text:
    Julia Schmidt, Appellant, v. Helen S. Davidson et al., as Executors and Trustees under the Will of Fritz G. Schmidt, Deceased, Respondents.
    Argued November 12, 1940;
    decided November 26, 1940.

      William Walter Frankel for appellant.

      J. W. Edwards, Leon Schaefler and Charles M. Arak for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Joseph P. Walsh, Appellant; Harold M. Kennedy, Respondent.
    Argued October 14, 1940;
    decided November 26, 1940.

      Joseph P. Walsh, in person, Stephen Callaghan and Ralph Stout for appellant.

      Harold M. Kennedy, Robert Abelow and Murray M. Halwer for respondent.
   Order affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Lewis, JJ. Talking no part: Conway, J.


text:
    Max Epstein et al., Appellants, v. Joseph Leibner et al., Respondents, Impleaded with Another.
    Submitted November 12, 1940;
    decided November 26, 1940.

      Charles S. Aronstam and Archie S. Karp for appellants.

      Herman S. Bachrach and Helen Goldstein for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    City of New York, Appellant, v. Maryland Casualty Company et al., Respondents.
    Submitted November 25,1940;
    decided November 26, 1940.

      Daniel Combs for motion.

      William C. Chanler, Corporation Counsel (Frederick v P. Bryan of counsel), opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    The People of the State of New York ex rel. 277 Park Avenue Corporation, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Three proceedings.)
    Submitted November 18, 1940;
    decided November 26, 1940.

      David E. Firestone for motion.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    George Panos, Appellant, v. Bruno Borsch et al., Respondents.
    Argued November 13, 1940;
    decided December 3, 1940.

      David P. Siegel, George Pfeil and Harold Silverstein for appellant.

      Nathan Feldman, Isidore Levine and Melville Taylor for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Elizabeth C. Conroy, Appellant, v. Saratoga Springs Authority, Respondent.
    Argued November 13, 1940;
    decided December 3, 1940.

      Edmond N. Amyot for appellant.

      Spencer B. Eddy and Francis E. Dorsey for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Fidelity & Deposit Company of Maryland, Appellant, v. American Surety Company of New York, Respondent.
    Argued November 13, 1940;
    decided December 3, 1940.

      Joseph F. Murray for appellant.

      Mahlon A. Freeman and Norman C. Conklin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Herman S. Elkind et al., Appellants, v. Chase National Bank of the City of New York, Respondent.
    Argued November 14, 1940;
    decided December 3, 1940.

      Samuel Gottlieb, I. Gainsburg, Max Bergman, Jacob Meadow and Julius Silver for appellants.

      A. Donald Mac Kinnon, Carleton H. Endemann and Einar B. Paust for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Sears, Lewis and Conway, JJ. Taking no part: Finch, J.


text:
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for a Site for the Extension of Ward’s Island Sewage Treatment Works. Charles H. Jones et al., as Executors of Mary E. Jones, Deceased, et al., Appellants.
    Argued November 13, 1940;
    decided December 3, 1940.

      Frederick E. Crane, Harry B. Chambers, Harry H. Chambers and Joseph B. Kenny for appellants.

      William C. Chanler, Corporation Counsel (Reuben Levy, Julius Isaacs and Lewis Orgel of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Sears, Lewis and Conway, JJ. Dissenting: Rippey, J. Taking no part: Finch, J.


text:
    In the Matter of the Claim of Frances La Fountain, against Joseph La Fountain, Sr., et al., Respondents. State Industrial Board, Appellant.
    Argued November 14, 1940;
    decided December 3, 1940.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Isaac Frank of counsel), for State Industrial Board, appellant.

      Edward A. Wolff for claimant.

      M. James Conboy, J. S. Carter and S. B. Coulter for respondents.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Finch, Sears and Conway, JJ. Dissenting: Loughran, Rippey and Lewis, JJ.


text:
    In the Matter of Alada C. Senitha, Appellant. Francis A. McGurk, Respondent.
    Submitted November 14, 1940;
    decided December 3, 1940.

      William B. Shelton for appellant.

      Francis A. McGurk, in person, and Richard S. Holmes for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Martha Vatides, Appellant.
    Submitted November 15, 1940;
    decided December 3, 1940.

      Selig Lenefsky for appellant.

