author: Crane, Ch. J.

text:
    Martin C. Ansorge, Respondent, v. Albert P. Armour, Appellant.
    (Argued May 2, 1935;
    decided May 22, 1935.)

      Harold H. Levin for appellant.

      Millard H. Ellison for respondent.
   Crane, Ch. J.

The defendant and Margaret Cleverley Armour were married in 1921. A daughter, Shirley, was born of the marriage in 1927. On July 2, 1931, the couple entered into a separation agreement, a formal document, which read in part as follows

Agreement made July 2nd, 1931, between Albert P. Armour, of Forest Hills, New York City, hereinafter called ‘ First Party; ’ and Margaret C. Armour, his wife, of the same place, hereinafter called * Second Party.’
“ Witnesseth:
Whereas, the parties hereto intermarried on the 26th day of April, 1921, and are the parents of a child known as Shirley Elizabeth Armour, born on the 9th day of February, 1927; and
Whereas, the parties hereto are pot now living together as man and wife; and
“ Whereas, it is mutually desired between the parties to provide for the custody and care and education of their said child, Shirley, during her infancy; and
“ Whereas, it is also the desire of the parties to finally settle and determine the property rights between the parties hereto and for a reasonable provision for the support and maintenance of the second party, past, present and for the future, as hereinafter provided;
“Now, Therefore, in consideration of the premises and other valuable consideration, it is hereby mutually agreed as follows 1
*******
Third. It is hereby mutually covenanted and agreed that the independent custody, control and education of the said daughter, Shirley, of the parties hereto, shall be and is hereby given to the party of the first part, who shall be responsible and liable for the adequate support, maintenance and education of said child consistent with the financial means, environment and mode of living of the said first party which is now mutually admitted by the parties hereto to be an atmosphere of recognised wealth and with cultural surroundings. It is further mutually agreed, however, that the party of the second part may have the custody of the said child, Shirley, during such week-ends after school sessions from Friday until Sunday evening in each week from time to time as may be arranged between the parties hereto, both parties at all times, however, agreeing that any temporary environal change in the said child’s custody shall first be considered not solely from the wishes of the parties hereto, but for the benefit of the said child, as regards her health, temperament, character and general welfare. The parties further agree that there shall be no excuse, failure, refusal or neglect to so deliver the custody of the said child or return her from one party to the other in accordance with the terms of this agreement, except sickness of such child, which shall be certified to in detail by the attending physician upon request of either party; and each party shall have the right to visit the said child while in the custody of the other at any time while said child is confined to bed because of illness; and each party shall have the right after consultation with the other, looking towards the best interests of said child, to have the child examined by a physician of such party’s own selection; provided, however, if the second party shall retain a physician to examine from time to time said child during such illness and another physician has been retained by the first party and is attending said child, then and in that event, the second party shall pay for the services of said physician so hired by her and any medicine or therapeutic agencies purchased or supplied for said child on the recommendation of such physician, when requested by the first party. Each party shall at the time of the execution of this agreement, give to the other party in writing the address of their place of residence and shall cause prompt notice in writing to be personally delivered or sent by registered mail to the other party of any change in residence, giving the address of such new place of residence. When the said child is taken from the said usual place of residence of the second party by the second party for the week-end periods designated herein, or for any other longer periods which may be hereafter mutually consented to by the parties hereto, the said child shall not be absent therefrom for more than three consecutive days without notice being given to the first party, nor shall the first party allow said child while in his custody to be away from his place of residence as stated herein, unless at boarding school, for more than four days without giving notice to the second party of the whereabouts of said child. In no event shall said child be removed by either party from the State of New York, unless on a yachting trip in a vessel owned by the first party, on which he shall be present, without the consent of the other party, for a period of more than forty-eight hours.
“ Fourth. The first party agrees that he will at all times suitably provide for the adequate support and make ample and adequate provision for his said child, Shirley, either in a Last Will and Testament to be duly executed by him, or in a Trust Agreement and further, that in the event he should hereafter marry any other woman than the second party, that he will by his Last Will and Testament duly executed, or by Trust Agreement or otherwise, duly provide for the support, education of his said daughter, Shirley, and for her future inheritance as generously and amply as he shall provide for any other child of such subsequent marriage or remarriage; provided, however, that the first party shall be granted discretion as to providing support and education for such child, Shirley, or bequeathing or settling upon her sums of money in the event of her mental incompetency or moral turpitude affecting the said child’s responsibility or character. The first party further agrees to give the said child the same religious and educational advantages and environment as the parties hereto themselves have been accustomed and which shall be consistent with the home environment in which she is now and in the future surrounded.
“ Fifth. The first party hereby agrees to and with the second party to pay her the sum of One Hundred ($100.00) Dollars per week on Monday of each week beginning on the first Monday after the date hereof for the support and maintenance of the second party during her lifetime or until she remarries, with the understanding that the said second party is to maintain her separate home in some suitable place, having regard for the comfort and welfare of said child, Shirley, while visiting her. The first party agrees that he will make suitable provision in his Last Will and Testament for said payments upon the above conditions, in the event that the first party shall predecease the second party. * * *
Sixth- The party of the first part further agrees to pay to the party of the second part simultaneously with the execution of this agreement, the receipt whereof is hereby acknowledged by the Second party, the sum of One Thousand Five Hundred ($1,500.00) Dollars, for the purpose of allowing the second party to furnish a home for herself and to provide some surplus for contingent expenses.”

Subsequently an action for divorce was instituted by Mrs. Armour in Nevada, in which the defendant husband appeared, so that the Nevada courts had jurisdiction of the cause and of the parties. The decree in favor of the plaintiff ratified and embodied the terms of the separation agreement in respect to the support and maintenance of Mrs. Armour and also the custody and support of the child. The decree was dated September 21, 1931, and read, in so far as material here, as follows:

“ It Is Further Ordered, Adjudged and Decreed that the agreement made and entered into between the plaintiff and defendant on July 2nd, 1931, be, and the same is hereby by this Court ratified and approved and the provisions thereof are hereby adopted by this Court-
“ It Is Further Ordered, Adjudged and Decreed that the custody and care of Shirley Elizabeth Armour, the minor child of the parties, is awarded by this Court in accordance with the terms of said agreement and that said ininor child shall be maintained and supported in accordance with the provisions thereof.
“ The Court reserves jurisdiction to enter further and different orders herein relative to the Custody and support of said minor child.”

The Nevada court, having jurisdiction of the action, and of the parties, gave the custody of the offspring to> the father during the week and to the mother over the week-ends. This decree is, therefore, entitled to full faith and credit in every State in the Union. The wife is bound by it, so is the husband; the courts here cannot review it or set aside its provisions in the absence of fraud; neither can any judge of this State change the custody of the child merely because he does not agree with the action of the Nevada court. True it is that the child given to the father is a ward of the courts of this State when here, and that the custody may be changed when circumstances or treatment since the decree render it necessary for the child’s best interests (Finlay v. Finlay, 240 N. Y. 429), but until some such facts appear our courts cannot change the Nevada decree simply because they do not agree with the decision. (Laumeier v. Laumeier, 237 N. Y. 357; 242 N. Y. 501; Yarborough v. Yarborough, 290 U. S. 202; People ex rel. Jones v. Johnson, 205 App. Div. 190; Matter of Lee, 220 N. Y. 532.)

On February 10, 1932, the defendant remarried and in April of the same year Mrs. Armour retained the plaintiff, a lawyer, to represent her in an attempt to gain additional or increased allowance and also the custody of the daughter. It is conceded that the defendant has kept every one of his obligations as set forth in the Nevada decree, paying the money therein provided for his wife and child when with the mother. The wife, through her counsel, recognizes that as to the lawyer’s fees she cannot collect them from the defendant, as her separation agreement and the divorce decree provide that she would incur no further bills or obligations chargeable to the husband.

The plaintiff, however, in behalf of the wife or, as alleged, for the benefit of the child, conducted habeas corpus proceedings before a judge of the Supreme Court, Queens county, of this State, and for such services has been given in this action a judgment of $7,588.29. The hearing on the return of the writ of habeas corpus resulted in the judge reversing the Nevada court’s decree and giving the child to the father over the week-ends and to the mother the other days. Apparently the only reason for this action is the opinion of the justice that a child is better with the mother than with a father, for he says, The child’s greatest need at this time is not the things that money will buy, but understanding, love and affection, such as can exist only between a mother and her daughter.” (147 Misc. Rep. 313, 314.) The Nevada court, having the parties before it, passed upon this question as to the bus-band and wife. Nothing, so far as the record before us shows, indicates that the welfare of the child due to subsequent events or conditions demanded or required a change in custody. The plaintiff apparently was consulted by Mrs. Armour for the purpose of bettering her financial condition, with the belief that she was not bound by her decree of divorce and the provisions for herself and child therein contained.

