May 20, 1954.

      Philip 8. McNally, Lawrence W. Krieger, William P. Murray and Gerald E. Dwyer for appellants.

      Denis M. Hurley, Corporation Counsel (James J. McGowan and Morris Handel of counsel), for respondents.
   As to premises Park Lane Way: Order affirmed, with costs. As to premises Hotel Barclay: Order modified so as to reverse that portion thereof which reversed the findings of land value made by Special Term for the tax years 1940-41 through 1945-46 and made new findings as to those tax years; as to those tax years the findings of land value by Special Term should be reinstated; as so modified, the order of the Appellate Division is affirmed, with costs. The ground of such modification is that the weight of evidence favors the findings by Special Term as to land value for the tax years 1940-41 through 1945-46. As to premises Hotel Park Lane: Order modified so as to reverse that portion thereof which reversed the findings of land value made by Special Term for the tax years 1940-41 through 1945-46 and made new findings as to those tax years; as to those tax years the findings of land value made by Special Term should be reinstated; as so modified, the order of the Appellate Division is affirmed, with costs. The ground of such modification is that the weight of evidence favors the findings by Special Term as to land value for the tax years 1940-41 through 1945-46. No opinion.

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


text:
    In the Matter of New York Central Railroad Company, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents. [277 Park Ave., Borough of Manhattan.]
    Argued January 14, 1954;
    decided May 20, 1954.

      Philip 8. McNally, Gerald E. Dwyer, Lawrence W. Krieger and William P. Murray for appellant.

      Denis M. Hurley, Corporation Counsel (James J. McGowan and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. 290 Park Avenue, Inc., Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued January 14, 1954;
    decided May 20, 1954.

      Philip 8. McNally and Irving M. Engel for appellant.

      Denis M. Hurley, Corporation Counsel (James J. McGowan and Morris Handel of counsel), for respondents.
   Order modified so as to reverse that portion thereof which reversed the findings of land value made by Special Term for the tax years 1947-48 through 1951-52 and made new findings as to those tax years; as to those tax years the findings of land value by Special Term should be reinstated; as so modified, the order of the Appellate Division is affirmed, with costs. The ground of such modification is that the weight of evidence favors the findings by Special Term as to land value for the tax years 1947-48 through 1951-52. No opinion.

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


text:
    Trustees of the Freeholders and Commonalty of the Town of East Hampton, Appellant, v. R. E. Dowling Realty Corporation et al., Respondents.
    Argued April 14, 1954;
    decided May 20, 1954.

      George W. Percy and George W. Percy, Jr., for appellant.

      Stanley Fowler, Harry G. Stephens and Benjamin Michne for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rocco Venuto, Appellant, v. Wine Growers Guild, Respondent.
    Argued April 8, 1954;
    decided May 20, 1954.

      Salem G. Mansour for appellant.

      John JR. Weaver for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    First National Bank of Olean, as Administrator D.B.N. of the Estate of Thomas McGuire, Deceased, Respondent, v. Baltimore and Ohio Railroad Company, Appellant.
    Argued April 13, 1954;
    decided May 20, 1954.

      Ellsworth Van Graafeiland for appellant.

      G. Sydney Shane for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Henry Elair Rodenbach and Frederick George Facer, Appellants.
    Argued April 20, 1954;
    decided May 20, 1954.

      Millard J. Noonan for appellants.

      Frank A. Pfalzer, Milton E. Kaeslau and Joseph W. Kirkpatrick for Dennis E. Ahern and others, amici curies, in support of appellants’ position.

      John F. Dwyer, District Attorney (Robert A. Burrell of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conwat, Desmond, Dte, Fuld, Fboessel and Van Voobhis, JJ.


text:
    French American Banking Corporation, Respondent, v. Isbrandtsen Company, Inc., Appellant.
    Argued April 8, 1954;
    decided May 20, 1954.

      Woodson D. Scott for appellant.

      Alexis Goudert and A. Michael Frothingham for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fkoessel and Van Vookhis, JJ.


text:
    William A. Campbell et al., Constituting the Bondholders’ Protective Committee for the Holders of First Lien and Refunding Mortgage 5% Bonds, Issued by Hudson & Manhattan Railroad Company, et al., on Their Own Behalf and on Behalf of All Other Holders of Said Bonds, Respondents, v. Hudson & Manhattan Railroad Company, Appellant, et al., Defendants.
    Argued April 5, 1954;
    decided May 20, 1954.