      Thomas E. Dewey, District Attorney (Charles W. Manning and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Bank for Savings in the City of New York, Respondent, v. Rellim Construction Company, Appellant, Impleaded with Others
    Submitted November 25, 1940;
    decided December 3, 1940.

      Wallbridge S. Taft and John A. Sullivan for motion.

      Frederick Hemley and Jesse Hemley, opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    In the Matter of Sigmar K. R. Hilfer, Appellant, against Board of Regents of the University of the State of New York, Respondent.
    Submitted November 18, 1940;
    decided December 3, 1940.
   Motion to amend remittitur denied, without costs. The order was intended to provide for the reinstatement of the relator. If disciplinary proceedings are to be taken against him, it must be after a new hearing of charges and in accord with sections 1264 and 1265 of the Education Law (Cons. Laws, ch. 16). (See 283 N. Y. 304.)


text:
    In the Matter of the Probate of the Will of Emma B. Johnson, Deceased. Norman W. Roe, as Executor of Emma B. Johnson, Deceased, et al., Appellants; Norma D. Owen et al., Respondents.
    Argued October 15, 1940;
    decided December 4, 1940.

      Archibald R. Watson, John R. Vunk, George H. Carleton and Harold Ashare for Norman W. Roe, as executor, etc., appellant.

      Edward I. Devlin, Jr., Gerald Fitzgerald and Robert H. Wilson, Jr., for Saint Faith’s House et al., appellants.

      Archibald R. Watson and George C. Terry for George H. Payne, as temporary administrator, etc., appellant.

      Frederick M. Schlater for respondents.
   Order affirmed, with costs to all parties filing a brief payable out of the estate. No opinion.

Concur: Lehman, Ch. J., Loughran, Sears and Conway, JJ. Dissenting: Finch, Rippey and Lewis, JJ.


text:
    The People of the State of New York, Respondent, v. Spotless Stores, Inc., Appellant.
    Submitted November 18, 1940;
    decided December 4, 1940.

      S. Alexander Sterenbuch for appellant.

      Thomas E. Dewey, District Attorney (Burr F. Coleman and Stanley H. Fuld of counsel), for respondent.
   Judgments reversed and information dismissed on the ground that the evidence does not justify a finding of guilt beyond a reasonable doubt. No opinion.

Concur: Lehman, Ch. J., Finch, Sears and Lewis, JJ. Dissenting: Loughran, Rippey and Conway, JJ.


text:
    In the Matter of Frank Joyce, Respondent, against Henry E. Bruckman et al., Individually and as Constituting the State Liquor Authority of the State of New York, Appellants.
    Argued November 18, 1940:
    decided December 4, 1940.

      Monroe I. Katcher, II, and Francis V. McHugh for appellants.

      James E. Cuff for respondent.
   Appeal dismissed, without costs, on the ground that the order is not final since its effect is to remit the matter to the Liquor Authority. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ. Taking no part: Lewis, J.


text:
    The People of the State of New York ex rel. Manhattan Square Beresford, Inc., Appellant and Respondent, against James J. Sexton et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents and Appellants. (Taxes of 1932 and 1933.) The People of the State of New York ex rel. Manhattan Square Beresford, Inc., Appellant and Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents and Appellants. (Taxes of 1934.)
    Submitted December 2, 1940;
    decided December 4, 1940.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto after the words proceedings remitted to the Special Term to proceed in accordance with the opinion ” the following: “ to determine the issues of value upon the testimony and exhibits heretofore received in evidence and upon such additional testimony as the parties may offer.” (See 284 N. Y. 145.)


text:
    In the Matter of Samuel H. Kaufman et al., Copartners under the Firm Name of Kaufman & Weitzner, Respondents; Schatz A. Weicker, Appellant.
    Submitted December 2, 1940;
    decided December 4, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 629.)


text:
    Maybel Newbrand, Appellant, v. City of Yonkers et al., Respondents.
    Submitted December 2, 1940;
    decided December 4, 1940.

      Leonard G. McAnaney, Corporation Counsel (Harold T. Garrity of counsel), for motion.