In his bill of particulars the plaintiff states that on the 3d of June, 1932, he had a conference with Mr. Armour and says that he suggested to Mr. Armour $25,000 to $50,000 in settlement of Mrs. Armour’s claim for inadequacy of alimony provided in separation agreement, and read the legal authorities to Mr. Armour re inadequacy ” of amount agreed upon for support and maintenance, and on June 28th had another conference. He asked for $800 a month for the support of Shirley and Mrs. Armour (also to include the grandmother). This was an increase of $400 a month over that provided in the agreement and the decree. He also states that at various times he received compensation of $700 for legal services in these matters from Mrs. Armour. Another action is pending, or has been brought in Westchester county, by Mrs. Armour to recover for necessaries which she claims to have furnished to the daughter Shirley. We, therefore, find that this habeas corpus proceeding to procure the custody of the child was an outgrowth, or at least a part of an effort upon the part of the mother, to get more money from her husband than was awarded to her in her divorce decree.

This court said in the Finlay case, above cited, regarding proceedings to obtain the custody of children: “ He [the chancellor] is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights ' as between a parent and a child ’ or as between one parent and another (Queen v. Gyngall, supra). He ' interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patrice ’ (Matter of Spence, supra). The plaintiff makes no pretense of invoking this paternal jurisdiction. We are not advised by his complaint whether a division of the custody will tend to the benefit of his sons or to their detriment. He invokes the jurisdiction of a court to settle a dispute. Equity does not concern itself with such disputes in their relation to the disputants. Its concern is for the child ” (p. 434).

The plaintiff, Mr. Ansorge, in this action has sought to recover from the father for legal services in these habeas corpus proceedings to obtain from him the custody of the child and give it to the mother on the ground that this was a proceeding for the welfare of the child and was a necessary for which the father was liable. The plaintiff had the burden of proving facts showing such necessity for the proceedings as well as a necessity for a change in the custody of the child. (Hatch v. Leonard, 38 App. Div. 128; Goodman v. Alexander, 28 App. Div. 227.) The Nevada decree stands as binding upon these parties until it is shown that since such decree circumstances have so changed that the welfare of the child demands a shift in custody. Mr. Ansorge himself testified that unless Mrs. Armour could show changed circumstances the court might not take jurisdiction here. We find nothing in this record furnishing proof of any such necessity to change the terms and conditions of the agreement of the parties and the decree of divorce granted in Nevada embodying those terms. It does appear that the defendant has remarried, but this fact was within the contemplation of the parties at least when the agreement was made and the decree in Nevada entered, for paragraph fourth. thereof provides as to the nature of the last will and testament of the defendant should he remarry any other woman.

Even from the opinion of the judge (147 Misc. Rep, 313) we gather that the father has provided a good home for his child and has fully complied with all the terms and conditions imposed upon him, by the terms of the agreement and the Nevada decree. The judge said, “ Each parent admits that the other is morally and culturally fit to have custody of the child. The father admits that his former wife during the time she lived at bis home was a perfect mother to the little girl, and the court does not take seriously the slight evidences claimed by the mother to be indicative of the fact that the child is being neglected in its father's home,”

In view of these findings, and in the absence of any evidence in this record showing that the welfare of the child demands a modification or a change in the custody as awarded by the divorce decree, we cannot find that justification for a habeas corpus proceeding which makes it necessary for the father to pay the lawyer hired by the mother to conduct it.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur; Lehman, J., concurs in result.

Judgments reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Realty Associates Securities Corporation, Appellant. H. L. F. Realty Co., Inc., Respondent.
    (Submitted March 12, 1935;
    decided April 16, 1935.)

      Lynn G. Goodnough for appellant.

      Isidor Mates, Joseph J. Schwartz and Joseph Mates for respondent.
   Per Curiam.

The order herein should be modified by adding the sum of $1,683.31 to the sum of $840.17 as surplus, and as so modified affirmed, with costs in all courts to appellant.

Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur; Crane, Ch. J., not sitting.

Ordered accordingly.


text:
    William F. Barnard, Appellant, v. Herbert H. Childs et al., Respondents.
    (Argued January 18, 1935;
    decided April 16, 1935.)

      Bruce R. Duncan for appellant.

      George J. McDonnell for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Jerossi and Thomas Saunders, Appellants.
    (Argued March 4, 1935;
    decided April 16, 1935.)

      David F. Price and Harry B. Siegel for Joseph Jerossi, appellant.

      Bernard Reiss and Alfred I. Dittler for Thomas Saunders, appellant.

      William Copeland Dodge, District Attorney (John C. McDermott of counsel), for respondent.
   As to each defendant, judgment of conviction affirmed; no opinion.

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


text:
    Howard L. Meyer, Appellant, v. L. N. Whissel Lumber Co., Inc., Respondent.
    (Argued March 6, 1935;
    decided April 16, 1935.)

      Worthy B. Paul and George A. Rothfus for appellant.

      James O. Moore, Elmer C. Pagel and Charles C. Page for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. John Grant, Respondent.
    (Argued March 7, 1935;
    decided April 16, 1935.)

      Arthur G. Adams, District Attorney, for appellant.

      William A. Dicker, for respondent.
   Judgment affirmed upon the authority of People v. Ryan (267 N. Y. 133). No opinion.

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


text:
    Betty Bassett, an Infant, by Elizabeth D. Bassett, Her Guardian ad Litem, Respondent, v. Leonard Hill et al., Copartners Doing Business under the Name of The Emergency Laboratories, Appellants.
    (Argued March 7, 1935;
    decided April 16, 1935.)

      Caruthers Ewing for appellants.

      David Haar, I. George Robins and Louis Shapiro for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis Maranta, as Administrator of the Estate of Mary Maranta, Deceased, Appellant, v. Max Wenzelberg, Respondent, Impleaded with Another.
    (Submitted March 7, 1935;
    decided April 16, 1935.)

      Sol A. Hyman, Milton H. Greenwald and Murray E. Morrison for appellant.

      Frederick Mellor and Jean A. Keller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emil Borden, Respondent, v. Fred T. Ley & Co., Inc., Appellant.
    (Argued March 8, 1935;
    decided April 16, 1935.)

      Clarence C. Meleney and Archie Brause for appellant.

      Sidney J. Feltenstein, Moses Feltenstein and Nathan J. Stein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Therezia Kosir, as Temporary Administratrix of the Estate of Alois Kosir, Deceased, Respondent, v. Granville P. Rogers, Appellant, Impleaded with Another.
    (Argued March 8, 1935;
    decided April 16, 1935.)

      Edward Ash and Lawson R. Jones for appellant.

      Abraham J. Feitelberg and Frank J. Giusti for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dorothy M. Wright, Appellant, v. William A. Prime, Jr., Defendant, and Hanley Ried & Co., Respondent.
    (Argued March 11, 1935;
    decided April 16, 1935.)

      James Marshall for appellant.

      William H. Harding and Thomas J. Gonsalves for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph A. Williams, Respondent, v. New York Power and Light Corporation, Appellant.
    (Argued March 12, 1035;
    decided April 16, 1935.)

      Neile F. Towner for appellant.

      Michael D. Reilly and Dermot C. Reilly for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Antonio Iafolla et al., Appellants, v. M. Berardini State Bank et al., Respondents.
    (Argued March 12, 1935;
    decided April 16, 1935.)

      Andrew S. Fraser and Harry M. Alfert for appellants.

      John A. Mullen and Benjamin Levin for respondents.
   Judgment affirmed, with costs; no opinion. (See 267 N. Y. 589.)

Concur: Lehman, O’Brien, Hubbs and Loughran, JJ. Dissenting: Crane, Ch. J., and Crouch, J. Not sitting: Finch, J.


text:
    The City of New York et al., Respondents, v. George S. Van Schaick, Superintendent of Insurance of the State of New York, as Liquidator of the Concord Casualty and Surety Company, Appellant.
    (Argued March 12, 1935;
    decided April 16, 1935.)