      Whitney North Seymour, Richard Hawkins and Burton M. Abrams for appellant.

      Edward Boss Aranow, Samuel Gottlieb and Louis W. Boohheim, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lyman R. Bradley, Appellant, v. New York University, Respondent.
    Argued April 22, 1954;
    decided May 20, 1954.

      Royal W. France for appellant.

      Stuart N. Updike, John R. Schoemer, Jr., and Robert M. Reagan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret O’Connor, as Administratrix of the Estate of Barton O’Connor, Deceased, Appellant, v. Complete Machinery & Equipment Co., Inc., Respondent.
    Argued April 12, 1954;
    decided May 20, 1954.

      Thomas A. McDonald for appellant.

      Henry Vollmer, Jr., and Lester H. Chase for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Froessel and Van Vooehis, JJ.


text:
    The People of the State of New York, Respondent, v. Myron S. Yachelson, Appellant.
    Argued April 19, 1954;
    decided May 20, 1954.

      Charles J. Bellew for appellant.

      Robert E. Fischer, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


author: Per Curiam.

text:
    In the Matter of Bralus Corporation et al., Appellants, against Irvin Berger, Respondent.
    Argued April 6, 1954;
    decided May 20, 1954.

      William Brafman and Joseph Goldman for appellants.

      Richard Steel and Martin A. Jacobs for respondent.
   Per Curiam.

Respondent’s mechanic’s lien for making1 ‘ drawings of preliminary plans ” and allied architectural services which never became embodied in an erected structure, should not summarily be dismissed on motion under subdivision (6) of section 19 of the Lien Law, upon the ground that they are not final plans. Mechanic’s liens may be filed for materials furnished or labor performed “ for the improvement of real property ” (Lien Law, § 3). Subdivision 4 of section 2, as amended by chapter 608 of the Laws of 1934, defines improvement ” as including “ the drawing by any architect or engineer or surveyor, of any plans or specifications or survey, which are prepared for or used in connection with such improvement ”. Nothing contained in this language disallows architects’ plans which are preliminary in nature, provided that they have progressed to a point where they can be characterized as plans ” within the meaning of that term as it is used in the building trades. More than, mere rough sketches is required in order to render lienahle an architect’s charges, but the term preliminary-plans ” includes drawings which are sufficiently formal to be called plans, but which have been prepared to assist the owner in deciding whether he wants to have a building constructed according to such a design, or which leave some ultimate details to be selected and added later. What the present drawings are and whether they constitute plans should be decided after a trial, and not in a summary proceeding instituted under subdivision (6) of section 19 of the Lien Law.

The order appealed from should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ., concur.

Order affirmed.


text:
    Ralph Cohen, Appellant, v. Union News Company, Respondent.
    Argued April 12, 1954;
    decided May 20, 1954.

      Benjamin II. Siff and Saul G. Wlodaver for appellant.

      Bernard Meyerson and Richards W. Hannah for respondent.
   Judgment affirmed, with costs.

Concur: Lewis, Ch. J., Desmond, Dye, Ftjld and Van Voobhis, JJ.; Conway, J., dissents in the following opinion in which Froessel, J., concurs.

Conway, J.

(dissenting). We are unable to agree for affirmance. This case is not one of the class of cases where a defective condition is complained of which requires notice to the defendant, actual or constructive, in order to impose liability upon the defendant who has failed in his duty of proper maintenance. It seems quite clear to us that if the Union News Company in the conduct of its business prepared a place for ice skating by (a) planing the surface of the ice so as to remove roughness and holes and to make it smooth, (b) by then flooding it with water preparatory to freezing it and (c) freezing the water so as to make it ready for the public, and then (d) inviting and making it available for the public to enter upon it, it was required to act as a reasonably prudent person would act in preparing a place for business visitors. If the Union News Company, after such preparation, threw the ice skating rink open to the public thus representing that the ice rink was ready and safe for use at a time when there was a quarter of an inch of water which had not frozen on top of the ice, that was not the act of a reasonably prudent person under the circumstances, and a jury might so find. Where, as here, it is claimed that the proximate cause of the accident was the breach of an affirmative duty in creating the condition, then the Union News Company may not say that it did not know what the danger was unless and until either (1) someone came and reported it or (2) the condition of danger continued so long that it was affected with constructive notice. Union News had created the condition of danger and the plaintiff, an experienced skater, was leaving the ice when his skate went into a groove or hole in the ice made by a skate1* under conditions which a jury might well find Union News Company was required to foresee since ice with unfrozen water on top of it would naturally tend to become soft and vulnerable to sharp ice skates and, in addition, the jury might further find that the ice was not planed or prepared in the proper manner. This is a case where there can be no question hut that Union News Company, for profit, invited paying visitors to skate in a rink, the ice for which had been created and maintained by Union News in a manner which a jury could find to be negligent and dangerous. There can he no question here, in our judgment, about the fact that the plaintiff made out a prima facie case.


text:
    James C. MacIntyre et al., as Assignees for the Benefit of Creditors of Conroy Gloves, Inc., Respondents, v. State Bank of Albany, Appellant.
    Argued March 12, 1954;
    decided May 20, 1954.