      Ulysses S. Adler opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of the Claim of Margaret B. Morton. Frieda S. Miller, as Industrial Commissioner, Appellant. Spirella Company, Inc., Respondent.
    Submitted December 2, 1940;
    decided December 4, 1940.
   Motion to amend remittitur denied, without costs. The respondent expressly withdrew the question which by amendment to the remittitur it now asks the court to decide. This court has not passed upon that question and it may be argued in the court below. (See 284 N. Y. 167.)


text:
    John F. McCarthy, Appellant, v. Reichsbank, Respondent.
    Argued November 20, 1940;
    decided December 31, 1940.

      Otto C. Sommerich, Maxwell C. Katz and Henry I. Fillman for appellant.

      Harold R. Topken for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Louis Group, Respondent, v. Morgan Szenher, Appellant.
    Argued November 26, 1940;
    decided December 31, 1940.

      William B. Davis, O. A. Thompson and E. C. Sherwood for appellant.

      John V. Higgins and Thomas J. O’ Neill for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Vendome Service, Inc., Appellant.
    Argued November 26, 1940;
    decided December 31, 1940.

      Samuel L. Teitler and Samuel B. Newman for appellant.

      William C. Chanler, Corporation Counsel (Oren Clive Herwitz and Paxton Blair of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Araminta Crippin et al., Appellants, v. Sunshine Transportation Corporation et al., Defendants, and The Borden Company, Respondent.
    Argued November 27, 1940;
    decided December 31, 1940.

      Herbert Kaufman for appellants.

      John A. Kelly for respondent.
   Judgment of Appellate Division reversed and that of Trial Term affirmed, with costs in this court and in the Appellate Division on the ground that there was a fair question of fact as to the defendant’s negligence. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Leonora B. Rossbach et al., as Trustees under the Will of Leopold Rossbach, Deceased, Appellants, v. Marion V. Rosenblum, as Administratrix with the Will Annexed of the Estate of Abraham Rosenblum et al., Respondents.
    Argued December 3, 1940;
    decided December 31, 1940.

      Lionel S. Popkin and Mortimer H. Hess for appellants.

      Leonard Belford for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    First Trust & Deposit Company, Appellant, v. Middlesex Mutual Fire Insurance Company, Respondent.
    Argued December 4, 1940;
    decided December 31, 1940.

      H. Duane Bruce for appellant.

      Abram G. Senior and Morgan F. Bisselle for respondent.
   Judgment affirmed, with costs, on the ground that the fraud of the defendant’s agent was not perpetrated in the course of the agent’s employment. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ. Taking no part: Lewis, J.


author: Lewis, J.

text:
    Bank of Yorktown, Appellant, v. John P. Boland et al., Constituting the New York State Labor Relations Board et al., Respondents.
    Argued November 14, 1940;
    decided December 31, 1940.

      Richard J. Mackey for appellant.

      Daniel Kornblum and Henry A. Silver for John P. Boland et al., constituting the New York State Labor Relations Board, respondents.
   Judgment affirmed, with costs, on the authority of Matter of Metropolitan Life Ins. Co. v. New York State Labor Relations Board (280 N. Y. 194). No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey and Sears, JJ.; Lewis, J., dissents in the following memorandum in which Conway, J., concurs:

Lewis, J.

(dissenting). I dissent and vote for a trial of the issues tendered by the pleadings as to whether the provisions of the New York State Labor Relations Law (Labor Law; Cons. Laws, ch. 31) are applicable to, and give to the defendant Labor Relations Board jurisdiction over, the plaintiff, to which has been accorded by law the power to act as a trustee and to perform those other functions peculiar to a bank. A majority of the court rests the decision in the case at bar upon the ruling in Matter of Metropolitan Life Ins. Co. v. New York State Labor Relations Board (280 N. Y. 194). I believe the decision in that case does not determine the following questions presented by the present action: (1) Does the New York State Labor Relations Board have jurisdiction over a bank and its employees? (2) Does public policy, as declared by the Legislature in the New York State Labor Relations Act, forbid the application of that statute to a banking institution?


text:
    In the Matter of Lawyers Mortgage Company (731-735 West 183rd St.). Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Mortgage Company, Appellant. Alexander Rubin, as Trustee, Respondent.
    Argued November 15, 1940;
    decided December 31, 1940.

      Walter B. Herendeen and Vivienne M. Camps for appellant.

