text:
    In the Matter of Peter DeSalvo, Appellant, against Edward J. Murray, as Commissioner of Public Works of the City of Yonkers, Respondent. In the Matter of Joseph Chiaverini, Appellant, against Edward J. Murray, as Commissioner of Public Works of the City of Yonkers, Respondent.
    (Argued June 1, 1933;
    decided July 11, 1933.)

      Frank H. Hiscock and Harry J. Laragh for appellants.

      Leonard G. McAneny, Corporation Counsel (J. Raymond Hannon of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Lehman, Kellogg, O’Brien and Crouch, JJ. Crane, J., dissents on the ground that there should have been an alternative order of mandamus granted. Not sitting: Hubbs, J.


source: Caselaw Access Project

license: Public Domain

text:
    Ida Kaplan, Respondent, v. 598 Broadway Corporation, Appellant.
    (Argued June 1, 1933;
    decided July 11, 1933.)

      William Shanldand Andrews, Enos S. Booth and Maxwell J. Kaplan for appellant.

      Frank C. Laughlin and Joseph Zaretzki for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Charles H. Baldwin, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v. Standard Accident Insurance Company, Appellant. Charles H. Baldwin, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v. Standard Accident Insurance Company, Appellant, Impleaded with Another.
    (Argued June 1, 1933;
    decided July 11, 1933.)

      Jay Leo Rothschild, Walter S. Beck and Samuel Saltsman for appellant.

      Henry S. Manley for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Isadore Scheinberg et al., Respondents, v. Scheinberg Estates, Inc., et al., Appellants.
    (Argued June 2, 1933;
    decided July 11, 1933.)

      Jay Leo Rothschild and Louis Rivkin for appellants.

      Jacob S. Chalat and Abraham H. Simon for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Charlotte Kretz, Respondent, v. The Town of Herkimer et al., Appellants.
    (Argued June 2, 1933;
    decided July 11, 1933.)

      George H. Bunce for Town of Herkimer, appellant.

      David E. Snyder for Village of Herkimer, appellant.

      Carl W. Peterson and Frank A. Schmidt for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    George Stojack, as Administrator of the Estate of Michael Stojack, Deceased, Appellant, v. Ellis D. Smith, Respondent.
    (Argued June 2, 1933;
    decided July 11, 1933.)

      Rollin B. Sanford, John T. DeGraff and C. Bertrand Race for appellant.

      Charles B. Sullivan and Warner M. Bouck for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Irving Trust Company, as Trustee in Bankruptcy for Miller’s Inc., Respondent, v. D. Miller & Sons, Inc., et al., Appellants.
    (Submitted June 1, 1933;
    decided July 11, 1933.)

      Charles A. Winter for appellants.

      William J. Carr and Clyde B. Santee for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Russell Robinson, an Infant, by Ralph Robinson, His Guardian ad Litem, Appellant, v. Elmer Smith, Respondent.
    (Argued June 7, 1933;
    decided July 11, 1933.)

      E. W. Barrett for appellant.

      Carl S. Salmon for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman and O’Brien, JJ.

Dissenting: Kellogg and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Howard F. Potter, Respondent, v. Michael T. Watts, Appellant.
    (Argued June 6, 1933;
    decided July 11, 1933.)

      Grattan B. Shults for appellant.

      Stephen Callaghan, William S. Butler and Arthur D. Cohen for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    De Pace & Juster, Inc., Plaintiff, v. Eleven Hundred Park Ave., Inc., Appellant, and W. M. Ritter Flooring Corporation, Respondent, Impleaded with Others. Marcus Contracting Co., Inc., Plaintiff, v. Eleven Hundred Park Ave., Inc., Appellant, Impleaded with Another. The Titusville Iron Worrs Company, Plaintiff, v. Eleven Hundred Park Ave., Inc., Appellant, Impleaded with Others.
    (Argued June 5, 1933;
    decided July 11, 1933.)

      Harold H. Corbin, Edward J. Bennett and Maxwell E. Lopin for appellant.

      Maurice B. Rich for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    American Surety Company of New York, Appellant, v. Kasco Mills, Inc., et al., Defendants, and Charles F. Kieser, Respondent.
    (Submitted June 5, 1933;
    decided July 11, 1933.)

      William B. Butler and William P. Moyles for appellant.

      Arnold E. Monetti and Chauncey B. Garver for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch,- JJ. Not sitting: Hubbs, J.


text:
    Parkview Holding Corporation, Appellant, v. Alcor Realty Corporation, Respondent.
    (Argued June 5, 1933;
    decided July 11, 1933.)

      Sidney S. Levine for appellant.

      Nathan Siegel, Jr., Norbert Ruttenberg and Nelson Ruttenberg for respondent.
   no opinion. (See 262 N.Y. 648.)

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Mary A. Naccash, Respondent, v. Hildansid Realty Corporation et al., Defendants, and Louis Summers et al., Appellants.
    (Argued June 5, 1933;
    decided July 11, 1933.)

      Solomon Rotwein for appellants.

      Leslie J. Ekenberg and Victor Levin for respondent.
   no opinion. (See 262 N. Y. 516.)

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Ralph Rice, an Infant, by Ralph E. Rice, His Guardian ad Litem, Respondent, v. Copeland Products, Inc., et al., Appellants. Ralph E. Rice, Respondent, v. Copeland Products, Inc., Appellant, Impleaded with Another.
    (Argued June 5, 1933;
    decided July 11, 1933.)

      Walter S. Archibald and George B. Hurley for Copeland Products, Inc., appellant.

      John F. Lucey for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien and Crouch, JJ.

Dissenting: Kellogg, J. Not sitting: Hubbs, J.


text:
    The People of the State of New York, Respondent, v. John McKinney, Appellant.
    (Argued June 6, 1933;
    decided July 11, 1933.)

      William L. Underwood for appellant.

      L. Barron Hill, District Attorney (Lindsay R. Henry of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Jersey Shore Trust Company, Appellant, v. James O. Sebring, Respondent.
    (Argued June 6, 1933;
    decided July 11, 1933.)

      Claude V. Stowell for appellant.

      James O. Sebring, in person, for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg and O’Brien, JJ. Not sitting: Hubbs and Crouch, JJ.


text:
    Realty Associates Securities Corporation, Respondent, v. Myron J. Cedar, Appellant, Impleaded with Others.
    (Argued June 6, 1933;
    decided July 11, 1933.)

      David M. Palley and Samuel L. Marcus for appellant.

      Alfred H. Hetkin and Henry Hetkin for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    John McKeever, an Infant, by Bridget McKeever, His Guardian ad Litem, et al., Respondents, v. New York Railways Corporation, Appellant.
    (Argued June 6, 1933;
    decided July 11, 1933.)

      Henry J. Smith, J. M. Sheen and Joseph L. Zelaskow for appellant.

      Chester A. Hahn, Sylvia Miller and Harry Miller for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    The City of New York, Respondent, v. Brooklyn Alcatraz Asphalt Company et al., Appellants.
    (Submitted June 6, 1933;
    decided July 11, 1933.)

      Edward L. Kelly and James F. T. Delaney for appellants.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Milton I. Hauser and Isaac F. Cohen of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    The People of the State of New York, Respondent, v. Henry Edmonds and John Tinsley, Appellants.
    (Argued June 7, 1933;
    decided July 11, 1933.)

      Michael Delagi and William J. Cahill for Henry Edmonds, appellant.

      Seymour Mark and William P. Thomas for John Tinsley, appellant.

      Samuel J. Foley, District Attorney (Sol. Boneparth, Herman J. Fliederblum and Martin M. Frank of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of Ralph S. Keep et al., Appellants, against City of Lockport, Respondent.
    (Argued June 7, 1933;
    decided July 11, 1933.)

      William W. Storrs and Ellsworth Storrs for appellants.

      Merton K. Doty, Corporation Counsel (Daniel J. Kenefick and Daniel J. Kenefick, Jr., of counsel), for respondent.
   no opinion.

Concur: Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not voting: Pound, Ch. J. Not sitting: Hubbs, J.


text:
    Lillian F. Chapman, as Administratrix of the Estate of Russell D. Chapman, Deceased, Respondent, v. Walter Thompson et al., Defendants, and Johns-Manville Corporation et al., Appellants. Walter Thompson et al., Respondents, v. Russell D. Chapman, Defendant, and Johns-Manville Corporation et al., Appellants.
    (Argued June 7, 1933;
    decided July 11, 1933.)

      Frank H. Hiscock and Daniel Scanlon for appellants.

      Jesse E. Kingsley for Lillian F. Chapman, as administratrix, respondent.

      Lewis C. Ryan for Walter Thompson et al,. respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of Elmore R. Fay, Respondent, against John Miller et al., Constituting the Village Board of the Village of Pleasantville et al., Appellants.
    (Argued June 7, 1933;
    decided July 11, 1933.)

      Wendell P. McKown for appellants.

      A. H. F. Seeger and David H. Moses for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Nelson S. Spencer, Respondent, against George J. Ryan, as President of the Board of Education of the City of New York, et al., Appellants.
    (Submitted June 7, 1933;
    decided July 11, 1933.)