      Charles E. Nichols for appellant.

      Herman 8. Axelrod, H. Andrew 8chlusberg and Maitland M. Axelrod for respondents.
   Per Curiam.

The judgment should be affirmed insofar as it directs recovery by assignees for the benefit of creditors of preferential payments made to defendant in liquidation of an indebtedness contrary to section 15 of the Stock Corporation Law. That section says nothing about recovery of interest, which has been allowed from January 17, 1949, the date of the last preferential payment. The object of section 15 of the Stock Corporation Law is to aid in the equitable distribution of an insolvent debtor’s assets among creditors, and, in order to accomplish this result, it is held that there is an equitable implication that interest shall be paid where a voidable preference is recovered. The Federal courts have held under subdivision a of section 60 of the Bankruptcy Act (U. S. Code, tit. 11, § 96, subd. [a]) (which also does not mention interest) that in case of a voidable preference, the transferee is chargeable with interest to compensate the other creditors through the bankrupt’s estate for being deprived of the property or funds, but, according to the weight of authority, it is allowable only from the date of demand, if there is a demand, otherwise from commencement of suit (Kaufman v. Tredway, 195 U. S. 271; Waite v. Second Nat. Bank, 168 F. 2d 984; White Co. v. Wells, 42 F. 2d 460; Levy v. Weinberg & Holman, 20 F. 2d 565, 568; Elliotte v. American Sav. Bank & Trust Co., 18 F. 2d 460; Gould v. Nathans, 1 F. 2d 458. To the same effect are Wilson v. Mitchell-Woodbury Co., 214 Mass. 514; Wilson v. Nebraska State Bank, 126 Neb. 168, 182; Utah Assn. of Credit Men v. Boyle Furniture Co., 43 Utah 523; 5 Remington on Bankruptcy [5th ed., 1953], § 2307).

No charge of fraud has been made against defendant. Inasmuch as it does not appear that any previous demand was made, the judgment should be modified by computing interest from April 25, 1950, when this action was commenced, and, as so modified, the judgment should be affirmed, without costs.

The judgment of the Appellate Division and that of the Trial Term should be modified in accordance with this opinion, and, as so modified, affirmed, without costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ., concur.

Judgment accordingly.


text:
    Hartford Accident and Indemnity Company, Respondent, v. First National Bank & Trust Company of Paterson, New Jersey, Defendant, and The People of the State of New York, Appellant.
    Argued April 9, 1954;
    decided May 20, 1954.

      Nathaniel L. Goldstein, Attorney-General (John F. Hmiel, Wendell P. Brown and Thomas Burke of counsel), for appellant.

      Andrew Eckel for respondent.
   Judgment of Special Term affirmed, with costs. Appeal from order of Appellate Division dismissed. No opinion.

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


text:
    In the Matter of Margaret Simms, Individually and as Administratrix of the Estate of John J. Simms, Deceased, Respondent, against George P. Monaghan, as Police Commissioner of the City of New York, Appellant.
    Argued April 6, 1954;
    decided May 20, 1954.

      Adrian P. Burke, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for appellant.

      August Zolotorofe and Benjamin Heller for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Robert W. Thompson, Doing Business as Robert W. Thompson Company, Respondent, v. Trinity Operating Company, Inc., Appellant.
    Argued April 7, 1954;
    decided May 20, 1954.

      8. Rasará Gillespie, Jr., and Frederic G. Watson for appellant.

      G. 0. Donahue and Barent L. Visscher for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Incorporated Village of Upper Brookville, Respondent, v. Frank Faraco et al., Appellants.
    Argued April 8, 1954;
    decided May 20, 1954.

      Charles E. Lapp, Jr., for all appellants; James M. O’Connell for Preferred Transmix Concrete, Inc., appellant; Thomas E. Abrahams for Michael Checola and another, appellants.