      Jacob Rapoport and Louis S. Posner for respondent.
   Orders reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the opinion in Matter of Lawyers Mortgage Co. (8718 Ridge Boulevard) (284 N. Y. 371). No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Eugene Brown and Norman Williams, Appellants.
    Argued November 18, 1940;
    decided December 31, 1940.

      John H. Lewis, Joseph A. Smith and Raymond J. Leo for Eugene Brown, appellant.

      Frederick J. Sullivan, Francis J. McCaffrey, Jr., and Lucius L. Delaney for Norman Williams, appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Richard G. Denser of counsel), for respondent.
   As to each defendant: Judgment of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Edward Pierce, Jr., an Infant, by Edward Pierce, Sr., His Guardian ad Litem, Appellant, v. New York Central Railroad Company et al., Respondents.
    Argued November 26, 1940;
    decided December 31, 1940.

      John J. Scully for appellant.

      Charles E. Nichols for New York Central Railroad Company, respondent.

      Thomas J. Delaney for City of Rensselaer, respondent.
   Judgment affirmed, with costs, on the ground that there was no evidence of negligence in the design or construction of the stairway. We pass on no other question. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Jewel Mills, Respondent, v. Jacob J. Gabriel, Appellant.
    Submitted November 27, 1940;
    decided December 31, 1940.

      James E. Turner and Patrick E. Gibbons for appellant.

      Mordecai P. Springer and Seymour J. Shapiro for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    John G. Lonsdale et al., as Trustees of St. Louis-San Francisco Railway Company, Appellants, v. James Speyer et al., Respondents
    Argued November 25, 1940;
    decided December 31, 1940.

      Frederick Evan Crane, Edward S. Seidman, Robert G. Starr, Frank A. Thompson and Ivan H. Light for appellants.

      Henry W. Taft, Ralph Wolf, G. Forrest Butterworth, Jr., Wolfgang S. Schwabacher, Sydney C. Weinstein, David Dow and Maurice Ravage for James Speyer et al., comprising the firm of Speyer & Co., respondents.

      Joseph M. Proskauer, Alfred Jaretzki, Jr., J. Alvin Van Bergh and William Piel, Jr., for John F. Strauss, Jr., et al., comprising the firm of J. & W. Seligman & Co., respondents.

      William Morton Carden for Edward N. Brown, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Emil Salerno et al., Appellants, v. Randal Holden, Respondent.
    Argued November 26, 1940;
    decided December 31, 1940.

      Edgar Hirschberg for appellants.

      Gabriel Elias, Edward J. Wren and Jonathan Holden for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Louis Bordes, Respondent, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company, Appellant.
    Argued November 27, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., Paxton Blair and L. S. Carpenter of counsel), for appellant.

      Thomas J. Milan and Morris Zweibel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Finch, Rippey, Lewis and Conway, JJ. Dissenting: Lehman, Ch. J., and Sears, J.


text:
    The People of the State of New York, Respondent, v. George Dolny, Walter Dowling and Arcangelo D’Agosto, Appellants.
    Argued November 19, 1940;
    decided December 31, 1940.

      Charles N. Cohen, Benjamin Schifter and Nathaniel H. Kramer for George Dolny, appellant.

      Nathaniel Kaplan, William W. Kleinman and Edward J. McCann for Walter Dowling, appellant.

      Harry G. Anderson for Arcangelo D’Agosto, appellant. William O’Dwyer, District Attorney (Edward H. Levine of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    City Bank Farmers Trust Company, as Trustee, Respondent, v. LaFayette Holding Corporation et al., Defendants, and William E. Hawkins, Appellant.
    Argued November 27, 1940;
    decided December 31, 1940.

      Lloyd B. Kanter, Thomas F. Kiely and Joseph Fine for appellant.

      Gerard I. Walters for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Edward B. Gernhardt, Respondent, v. Knickerbocker Ice Co., Inc., et al., Appellants. Stanton S. McCready, Respondent, v. Knickerbocker Ice Co., Inc., et al., Appellants. Alfred J. Kearns, Respondent, v. Knickerbocker Laundry Co., Inc., Appellant.
    Argued December 2, 1940;
    decided December 31, 1940.

      Theodore J. Miller for appellants.