      Arthur W. Hilly, Corporation Counsel (William E. C. Mayer and J. Joseph Lilly of counsel), for appellants.

      H. Eliot Kaplan and Albert de Roode for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Kesbec Sales Company, Appellant, v. Rodgers & Hagerty, Inc., Respondent.
    (Argued June 8, 1933;
    decided July 11, 1933.)

      Alfred O. Englander and Paul Englander for appellant.

      Harry Merwin and John F. Collins for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of Proving the Last Will of Nellie E. Urth, Deceased. Lockport Exchange Trust Company et al., Appellants; Mary Welsh et al., Respondents.
    (Argued June 8, 1933;
    decided July 11, 1933.)

      William W. Storrs, George C. Lewis and Edward G. Parker for appellants.

      J. Carl Fogle and Merton K. Doty for respondents.
   No opinion.

Concur: Crane, Lehman, Kellogg and Crouch, JJ. Not voting: Pound, Ch. J., and O’Brien, J. Not sitting: Hubbs, J.


text:
    In the Matter of Isidore Wittner et al., Appellants, against Charles A. Harnett, as Commissioner of Motor Vehicles of the State of New York, et al., Respondents.
    (Argued June 9, 1933;
    decided July 11, 1933.)

      Edward G. Griffin for appellants.

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for Charles A. Harnett, as Commissioner, etc., respondent.

      Harold Riegelman and H. H. Nordlinger for Yellow Taxi Corporation of New York et al., respondents.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Irving Trust Company, as Trustee in Bankruptcy of Bankers Capital Corporation, Respondent, v. Superior Credit Corporation, Appellant.
    (Argued June 9, 1933;
    decided July 11, 1933.)

      H. H. Nordlinger, Jacob J. Lesser and Lawrence S. Lesser for appellant.

      Hugh S. Williamson, Gerald J. Craugh and Edward A. Craighill, Jr., for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Kellogg, O’Brien and Crouch, JJ.

Dissenting: Lehman, J. Not sitting: Hubbs, J.


text:
    Richard J. Pearl, Appellant, v. Seventh Avenue Film Co., Ltd., et al., Respondents.
    (Argued June 9, 1933;
    decided July 11, 1933.)

      Bertram A. Mayers for appellant.

      Frederick Malcolm Wolf and Alexander Wolf for respondents.
   No opinion. (See 262 N. Y. 513, 639.)

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Ruth E. Cohen, as Administratrix of the Estate of Abraham M. Cohen, Deceased, Appellant, v. Harmon National Real Estate Corporation, Respondent.
    (Argued June 9, 1933;
    decided July 11, 1933.)

      Michael M. Helfgott for appellant.

      Bertram G. Eadie, William E. Lyons and Barnett Cohen for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Ethel Master, Appellant, v. Mary Horowitz, Respondent. Joseph Master, Appellant, v. Mary Horowitz, Respondent. Jacob M. Master, Appellant, v. Mary Horowitz, Respondent.
    (Argued June 9, 1933;
    decided July 11, 1933.)

      Walter A. Fullerton and James A. Leary for appellants.

      J. Stanley Carter for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Joseph J. Hodgens, as Administrator of the Estate of Thomas J. Hodgens, Deceased, Respondent, v. Carmine Sinisgalli, Appellant.
    (Argued June 9, 1933;
    decided July 11, 1933.)

      P. C. Dugan for appellant.

      Daniel H. Prior and Louis R. Yaguda for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman and Crouch, JJ. Kellogg and O’Brien, JJ., dissent and vote to affirm. Not sitting: Hubbs, J.


text:
    Charles Fury, Appellant, v. Willard B. Mahler et al., Respondents.
    (Submitted June 9, 1933;
    decided July 11, 1933.)

      Garry J. Fury for appellant.

      Frauds J. Morgan and William A. Davidson for Willard B. Mahler et al., respondents.

      Morris S. Hirschberg for Fred A. Wenck, respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Interborough Rapid Transit Company, Respondent, v. The City of New York, Appellant.
    (Argued June 12, 1933;
    decided July 11, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Vine H. Smith and Samuel A. Bloom of counsel), for appellant.

      B. H. Ames and James L. Quackenbush for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Joseph Levy, Respondent, v. Federal Insurance Company, Appellant.
    (Argued June 12, 1933;
    decided July 11, 1933.)

      George S. Brengle, D. Roger Englar and John M. Aherne for appellant.

      Benjamin Reass, David Drechsler and Max Leff for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    The Metropolitan Casualty Insurance Company of New York, Respondent, v. The Public National Bank and Trust Company of New York, Appellant.
    (Argued June 12, 1933;
    decided July 11, 1933.)

      Oscar R. Houston, Donald A. Gray, Felix A. Fishman and J. Joseph Noble for appellant.

      Joseph R. Jackson and Wesley S. Sawyer for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman; Kellogg, O’Brien and Crouch, JJ. Not sitting: BLubbs, J.


text:
    Albert Spinner, Respondent, v. Bergen Associates, Inc., Appellant, Impleaded with Others.
    (Argued June 12, 1933;
    decided July 11, 1933.)

      Joseph Steven Frank and Otis S. Carroll for appellant.

      Theodore Arnold, Hyman Eller and Leon Bleecker for respondent.
   no opinion. (See 262 N. Y. 637.)

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of the Accounting of Clara Kaufman, as Administratrix of Hyman Kaufman, Deceased. Ruth K. Greenberg, Appellant; Clara Kaufman et al., Respondents.
    (Argued June 13, 1933;
    decided July 11, 1933.)

      Charles S. Rosenschein and Robert Moers for appellant.

      James H. Barrett, R. Elliott Davis and Henry R. Barrett for Clara Kaufman, as administratrix, respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Frederick W. I. Lundy, Respondent, v. The City of New York, Appellant.
    (Submitted June 13, 1933;
    decided July 11, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (Robert J. Culhane and Rollin H. Reid of counsel), for appellant.

      Charles J. Nehrbas and Maurice W. Monheimer for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Philip W. Wrenn et al., Doing Business under the Name of Wrenn Brothers & Co., Respondents, v. Ray Moskin, as Executrix of Julius Moskin, Deceased, Appellant, Impleaded with Another.
    (Argued June 13, 1933;
    decided July 11, 1933.)

      David L. Podell, Benjamin M. Kaye, Herman Shulman and Nathaniel H. Jackson for appellant.

      Caruthers Ewing and Stanhope Foster for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Seventh National Bank of New York, Respondent, v. Joseph J. Schickler, Appellant.
    (Argued June 13, 1933;
    decided July 11, 1933.)

      John Kirkland Clark and Ganson J. Baldwin for appellant.

      Arthur Ofner, Warren C. Fielding, Clarence I. Blau and Carl J. Austrian for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Mendelson-Silverman, Inc., Respondent, v. Malco Trading Corporation, Appellant, Impleaded with Others.
    (Argued June 13, 1933;
    decided July 11, 1933.)

      Thomas F. Hennessy for appellant.

      Milton Paulson, Samuel Goldstein and Robert Feingold for respondent.
   no opinion.

Concur: Pound, Ch. J., Lehman, O’Brien and Crouch, JJ.

Dissenting: Crane and Kellogg, JJ. Not sitting: Hubbs, J.


text:
    American Steel and Iron Company, Inc., Respondent, v. L. B. Foster Co., Inc.. Appellant. (Action No. 1.) L. B. Foster Company, Appellant, v. American Steel and Iron Company, Respondent. (Action No. 2.)
    (Submitted June 13,1933;
    decided July 11, 1933.)

      Edwin A. Falk and Kenneth S. MacAffer for appellant.

      Abraham L. Doris for respondent.
   no opinion.

. Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    The Allerwan Company, Plaintiff, v. Laura M. Hermann, Defendant. Laura T. Burton et al., Appellants; Union Bank of Brooklyn, Respondent.
    (Submitted June 13, 1933;
    decided July 11, 1933.)

      Bernard Cowen for appellants.

      Louis Timberg, Rubin Mazel and Jacob Radzivill for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    W. Fred Van Curen, Respondent, v. Chester A. Anderson, Appellant.
    (Argued June 14, 1933;
    decided July 11, 1933.)

      Pierre W. Evans for appellant.

      Asbury H. Harpending for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    William Goltz et al., Respondents, v. Art Awning Manufacturing Company, Appellant.
    (Argued June 14, 1933;
    decided July 11, 1933.)

      Everett W. Bovard and Thomas C. Cusack for appellant.

      Emanuel Sustick for respondents.
   no opinion.

Concur: Pound, Ch. J., Lehman, Kellogg and O’Brien, JJ.

Dissenting: Crane and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Anna G. Dornheim et al., Respondents, v. Richard Vom Lehn, Jr., Appellant.
    (Argued May 25, 1933;
    decided July 11, 1933.)

      Ralph Stout, Charles Goldenberg and Frederick B. Merkle for appellant.

      Milton H. Reuben for respondents.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    Percy A. Payne, Appellant, v. John B. Burke et al., Copartners, under the Firm Name of Burke Brothers, Respondents.
    (Submitted July 11, 1933;
    decided July 11, 1933.)