      Walter B. Herendeen, Seymour Joseph and Albert D. Levin for appellant.

      Paul Windels, Corporation Counsel (John F. Collins, Russell Lord Tarbox and Harry Merwin of counsel), for The City of New York, respondent.

      John F. Collins, Russell Lord Tarbox and Harry Merwin for James F. Egan, individually and as Public Administrator, etc., respondent.
   Judgments modified by reducing the amount of the recovery to $50,009.22, with interest thereon from March 4, 1933, and as so modified affirmed, without costs. No opinion.

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


text:
    Meyer H. Greene, on Behalf of Himself and Others, Appellant, v. The Continental Bank and Trust Company of New York, Respondent.
    (Argued March 13, 1935;
    decided April 16, 1935.)

      Samuel Hoffman, Daniel F. Cohalan, Charles D. Hoffman and Herman D. Matfus for appellant.

      John W. Kelly for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Gutterman, Appellant, v. James Auerbach, as Marshal of the City of New York, et al., Respondents.
    (Argued March 13, 1935;
    decided April 16, 1935.)

      Abraham Males for appellant.

      Maurice Kozinn, Rubin Chesler, Nathan A. Epstein and Nathaniel Kozinn for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert Grant, Appellant, v. John Hancock Mutual Life Insurance Company, Respondent.
    (Argued March 13, 1935;
    decided April 16, 1935.)

      Chester A. Hahn, Sylvia Miller and Harry Miller for appellant.

      Benjamin Reass, Irving Moldauer and Leonard G. Egert for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Eva Eustace et al., Appellants, v. The Evergreens, Respondent.
    (Argued March 13, 1935;
    decided April 16, 1935.)

      Leon Lang for appellants.

      Clarence S. Zipp and James B. Henney for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. There "was evidence which presented a question of fact for the jury as to negligence and contributory negligence. No opinion.

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


text:
    Theresa Klapp, Respondent, v. Metropolitan Casualty Insurance Company of New York, Appellant.
    (Argued March 13, 1935;
    decided April 16, 1935.)

      W. Clyde O’Brien for appellant.

      Robert S. Garson for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Andrew F. Endries, Appellant, v. Marion Paddock et al., Respondents.
    (Argued March 14, 1935;
    decided April 16, 1935.)

      H. C. Stratton and George P. Pudney for appellant.

      Frank W. Barnes for Marion Paddock and Harold Cook, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Godfrey Updike et al., as Trustees in Bankruptcy of H. L. Stratton, Inc., Appellants, v. Manufacturers Trust Company, Respondent.
    (Argued March 14, 1935;
    decided April 16, 1935.)

      Stewart Maurice for appellants.

      Lester E. Denonn and Leonard G. Bisco for, respondent.
   Order and judgment affirmed, with costs. First question certified answered in the affirmative, and third question certified answered in the negative. Second question not answered as involving a possible question of fact. No opinion.

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


text:
    Pasquale Leone, as Administrator of the Estate of Filomena Leone, Deceased, Respondent, v. Giuseppe Castagna et al., Defendants, and Anthony Pallini, Appellant.
    (Submitted March 15, 1935;
    decided April 16, 1935.)

      Frank A. Belluci for appellant.

      Sidney J. Feltenstein and Maxim Ingber for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Kiekart, Appellant.
    (Argued March 18, 1935;
    decided April 17, 1935.)

      Harry W. Moore and Joseph Lonardo for appellant.

      Martin W. Littleton, District Attorney (Elvin N. Edwards and Philip Huntington of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Lester Jarvis, Appellant.
    (Submitted March 18, 1935;
    decided April 17, 1935.)

      Milton R. Kroopf for appellant.

      William Copeland Dodge, District Attorney (Philip A. Donohue of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, for an Order to Take Possession of the Property and Rehabilitate the Title and Mortgage Guarantee Company of Buffalo. DeWitt Clinton et al., as Trustees under the Will of Mary C. Wright, Deceased, Appellants. George S. Van Schaick, as Superintendent of Insurance of the State of New York et al., Respondents.
    (Argued March 18, 1935;
    decided April 17, 1935.)

      Thomas R. Wheeler for appellants.

      Thomas C. Burke for George S. Van Schaick, as Superintendent of Insurance, respondent.

      William L. Marcy, Jr., S. Fay Carr and David L. Landy for Buffalo Series B Corporation, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Morgan Lake Company, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.
    (Argued March 18, 1935;
    decided April 17, 1935.)

      Madison G. Gonterman and Gilbert N. Reed for appellant.

      Elijah T. Russell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Torger Torgersen, Respondent, v. Edward F. Hutton et al., Appellants.
    (Argued March 18, 1935;
    decided April 17, 1935.)

      George S. Brengle and James N. Senecal for appellants.

      Jacquin Frank and David M. Fink for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Nellie M. Mahaney, as Executrix of John Whalen, Deceased. May C. Goddard et al., as Executors of Margaret McD. Cunningham, Deceased, et al., Appellants; Charles J. Jewett, etc., et al., Respondents.
    (Argued March 19, 1935;
    decided April 17, 1935.)

      Thomas F. Morris and Wilber W. Chambers for May C. Goddard et al., as executors of Margaret McD. Cunningham, deceased, et al., appellants.

      Frederick E. Klein, as special guardian of Mary Fitzgerald et al., appellants.

      James H. Tulley and Truman H. Luhrman for John J. Whalen et al., appellants.

      James H. Hickey and Daniel J. McGrath for Marcella M. J. Holton, appellant.

      Ray H. Shoemaker for respondents.
   Order affirmed, with costs, payable out of the estate; no opinion.

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


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Appellant, v. Robert Adamson et al., Defendants, and Morris W. Haft, Individually and as Trustee for Jules D. Haft, Respondent.
    (Argued March 19, 1935;
    decided April 17, 1935.)

      Harold N. Cohen, Edward Feldman, Warren C. Fielding, Isadore H. Cohen and Carl J. Austrian for appellant.

      Lazarus Joseph, Jacob S. Demov and Charles L. Grad for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alice Hoffman et al., Respondents, v. Elsie Fraad, Appellant, Impleaded with Another.
    (Argued March 19, 1935;
    decided April 17, 1935.)

      John Patrick Walsh and Abraham J. Multer for appellant.

      Thomas F. Compton for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bank of Jamestown, as Administrator with the Will Annexed of the Estate of Rose P. Shannon, Deceased, Respondent, v. The Cattaraugus County Bank of Little Valley, New York, Appellant.
    (Argued March 20, 1935;
    decided April 17, 1935.)

      Alonzo J. Prey for appellant.

      Allen E. Bargar and Lynn R. Van Vlack for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Helene Molte, Respondent, v. Corn Exchange Bank Trust Company, Appellant.
    (Argued March 20, 1935;
    decided April 17, 1935.)

      William E. Lyons and Barnett Cohen for appellant.

      Isidor Enselman and A. Welles Stump for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and complaint dismissed, with costs in all courts. Held, that the record fails to disclose any evidence of negligence. No opinion.

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


text:
    Barber-Greene Company, Inc., Appellant, v. M. F. Dollard, Jr., Inc., Respondent.
    (Submitted March 20, 1935;
    decided April 17, 1935.)

      Roland Ford for appellant.

      Harold J. Hinman and George H. Rothlauf for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jeanette Borenstein, Respondent, v. David Borenstein, Appellant.
    (Argued April 15, 1935;
    decided April 17, 1935.)

      Harry T. Zucker and Sydney J. Schwartz for motion.

      Jonas J. Shapiro opposed.
   Motion denied, with leave to renew on argument of appeals.


text:
    Newman & Carey Subway Construction Company, Inc., Respondent, v. The City of New York, Appellant, Impleaded with Another.
    (Argued March 14, 1935;
    decided April 23, 1935.)

      Paul Windels, Corporation Counsel (Paxton Blair, Charles Blandy and Ralph W. Thomas of counsel), for appellant.

      Franklin Nevius, Asa B. Kellogg and Robert B. Jarvis for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Lewis R. Mearian, Respondent, against Leonard Miscall, Respondent, and Massachusetts Bonding and Insurance Company, Appellant. State Industrial Board, Respondent.
    (Submitted April 15, 1935;
    decided April 23, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 266 N. Y. 625.)


text:
    Board of Hudson River Regulating District, Appellant, v. John A. Willard Realty & Lumber Company, Inc., Respondent.
    (Argued April 15, 1935;
    decided April 23, 1935.)