      Milton P. Kupfer, T. J. Gillen and Edward M. Edenbaum for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Solomon Brooks, Respondent, v. Jacob Engar, as President of Soft Drinks Workers Union, Appellant.
    Argued December 4, 1940;
    decided December 31, 1940.

      William Karlin and Leo Greenfield for appellant.

      Copal Mintz for respondent.
   Appeal dismissed, with costs, on the ground the order is not final. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Anne S. Stein, Appellant, v. Board of Education of City of New York, Respondent.
    Submitted November 20, 1940;
    decided December 31, 1940.

      Herman E. Cooper and Moss Schenkman for appellant.

      William C. Chanler, Corporation Counsel (Nicholas Bucci, Paxton Blair and Arthur H. Kahn of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Augusta Firestone, Appellant, v. Board of Education of City of New York, Respondent.
    Submitted November 20, 1940;
    decided December 31, 1940.

      Herman E. Cooper and Moss Schenkman for appellant.

      William C. Chanler, Corporation Counsel (Nicholas Bucci, Paxton Blair and Arthur H. Kahn of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Estate Property Corporation, Appellant, v. Hudson Coal Company, Respondent.
    Argued November 27, 1940;
    decided December 31, 1940.

      Frank A. Fritz, Arthur P. West and Leo G. Fritz for appellant.

      Samuel Seabury and Thomas L. Ennis for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of William J. Beverly et al., Respondents, against City of New York et al., Appellants.
    Argued December 2, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (M. Camper O’ Neal and Arthur H. Kahn of counsel), for appellants.

      Albert De Roode for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Dorothy Maedl, Respondent, v. International Railway Company, Appellant, Impleaded with Another.
    Argued December 2, 1940;
    decided December 31, 1940.

      Albert M. Kraus, John J. Sullivan, Jr., and Ralph K. Robertson for appellant.

      Edward B. Horning and William J. Brock for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Estate of Henry Hubbs, Deceased. Alpheus R. Phelps et al., Appellants; Helen P. Leach, Respondent.
    Argued December 4, 1940;
    decided December 31, 1940.

      Philip Halpern for appellants.

      Robert J. Moore for respondent.
   Order affirmed, with costs to all parties filing briefs payable out of the estate. No opinion.

Concur: Finch, Rippey, Lewis and Conway, JJ. Dissenting : Lehman, Ch. J., Loughran and Sears, JJ.


text:
    In the Matter of Herman A. Ehrlich et al., Appellants, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued November 13, 1940;
    decided December 31, 1940.

      Frederick E. Crane, Charles Barasch, Moss Shenkman and Herman E. Cooper for appellants.

      H. Eliot Kaplan for respondents.
   Order affirmed, with costs; no opinion.

Concur: Finch, Rippey, Sears, Lewis and Conway, JJ. Lehman, Ch. J., and Loughran, J., dissent on the ground that the appointments in this case were not temporary appointments within the meaning of the Civil Service Law.


text:
    In the Matter of Martin Sanders et al., Respondents, against John E. Davidson et al., Formerly Constituting the Board of Appeals of the Village of Hempstead, and Archibald G. Patterson, Individually, Appellants, and Howard S. Brower et al., Now Constituting Such Board of Appeals, et al., Respondents.
    Argued November 14, 1940;
    decided December 31, 1940.

      Leo Fischel for Archibald G. Patterson, appellant.

      James N. Gehrig for John E. Davidson et al., appellants.

      Milton Pinkus and Thomas F. Hyland for respondents.
   On appeal by Patterson: Order affirmed, with costs. On appeal by Board of Zoning Appeals as formerly constituted: Appeal dismissed, with costs. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Jack Schneider, Appellant.
    Argued November 19, 1940;
    decided December 31, 1940.

      Frederick Evan Crane and Louis B. Boudin for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Eugene A. Leiman of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Finch, Rippey, Sears, Lewis and Conway, JJ. Dissenting: Lehman, Ch. J., and Loughran, J., on the ground that there were errors committed at the trial which in their opinion were clearly prejudicial.


text:
    Alexander Pelan, Respondent, v. New York Central Railroad Company, Appellant.
    Submitted November 26, 1940;
    decided December 31, 1940.