      George A. King for motion.

      Ransom Pratt opposed.
   Motion to open default denied, with ten dollars costs, The appeal was taken without right (Meo v. Bloomgarden, 262 N. Y. 73). The court will not open a default when the appeal is not authorized.


text:
    Ford H. Dow, Respondent, v. Allen E. Beals et al., Appellants.
    (Argued June 12, 1933;
    decided July 11, 1933.)

      George W. Tucker and Charles E. Francis for appellants.

      Alfred L. Becker, Rene A. Wormser and Ellwood W. Kemp, Jr., for respondent.
   Appeal withdrawn on payment of costs on appeal.


text:
    The People of the State of New York ex rel. Public Service Interstate Transportation Co., Inc., Respondent, v. Public Service Commission et al., Appellants.
    (Submitted June 8, 1933;
    decided October 3, 1933.)
   Motion for reargmnent denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 39.)


text:
    Central Auto Renting Corporation, Respondent, v. Commercial Credit Corporation of Baltimore, Appellant.
    (Submitted July 11, 1933;
    decided October 3, 1933.)

      Herman Scheckner for motion.

      Walter G. Schelker, Jr., opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Accounting of John T. G. Finn et al., as Trustees under the Will of Daniel K. De Beixedon, Deceased. John T. G. Finn et al., Appellants; Bennett De Beixedon, Individually and as Trustee, Respondent.
    (Submitted July 11, 1933;
    decided October 3, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 168.'


text:
    The People of the State of New York, Respondent, v. Ben Weiss, Appellant.
    (Submitted October 2, 1933;
    decided October 3, 1933.)
   Motion to vacate order dismissing appeal and for enlargement of time granted and case set down for argument on fourth Monday of present session. (See 260 N. Y. 654.)


text:
    Elizabeth R. Monahan, Respondent, v. Anna F. Kenny et al., Appellants.
    (Submitted October 2, 1933;
    decided October 4, 1933.)

      Peter W. Quinn for motion.

      Joseph Lotterman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants file return and serve copy of case on or before November 1, 1933, in which event the motion is denied.


text:
    Malvina Cooper, Appellant, v. Morris E. Gossett, Respondent.
    (Submitted October 2, 7 933;
    decided October 4, 1933.)

      Morris E. Gossett for motion.

      Samuel W. Dorfman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Maurice V. Genez, Appellant, v. The Union Marine Insurance Company, Ltd., Respondent, Impleaded with Another.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 121.)


text:
    Miriam H. Smith, Respondent, v. Malcolm K. Smith, Appellant.
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      J. Harlin O’Connell for motion.

      Julius Hallheimer opposed.
   Motion denied, with leave to renew on argument of appeal.


text:
    American Surety Company of New York, Appellant, v. Empire Trust Company et al., Appellants and Respondents, and Wyandotte Savings Bank, Respondent.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motions for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 181.)


text:
    In the Matter of the Probate of the Will of William MacGready, Deceased. Louise MacGready, as Executrix of William MacGready, Deceased, Respondent; Mary E. MacGready et al., as General Guardians of Muriel MacGready et al., Appellants. (Appeal No. 1.)
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      John L. McMaster for motion.

      Earl J. Garey opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Sikora Realty Corporation, Respondent, v. The City of New York, Appellant.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 312.)


text:
    Joseph A. L. Blek, Respondent, v. Frank Wilson, as President of Local Union No. 3 of the International Brotherhood of Electrical Workers, Appellant.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 253, 694.)


text:
    Albert Spinner, Respondent, v. Bergen Associates, Inc., Appellant, Impleaded with Others.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 615.)


text:
    In the Matter of the Claim of Walter Burmester against Maryland Casualty Company, Respondent. State Industrial Board, Appellant.
    (Argued October 2, 1933;
    decided October 10, 1933.)

      William S. Sinclair for motion.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), opposed.
   Motion denied, with ten dollars costs.


text:
    George S. Van Schaick, as Superintendent of Insurance of the State of New York, Liquidator of the Equitable Casualty and Surety Company, Respondent, v. Samuel D. Friedman et al., Doing Business under the Firm Name of Friedman Bros. & Co., Appellants.
    (Argued October 2, 1933;
    decided October 10, 1933.)

      Abraham Benedict for motion.

      Abraham J. Halprin opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    In the Matter of Kuhn, Loeb and Company, Respondent. James Virdone, as Receiver, Appellant.
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      Charles A. Edgerton for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Richard J. Pearl, Appellant, v. Seventh Avenue Film Co., Ltd., et al., Respondents.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion to amend remittitur denied. (See 262 N. Y. 605.)


text:
    Cora Van Deusen, as Administratrix of the Estate of William Van Deusen, Deceased, Appellant, v. The Ruhtz-Pike Engineering and Construction Corporation, Respondent.
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      George B. Smith for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    City of New York, Respondent, v. Peter J. Cokenes et al., Appellants. (Actions Nos. 1 and 2.)
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (Arthur H. Kerns of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Vincenzo Cinquino, as Administrator of the Estate of Rosina Cinquino, Deceased, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      Earle C. Bastow for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Pauline Sherling, Respondent, v. Gallatin Improvement Co., Inc., et al., Defendants, and Jacob Bakrat et al., Appellants. Louis Sherling et al., Respondents, v. Gallatin Improvement Co., Inc., et al., Defendants, and Jacob Bakrat et al., Appellants.
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      Abraham Miller for motions.
    No one opposed.
   Motions granted and appeals dismissed, with costs and ten dollars costs of motion.


text:
    Arthur C. Veatch, Respondent, v. Hewlett R. Smith et al., Defendants, and Joseph A. Broderick, Appellant.
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      George A. Spiegelberg for motion.

      John J. Kuhn opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Mary A. Naccash, Respondent, v. Hildansid Realty Corporation et al., Defendants, and Louis Summers et al., Appellants.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion to amend remittitur denied, with ten dollars costs. (See 262 N. Y. 588.)


text:
    James Hutchison, as Trustee, Appellant, Impleaded with Another, v. Ethel A. Ross et al., Respondents. (Actions Nos. 1 and 2.)
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion for reargument in action No. 1 denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 381.)_


text:
    Charles F. Hollwedel, Respondent, v. Duffy-Mott Company, Inc., Appellant.
    (Argued October 2, 1933;
    decided October 10, 1933.)

      Louis S. Weiss opposed.
   Motion denied, with ten dollars costs.


author: Per Curiam.

text:
    The People of the State of New York ex rel. Wedgewood Realty Co., Inc., Appellant, against Thomas M. Lynch et al., Constituting the State Tax Commission, Respondents.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Per Curiam.

The order to show cause provides: “ Let the respondents or their attorneys show cause * * * why an ’ order should not be made directing that the remittitur dated the 11th day of July, 1933, be returned to this court and be amended by adding after the words ‘ in accordance with the opinion of Pound, Ch. J.,’ the following: and that upon said further hearing the tax commission, in determining the amount of the earnings distributed, omit from surplus any appreciation in excess of cost in the value of the real estate of the old Wedgewood Company not realized by sale prior to December 31, 1927.’ ”

The point is that the opinion (262 N. Y. 202) does not clarify the meaning of “ earnings ” and that the Tax Commission insists in including therein appreciation in excess of cost in the value of the real estate of the old Wedgewood Company not realized by sale prior to December 31, 1927. The opinion indicates that the reorganization resulted in a division of profits by the corporation. The appreciation in value of the real estate was included in profits.

Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements.


text:
    Electra Housefurnishing Store, Inc., Plaintiff, v. Morris Manes et al., Defendants, and Louis Zises, as Temporary Receiver of Electra Housefurnishing Store, Inc., Appellant. Morris Manes et al., Respondents.
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      Sim C. Binder for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Louis Hutter, Respondent, v. William J. Rodenbach, Appellant, Impleaded with Another.
    (Submitted October 2, 1933:
    decided October 10, 1933.)

      Harry A. Schwartz for motion.

      Charles Eno opposed.
   Motion denied, with ten dollars costs.


text:
    Elsie B. Forster, Respondent, v. Manufacturers Trust Company, Appellant.
    (Argued October 2, 1933;
    decided October 10, 1933.)

      Charles S. Aronstam for motion.

      William M. Parke opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Accounting of Anna Ehlert et al., as Administratrices with the Will Annexed of Conrad Hammer, Sr., Deceased, Appellants. The Marine Trust Company of Buffalo, Respondent.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 677.)


text:
    Charles L. Meckenberg, as Trustee in Bankruptcy of Sam Scheinblum Building Corporation, Appellant and Respondent, v. T. H. Fraser Mortgage Corporation, Respondent and Appellant, Impleaded with Another.
    (Submitted October 2, 1933;
    decided October 10, 1933.)

      Samuel Okin for motion.

      Nathan Marks and Lloyd B. Ranter opposed.
   Per Curiam.

We hold that the judgment is interlocutory and that no appeal lies therefrom to this court either by plaintiff or by defendant. Therefore, this court' on its own motion vacates the order of December, 1932, and grants the motion to dismiss defendant’s appeal.