      Jackson A. Bykman and Lester H. Chase for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conwat, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    The People of the State of New York ex rel. Rosario Di Maggio, Appellant, against Vernon A. Morhous, as Warden of Great Meadow Prison, Respondent.
    Argued April 23, 1954;
    decided May 20, 1954.

      Paul F. Donohue, John C. McTiernan and Charles A. Bohl for appellant.

      Nathaniel L. Goldstein, Attorney-General (Manuel T. Murcia, Wendell P. Brown and Raymond B. Madden of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fitld, Fboessel and Van Voobhis, JJ. [See 306 N. Y. 745.]


text:
    John Boll, Respondent, v. Sharp & Dohme, Inc., Appellant.
    Argued April 23, 1954;
    decided May 27, 1954.

      Joseph J. Brophy and Francis M. Walsh for appellant.

      Abraham MarTchoff and Julian H. Gottlieb for respondent.
   Order affirmed, with costs. Questions certified answered in the negative. No opinion.

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


text:
    C. L. Holding Corp., Appellant and Respondent, v. Schutt Court Homes, Inc., et al., Respondents and Appellants.
    Argued April 15, 1954;
    decided May 27, 1954.

      Henry Uselaner and Arthur N. Field for appellant-respondent.

      Jacob Bapoport for respondents-appellants.
   Per Curiam.

The lease provision that the tenant was to use and occupy the premises for the sale of “ meats * * * and other types of food products ” on its face covers all sorts of meats, including those fresh and refrigerated, and the weight of evidence belies the conclusion that it was intended to refer only to such meats as were processed or sold in delicatessens. The dismissal of plaintiff’s complaint was, therefore, fully justified. Equally warranted was the Appellate Division’s dismissal of defendants’ counterclaim. While it was proved that plaintiff breached the covenant not to let any other store to be used for the sale of meats, defendants failed to establish that competition by the adjacent meat market resulted in either a loss of profits or a reduction in rental value of the store that they had leased.

The judgment of the Appellate Division should be affirmed, without costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ., concur; Van Voorhis, J., taking no part.

Judgment affirmed.


text:
    In the Matter of Herbert Schreiber et al., Respondents, against Joseph D. McGoldrick, as State Rent Administrator, Appellants, and Bambury Realty Corp., Intervener, Appellant.
    Argued April 13, 1954;
    decided May 27, 1954.

      Emory Gardiner and Robert E. Schaffer for Joseph D. Mc-Goldrick, State Rent Administrator, appellant.
    - Sanford Green and Samuel Lawrence Brennglass for intervener-appellant.

      Arthur G. Parker for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fund, Feoessel and Van Voobhis, JJ.


text:
    Lilyan McPherson, Appellant, v. Grant Advertising, Inc., et al., Respondents.
    Argued April 22, 1954;
    decided May 27, 1954.

      J. Stanley Cohen for appellant.

      Samuel E. Swiggett for Grant Advertising, Inc., respondent.

      Richard Formidoni and Leo M. Brimmer for John Barry and another, respondents.
   Judgment affirmed, Avithout costs; no opinion.

Concur: Lewis, Oh. J., Conway, Desmond, Dye, Fuld, and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    Anthony Wysocki, Appellant, v. Helen Kugel et al., Respondents, et al., Defendants.
    Argued April 14, 1954;
    decided May 27, 1954.

      Larue Z. Brown for appellant.

      Leonard N. Laltser and Theodore J. Vogt for Helen Kugel and another, respondents.

      Elmer R. Weil, County Attorney (Maurice J. Rumisen of counsel), for County of Erie, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Virginia Repper et al., Appellants, against A. Holly Patterson et al., Constituting the Town Board of the Town of Hempstead, Respondents.
    Argued April 13, 1954;
    decided May 27, 1954.

      Jules B. St. Germain, in person, and Harry Pfeffer for Jules B. St. Germain and another, appellants.

      John A. Morhous, Town Attorney, for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of National Commercial Bank and Trust Company of Albany, as Executor of Lilian G. McChesney, Deceased. In the Matter of the Construction of the Will of Lilian G. McChesney, Deceased. William F. Hahn, Jr., as Executor of Peter M. Crounse, Deceased, Appellant; National Commercial Bank and Trust Company of Albany, as Executor of Lilian G. McChesney, Deceased, et al., Respondents.
    Argued April 15, 1954;
    decided May 27, 1954.

      John J. Scully and William F. Hahn, Jr., in person, for William F. Hahn, Jr., appellant.