      K. O. Mott-Smith, C. Austin White and Clive C. Handy for appellant.

      Jacob Hirsch and Jack L. Rappaport for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ. Dissenting: Lewis, J.


text:
    Carol N. Kelly, Respondent, v. Howard C. Kelly et al., Appellants.
    Argued November 27, 1940;
    decided December 31, 1940.

      James F. Donnelly and Walter F. Sloan for Howard C. Kelly, appellant.

      Benjamin Swartz for Dorothy C. Kelly, appellant.

      George A. Spohr, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Hyman Balatnicov and David Adler, Appellants.
    Argued November 28, 1940;
    decided December 31, 1940.

      Jacob Shientag, Francis J. McCaffrey, Irving Mendelson and Morris Straub for Hyman Balatnicov, appellant.

      Meyer Alterman, Meyer Goldberg and T. Lawrence McGannon for David Adler, appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Burr F. Coleman of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Hyman Wohl et al., Respondents, v. Bakery and Pastry Drivers and Helpers Local 802 of the International Brotherhood of Teamsters et al., Appellants.
    Submitted December 4, 1940;
    decided December 31, 1940.

      Edward C. Maguire and Samuel J. Cohen for appellants.

      Joseph Apfel for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Bruno Burn, Respondent, v. Albert F. Coyle, Appellant.
    Submitted December 4, 1940;
    decided December 31, 1940.

      Isidor Enselman and Donald I. Peyser for appellant.

      Seymour J. Wilner for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York ex rel. Matthew Nolan, Appellant, v. William E. Snyder, as Acting Warden of Clinton Prison, Respondent.
    Submitted November 15, 1940;
    decided December 31, 1940.

      Matthew Nolan, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Harry P. Kehoe of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Fred S. Radnitz, Appellant and Respondent, v. Electric Power and Light Corporation, Respondent and Appellant.
    Argued November 18, 1940;
    decided December 31, 1940.

      Murray L. Jacobs, Copal Mints and Maurice J. Dix for plaintiff, appellant and respondent.

      Robert H. O’Brien, James P. Murtaugh and Benjamin C. Milner for defendant, respondent and appellant.
   Order affirmed, without costs, and questions certified answered in the negative. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Alfred Gaetti and Joseph Carosella, Appellants.
    Argued November 20, 1940;
    decided December 31, 1940.

      Joseph L. Martin, David R. Siegel, Thomas R. Fay and George C. Butler for Alfred Gaetti, appellant.

      Edgar F. Hazleton and David Glickman for Joseph Carosella, appellant.

      Edward J. Neary, District Attorney (Philip Huntington of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Security-First National Bank of Los Angeles, as Trustee, Appellant, v. Marjorie F. Lloyd-Smith, Respondent.
    Argued November 25, 1940;
    decided December 31, 1940.

      Howard Osterhout and John B. Coman for appellant.

      James A. Fowler, Jr., and W. R. Perdue, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Karyol Balser, an Infant, by John C. Balser, Her Guardian ad Litem, Appellant, v. George J. Gammel et al., Doing Business under the Name of New Ariel Theatre, Respondents. John C. Balser, Appellant, v. George J. Gammel et al., Doing Business under the Name of New Ariel Theatre, Respondents.
    Argued November 27, 1940;
    decided December 31, 1940.

      Philip Halpern and George E. Phillies for appellants.

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

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Conway, JJ. Taking no part: Sears, J.


text:
    Margaret L. Hasler, as Administratrix of the Estate of Robert P. Hasler, Deceased, Respondent, v. County of Oneida et al., Defendants, and City of Sherrill, Appellant. Carrie L. Keene, as Administratrix of the Estate of George Keene, Deceased, Respondent, v. County of Oneida et al., Defendants, and City of Sherrill, Appellant. Naomi Ricklefs, Respondent, v. County of Oneida et al., Defendants, and City of Sherrill, Appellant.
    Argued December 2, 1940;
    decided December 31, 1940.

      William F. Santry for appellant.

      Willard R. Pratt and W. G. Shankenbery for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Appellant, v. Harry Bluestein, Respondent.
    Argued December 4, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum of counsel), for appellant.

      Archer Scherl, Warren J. Bloom and Meyer Schwartz for respondent.
   Order of Appellate Part of Court of Special Sessions reversed and judgment of conviction affirmed on authority of People v. Arlen Service Stations, Inc. (284 N. Y. 340), decided herewith. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Cities Service Oil Company, Appellant, v. Saverio Soranno et al., Respondents.
    Argued November 20, 1940;
    decided December 31, 1940.