      T. Cuthell Calderwood for motion.

      Roscoe Irwin opposed.
   Motion denied.


text:
    Isaac Mendelsohn, Respondent, v. Joseph Rosenberg, Appellant, and Harry Gleich et al., Respondents, Impleaded with Another.
    (Submitted April 15, 1935;
    decided April 23, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 266 N. Y. 660.)


text:
    Conrad Olsen et al., Appellants, v. Brooklyn Ash Removal Co., Inc., Respondent.
    (Submitted April 15, 1935;
    decided April 23, 1935.)

      Frank M. Van Wagonen for motion.

      Isidore Beerman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants file and serve undertaking within ten days, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Nathan Caidin, Appellant.
    (Submitted April 15, 1935;
    decided April 23, 1935.)

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Clarence H. Fay et al., as Trustees under the Will of John Crowell, Deceased, Respondent, v. Anne F. Moehlenpah, Appellant.
    (Submitted April 15, 1935;
    decided April 23, 1935.)

      Emanuel Kintisch for motion.

      Maurice V. Seligson opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant serves and files undertaking within ten days, in which event the motion is denied.


text:
    Hermann F. M. Mutzenbecher et al., Copartners, under the Firm Name of Mutzenbecher & Co., Appellants, v. Sumner Ballard, Respondent.
    (Submitted April 15, 1935;
    decided April 23, 1935.)
   Motion for reargument denie'd, with ten dollars costs and necessary printing disbursements. (See 266 N. Y. 574.)


text:
    In the Matter of Ætna Life Insurance Company, Respondent, v. Asba Corporation, Defendant. Ira H. Holley, as Assignee for the Benefit of Creditors of Asba Corporation, et al., Appellants.
    (Submitted April 15, 1935;
    decided April 23, 1935.)

      Barney Bernstein for motion.

      Irving E. Kanner opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that leave is unnecessary.


text:
    Sherman S. Jewett et al., as Executors of Grace H. Jewett, Deceased, et al., Respondents, v. Commonwealth Bond Corporation, Appellant, and The Harriman National Bank and Trust Company et al., Respondents, Impleaded with Another.
    (Submitted April 15, 1935;
    decided April 23, 1935.)

      John A. Brough for motion.

      Harvey T. Mann opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless within ten days appellant files and serves an undertaking, in which event the motion is denied.


text:
    Village of Lynbrook, Respondent, v. Carl Otto et al., Appellants.
    (Submitted April 15, 1935;
    decided April 23, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 266 N. Y. 308.)


text:
    Harry Gross, Respondent, v. Jamaica Auction Galleries, Inc., Appellant.
    (Submitted January 18, 1935;
    decided April 26, 1935.)

      Abraham Brill, Frank F. Bergenfeld and Martin I. Rose for appellant.

      David H. Greenberg and Louis Selzer for respondent.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the authority of Darweger v. Staats (267 N. Y. 290). Question certified answered in the negative. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Eva Coo, Appellant.
    (Argued March 4, 1935;
    decided April 30, 1935.)

      Maxwell Slade, David H. Slade and Joseph M. Klein for appellant.

      Donald H. Grant, District Attorney (Harry R. Bigelow, Jr., of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Sol Douglas, Respondent, v. Cornelius F. Collins, Appellant.
    (Argued April 15, 1935;
    decided April 30, 1935.)

      John C. McDermott, Albert J. Rifkind, Thomas T. Reilley and Philip Blumenthal for appellant.

      Sol Douglas, Samuel Douglas and Coleman Charney for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

Concur: Lehman, O’Brien, Hubbs and Crouch, JJ. Crane, Ch. J., Loughran and Finch, JJ., concur on the ground that the motion should not have been entertained under rule 107, subdivision 9.


text:
    In the Matter of Ernest H. Nohn et al., as Executors of Emil E. Gabler, Deceased. Norine V. Degnen, Appellant; Ernest H. Nohn et al., as Executors, et al., Respondents.
    (Argued April 15, 1935;
    decided April 30, 1935.)

      Joseph Morschauser, Jr., and Benjamin Weiss for appellant.

      William Lesser and Hilbert I. Trachman for Ernest H. Nohn et al., as executors, respondents.

      George K. Jack for Ella M. Gabler, respondent.
   Order affirmed, without costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property and Liquidate the Business of the Southern Surety Company of New York. Corporate Investment Company, Appellant.
    (Submitted April 15, 1935;
    decided April 30, 1935.)

      Thomas L. Walsh for appellant.

      Louis H. Pink, Walter B. Herendeen and Benjamin Potoker for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Yonkers Builders' Supply Company, Respondent, against Westchester County Sanitary Sewer Commission, Appellant.
    (Argued April 15, 1935;
    decided April 30, 1935.)

      William A. Davidson, County Attorney (Frank J. Claydon of counsel), for appellant.

      Murray L. Halpern, Paul Englander and Meyer F. Wiles for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquring Title to Real Property Required for the Opening and Extension of Northern Boulevard in the Borough of Queens. McClenahan Realty Co., Inc., et al., Respondents.
    (Argued April 15, 1935;
    decided April 30, 1935.)

      Paul Windels, Corporation Counsel, (Joseph F. Mulqueen, Jr., Anson Getman and Charles E. Clarke of counsel), for appellant.

      Henry Herz for respondents.
   Appeal dismissed, without costs, on the ground that the appeal from the order of July 3, 1934, was not taken in time. We call attention, however, to our decision in this case in 266 N. Y. 406. No opinion.

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


text:
    The People of the State of New York ex rel. Dennis S. Dawson, Appellant, v. John A. Knox, as Clerk of the Board of Supervisors of the County of Albany, Respondent.
    (Argued April 15, 1935;
    decided April 30, 1935.)

      John A. Brady for appellant.

      Walter L. Collins, County Attorney, for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Dorland Realty Corporation, Respondent, v. Arville M. Turner, Appellant, Impleaded with Others. Arville M. Turner, Appellant, v. Efficient Building Corporation et al., Defendants, and Louis F. Mentz, Respondent.
    (Argued April 16, 1935;
    decided April 30, 1935.)

      Monroe J. Cahn for appellant.

      Albert C. Bickford for respondents.
   In each action, order affirmed, with costs, and questions certified answered in the negative. No opinion.

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


text:
    William L. Wilson, Respondent, v. Lillian Riggs, Appellant.
    (Argued April 16, 1935;
    decided April 30, 1935.)

      Aaron H. Marx, Walter E. Godfrey and Frank L. Miller for appellant.

      Solomon E. Star and Irving L. Ernst for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

Concur: Lehman, O’Brien, Crouch and Loughran, JJ. Dissenting: Crane, Ch. J., and Hubbs, J. Not sitting: Finch, J.


text:
    The People of the State of New York, Appellant, v. Vincent Burke, Fred Topel and Frank Maniscalco, Respondents.
    (Argued April 22, 1935;
    decided April 30, 1935.)

      William Copeland Dodge, District Attorney (Philip A. Donahue of counsel), for appellant.

      Ilo Orleans for Fred Topel, respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, O’Brien, Crouch and Loughran, JJ. Not sitting: Finch, J. Crane, Ch. J., dissents in the following memorandum, in which Hubbs, J., concurs: Crane, Ch. J. (dissenting). For men and women to appear naked in a gymnasium, to which admittance is gained by the payment of a fee, in my judgment “ openly outrages public decency,” and is a violation of sections 43, 1140 and 1530 of the Penal Law. I dissent and vote for the affirmance of the convictions of these defendants.


text:
    Bernard Duncan, an Infant, by William Duncan, His Guardian ad Litem, Respondent, v. Jerome Laury et al., Appellants.
    (Submitted April 22, 1935;
    decided April 30, 1935.)

      Jacob M. Zinaman for motion.

      Charles B. Levine opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Claims of Margaret McMahon et al., Respondents, against John Gretzula, Defendant, and Standard Accident Insurance Company of Detroit, Michigan, Appellant. State Industrial Board, Respondent.
    (Argued April 17, 1935;
    decided May 3, 1935.)

      Thomas J. Mangan and Merritt U. Hayden for appellant.