      Max H. Zuckerman and Vernon Stuart for Le Roy Crounse and others, respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.

Concur: Desmond, Fuld, Fboessel and Van Voobhis, JJ. Dye, J. dissents in the following memorandum in which Lewis, Ch. J., and Conway, J., concur.

Dye, J.

(dissenting). I dissent and vote to reverse. When the testatrix directed the residue of her estate to be distributed “ in such proportions .or ratio as my said husband distributed his residuary estate ”, she intended an unequal division thereof in the ratio used by the husband. The husband had directed that the residue of his estate ‘1 be divided and distributed ratably to increase said legacies ”. The words “ proportions ” and “ ratio ” in the setting used by the testatrix, when read with “ ratably ” as used by her husband, make such an intention crystal clear, particularly as the Surrogate’s decree on judicial settlement of her husband’s estate had given effect to a ratable division thereof and, in so providing, had met with her approval, notwithstanding that such decree diminished her distributive share in that estate.


text:
    Mabel E. McLean, Appellant, v. William McKinley, Respondent.
    Argued April 20, 1954;
    decided May 27, 1954.

      Jacob BacTikoff and Edgar P. Feeley for appellant.

      Harold V. McCoy for respondent.
   Judgment of Appellate Division reversed and case remitted to that court for determination of the questions of fact, without costs to either party. (Civ. Prac. Act, § 602.) No opinion.

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


text:
    Jaliz Holding Corp., Respondent, v. Melvin McGill et al., Appellants, and Advance Funding Corporation, Respondent.
    Submitted April 20, 1954;
    decided May 27, 1954.

      Joseph 8. Rodell and Martin Rodell for appellants.

      Isidore Weckstein for Jaliz Holding Corp., respondent.

      Charles H. Ellner for Advance Funding Corporation, respondent.
   Appeal dismissed, with costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Emile Hendricka Scott, Appellant.
    Argued April 21, 1954;
    decided May 27, 1954.

      Abraham J. Gellinoff, J. George Silberstein, Joseph Pinckney and Calvin C. Cobb for appellant.

      Frank 8. Hogan, District Attorney (Richard G. Denser and Warren 8. Tenney of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Charles L. Donoughe, Respondent, v. Psaty & Fuhrman, Inc., et al., Appellants, et al., Defendants.
    Argued April 13, 1954;
    decided May 27, 1954.

      David Haar and Ben B. Lijflander for Donis, Goldman & Ruff, Inc., appellant.

      James M. Gilleran and William G. Walsh for Psaty & Fuhrman, Inc., appellant.

      Robert E. Connolley and Gerald F. Finley for respondent.
   Order affirmed, with costs. All questions certified answered in the affirmative, except question No. 2 as to defendant Donis, Goldman & Ruff, Inc., which is answered in the negative. No opinion.

Concur: Lewis, Ch. J., Conwat, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ,


text:
    Alice Chancer, Appellant, v. Louis Chancer, Respondent.
    Submitted April 20, 1954;
    decided May 27, 1954.

      Sidney Rothenberg and Charles Rothenberg for appellant.

      Myron A. Ellis and Emil K. Ellis for respondent.
   Appeal dismissed, without costs, upon the ground that the questions of law certified are not decisive of the correctness of the order appealed from. (Civ. Prac. Act, § 589, subd. 4, par. [b]; Langan v. First Trust & Deposit Co., 296 N. Y. 60.) No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Vooehis, JJ.


text:
    Gold Plastering Co., Inc., Respondent, v. 200 East End Avenue Corp., Appellant.
    Argued April 12, 1954;
    decided May 27, 1954.

      John P. McGrath, Hyman Grill and Thomas F. McCoy for appellant.

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

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


text:
    Anonymous, Respondent, v. Anonymous, Appellant.
    Submitted April 19, 1954;
    decided May 27, 1954.

      Philip A. Levey for motion.

      Adrian P. Burke, Corporation Counsel (Seymour B. Quel of counsel), opposed.
   Motion denied, and on the court’s own motion appeal dismissed upon the ground that no appeal lies as of right (Civ. Prac. Act. § 588, suhd. 1).


text:
    Boro Hall Corp. et al., Appellants, v. Vincent R. Impellitteri et al., Constituting the Board of Estimate of the City of New York, et al., Respondents, and Brooklyn Hospital et al., Interveners, Respondents.
    Argued May 17, 1954;
    decided May 27, 1954.