Motion for leave to appeal denied, with ten dollars costs and necessary printing disbursements, and order of this court of December 6,1932, denying motion to dismiss appeal (260 N. Y. 669) vacated, and motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Parkview Holding Corporation, Appellant, v. Alcor Realty Corporation, Respondent.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 586.)


text:
    In the Matter of John O. Nelson, Appellant, against Civil Service Commissioner et al., Respondents.
    (Argued October 2, 1933;
    decided October 17, 1933.)

      John O. Nelson, appellant, in person.

      Arthur J. W. Hilly, Corporation Counsel (Henry J. Shields and J. Joseph Lilly of counsel), for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Josephine D. Schultze et al., Appellants, v. Hudson Counties Title and Mortgage Company, Respondent.
    (Argued October 2, 1933;
    decided October 17, 1933.)

      Palmer Canfield for appellants.

      Elwood C. Smith for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Meter Blumberg, Appellant, v. Frank Giorgio, Jr., Trustee in Bankruptcy of Nox Realty Corporation et al., Respondent.
    (Argued October 2, 1933;
    decided October 17, 1933.)

      Leopold Blumberg and George H. Ittleman for appellant.

      Maurice Heilman, Lester H. Marks and Robert Daru for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Knllogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of The Gevaert Company of America, Inc., Appellant, against J. G. W. Greeff et al., Constituting the Board of Purchase of the Department of Hospitals of the City of New York et al., Respondents.
    (Argued October 2, 1933;
    decided October 17, 1933.)

      Louis A. Tepper and Max D. Steuer for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Milton I. Hauser and Matthew J. Troy of counsel), for respondents.
   no opinion.

Concur: Pound, Ch. J. Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Application of the City of New York, Relative to Acquiring Title to Real Property for Opening and Extending Surf Avenue from West Fifth Street to West Thirty-seventh Street in the Borough of Brooklyn. South Brooklyn Railway Company, Appellant; Charles W. Berry, as Comptroller of the City of New York, Respondent.
    (Submitted October 2, 1933;
    decided October 17, 1933.)

      Trabue Carswell and George D. Yeomans for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Patrick S. MacDwyer of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J. Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Romeo Santo, Respondent, against Symington Machine Company et al., Appellants. State Industrial Board, Respondent.
    (Argued October 3, 1933;
    decided October 17, 1933.)

      William B. Davis and E. C. Sherwood for appellants.

      Henry R. Dutcher for claimant-respondent.

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg* O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Ernest Sanders, Respondent, against The Children’s Aid Society et al., Appellants. State Industrial Board, Respondent.
    (Submitted October 3, 1933;
    decided October 17, 1933.)

      F. A. W. Ireland for appellants.

      John J. Bennett, Jr., Attorney-General (Hector A. Bobichon of counsel), for State Industrial Board, respondent.
   no opinion.

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

Dissenting: Kellogg, J.


text:
    In the Matter of the Claim of William Nieder, Respondent, against Garrett Busch & Son, Inc., Respondent, and Coal Merchants Mutual Insurance Company, Appellant. State Industrial Board, Respondent.
    (Submitted October 3, 1933;
    decided October 17, 1933.)

      Jeremiah F. Connor for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   No opinion.

Concur: Pound, Ch. J., Lehman, Kellogg, O’Brien and Crouch, JJ.

Dissenting: Crane and Hubbs, JJ.


text:
    In the Matter of the Claim of Anna Walsh against Brooklyn Daily Eagle et al., Respondents. State Industrial Board, Appellant.
    (Submitted October 3, 1933;
    decided October 17, 1933.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John B. O’Hanlon of counsel), for State Industrial Board, appellant.

      Jeremiah F. Connor for employer-respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Edith Horton, Respondent, against George F. Demeree & Son, Inc., Appellant, and State Superintendent of Insurance, as Liquidator of The New York Indemnity Company, Respondent. State Industrial Board, Respondent.
    (Argued October 3, 1933;
    decided October 17, 1933.)

      T. Carlyle Jones for appellant.

      John J. Bennett, Jr., Attorney-General (John B. O’Hanlon of counsel), for State Industrial Board, respondent.'
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Nunziata Cilio, Respondent, against Michael Faruolo et al., Appellants. State Industrial Board, Respondent.
    (Argued October 3, 1933;
    decided October 17, 1933.)

      T. Carlyle Jones for appellants.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Marcus Brennan, Respondent, against Mack International Motor Truck Corporation et al., Appellants. State Industrial Board, Respondent.
    (Argued October 3, 1933;
    decided October 17, 1933.)

      Joseph F. Donovan and Arthur W. Andrews for appellants.

      Robert C. Killough, Jr., for claimant-respondent.

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

^Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Anthony Fay, Claimant, against Milton M. Gettinger, Receiver of 65 Post Avenue Corporation, et al., Respondents. State Industrial Board, Appellant.
    (Argued October 3, 1933;
    decided October 17, 1933.)

      JohnJ. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, appellant.

      Sydney Weitzer for respondents.
   no opinion.

Concur: Pound, Ch. J., Grane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Sepha E. Truesdell, Respondent, against Albany Hospital for Incurables et al., Appellants. State Industrial Board, Respondent.
    (Argued October 3, 1933;
    decided October 17, 1933.)

      J. Stanley Garter for Albany Hospital for Incurables, appellant.

      John J. Bennett, Jr., Attorney-General (JohnR. O’Hanlon and Hector A. Robichon of counsel), for State Industrial Board, respondent.
   no opinion.

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

Dissenting: Kellogg, J.


text:
    James H. MacLauchlan, Respondent, v. Henry M. Behre et al., Appellants.
    (Submitted October 9, 1933;
    decided October 17, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 520.)


text:
    Marion Gise, an Infant, by Hannah Kenny, Her Guardian ad Litem, Appellant and Respondent, v. The Brooklyn Society for the Prevention of Cruelty to Children, Respondent and Appellant.
    (Submitted October 9, 1933;
    decided October 17, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 114.)


text:
    Max Friedman, as Administrator of the Estate of Milton Friedman, Deceased, Respondent, v. The Board of Education of the City of New York, Appellant.
    (Submitted October 9, 1933;
    decided October 17, 1933.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 364.)


text:
    The People of the State of New York, Respondent, v. Abraham Leon, Appellant.
    (Argued October 9, 1933;
    decided October 24, 1933.)

      Max Fruchtman and Martin Weintraub for appellant.

      Thomas C. T. Crain, District Attorney (Le Roy Mandle of counsel), for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Nat Friedman & Son, Inc., Respondent, v. The City of New York, Appellant.
    (Argued October 10, 1933;
    decided October 24, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (Williamn H. King and Isaac Phillips of counsel), for appellant.

      David Segal for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Vincent E. Schonback, against School District No. 5 of the Town of Wilson, Respondent. State Industrial Board, Appellant.
    (Submitted October 4, 1933;
    decided October 24, 1933.)

      John J. Bennett, Jr., Attorney-General (JohnR. O’Hanlon of counsel), for State Industrial Board, appellant.

      Glen R. Bedenkapp for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Clara C. Shults et al., Respondents, against Colonial Flying Service, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued October 4, 1933;
    decided October 24, 1933.)

      Wallace H. Miller for appellants.

      Carleton J. Townsend for claimants-respondents.

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

Concur: Pound, Ch. J.,. Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Sara Lazich et al., Respondents, against Wickwire Spencer Steel Company et al., Appellants. State Industrial Board, Respondent.
    (Argued October 4, 1933;
    decided October 24, 1933.)

      Horace C. Winch and Mason O. Damon for appellants.

      Matthew W. Bennett and Artur Nikoloric for claimants-respondents.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Ruth M. Kail, Respondent, against Lackawanna Steel Construction Company, Appellant. State Industrial Board, Respondent.
    (Argued October 4, 1933;
    decided October 24, 1933.)

      A. T. O’ Neill for appellant.

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Ida M. Barrett, as Executrix of Emma Smith, Deceased, against J. Lester Burnett et al. Appellants. State Industrial Board, Respondent.
    (Argued October 4, 1933;
    decided October 24, 1933.)

      Charles E. Spencer for appellants.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Marie Jensen, Respondent, against Railway Express Agency, Inc., Appellant. State Industrial Board, Respondent.
    (Submitted October 4, 1933;
    decided October 24, 1933.)

      Charles C. Evans for appellant.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Arthur Forcier, Respondent, against Tide Water Oil Sales Corporation et al., Appellants. State Industrial Board, Respondent.
    (Submitted October 4, 1933;
    decided October 24, 1933.)

      Raymond F. Nichols for appellants.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch. JJ.


text:
    In the Matter of the Claim of The Commissioner of Taxation and Finance, Respondent, against John Bergin et al., Appellants. State Industrial Board, Respondent.
    (Submitted October 4, 1933;
    decided October 24, 1933.)

      Leo F. Potts and Daniel Mungall for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Henry Epstein of counsel), for State Industrial Board, respondent.
   no opinion.

Concur: Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ. Not voting: Pound, Ch. J.


text:
    In the Matter of the Claim of Hyman Greenspan, Respondent, against Juda Bleichfeld et al., Appellants. State Industrial Board, Respondent.
    (Argued October 4, 1933;
    decided October 24, 1933.)