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

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


text:
    In the Matter of the Claim of Theresa Geisberger, Respondent, against Houde Engineering Corporation et al., Appellants. State Industrial Board, Respondent.
    (Argued April 17, 1935;
    decided May 3, 1935.)

      Roy P. Ohlin and Horace C. Winch for appellants.

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

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


text:
    United Mutual Fire Insurance Company, Respondent, v. Jamestown Mutual Insurance Company, Appellant.
    (Argued April 17, 1935;
    decided May 3, 1935.)

      Harold J. Adams and Percy R. Smith for appellant.

      William DeGraff and John D. Sullivan for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    Quality Factories, Inc., Respondent, v. The Luce Furniture Shops et al., Appellants, Impleaded with Others.
    (Argued April 17, 1935;
    decided May 3, 1935.)

      Caruthers Ewing for appellants.

      I. Gainsburg and Joseph P. Segal for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Clair McMullen, Appellant, v. Pennsylvania Railroad Company, Respondent.
    (Argued April 17, 1935;
    decided May 3, 1935.)

      William J. Flynn and Philip A. Laing for appellant.

      Harold J. Adams and Percy R. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Norbert McCauliff, Appellant.
    (Argued April 17, 1935;
    decided May 3, 1935.)

      Charles L. Crowley and Arthur J. X. Hines for appellant.

      William F. X. Geoghan, District Attorney (George F. Palmer, Jr., of counsel), for respondent.
   Judgments reversed and information dismissed. The acts proved do not constitute the offense charged. (People v. Perry, 265 N. Y. 362.) No opinion.

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


text:
    Fleetwood Foundation, Inc., Respondent, v. Daily Mirror, Inc., et al., Appellants.
    (Argued April 17, 1935;
    decided May 3, 1935.)

      Arthur F. Driscoll, Edward A. Robertson and Edward F. Clarke for appellants.

      Frank C. Laughlin, Richard J. Mackey, Stewart W. Bowers and Murray Brensilber for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Amelia L. Wolf, as Administratrix of the Estate of Joseph F. Wolf, Deceased, Appellant and Respondent, v. Baltimore and Ohio Railroad Company, Respondent and Appellant.
    (Argued April 18, 1935;
    decided May 3, 1935.)

      John Van Voorhis for plaintiff, appellant and respondent.

      William C. Combs for defendant, respondent and appellant.
   Appeal by plaintiff dismissed, without costs; no opinion.

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

On appeal by defendant, judgment affirmed, with costs; no opinion.

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


text:
    Mildred Sciarello, Appellant, v. Coast Holding Co., Inc., Respondent.
    (Argued April 19, 1935;
    decided May 3, 1935.)

      Roland A. Crowe and Thomas F. Franklin for appellant.

      Clarence S. Zipp and James B. Henney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mason B. Starring, Jr., et al., as Executors of Mason B. Starring, Deceased, Appellants and Respondents, v. Hamilton Gas Company et al., Respondents and Appellants.
    (Argued April 19, 1935;
    decided May 3, 1935.)

      Alexander B. Siegel and Arthur B. Brenner for plaintiffs, appellants and respondents.

      Bruce R. Tuttle for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

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


text:
    Malvena Gluck, Respondent, v. Herman London, Appellant.
    (Argued April 19, 1935;
    decided May 3, 1935.)

      Neile F. Towner, Paul Koch and Julian B. Erway for appellant.

      John J. Tullman and R. Robert Caplan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Martha A. T. Forbes, Respondent, v. Wilkie Todd et al., Appellants, Impleaded with Others.
    (Submitted April 29, 1935;
    decided May 3, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 266 N. Y. 384.)


text:
    Antonio Iafolla et al., Appellants, v. M. Berardini State Bank et al., Respondents.
    (Submitted April 29, 1935;
    decided May 3, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 267 N. Y. 516.)


text:
    Bessie B. Green et al., as Executors of William Green, Deceased, Appellants, v. Title Guarantee and Trust Company, Respondent.
    (Submitted April 29, 1935;
    decided May 3, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 627.)


text:
    In the Matter of the Application of The City of New York Relative to Acquiring Title to Real Property Required for Opening and Extending Harrison Avenue in the Borough of The Bronx. Fulton Development Corporation, Appellant; Sidnor Realty Co., Inc., Respondent.
    (Submitted April 29, 1935;
    decided May 3, 1935.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 267 N. Y. 64.)


text:
    In the Matter of Joseph Albano, Respondent, against Thomas W. Hammond, as Commissioner of the Sanitation Department of the City of New York, Appellant.
    (Submitted April 29, 1935;
    decided May 3, 1935.)

      Paul Windels, Corporation Counsel (Seymour B. Quel and Paxton Blair of counsel), for motion.

      Vincent A. Marsicano opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements. The motion for permission to appeal should be denied upon the ground that the appellant may appeal as a matter of right under subdivision 1 of section 588 of the Civil Practice Act. (See Matter of Sage v. Broderick, 249 N. Y. 601; People ex rel. Regan v. Enright, 240 N. Y. 581.) Where an order of certiorari is returnable in the first instance in the Appellate Division the decision of the Appellate Division, annulling a determination of a quasi-judicial body, is treated in this court as a reversal and permission to appeal from the order of the Appellate Division is unnecessary.


text:
    George A. Wilson, as Administrator of the Estate of Claribel Wilson, Deceased, Respondent, v. Adelbert J. Griffin, Appellant.
    (Submitted April 29, 1935;
    decided May 3, 1935.)

      Walter A. Fullerton for motion.

      John T. DeGraff opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Albert E. Brown, Respondent, v. Steamship Terminal Operating Corporation et al., Appellants.
    (Submitted April 29, 1935;
    decided May 3, 1935.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 267 N. Y. 83.)


text:
    Mary Austin et al., as Executrices and Trustees under the Will of William L. Austin, Deceased, Respondents, v. Atlantic Beach Bridge Corporation, Appellant, Impleaded with Others.
    (Submitted May 2, 1935;
    decided May 3, 1935.)

      C. Elmer Spedick for motion.

      William L. Hanaway, Gerald J. Craugh and Charles A. Howard, Jr., opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    Maria Forte, as Administratrix of the Estate of Lawrence Forte, Deceased, Respondent, v. Locke Insulator Corporation, Appellant.
    (Argued April 15, 1935;
    decided May 21, 1935.)

      Francis C. Wickes and John F. Thomas for appellant.

      Arthur E. Sutherland and William L. Clay for respondent.
   Order affirmed, with costs. First question certified answered No,” and second question certified answered Yes.” No opinion.

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


text:
    In the Matter of August A. Dieter, Appellant and Respondent, against George J. Ryan et al., Constituting the Board of Education of the City of New York et al., Respondents and Appellants.
    (Argued April 16, 1935;
    decided May 21, 1935.)

      Philip V. Manning and Philip V. Manning, Jr., for petitioner, appellant and respondent.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri and Paxton Blair of counsel), for defendants, respondents and appellants.
   Order affirmed, without costs, on the authority of Matter of Horn v. Gillespie (267 N. Y. 333). No opinion.

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


text:
    The People of the State of New York ex rel. William S. Brewer, Appellant, against Lazarus Levy, as Acting Warden of The City Prison, et al., Respondents.
    (Submitted April 16, 1935;
    decided May 21, 1935.)

      Clarence E. Sutherland and Joseph C. Milanese for appellant.

      William Copeland Dodge, District Attorney (Irving Jay Tell of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Lowell Griffin, Respondent, against William Hunt, as Warden of Attica State Prison, et al., Appellants.
    (Argued April 16, 1935;
    decided May 21, 1935.)

      William Copeland Dodge, District Attorney (LeRoy Mandle of counsel), for The People of the State of New York, appellant.

      Lowell Griffin, in person, respondent.
   Order of the Appellate Division and the order of the County Court of Wyoming county modified by striking from the latter order the provision remanding the relator for resentence, and as so modified affirmed. The Court of General Sessions of New York county was right in deciding that the crime was committed while the defendant was armed within the wording and meaning of the statute, thereby justifying the increased penalty. The writ is, therefore, dismissed and the prisoner remanded. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Patrick N. Downey, Appellant.
    (Argued April 22, 1935;
    decided May 21, 1935.)

      Ralph J. Hawkins for appellant.