      John H. Finn for motion for stay and for leave to appeal and against motion to dismiss appeal.

      Adrian P. Burhe, Corporation Counsel (Benjamin Offner of counsel), and John P. McGrath for motion to dismiss appeal and against motion for leave to appeal and for a stay.
   Motion for leave to appeal and for a stay denied, with $10 costs.

Cross motions granted and appeal dismissed, with costs and $10 costs of motions, upon the ground that there is no substantial constitutional question involved.


text:
    Abbott A. Lane, Appellant, v. MacDonald Bros., Inc., Respondent.
    Submitted May 17,1954;
    decided May 27, 1954.

      Simon Klein for motion.

      Sidney Kramer opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Dawn Operators, Inc., Appellant, against William A. Lyon, as Superintendent of Banks of the State of New York, Respondent.
    Submitted May 17, 1954;
    decided May 27, 1954.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Adelbert G. Matthews, Jr., of counsel), for motion.

      Samuel Bivelson opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of Margaret T. Harrington, Respondent, against Milton C. Johnson Company, Appellant.
    Submitted May 17,1954;
    decided May 27, 1954.

      Darnel F. Nugent, Jr., for motion.

      Sidney Hut opposed.
   Motion granted and all proceedings stayed pending the hearing and determination of the appeal herein.


text:
    In the Matter of John W. Jacobsen, a Child under Sixteen Years of Age, Appellant. Children’s Court of the County of Nassau, Respondent.
    Submitted May 17,1954;
    decided May 27, 1954.

      Stanley C. Fowler, Jr., for motion.

      G. Burchard Smith, County Attorney (LeBoy G. Edwards of counsel), opposed.
   Motion dismissed (see Civ. Prac. Act, § 589, subd. 1, par. [b] ).


text:
    In the Matter of Natalia J. Odell, Appellant, against J. Raymond McGovern, as Comptroller of the State of New York, Respondent.
    Submitted May 17,1954;
    decided May 27, 1954.

      Augustus W. Bennet for motion.
    No one opposed.
   Motion granted.


text:
    In the Matter of the Accounting of Edward C. Raftery et al., as Surviving Executors, and Paul D. O’Brien et al., as Executors of Dennis F. O’Brien, Deceased Executor of Maurice A. Shea, Deceased, Respondents. Margaret L. Shea et al., Appellants; John L. Flynn, as Referee, Respondent-Appellant.
    Submitted March 8, 1954;
    decided May 27, 1954.

      James N. Vaughan, Charles Gar side, Allen Evarts Foster and Thomas F. Daly for motion.

      Arthur F. Driscoll and John Drew opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of J. Milton Smith, Admitted as John Milton Smith, Appellant, for an Order to Vacate or Modify an Order of Disbarment.
    Submitted May 17,1954;
    decided May 27, 1954.

      Richard H. Levet for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Marjorie J. Nichols, Appellant, v. Charles W. Nichols, Jr., Respondent.
    Submitted May 17, 1954;
    decided May 27, 1954.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 306 N. V. 490.]


text:
    The People of the State of New York, Respondent, v. Franklin National Bank of Franklin Square, Appellant.
    Submitted May 24, 1954;
    decided May 27, 1954.
   Motion to amend remittitur granted. Return of remittitur requested and remittitur, when returned, will be amended to read as follows: Judgment of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division. [See 305 N. Y. 453; 347 U. S. 373.]


text:
    Renee Pollard, by William C. Pollard, Her Guardian ad Litem, Appellant, v. Board of Education, Barker Central School District, Respondent.
    Submitted May 17, 1954;
    decided May 27, 1954.

      James P. Degnan for motion.

      J ohn R. Phelps opposed.
   Motion granted upon payment of $10 costs, and upon the condition that the return be filed by appellant within twenty days from the date of this order.


text:
    Oswald A. Schlegel, Appellant, v. Chase National Bank of the City of New York, as Executor of Rose G. Stern, Deceased, Respondent, et al., Defendants.
    Submitted May 17, 1954;
    decided May 27, 1954.
   Motion for reargument and to amend the remittitur denied, with $10 costs. [See 306 N. Y. 965.]


text:
    Edythe C. Bailey et al., Individually and as Members of American Society for the Prevention of Cruelty to Animals, Appellants, v. American Society for the Prevention of Cruelty to Animals, Respondent.
    Argued April 21, 1954;
    decided June 3, 1954.

      David M. Engelson for appellants.