      Frank L. Ward for appellants.

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   no opinion.

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

Dissenting: Kellogg, J.


text:
    In the Matter of the Claim of Joseph Hebert against Dent Furniture Company et al., Respondents. State Industrial Board, Appellant.
    (Argued October 4, 1933;
    decided October 24, 1933.)

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon and Roy Wiedersum of counsel), for State Industrial Board, appellant.

      Frank L. Ward for respondents.
   no opinion.

Concur: Pound, Ch. J., Kellogg, O’Brien and Crouch, JJ.

Dissenting: Crane, Lehman andHubbs, JJ.


text:
    In the Matter of the Claim of Sophie Rekuc, Respondent, against W. Barnet & Son, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued October 4, 1933;
    decided October 24, 1933.)

      Earle W. Lawrence and Samuel E. Aronowitz for appellants.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Accounting of Second National Bank and Trust Company of Cortland, New York, as Executor of Minnie Calkins, Deceased, Respondent; Henry Calkins, Appellant. Floyd Calkins et al., Respondents.
    (Argued October 5, 1933;
    decided October 24, 1933.)

      Robert W. Sloan and James L. Fitzgerald for appellant.

      Charles H. Gardner for executor-respondent.

      Henry D. Lucy, special guardian for Elizabeth Walsh, respondent.

      Louis R. Dowd for Floyd Calkins, respondent.
   no opinion.

Concur: Pound, Ch. J., Grane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Estate of Philip Springer, Deceased. Amelia Decher, Appellant; Mordecai P. Springer, Respondent.
    (Argued October 5, 1933;
    decided October 24, 1933.)

      Irving W. Weinblatt and Nathan Lieberman for appellant.

      Fred Jacobs for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York, Respondent, v. Samuel H. Kauffman, Appellant.
    (Argued October 5, 1933;
    decided October 24, 1933.)

      H. H. Cohen for appellant.

      Ray F. Fowler, District Attorney (Basil E. Moore of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Benjamin Solovay et al., as Administrators of Morris Solovay, Deceased, Appellants, v. Bonvile Realty Co., Inc., Defendant, and Evelyn Freed et al., Respondents, Impleaded with Others.
    (Argued October 5, 1933;
    decided October 24, 1933.)

      Benjamin Solovay for appellants.

      George B. Davenport, Howard C. Tracy, J. Weber App and Thomas L. J. Corcoran for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York, Respondent, v. Sully C. Pecot, Appellant.
    (Argued October 5, 1933;
    decided October 24, 1933.)

      B. F. Norris, Phelan Beale and John S. V. Kilmartin for appellant.

      John J. Bennett, Jr., Attorney-General (John F. X. McGohey, Ambrose V. McCall, Harry Greenwald and Margery Cederstrom of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Rose Meehan, Respondent, v. Newman Improvement Corporation, Appellant.
    (Argued October 5, 1933;
    decided October 24, 1933.)

      David S. Elgot and Walter J. Loria for appellant.

      Jacob L. Fischer and John J. O’Grady for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Midwood Trust Company, Respondent, v. Harry Koeppel Corporation et al., Defendants, and Walter F. Kenney, as Trustee in Bankruptcy of Harry Koeppel Corporation, Appellant.
    (Argued October 6, 1933;
    decided October 24, 1933.)

      Leo E. Sherman and Gabriel Kaslow for appellant.

      John S. Russell and Gilbert F. Regan for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Claude E. Bender, Appellant, v. The Ridgely Protective Association, Respondent.
    (Argued October 6, 1933;
    decided October 24, 1933.)

      Richard P. Byrne for appellant.

      Charles E. Spencer for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Estate of Joseph W. McGhee, Deceased. State of New York, Appellant; United States of America et al., Respondents.
    (Argued October 9, 1933;
    decided October 24, 1933.)

      John J. Bennett, Jr., Attorney-General (Charles E. McManus and WilliamF. Huyck of counsel), for appellant.

      Richard H. Templeton, United States Attorney (Justin C. Morgan of counsel), for United States of America, respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    The Bay Ridge Dock Co., Inc., et al., Appellants, v. United Dry Docks, Incorporated, Respondent.
    (Argued October 9, 1933;
    decided October 24, 1933.)

      Elkan Turk, Benjamin Wiener and Herman Goldman for appellants.

      Spier Whitaker and Sigourney B. Olney for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Estate of Nancy Taylor, Deceased. Robert F. Taylor, as Executor of Nancy Taylor, Deceased, Appellant; William J. Taylor, Respondent.
    (Argued October 9, 1933;
    decided October 24, 1933.)

      George C. Riley and 0. A. Ottaway for appellant.

      Elmer O. Brinkman for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York, Respondent, v. Salvatore Trombino, Appellant.
    (Argued October 10, 1933;
    decided October 24, 1933.)

      Peter L. F. Sabbatino for appellant.

      Samuel J. Foley, District Attorney (Sol. Boneparth and Herman J. Fliederblum of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Edwin E. Petty, Respondent, v. Fidelity Union Trust Company et al., as Executors of Edwin R. Petty, Deceased, Appellants.
    (Argued October 10, 1933;
    decided October 24, 1933.)

      H. Herbert Romanoff and Joseph M. McCloy for appellants.

      Stephen Callaghan for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Frank Rosenthal, Respondent, v. The Magazine Repeating Razor Company et al., Appellants, Impleaded with Others.
    (Argued October 10, 1933;
    decided October 24, 1933.)

      Joseph M. Proskauer, Joseph Larocque and J. Alvin Van Bergh for appellants.

      Eugene L. Bondy and Stephen Brooks-Rosenthal for respondent.
   no opinion.

Concur: Pound, Ch. J., Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.

Dissenting: Crane, J.


text:
    Franklin Simon & Company, Appellant, v. Pease & Elliman, Inc., Respondent.
    (Submitted October 16, 1933;
    decided October 24, 1933.)

      Sol S. Ostertag for motion.

      Frank C. Loughlin opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground this court has no jurisdiction to grant it. (Civ. Prac. Act, §§ 588 and 589.)


text:
    Charles W. Anderson, Appellant, v. International Mercantile Marine Company, Respondent.
    (Submitted October 16, 1933;
    decided October 24, 1933.)

      Raymond Parmer for motion.
    O. H. Droege opposed.
   Motion denied.


text:
    Joseph A. L. Blek, Respondent, v. Frank Wilson, as President of Local Union No. 3 of the International Brotherhood of Electrical Workers, Appellant.
    (Decided October 24, 1933.)
   The court on its own motion requests the return of the remittitur herein, and when returned it will be amended to read as follows: Judgment of the Appellate Division so far as appealed from reversed and new trial granted on the question of damages, with costs to abide the event.” (See 262 N. Y. 253, 636.)


text:
    In the Matter of George Boochever, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    (Argued October 25, 1933;
    decided October 27, 1933.)

      Edward H. Wilson and Oscar A. Lewis for appellant.

      William, I. Siegel and E. Ivan Rubenstein for Walter Hart et al., respondents.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of Russell H. Kruppenbacher against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents. Herbert A. O’Brien, Appellant.
    (Argued October 25, 1933;
    decided October 27, 1933.)

      Edward J. Ledogar for appellant.

      William Rasquin for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Mabel Ohlquist, Plaintiff, v. Chester A. Nordstrom, Appellant, and John S. Hickman, Respondent.
    (Submitted October 13, 1933;
    decided October 27, 1933.)

      Thomas R. Wheeler and William I. Morey, appearing specially for appellant.

      Emmet H. Ross and Benjamin S. Dean for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Samuel Goldstein, Appellant, v. Julius E. Schick et al., Respondents.
    (Submitted October 13, 1933;
    decided October 27, 1933.)

      Bennett E. Siegelstein for appellant.

      Lloyd B. Kanter for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Strabo V. Claggett, Respondent, v. Austin S. Donaldson, Appellant.
    (Argued October 11, 1933;
    decided October 27, 1933.)

      Warren C. DuBois for appellant.

      Murray R. Spies for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Lauretta I. Gerhardt, Respondent, v. Manhattan Beach Park, Inc., et al., Appellants. Philip L. Gerhardt, Respondent, v. Manhattan Beach Park, Inc., et al., Appellants.
    (Argued October 11, 1933;
    decided October 27, 1933.)

      Theodore H. Lord and William E. Lowther for appellants.

      Thomas A. Shaw and Louis L. La Vine for respondents.
   no opinion.

Concur: Pound, Ch. J., Lehman, Kellogg, Hubbs and Crouch, JJ.

Dissenting: Crane and O’Brien, JJ.


text:
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for Opening and Extending Dickens (Franklin) Avenue in the Borough of Queens. Cross Bay Construction Co., Inc., Appellant.
    (Submitted October 11, 1933;
    decided October 27, 1933.)