      L. Barron Hill, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    In the Matter of Third Avenue Railway Company, Appellant, against William G. Fullen et al., Constituting the Transit Commission, et al., Respondents.
    (Argued April 22, 1935;
    decided May 21, 1935.)

      Alfred T. Davison and Addison B. Scoville for appellant. Edward M. Deegan and George H. Stover for Transit Commission, respondent.

      Paul Windels, Corporation Counsel (Joseph L. Weiner of counsel), for City of New York, intervener-respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Land Finance Corporation, Appellant, v. Aaron L. Jacoby, Individually and as Sheriff of Kings County, Respondent.
    (Argued April 22, 1935;
    decided May 21, 1935.)

      Leopold Blumberg for appellant.

      Reginald S. Hardy, Gardiner Conroy and Joseph A. Solovei for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ellen N. Jacobs, Respondent, v. Jonce I. McGurk, Appellant.
    (Argued April 23, 1935;
    decided May 21, 1935.)

      Frederick L. Kane for appellant.

      Paul W. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James Kyrimes, Respondent, v. Standard Insurance Company of New Jersey et al. Appellants.
    (Argued April 23, 1935;
    decided May 21, 1935.)

      John L. Fletcher for appellants.

      John J. Walsh for respondent.
   Order affirmed, and judgment absolute ordered against appellants on the stipulation, with costs in all courts. No opinion.

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


text:
    Philip Zimmerman et al., Respondents, v. Brooklyn Bus Corporation, Appellant, Impleaded with Another.
    (Submitted April 24, 1935;
    decided May 21, 1935.)

      David Harriman Scott and George D. Yeomans for appellant.

      James A. Doherty, Abraham Jame and Philip Hoffer for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Columbian National Life Insurance Company, Appellant, v. Barnet Hirsch, Respondent.
    (Argued April 24, 1935;
    decided May 21, 1935.)

      Frank A. Fritz and Arthur C. Patterson for appellant.

      I. Maurice Wormser, Benjamin A. Karp and Louis Scadron for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Vincenzo Rella, Appellant, v. National City Bank of New York, Respondent.
    (Argued April 24, 1935;
    decided May 21, 1935.)

      Maxwell C. Katz and Raymond T. Heilpern for appellant.

      David S. Konheim and William Lurie for resnondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charlotte L. Fox, Appellant, v. The Employers' Liability Assurance Corporation, Limited, of London, England, Respondent. Henry J. Fox, Appellant, v. The Employers' Liability Assurance Corporation, Limited, of London, England, Respondent.
    (Argued April 25, 1935;
    decided May 21, 1935.)

      Benjamn A. Shove for appellants.

      H. Duane Bruce for respondent.
   In each Case, judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Abraham Kirschner, Appellant.
    (Argued April 25, 1936;
    decided May 21, 1935.)

      Irving Ratisher for appellant.

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

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


text:
    Emilie C. Brewster, Appellant, v. New York Evening Journal, Inc., Respondent.
    (Argued April 26, 1935;
    decided May 21, 1935.)

      Otho S. Bowling and Robert H. Elder for appellant.

      Charles Henry and Manheim Rosenzweig for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    Patrick O'Rourke, Respondent, v. The State of New York, Appellant.
    (Claim No. 23503.)
    (Argued April 26, 1935;
    decided May 21, 1935.)

      John J. Bennett, Jr., Attorney-General (John L. Campbell and Henry Epstein of counsel), for appellant.

      Fitch H. Stephens and William W. Gregg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Albert B. Wright et al., as Executors and Trustees under the Will of Jennie L. Wright, Deceased, Respondents, against Commissioner of Assessment and Taxation of the City of Albany et al., Appellants. In the Matter of John F. Nash, as Executor and Trustee under the Will of Alexander Van Gaasbeck, Deceased, Respondent, against Commissioner of Assessment and Taxation of the City of Albany et al., Appellants. In the Matter of 56 North Pearl, Inc., Respondent, against Commissioner of Assessment and Taxation of the City of Albany et al., Appellants. In the Matter of Florence M. Compton, Respondent, against Commissioner of Assessment and Taxation of the City of Albany et al., Appellants. In the Matter of United States Abstract and Surety Company, Inc., Respondent, against Commissioner of Assessment and Taxation of the City of Albany et al., Appellants.
    (Argued April 29, 1935;
    decided May 21, 1935.)

      George A. Reilly, Corporation Counsel (Charles E. Brennan of counsel), for appellants.

      John J. McManus for respondents.

      Harold J. Himnan for United States Abstract and Surety Company, Inc., respondent.
   In each proceeding, order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Universal Business Corporation, Respondent, against Richard J. Lewis, as Commissioner of Assessments of the City of Albany, et al., Appellants.
    (Argued April 29, 1935;
    decided May 21, 1935.)

      George A. Reilly, Corporation Counsel (Charles E. Brennan of counsel), for appellants.

      William E. Woollard and Ernest B. Morris for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Elizabeth Flyer et al., Appellants, v. Elms Realty Co., Inc., et al., Defendants; Harry Sirkin, Appellant, and Alfred Gross, Respondent.
    (Argued April 29, 1935;
    decided May 21, 1935.)

      Abraham L. Kramer for plaintiffs, appellants.

      Gustave M. Bernknopf and Samuel H. Michaelson for Harry Sirkin, defendant, appellant.

      Charles W. Froessel and George P. Stier for respondent.
   Judgment affirmed, with costs; ho opinion.

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


text:
    The Prudential Insurance Company of America, Appellant, v. Michael J. Comerford et al., Respondents.
    (Argued April 30, 1935;
    decided May 21, 1935.)

      Solon Weit and Morris Aarons for appellant.

      George C. Gaffney for respondents.
   Judgments reversed and judgment directed for the plaintiff in accordance with the prayer of the complaint, with costs in all courts, on authority of Axelroad v. Metropolitan Life Ins. Co. (267 N. Y. 437). No opinion.

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


text:
    Elsie Nittnaus, as Administratrix of the Estate of Henry L. Nittnaus, Deceased, Respondent, v. Billings Estate Corporation., Appellant.
    (Submitted April 30, 1935;
    decided May 21, 1935.)

      James I. Cuff attd James I. McGuire for appellant.

      Victor Deutsch and Abraham L. Rubenstein for respondent.
   Judgment affirmed, with costs; no opinion,

Concur: Crane, Ch, J,, Lehman, O’Brien, Hubbs, Crouch, Loughran and Fin oh, JJ,


text:
    Catherine O'Neill, Appellant, v. Chatham Phenix National Bank & Trust Company, Individually and as Executor and Trustee under the Will of Andrew Strange, Deceased, Respondent.
    (Argued April 30, 1935;
    decided May 21, 1935.)

      Francis X. Dineen and John F. Kelly for appellant.

      Joseph F. Lenihan and Frederick Mellor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Beatrice Seligson, an Infant, by Isaac Seligson, Her Guardian ad Litem, et al., Appellants, v. Fireman's Fund Indemnity Company, Respondent.
    (Argued April 30, 1935;
    decided May 21, 1935.)

      Arthur N. Seiff for appellants.

      Robert E. Curran for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Adelia M. Corbin et al., as Executors of Floyd S. Corbin, Deceased. Ora C. Gregory et al., Appellants; Adelia M. Corbin et al., as Executors, et al., Respondents.
    (Argued May 1, 1935;
    decided May 22, 1935.)

      Edward M. Cameron, Jr., and William F. Hamilton for appellants.

      Carl Sherman, as special guardian for Virginia A. Corbin et al., respondents (supporting appellants).

      John B. Doyle for Adelia M. Corbin individually, respondent.

      Harold Swain for Adelia M. Corbin et al, as executors, respondents.
   Order affirmed, with costs payable out of the estate; no Opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ. Not sitting; Finch, J.


text:
    Frances Thompson, Respondent, v. Brooklyn and Queens Transit Corporation, Appellant, Impleaded with Another.
    (Argued May 2, 1935;
    decided May 22, 1935.)

      Harold L. Warner and George D. Yeomans for appellant.

      Andrew F. Van Thun, Jr., and Maurice C. Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William H. Lockwood, Respondent, v. Henry Hughes, Doing Business under the Name of Henry Hughes Co., Appellant.
    (Submitted May 2, 1935;
    decided May 22, 1935.)

      Thomas A. McGrath and William Caverly for appellant.