      John C. Crawley and Howard B. Nichols for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ethel Fein, Plaintiff, v. Donald J. Bonetti, One of the Partners Doing Business under the Name of Marietta Beauty Salon, Defendant and Third-Party Plaintiff-Respondent, et al., Defendants. Regal Beauty Supply Company, Inc., et al., Third-Party Defendants-Appellants.
    Argued April 8, 1954;
    decided June 3, 1954.

      Ralph Stout and William J. Hayes for appellants.

      John W. Trapp for respondent.
   Judgment of Appellate Division and that of Trial Term reversed, with costs in all courts, and cross complaint dismissed upon the ground that there was no evidence that the dye in question contained any inherently dangerous or poisonous ingredients (see Karr v. Inecto, Inc., 247 N. Y. 360). No opinion.

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


text:
    The People of the State of New York, Appellant, v. Donna Lynn, Respondent.
    Argued April 22, 1954;
    decided June 3, 1954.

      Frank S. Hogan, District Attorney (Harold Roland Shapiro and Richard Q. Denser of counsel), for appellant.

      N. Henry Lindenauer for respondent.
   Per Curiam.

The order of the Court of Special Sessions should be reversed and defendant’s conviction of loitering in violation of section 887 (subd. 4, par. [c]) of the Code of Criminal Procedure should be reinstated, and her defense overruled that the overtures were not made by her but by the man mentioned in the complaint, inasmuch as it appears that in a public place she demanded money, escorting him immediately afterward to a place where they had sexual intercourse, after which she received the amount of money agreed upon. This was enough to constitute “inducing, enticing or procuring” within the meaning of this statute.

The order of the Court of Special Sessions should be reversed and the judgment of the City Magistrates’ Court reinstated.

Lewis, Ch. J., Conway, Desmond, Date, Fuld, Fboessel and Van Voobhis, JJ., concur.

Order reversed, etc.


text:
    City of Buffalo, Respondent, v. Robert C. Hayman, Defendant, and Arthur W. Davenport, Appellant. (Proceeding for Condemnation No. 122.)
    Submitted May 17, 1954;
    decided June 3, 1954.

      William J. Driscoll for motion.

      William B. Lawless, Jr., Corporation Counsel, opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.

Motion for stay dismissed.


text:
    Mollie Eagle, Appellant, v. Benjamin Cherney et al., Respondents.
    Submitted May 24,1954;
    decided June 3, 1954.
   Motion for reargument denied, with $10 costs. [See 294 N. Y. 818.]


text:
    In the Matter of Harry Kunin et al., as Stockholders of Title Guarantee and Trust Company, Respondents. Title Guarantee and Trust Company, Appellant.
    Submitted May 17, 1954;
    decided June 3, 1954.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 306 N. Y. 967.]


text:
    The People of the State of New York, Respondent, v. Santo Caminito, Appellant.
    Submitted May 17, 1954;
    decided June 3, 1954.
   Motion for reargument and to amend the remittitur denied. [See 291 N. Y. 541.]


text:
    In the Matter of Lester Martin, Respondent, against Columbia Pictures Corporation, Appellant.
    Submitted May 26, 1954;
    decided June 3, 1954.

      Ferdinand Pécora for motion.

      Louis B. Heller opposed.
   Motion granted and all proceedings stayed pending the hearing and determination of the appeal herein and case set down for argument during the October, 1954, session of the Court of Appeals.


text:
    In the Matter of the City of New York, Acting on Behalf of the New York City Housing Authority, Appellant-Respondent, Relative to Acquiring Title to Real Property Bounded by Seward Avenue and Other Streets in the Borough of The Bronx, Selected as a Site for Sound View Houses. A. F. & G. Realty Corp. et al., Respondents-Appellants.
    Submitted May 17, 1954;
    decided June 3, 1954.

      Eugene J. Morris, Robert I. Weissmann and Bernard L. Bermant for motions.

      Adrian P. Burke, Corporation Counsel (Harry E. O’Donnell, Benjamin Offner and Milton H. Harris of counsel), opposed.
   Per Curiam.

In this proceeding the City of New York has condemned fourteen parcels Nos. 1, 2, 4, 7, 9, 11, 23, 24, 25, 31, 34, 35, 37 and 39 owned by two corporations, movants here. Ten separate awards were made. With respect to six of those awards covering parcels Nos. 7, 23, 24, 25, 31, 34, 35, 37 and 39, the Appellate Division has affirmed. With respect to four of those awards, covering parcels Nos. 1, 2, 4, 9 and 11 the Appellate Division has reduced the awards.