      Leon Sanders, John R. McMullen and Jacob N. Geffen for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Joel J. Squier, Joseph G. Mathews and Harry B. Muntz of counsel), for respondent.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Christian Sautter, Jr., Respondent and Appellant, v. John C. Fulmer et al., Appellants and Respondents. W. Strong Cloher et al., as Executors of William H. Cloher, Deceased, Respondents and Appellants, v. John C. Fulmer et al., Appellants and Respondents. First Citizens Bank and Trust Company of Utica, as Executor of William I. Taber, Deceased, Respondent and Appellant, v. John C. Fulmer et al., Appellants and Respondents. T. Harvey Ferris, Respondent and Appellant, v. John C. Fulmer et al., Appellants and Respondents. George W. Gammel, Respondent and Appellant, v. John C. Fulmer et al., Appellants and Respondents. First Bank and Trust Company of Utica, as Executor of John H. Siemens, Deceased, Respondent and Appellant, v. John C. Fulmer et al., Appellants and Respondents.
    (Argued October 11, 1933;
    decided October 27, 1933.)

      Pirnie Pritchard for defendants, appellants and respondents.

      Thayer Burgess for plaintiffs, respondents and appellants.
   no opinion.

'Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    Philip Greenman, Appellant, v. General Reinsurance Corporation, Respondent.
    (Argued October 11, 1933;
    decided October 27, 1933.)

      Jay Leo Rothschild, Barnet Kaprow, David L. Weissman and Walter S. Beck for appellant.

      Hartwell Cabell, James M. Down and Joseph S. Catalano for respondent.

      Hyman R. Friedman for Hugo Senker, amicus curice.

   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of Helen H. Pine, Appellant, against Ellis T. Terry, as Treasurer of Suffolk County, Respondent.
    (Submitted October 25, 1933;
    decided October 27, 1933.)
   Motion for reargument denied, without costs. (See 262 N. Y. 405.)


text:
    In the Matter of Raymond L. Bradshaw, Respondent, against The City of Schenectady et al., Appellants.
    (Submitted October 25, 1933;
    decided October 27, 1933.)

      Ettore Mancuso, Corporation Counsel (McDonald King of counsel), for motion.

      H. E. Blodgett opposed.
   Motion for leave to appeal denied, with ten dollars costs and necessary printing disbursements, on the ground that the appeal might have been taken as matter of right. (Civ. Pr. Act, § 588, subd. 1.)


text:
    In the Matter of Alfred E. Herz, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York et al., Respondents.
    (Argued November 1, 1933;
    decided November 2, 1933.)

      Paul L. Ross for appellant.

      John T. Pooling for Board of Elections, respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of Joseph Reis et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents.
    (Argued November 1, 1933;
    decided November 2, 1933.)

      J. M. Conroy for appellants.

      Arthur J. W. Hilly, Corporation Counsel (Rollin H. Reid and J. Joseph Lilly of counsel), for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of Daniel Vona, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York et al., Respondents.
    (Argued November 1, 1933;
    decided November 2, 1933.)

      David A. Ticktin and J. Daniel Fink for appellant.

      A. S. Gilbert for Morton Baum et al., respondents.

      Walter M. Weis for Central Committee of the City Fusion Party and the New York County Committee of the City Fusion Party, amici curise.

   No Opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of Herbert Brownell, Jr., et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents.
    (Argued November 1, 1933;
    decided November 2, 1933.)

      A. S. Gilbert and Aaron Benenson for Herbert Brownell, Jr., et al., appellants.

      John M. Harlan and Charles C. MacLean, Jr., for City Fusion Party, appellant.

      A. Welles Stump for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of the Books of Registry of the First Election District of the Ninth Ward in the City of Albany for the Election to Be Held on November 7, 1933. Michael J. Ryan, Appellant; Hugh McGrail et al., Respondents.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      Frank L. Wiswall and Borden H. Mills for appellant.

      Robert E. Whalen and Charles J. Duncan for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of the Correction and Completion of the Registry of Electors in the Fourth Election District of the Third Ward of the City of Albany for the General Election to Be Held on November 7, 1933. Samuel Vener et al., Appellants; John W. Clare et al., Respondents.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      Frank L. Wiswall and Borden H. Mills for appellants.

      Robert E. Whalen and Charles J. Duncan for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien and Crouch, JJ.

Dissenting: Kellogg, J. Not sitting: Hubbs, J.


text:
    In the Matter of the Correction and Completion of the Registry of Electors in the First Election District of the Fourth Ward of the City of Albany for the General Election to Be Held on November 7, 1933. Fred Bernau et al., Appellants; John Shaefer et al., Respondents.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      Frank L. Wiswall and Borden H. Mills for appellants.

      Robert E. Whalen and Charles J. Duncan for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien and Crouch, JJ.

Dissenting: Kellogg, J. Not sitting: Hubbs, J.


text:
    In the Matter of the Correction and Completion of the Registry of Electors in the Fourth Election District of the Fifth Ward of the City of Albany for the General Election to Be Held on November 7, 1933. Joseph Piombino et al., Appellants; James Perrine et al., Respondents.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      Frank L. Wiswall and Borden H. Mills for appellants.

      Robert E. Whalen and Charles J. Duncan for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien and Crouch, JJ.

Dissenting: Kellogg, J. Not sitting: Hubbs, J.


text:
    In the Matter of the Books of Registry of the First Election District of the Fourteenth Ward in the City of Albany for the Election to Be Held on November 7, 1933. James S. Skinner et al., Appellants; Elizabeth Hanifan et al., Respondents.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      Frank L. Wiswall and Borden H. Mills for appellants.

      Robert E. Whalen and Charles J. Duncan for respondents.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of the Correction and Completion of the Registry of Electors in the Fourth Election District of the Fourteenth Ward of the City of Albany for the General Election to Be Held on November 7, 1933. William T. Wendell et al., Appellants; Harold Conroy et al., Respondents.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      Frank L. Wiswall and Borden H. Mills for appellants.

      Robert E. Whalen and Charles J. Duncan for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien and Crouch, JJ.

Dissenting: Kellogg, J. Not sitting: Hubbs, J.


text:
    In the Matter of the Application to Strike from the Registry of Electors in the Sixth Election District of the Nineteenth Ward of the City of Albany, for the General Election to Be Held on November 7, 1933, the Names of Certain Registrants, Inmates of a Charitable Institution. William A. Hughes, Appellant; Catherine Wilpers et al., Respondents.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      John J. McManus and Borden H. Mills for appellant.

      Edward S. Rooney and Charles J. Duncan for respondents.
   no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of the Application of Harry Bergen, Respondent, to Invalidate a Nominating Petition; James F. Kiernan, Appellant.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      Max Hendler and Harry Aaron for appellant.

      Edward A. Kole and Julius Hollander for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


text:
    In the Matter of the Application of Harry Bergen, Respondent, to Invalidate a Nominating Petition; A. Irwin Miller, Appellant.
    (Argued November 2, 1933;
    decided November 2, 1933.)

      Max Hendler for. appellant.

      Edward A. Kole and Julius Hollander for respondent.
   No opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.


author: Kellogg, J. Crane, J.

text:
    Etta Y. Somberg, Respondent, v. Judith G. Somberg et al., Appellants.

      (Submitted October 6, 1933;
    decided November 21, 1933.)

      Harold Flatto for Judith G. Somberg et a!., appellants.
    The complaint does not state facts entitling the plaintiff to injunctive relief. (Woolsey v. Judd, 11 How. Pr. 54; Brandreth v. Lance, 8 Paige, 24; N. Y. J. G. v. Roosevelt, 7 Daly, 188; Manger v. Dick, 55 How. Pr. 132; Baumann v. Baumann, 250 N. Y. 382.)

      Arthur D. Goldstein for Joseph S. Somberg, appellant.
    The declaratory judgment sought by plaintiff is neither useful, necessary nor proper under the admitted allegations in the complaint. (James v. Alderton Dock Yards, 256 N. Y. 298; Marine Lighterage Corp. v. Luckenbach S S. Co., 139 Misc. Rep. 612; Matter of State Industrial Commission, 224 N. Y. 13; Wardrop Co. v. Fairfield Gardens, Inc., 237 App. Div. 605.) The complaint does not state facts entitling the plaintiff to injunctive relief. (Woolsey v. Judd, 11 How. Pr. 54; Brandreth v. Lance, 8 Paige, 24; N. Y. J. G. v. Roosevelt, 7 Daly, 188; Manger v. Dick, 55 How. Pr. 132; Baumann v. Baumann, 250 N. Y. 382.)

      Abraham J. Halprin for respondent.
    Plaintiff is entitled to a declaratory judgment under section 473 of the Civil Practice Act, adjudicating her status as the wife of the defendant Joseph S. Somberg. (Baumann v. Baumann, 222 App. Div. 460; 250 N. Y. 382; Morecroft v. Taylor, 225 App. Div. 562.)
   Kellogg, J.