      Thomas A. Shaw for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rosanna C. Barclay, on Behalf of Herself and Others, Appellant, v. Corn Exchange Bank Trust Company, Respondent, Impleaded with Others.
    (Submitted May 3, 1935;
    decided May 22, 1935.)

      Benjamin P. DeWitt and Sidney Pepper for appellant.

      Frank C. Laughlin, Albert Falck and Stewart W. Bowers for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Jack Nagelberg et al., Appellants and Respondents, against James E. Finegan et al., Constituting the Municipal Civil Service Commission, et al., Respondents and Appellants.
    (Argued May 3, 1935;
    decided May 22, 1935.)

      Herman S. Bachrach, Harry Feldman and Alfred Nagelberg for petitioners, appellants and respondents.

      Paul Windels, Corporation Counsel (Seymour B. Quel and Paxton Blair of counsel), for defendants, respondents and appellants.
   Order of the Appellate Division modified by granting back salary to the petitioners from July 11,1934, the date of the order made at Special Term, and as so modified affirmed, with costs to the petitioners-respondents. No opinion.

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


text:
    In the Matter of Karsten Dairies, Inc., Appellant, against Charles H. Baldwin, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
    (Argued May 20, 1935;
    decided May 22, 1935.)

      Henry S. Manley for motion,

      Willard R. Pratt opposed.
   Motion denied, with ten dollars costs.


author: O’Brien, J. Crane, Ch. J.

text:
    Acme Bourcheix, Respondent, v. Willow Brook Dairy, Inc., Appellant.

      (Argued May 1, 1935;
    decided May 28, 1935.)

      Daniel Mungall, Ralph 0. L. Fay and James A. Nooney for appellant.
    Plaintiff failed to establish negligence on the part of defendant, and the verdict on such issue is without evidence to support it. (Giménez v. Great A. & P. Tea Co., 264 N. Y. 390; Glenn v. Oakdale Contracting Co., 257 N. Y. 497; Schmidt v. City of New York, 179 App. Div. 667; Zotto v. Merkel Bros., Inc., 229 App. Div. 793; Chysky v. Drake Bros. Co., 235 N. Y. 468; v. Childs Dining Hall Co., 231 Mass. 164; Potts v. Pardee, 220 N. Y. 431; St. Andrassy v. Mooney, 262 N. Y. 368; Hardie v. Boland Co., 205 N. Y. 336; Rubaek v. McCleary, Wallin & Crouse, 220 N. Y. 188; Ruppert v. Brooklyn Hts. R. Co., 154 N. Y. 90; Grifen v. Manice, 74 App. Div. 371; 174 N. Y. 505; Cantor v. National Surety Co., 208 App. Div. 370.) The trial court committed reversible errors in its charge. (Giménez v. Great A. & P. Tea Co.,
      264 N. Y. 390; Lane v. City of Buffalo, 232 App. Div. 334; Murray v. Rosenheim, 212 App. Div. 858; 241 N. Y. 562; Rosenberg v. N. Y. C. R. R. Co., 180 App. Div. 79; Hulse v. Schmiemann, 221 App. Div. 768.)

      Sydney A. Syme, Irvine J. Shubert, Murray I. Gurfein and Frank Alland for respondent.
    The proof amply supports the verdict. Both on the facts and the law the judgment should be affirmed. (Cohen v. Dugan Bros., Inc., 132 Mise. Rep. 896; 227 App. Div. 714; Freemanv. Schultz Bread Co., 100 Mise. Rep. 528; Ritchie v. Sheffield Farms Co., 129 Mise. Rep. 765; Ternay v. Ward Baking Co., 167 N. Y. Supp. 562; Reichenbacher v. California Packing Corp., 250 Mass. 198; Rozumailski v. Philadelphia Coca-Cola Bottling Co., 296 Penn. St. 114; Rost v. Kee & Chapell Dairy Co., 216 Ill. App. 497; Norfolk Coca-Cola Bottling Works v. Krausse, 173 S. E. Rep. 497; Rosenswaicke v. Interborough R. T. Co., 175 N. Y. Supp. 828.) The proof was sufficient to sustain the verdict under the Agriculture and Markets Law (Cons. Laws, ch. 69). (Abounader v. Strohmeyer Arpe Co., 243 N. Y. 458; Pine Grove Poultry Farm, Inc., v. Newton B.-P. Mfg. Co., 248 N. Y. 293; Giménez v. Great A. & P. Tea Co., 264 N. Y. 390; Kelly v. Daily Co., 56 Mont. 63; Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104; People v. Kibler, 106 N. Y. 321; People v. Girard, 145 N. Y. 105; Commonwealth v. Grau-stein & Co., 209 Mass. 38; United States v. Sprague, 208 Fed. Rep. 419; Clark Restaurant Co. v. Simmons, 29 Ohio App. 220; Sloane v. Woolworth Co., 193 Ill. App. 620.) Even if the trial court’s charge be construed as a charge upon the theory of warranty, such charge was harmless. (Pine Grove Poultry Farm, Inc., v. Newton B.-P. Mfg. Co., 248 N. Y. 293; People v. Kibler, 106 N. Y. 321.)
   O’Brien, J.

Plaintiff, a chauffeur and gardener, lived in the household of his employer who was a customer of defendant. A bottle of cream delivered by defendant to plaintiff’s employer was used by plaintiff and he was injured by swallowing broken glass. The evidence is that the pieces were about the size of a bean. They were not ground glass.” Evidence was introduced that there was no broken glass in the oatmeal, which plaintiff consumed with the cream, prior to its mixture with the cream, and that, after his injury, several other pieces of glass were found in the bottle. There is no claim that the bottle was chipped. When it was delivered at the home of plaintiff’s employer, the top was covered by two caps secured by a ring. The broken glass was near the top of the bottle and the cream was very thick and partly frozen so that it did not freely run. For that reason plaintiff did not pour it in the usual way but removed it with a spoon. If the glass had entered the bottle at the dairy when the cream was unfrozen and liquid, would the broken pieces have remained so near the top? Were they in the bottle at the time of delivery to plaintiff’s employer or were they accidentally introduced after plaintiff had removed the caps? These considerations do not appear specifically to have been brought to the jury’s attention by the charge, but the court did instruct that plaintiff was not entitled to recover unless the glass was in the bottle when it was delivered.

The action is based on negligence. No other cause is alleged. Plaintiff produced testimony, the credibility of which was for the jury, that glass was in the bottle some time after he opened it. Defendant introduced evidence which on its face is impressive respecting the customary safety tests which it applied in inspecting bottles before filling and capping them. Although negligence was the sole cause of action alleged, the court charged that there was an implied warranty that the cream contained no deleterious substance harmful to the person who uses it. Under our recent decision in Gimenez v. Great Atlantic & Pacific Tea Co. (264 N. Y. 390) and other cases this instruction constitutes error. Neither was there any implied warranty as to merchantable quality except to the buyer. (Ryan y. Progressive Grocery Stores, Inc., 255 N. Y. 388.) The implied warranty in respect to food inures only to the benefit of the purchaser and no contract existed between defendant and this, plaintiff. All the members of the Appellate Division recognized such to be the law but the majority were of the opinion that, assuming that the jury found that broken glass was in the bottle at the time of delivery, negligence as matter of law existed and that, therefore, the error in the charge did not affect the result.

Negligence as matter of law was inferred by the majority of the court on the theory that section 50 of the Agriculture and Markets Law (Cons. Laws, ch. 69) applies to the facts of this case. Section 50 provides: No person shall sell or exchange or offer or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk or any cream from the same, or any unclean, impure, unhealthy, adulterated, colored, or unwholesome cream, or sell or exchange, or offer or expose for sale or exchange, any substance in imitation or semblance of cream, which is not cream, nor shall he sell or exchange, or offer or expose for sale or exchange any such substance as and for cream * * Section 199 of the same statute defines adulteration: Food shall be deemed adulterated * * * 5. If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health * * Section 46 defines cream as a certain portion of described milk to which no substance whatsoever has been added ” except milk, as limited by this section. These provisions when read together indicate that the legislative purpose was to prevent the sale of milk and cream which have been subjected to some process by which their texture had been or might be rendered spurious. Water would decrease its strength, dirt of any kind its purity and other ingredients which had mixed with and become a part of it would impair its natural quality. These provisions do not appear to be aimed at foreign substances such as stones or tacks or broken glass which do not become part of the substance which “ masquerades as cream ” but were intended to preserve the quality of the liquid and to establish its standard. It was not the cream which injuriously affected plaintiff, but it was the glass which constituted no ingredient or part of the cream. In Pine Grove Poultry Farm, Inc., v. Newtown By-Products Mfg. Co. (248 N. Y. 293) sections 128 and 130 of the Farms and Markets Law (Cons. Laws, ch. 69; now Agriculture and Markets Law) were under consideration. There, particles of steel wire had been ground so fine as to enter into and become a component of the food. Here, the pieces of glass were no element in the composition of the cream.