The city has served a single notice of appeal as of right from the whole of the order of the Appellate Division.

The motions to dismiss the appeal are made upon two grounds:

(1) that no appeal lies as of right from the order of the Appellate Division insofar as it affirmed the awards of Special Term since a condemnation proceeding, involving more than one parcel, is considered to be, for purposes of appeal, a separate proceeding as to each damage parcel, and,

(2) that no appeal lies as of right from the order of the Appellate Division insofar as it reduced the awards of Special Term for the reason that by such appeal the city does not seek a review of questions of law but seeks to have us further reduce the amount of the awards, by making new findings of fact with respect thereto, which is. beyond the power of this court to do.

As to (1): The appeal of the city must be dismissed (see Matter of City of New York [Harlem Riv. Drive], 304 N. Y. 785; Matter of City of New York [Whitestone Bridge Approach], 293 N. Y. 684).

As to (2): The city, relying upon Matter of Flagler (248 N. Y. 415) and Prager v. New Jersey Fidelity & Plate Glass Ins. Co. (245 N. Y. 1), urges that it seeks the opportunity of persuading us to reduce the award even below the reduced amount fixed by the Appellate Division. That it may not succeed. in accomplishing, for, beyond the extent of such reduction, the Appellate Division affirmed the finding of value made by Special Term, and that finding is immune from further review if supported by substantial evidence. (See Harrington v. Harrington, 290 N. Y. 126; People ex rel. MacCracken v. Miller, 291 N. Y. 55, 61.) However, the limited scope of review thus available in this court furnishes no basis or ground for dismissing the appeal. (See Loyd v. Third Ave. Rys. Co., 289 N. Y. 636; see, Cohen and Karger, Powers of the New York Court of Appeals, p. 622.) Accordingly, claimants’ motions to dismiss the city’s appeal insofar as it relates to those parcels as to which the Appellate Division has modified the decree of Special Term, should be denied.

The motion by A. F. & G-. Realty Corp. to dismiss the appeal of the City of New York, insofar as it relates to damage parcels Nos. 1, 2, 4, 23, 24, 25 and 31, should be granted as to parcels Nos. 23, 24, 25 and 31; otherwise the motion should be denied.

The motion by Classon Point Estates, Inc., to dismiss the appeal of the City of New York, insofar as it relates to damage parcels Nos. 7, 9, 11, 34, 35, 37 and 39, should be granted as to parcels Nos. 7, 34, 35, 37 and 39; otherwise the motion should be denied.


text:
    In the Matter of the Arbitration between Riverdale Fabrics Corp., Appellant, and Tillinghast-Stiles Company, Respondent.
    Submitted May 17, 1954;
    decided June 3, 1954.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 306 N. Y. 288.]


text:
    Yula P. St. George, as Administratrix of the Estate of Frank St. George, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 30281.)
    Submitted May 24, 1954;
    decided June 3, 1954.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley of counsel), for motion.

      Harry Ander opposed.
   Motion denied and case set down for argument during the October, 1954, session of the Court of Appeals.


text:
    John Servino, Respondent, v. Jean Servino, Appellant.
    Submitted May 17, 1954;
    decided June 3, 1954.

      Mark K. Leeds for motion.

      John F. Loonam opposed.
   Application denied and case set down for argument during the October, 1954, session of the Court of Appeals. [See 306 N. Y. 921.]


text:
    The People of the State of New York ex rel. Patrick J. Grennan, Appellant, against Wesley E. Devoe, Acting Sheriff of Saratoga County, Respondent.
    Argued June 2, 1954;
    decided June 4, 1954.

      Michael E. Sweeney for appellant.

      Nathaniel L. Goldstein, Attorney-General (Paul W. Williams, Peyton H. Moss and Arthur L. Harrow of counsel), for respondent.
   Order affirmed, without costs. (See People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393.) A question under the Federal Constitution was presented and passed upon by this court, viz., whether the relator had been deprived of liberty without due process of law and whether there had been an abridgement of his privileges and immunities as a citizen of the United States under the Fourteenth Amendment of the Constitution of the United States. This court held that there was no denial of any constitutional right of the relator. No opinion.

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


text:
    Irving Gerber, Appellant, v. Jarold Shops, Inc., Respondent.
    Argued April 20, 1954;
    decided June 4, 1954.

      Jacob W. Friedman and George Horowitz for appellant.

      Jay Leo Rothschild for respondent.
   Judgment affirmed, with costs; no opinion.

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