The complaint makes these allegations: The plaintiff and defendant Joseph S. Somberg intermarried, in the State of New York, on the 17th of May, 1918. No court of competent jurisdiction by any decree has ever dissolved such marriage. In the month of June, 1932, the defendant Rose Baskind and the defendant Joseph S. Somberg moved into certain premises which they are now occupying as Mr. and Mrs. Joseph S. Somberg. Although they have not married, they have had intercourse, and are living as husband and wife. As a result of their intercourse they have had a child, born in August, 1932, known as Judith Gail Somberg, one of the defendants. They have advised all persons who have come in contact with them that Rose Baskind is the legal wife of Joseph S. Somberg. They have informed everyone that Judith Gail Somberg is the lawful child of a marriage between them. Many people believe that the plaintiff and her husband, Joseph S. Somberg, were divorced; that the latter was thereafter lawfully married to Rose Baskind; that the defendant Judith Gail Somberg is the issue of such marriage. Judgment is demanded declaring that the plaintiff is the lawful wife of Joseph S. Somberg; that Rose Baskind be restrained from using the name of Rose Somberg; that Joseph S. Somberg be enjoined from holding out to the public that Rose Baskind is his lawful wife and that Judith Gail Somberg is his lawful issue; that Rose Baskind and Joseph S. Somberg be enjoined from holding themselves out as husband and wife and from using the name of Mr. and Mrs. Joseph S. Somberg. In a case where quite similar facts were not only alleged but proven we held that the plaintiff was not entitled to • injunctive relief such as is here demanded. (Baumann v. Baumann, 250 N. Y. 382.) On the other hand, we held that the plaintiff was entitled to a declaratory judgment that the plaintiff was the lawful wife of the defendant, and that the two had never been divorced by a court of competent jurisdiction. In this case, it has been held that, assuming the truth of the facts alleged, the plaintiff would similarly be entitled to a judgment declaring her marital status. We think that no case for such relief has here been stated, and that, in this respect, the case differs widely from that alleged and proven in Baumann v. Baumann (supra). There the husband had procured, in the State of Yucatan, Mexico, under the laws of that State, a decree or document, which purported to grant him a divorce from the plaintiff. In order to establish the continuance of the plaintiff in her original marital state it was appropriate for the court to try out and determine the question of the validity of the ostensible divorce obtained. Here it is not asserted that there has been obtained in this State, or in any other State in this country or elsewhere, a decree, or other document impugning the continuance of the marital relation existing between the plaintiff and Joseph S. Somberg. On the contrary, the plaintiff herself alleges that no decree divorcing the parties has ever been granted. That the husband has been divorced from the plaintiff and been married to the woman with whom he now Uves is merely the idle talk of acquaintances. Generally speaking, courts do not function to declare the truth or falsity of statements set in motion by rumor. Especially, it is not fitting here that the court should solemnly declare the continuance of the marital status of the plaintiff, with its necessary corollary that Rose Baskind is living in adultery and that her child is illegitimate. A declaratory judgment may be resorted to only when circumstances render it “ useful and necessary;” where it will serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations.” (James v. Alderton Dock Yards, 256 N. Y. 298, 305.) Where there is no necessity for resorting to the declaratory judgment, it should not be employed.” (Id.) The plaintiff’s status, as the wife of Joseph S. Somberg, is secure. If rumor casts doubt upon it, no declaration by the court that it is false will be useful to suppress it.

The order of the Appellate Division should be reversed, that of the Special Term dismissing the complaint affirmed, without costs, and the question certified should be answered in the negative.

Crane, J.

(dissenting). Living with a paramour as a legitimate wife under the appellation of Mr. and Mrs. Somberg, is no mere rumor; it is a falsehood, intended to deceive. Maybe a lawful wife has no right to the exclusive use of her name and position before the public as against an usurper who falsely personates her, but I cannot agree to it. I dissent on my reasons stated in Baumann v. Baumann (250 N. Y. 382).

Pound, Ch. J., Lehman and Hubbs, JJ., concur with Kellogg, J.; O’Brien and Crouch, JJ., dissent, and Crane, J., dissents in memorandum.

Ordered accordingly.


author: Kellogg, J.

text:
    Frank H. Twyeffort et al., Copartners under the Firm Name of Twyeffort & DuBois, Appellants, v. Unexcelled Manufacturing Company, Inc., Respondent.
    (Argued October 11, 1933;
    decided November 21, 1933.)

      Warren C. DuBois and Frank H. Twyeffort, appellants in person.
    The president of defendant had the power to make the agreement with plaintiffs for which they seek recovery under the second cause of action in the complaint. (St. John v. Fulton Market Realty Corp., 248 N. Y. 636; Hardin v. Morgan Lithograph Co., 247 N. Y. 332; American Ins. Co. v. Oakley, 9 Paige, 496; Blue Goose Mining Co. v. Northern Light Mining Co., 245 Fed. Rep. 727; Winfield Mtg. & Trust Co. v. Robinson, .89 Kan. 842; Municipal Gas Co. v. Zachry, 146 Okla. 203; Beebe v. Beebe Co., 64 N. J. L. 497; Fernald v. Spokane & British Columbia T. & T. Co., 31 Wash. 672; Ransome Concrete Machinery Co. v. Moody, 282 Fed. Rep. 29; Dallas Ice-Factory & Cold-Storage Co. v. Crawford, 18 Tex. Civ. App. 176; Teele v. Consolidated Amusement Co., 102 N. Y. Supp. 666; Potter v. N. Y. Infant Asylum, 44 Hun, 367; 118 N. Y. 684; Catholic Foreign Mission Society v. Oussani, 215 N. Y. 1; Lee v. Pittsburgh Coal & Mining Co., 56 How. Pr. 373.)

      Henry K. Heyman and Norbert Heinsheimer for respondent.
    Defendant’s president had no authority to contract for the extra or additional retainer and he could not make any contract for unusual and extraordinary services. (Trulock v. Kings County Iron Foundry, Inc., 216 App. Div. 439; Hardin v. Morgan Lithograph Co., 247 N. Y. 332; Watkins Salt Co. v. Mulkey, 225 Fed. Rep. 739; Heaman v. Rowell Co., 261 N. Y. 229; Matter of Timmis, 200 N. Y. 177; Berwin & Co. v. Hewitt Realty Co., 199 App. Div. 453; 235 N. Y. 608.) The president had no authority to contract for the retainer because there was no exceptional authority shown to have been given by the board of directors. (Catholic Foreign Mission Society v. Oussani, 215 N. Y. 1; Morrell v. Peck, 88 N. Y. 398;
      Deutschmann v. Third Avenue R. R. Co., 87 App. Div. 503; Thayer v. Schley, 137 App. Div. 166; Caskie v. International Ry. Co., 261 N. Y. 47; Kavanaugh v. Commonwealth Trust Co., 223 N. Y. 103; Helgar Corp. v. Warner’s Features, Inc., 222 N. Y. 449; People v. Bresler, 218 N. Y. 567; Cox v. Stokes, 156 N. Y. 491.)
   Kellogg, J.

The plaintiffs were members of a firm of lawyers, practicing their profession under the name of Twyeffort & DuBois. Twyeffort, while a member of such firm, for a period of about ten years was general counsel for the defendant corporation. The retainer covered all legal work of a routine and general nature, exclusive of litigative, out-of-town and out-of-the ordinary services.” When the defendant, on the 15th of February, 1929, terminated the defendant’s employment of Twyeffort, there was still due upon the general retainer the sum of $375, which the defendant never paid. In addition, Twyeffort, at the request of Edmund J. Bingle, the president of the defendant, during the three years prior to the termination of his employment, had performed services not comprehended by the general retainer. These consisted of drafting plans for a consolidation of the defendant with its competitors, conducting a similar business; obtaining the data necessary to perfect the plan; visiting various' competitors within and without the State of New York, for the purpose of ascertaining the amount of their assets and the extent of their liabilities; discussing consolidation plans with such competitors, and persuading them to the view that a consolidation would prove beneficial. These services were out of the ordinary services,” not included within the general retainer, and were of the reasonable value of $5,000. These facts were found both by the Special Term and the Appellate Division. Nevertheless, the judgment of the Special Term, adjudging a recovery in favor of the plaintiffs upon its claim of $375 for a balance due upon the general retainer, and upon its claim of $5,000 for additional services, was modified by the Appellate Division to the extent that the latter claim was dismissed. The difference between the Special Term and the Appellate Division seems to have been that the former found that the president had power to employ the plaintiffs for the special services rendered, while the latter found that he had no such authority.

The authority of a president to make contracts for a corporation has recently been restated by this court in Hardin v. Morgan Lithograph Co. (247 N. Y. 332, 338) to be as follows: The presumption as to the authority of the president of a corporation has been broadly stated: ‘ The president, having full personal charge of the business which the defendant was organized to transact, represented the corporation and prima jade he had power to do any act which the directors could authorize or ratify.’ (Hastings v. B. L. Ins. Co., 138 N. Y. 473,479.) ” Edmund J. Single, the president of the defendant, had full charge of the corporate business to the extent that he made sales and purchases of property for the corporation, and signed contracts on its behalf, without bothering the board of directors.” It is said that the board of directors could not have authorized or ratified the employment of Twyeffort, to formulate plans and do the preliminary work necessary to effectuate a consolidation, for the reason that no consolidation might be had without the consent of stockholders. This is an evident non sequitur, as we found a similar argument to be in the case of St. John v. Fulton Market Realty Corp. (248 N. Y. 636), where we held “ that the apparent authority of the president of the corporation to employ a broker to sell real property is not dependent upon the existence of authority on his part to enter into a binding contract for the sale thereof.” It is likewise said that the very basis of a recovery, for the special services, as not covered by the retainer, is that they were out-of-the ordinary; ergo, they must be-extraordinary services, for the performance of which the president could have no implied authority to contract, as in Heaman v. Rowell Co. (261 N. Y. 229). This again is a non sequitur, for services which are extraordinary, as compared with the usual services comprehended by a general retainer, are not necessarily such when compared with ordinary services the employment of which is within the implied powers of a corporate executive. The standard of comparison not being the same, the meaning of the word, in the two instances, is not the same. In the case cited, the extraordinary nature of the employment contracted for, viz., an employment for life, is apparent. In this case, even assuming that the question of the implied power of the president was a mixed question of law and fact, we think the Special Term was well within its rights when it drew the inference that the president possessed the authority to make a contract for the special services in question.