The question in this case, therefore, is one of common law negligence by a defendant, not in privity with plaintiff, severed from statutes relating to warranty and adulteration. That question is one of fact depending for its solution upon the quality and quantity of the proof which in turn must depend upon the degree of credibility accorded the witnesses by the jury. It should be considered uncomplicated by issues of law relating to warranty and adulteration. It is a close one and the burden of proof is of course on plaintiff. If this bottle was inspected and capped according to defendant’s evidence, glass could not, in all probability, have entered the cream until after plaintiff removed the cap. The jury could accept the evidence of plaintiff’s wife and another woman employed in the same household that glass remained in the bottle after some of the cream had been poured, but, in view of the tests applied by defendant in filling and bottling, the question still remains whether plaintiff has excluded the reasonable possibility that the glass in some manner might have fallen into the bottle after it had been opened. This is an essential element of plaintiff’s case and the record is silent on the subject. Plaintiff was obliged to show by a preponderance of evidence that the glass was in the bottle through some negligence of defendant. When some other cause might have existed, plaintiff is bound to exclude it. (Hardie v. Boland Co., 205 N. Y. 336, 341.) When a fact is doubtful, and even in cases where the proof appears strong, but where the issue has been sent to the jury on an erroneous theory, we have not hesitated to reverse. (Sarconi v. 122 W. 26th St. Corp., 241 N. Y. 340; Currie v. International Magazine Co., 256 N. Y. 106; Owen v. Straight, 267 N. Y. 453.)

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide'the event.

Crane, Ch. J.

(dissenting). The Farms and Markets Law, section 130, reads: “ No person shall sell, offer or expose for sale any concentrated commercial feeding stuffs containing * * * any substances injurious to the health of animals or having no feeding value.” This court held in Pine Grove Poultry Farm, Inc., v. Newtown By-Products Mfg. Co. (248 N. Y. 293, 296, 297), that a seller was liable to a third party for negligence in selling chicken feed containing ground wire. The party recovering for the loss of his ducks was not the direct purchaser from the seller so that the law of warranty did not apply. We said regarding such sale: “ The court, adopting the theory of negligence pleaded by plaintiff, charged the rule relating to reasonable care. In view of the statute he might have correctly charged negligence as matter of law. * * The right to maintain an action for the breach of a statutory duty is not restricted to one suffering an injury to the person. Property rights also come within the protection of a statute imposing a duty for the benefit of the general public. Such a rule has been applied by us to a violation of the Farms and Markets Law in a case where no privity of contract existed between the party guilty of the violation and the one incurring the damage. No element of ordinary negligence'' is essential. Violation of the statute becomes actionable default.”

This court is about to hold that the same law does not apply to section 50 of the Agriculture and Markets Law which relates to human beings instead of ducks. That section reads: No person shall sell or exchange or offer or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk or any cream from the same, or any unclean, impure, unhealthy, adulterated, colored, or unwholesome cream, or sell or exchange, or offer or expose for sale or exchange, any substance in imitation or semblance of cream, which is not cream, nor shall he sell or exchange, or offer or expose for sale or exchange any such substance as and for cream * ⅜ ⅜.” (Agriculture and Markets Law, § 50.)

The facts as they come to us show that the defendant sold milk containing ground glass and that the plaintiff drank it or took it to his injury. I should think that milk or cream containing ground glass is unhealthy, impure and unwholesome. The plaintiff’s doctor bills indicate what it did to him. That such a law has been passed for the benefit of the public is self-evident. (Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458.)

Following our previous decision, the recovery in this case upon the ground of negligence and violation of statute was justified, and the judgment of the courts below should be affirmed. I, therefore, dissent from the ruling about to be made.

Lehman, Hubbs, Crouch, Loughran and Finch, JJ., concur with O’Brien, J.; Crane, Ch. J., dissents in opinion.

Judgments reversed, etc.


text:
    (Submitted May 20, 1935;
    decided May 28, 1935.)

      Herman B. Forman, Richard A. Geis and Thilo C. Schulze for appellants.
    The discretion exercised by the Surrogate was not subject to review by the Appellate Division unless it found that there was an abuse of discretion. (Matter of Staiger, 249 N. Y. 229; Matter of' Selleck, 111 N. Y. 284; Day v. Donahue, 62 N. J. L. 380; People v. N. Y. C. R. R. Co., 29 N. Y. 418.) The Surrogate properly exercised the discretion reposed in him by section 278 of the Surrogate’s Court Act. (Matter of Reimers, 261 N. Y. 337; 264 N. Y. 62.)

      Arthur T. O'Leary and Edward W. Rooney for respondent.
    There is no question of law herein involved. (Wood-ruff v. Imperial Fire Ins. Co., 90 N. Y. 521; McDonald v. Buffalo L. T. & S. 0. Co., 193 N. Y. 92; McCulloch v. Dobson, 133 Y. 114; Dudley v. Perkins, 235 N. Y. 448; Matter of Denton, 137 N. Y. 428; Allen v. Stevens, 161 N. Y. 122; Matter of Reimers, 264 N. Y. 62.)
   Crane, Ch. J.

This matter has been here before (Matter of Reimers, 261 N. Y. 337; 264 N. Y. 62).

The appellants were executors named in a will which they sought to probate. A later will was filed and they thereupon became contestants. The later will was admitted to probate and the Surrogate pursuant to section 278 of the Surrogate’s Court Act made them a substantial allowance for costs and expenses of the contest. Cross-appeals were taken to the Appellate Division, one by the contestants to review the admission of the second will to probate, and the other by the executors of that will to strike out the allowance to the contestants. The allowance was stricken out on the ground that the Surrogate had no power to make it, but we decided otherwise in 261 New York, 337, and reinstated the allowance made by the Surrogate. This we understand has been paid.

Application was then made to the Surrogate for an additional allowance to cover the expenses incurred in defending the original decree. This was disallowed in the first instance as beyond the power of the Surrogate to grant, but was finally decided by us in 264 New York, 62, in so far as we there decided that the Surrogate had power in his discretion to make such an allowance. Thereafter, the Surrogate according to this record made an additional allowance of 15,121.53 which apparently includes an allowance to the lawyers for services. The Appellate Division has reversed this order of the Surrogate as being in effect an abuse of discretion.

While this court held in Matter of Staiger (249 N. Y. 229) that the Appellate Division could not interfere with the discretion of the Surrogate in determining whether costs should be payable out of the estate or charged to the executor personally unless there appeared to be an abuse of discretion, yet the case also is an authority for the holding that the amount allowed is subject to review and modification by that court. (See, also, Matter of Flagler, 248 N. Y. 415.)

So far as the Surrogate allowed to the contesting executors the actual expenses incurred on the first appeal wherein the successful executors were also appellants, we think there was no abuse of discretion and that the allowance was proper. This included the stenographer’s minutes, the premium on the bond and printing the case and the briefs on appeal to the Appellate Division. These actual expenses should be allowed.

While in a proper case, counsel fee might also be included, we think the Appellate Division were justified in disallowing it in this case. The size of the estate is such that it is rapidly being eaten up in litigation. True, some of this litigation has been caused by the narrow construction taken regarding the power of the Surrogate, necessitating an appeal by the contestants to preserve their rights. However, we think the discretion of the Surrogate has gone too far in allowing counsel fee on appeal when there was a substantial allowance made for costs and expenses of the trial or hearing.

We, therefore, modify the order of the Appellate Division and of the Surrogate by granting to the appellants their actual expenses as stated for printing the case and briefs and the stenographer’s minutes, but no more.

The order of the Appellate Division should be modified in accordance with this opinion. As thus modified, the decree of the Surrogate should be affirmed, without costs.

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

Ordered accordingly.