The judgment, of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. (See 263 N. Y. 585.)

Pound, Ch. J., Crane, O’Brien, Hubbs and Crouch, JJ., concur; Lehman, J., dissents.

Judgment accordingly.


author: O’Brien, J. Hubbs, J.

text:
    In the Matter of the Claim of J. M. Johnson, Respondent, against Harry M. Smith et al., Appellants. State Industrial Board, Respondent.

      (Argued October 3, 1933;
    decided November 21, 1933.)

      William B. Davis and E. C. Sherwood for appellants.
    The injuries were not sustained in the course of the claimant’s employment, nor did they arise out of his employment. (Matter of McInerney v. B. & S. R. R. Corp., 225 N. Y. 130; Manor v. Pennington, 180 App. Div. 130; Wood v. Jamestown Ry. Co., 188 App. Div. 985; Matter of Clark v. Voorhees, 231 N. Y. 14; Carroll v. Verway Printing Co., 254 N. Y. 598; Bylow v. St. Regis Paper Co., 179 App. Div. 555; Donlon v. Kips Bay Co., 189 App. Div. 415; Domres v. Syracuse Safe Co., 240 N. Y. 611; Tannenbaum v. Perfect Tailoring Co., 243 N. Y. 577; Crippen v. Press Co., 254 N. Y. 535; Kass v. Hirschberg, Schultz & Co., 191 App. Div. 300; Matter of Giliotti v. Hoffman Catering Co., 246 N. Y. 279; Davidson v. Pansy Waist Co., 240 N. Y. 584; Underhill v. Keener, 258 N. Y. 543; Matter of O’Neill v. Carley Heater Co., 218 N. Y. 414; Matter of Jakeway v. Bauer Co., 218 App. Div. 302; Minerly v. Kingsbury Construction Co., 191 App. Div. 618; Sexton v. Public Service Comm., 180 App. Div. 111; Matter of Saenger v. Locke, 220 N. Y. 556.)

      John J. Bennett, Jr., Attorney-General (J ohn R. O’Hanlon of counsel), for State Industrial Board, respondent.
    The disability of the claimant was the result of an industrial accident which arose out of and in the course of the claimant’s employment, and an award of compensation covering the disability was proper. (Sztorc v. Stansbury, Inc., 189 App. Div. 388; Tannenbaum v. Perfect Tailoring Co., 215 App. Div. 741; 243 N. Y. 577; Morris v. Lambeth Borough Council, 8 W. C. C. 1.)

      Olin T. Nye for claimant, respondent.
    Contracting typhoid fever under the facts presented constitutes an accidental injury arising out of and in the course of employment. (Matter of Lerner v. Rump Bros., 241 N. Y. 153; Fitzpatrick v. Postal Restaurant Co., 208 App. Div. 822; Matter of Katz v. Kadans & Co., 232 N. Y. 420; Matter of McCarter v. LaRock, 240 N. Y. 282; Matter of Heitz v. Ruppert, 218 N. Y. 148; Roberts v. Newcomb & Co., 234 N. Y. 553; Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Kass v. Hirschberg, 191 App. Div. 300; Matter of Jakeway v. Bauer Co., 218 App. Div. 302; Davidson v. Pansy Waist Co., 240 N. Y. 584.)
   O’Brien, J.

The claimant J. M. Johnson was employed by H. M. Smith of Watkins Glen, who conducts a coal yard and sells agricultural implements, farm produce and fertilizer. His duties were multifarious and included, according to his expression, ,! -anything from clerical work down to a coal heaver.” His wages were twenty-five dollars a week and a commission on the sale of coal. While working at Watkins Glen, he was allowed an hour off at noon and he paid for his lunch. When out of town on business for his employer, he used his discretion relating to the time and place for eating, but all his expenses on such journeys were borne by the employer.

On one of these trips he went to Montour Falls to sell fertilizer and lunched at Beardsley’s restaurant. The cook was a typhoid carrier and from the food which he there consumed he contracted the disease. The question whether an accidental injury occurred is not argued by appellant and accordingly we do not volunteer an answer; The sole issue presented is whether claimant’s disability arose out of and in the course of his employment.

Claimant was entitled to an hour for lunch. While at Watkins Glen the time usually began at noon and he was free to eat at home or anywhere he pleased. During that time he quit work and his course of employment temporarily ceased. Any disability which might have been inflicted would not have arisen out of his employment and would not have been compensable. (Matter of Clark v. Voorhees, 231 N. Y. 14, 17; Matter of Carroll v. Verway Printing Co., 254 N. Y. 598; Matter of Cunningham v. Hunterspoint Lumber & Supply Co., 256 N. Y. 574.) The rule may be different in cases where the employee is always on duty and subject to call (Matter of Crippen v. Press Co., 254 N. Y. 535), or in instances where the employer requests or customarily permits him to eat upon the premises or in a place provided for him. (See Matter of McInerney v. Buffalo & Susquehanna R. R. Corp., 225 N. Y. 130, 133.) An equally clear distinction is made when the employee is engaged not only in the personal act of eating but has entered a restaurant for the purpose of promoting the interest of his employer by interviewing prospective customers. (Matter of Tannenbaum v. Perfect Tailoring Co., 243 N. Y. 577.)

The fact that when at Montour Falls claimant could select his time for lunch and that he would be reimbursed for his expense cannot establish any substantial difference in principle from his status at Watkins Glen. On neither occasion while eating was he engaged in his employer’s business. His act at one place was as exclusively personal as at the other. For the time being he was resolved into an individual exempt from duties as an employee. He was a free man and could eat when and where he chose. During the time that he selected, his employer exerted no authority over him and derived no benefit from his acts.

The order of the Appellate Division and the award of the State Industrial Board should be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the State Industrial Board.

Hubbs, J.

(dissenting). I am unable to agree with the opinion for reversal. The employer reported that claimant was injured in his regular occupation. The Board has found that his injury arose out of and in the course of his employment.” His home and usual place of employment was at Watkins Glen, but he was sometimes sent out on the road by his employer to sell goods. When away from home the employer paid his expenses, including his meals, as part of his wages. He had no regular hours for taking his meals. On the day in question he was sent with a traveling salesman of a fertilizer company to sell fertilizers to farmers. The employer testified that he had to catch his lunch when he could.” His employment was continuous from the time he left his employer’s place of business. During all that time he was in his master’s service engaged in his business under the protection of the Workmen’s Compensation Law (Cons. Laws, ch. 67). He was in the restaurant by reason of his employment, in the course of his duty to his employer, and in furtherance of the business in which he was engaged, just as he would have been if he had been compelled to step into a public toilet and had been injured while therein. (Cf. Matter of Dudenhausen v. Newcombe Oil Corp., 217 App. Div. 707; Special Bulletin No. 149, Department of Labor, p. 60.) Both were public places and to each of them he was compelled to go by nature. The employer knew that he would be compelled to go into a public place to eat while on the road in the course of his employment, and because he knew it, he agreed to pay for his meals as a part of his wages. He was in the restaurant solely because of his employment. If he had remained at his usual place of employment he would not have met with the injury.

It was solely because he was obeying instructions that he was compelled to go into a public place for his meal. True, the employer did not know that he would go into the particular restaurant, but he knew that he would have to eat and go into some public place where food was supplied. While the risk was “ unanticipated ” and infrequent,” still the claimant was subjected to that risk in fulfilling his duty to his employer and carrying out his master’s business. The risk was, therefore, an incident of the employment and covered by the statute enacted to afford protection to the servant while engaged in bis employer’s business. There existed a direct causal connection between the service which he was performing and the risk and resulting injury.

This case is quite different from one where an employee has a regular time for his meals which are not furnished by the employer. In such a case the interval allowed for meals is the servant’s own time and he pays for his own meals.

The principles decided in Matter of Tannenbaum v. Perfect Tailoring Co. (243 N. Y. 577) and Matter of Crippen v. Press Co. (254 N. Y. 535) are applicable here.

The award should be affirmed, with costs to claimant and disbursements to the State Industrial Board.

Crane, Lehman and Kellogg, JJ., concur with O’Brien, J.; Hubbs, J., dissents in opinion in which Pound, Ch. J., and Crouch, J., concur.

Ordered accordingly.