      George H. Cohn, Sydney H. Gleich and William J. Dillon for appellant.

      J. J. Kramer, J. O. Kramer, J. P. Imperato and Charles E. Healy for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Mary McGlynn, as Administratrix of the Estate of Joseph A. McGlynn, Deceased, Appellant, v. Allen N. Spooner and Son, Inc., Respondent.
    Argued November 26, 1940;
    decided December 31, 1940.

      Herbert S. Klein and Louis Rothbard for appellant.

      William B. Davis and E. C. Sherwood for respondent.
   Judgments reversed and new trial granted, with costs to abide the event, on the ground that the question of whether the engineer was acting as the servant of the defendant presents at least a question of fact. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    New York Life Insurance Company, Appellant, v. Ettel Guttenplan, Respondent.
    Argued November 26, 1940;
    decided December 31, 1940.

      Earl S. MacArthur and Louis H. Cooke for appellant.

      Harry Greenspan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    American Airways, Inc., et al., Respondents, v. Ford Motor Company, Appellant.
    Argued December 3, 1940;
    decided December 31, 1940.

      Alfred McCormack, Eugene E. Ford and John T. Connor for appellant.

      Edgar R. Kraetzer, Donald Havens and David L. Corbin for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Lillian Mustor, Appellant, v. Glens Falls Indemnity Company, Respondent.
    Argued December 4, 1940;
    decided December 31, 1940.

      Joseph T. King and John Wallace Young for appellant.

      Sidney J. Loeb for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of Kathleen E. Brennan et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued December 2, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer of counsel), for appellants.

      Albert de Roode for respondents.
   Orders modified in accordance with the opinion in Matter of Beggs v. Kern (284 N. Y. 504), decided herewith, and as so modified affirmed, without costs. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of Charles A. Albanese et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued December 2, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer of counsel), for appellants.

      Albert B. Breslow for respondents.
   Orders modified in accordance with opinion in Matter of Beggs v. Kern (284 N. Y. 504), decided herewith, and as so modified affirmed, without costs. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of Helen Brooks et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.
    Argued December 2, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer of counsel), for appellants.

      Albert de Roode for respondent.
   Orders modified in accordance with the opinion in Matter of Beggs v. Kern (284 N. Y. 504), decided herewith, and as so modified affirmed, without costs. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Nathan Rubin, Appellant and Respondent, v. Dairymen’s League Co-operative Association, Inc., Respondent and Appellant.
    Submitted December 2, 1940;
    decided December 31, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 32.)


text:
    In the Matter of The Joint Legislative Committee to Investigate the Educational System of the State of New York, Respondent. Teachers Union of the City of New York, Appellant. In the Matter of The Joint Legislative Committee to Investigate the Educational System of the State of New York, Respondent. Charles J. Hendley, Appellant.

      Argued January 15, 1941;
    decided January 23, 1941.

      William G. Mulligan and John D. Hill for appellants.

      Elias Gartman, S. S. Goldsmith and Benedict Wolf for New York City Chapter of the National Lawyers Guild, amicus curiæ.

      Louis B. Boudin, Hyman N. Glickstein and Leonard B. Boudin for Cafeteria Employees Union, Local 302, et al., amici curiæ.

      Emanuel H. Bloch and Ira Kadetsky for New York Conference for Inalienable Rights, amicus curiæ.

      W. H. Liebman, Jr., and Daniel W. Leider for Greater New York Industrial Union Council et al., amici curise.

      Osmond K. Fraenkel and Herbert D. David for New York City Committee of the American Civil Liberties Union, amicus curise.

      Paul Windels and Phillip W. Haberman, Jr., for respondent.
   Lewis, J.

A legislative inquiry has given rise to two proceedings: An application by the present appellant — which was denied by Special Term — for an order vacating a subpoena duces tecum, wherein is challenged the power of a committee of the Legislature to require the production of the appellant’s membership list; and an application by such legislative committee - — which was granted by Special Term ■— for a contempt order, wherein is challenged the power of that committee to require compliance with its subpoena before a sub-committee consisting of one member.

The present appeals are by our permission from orders of the Appellate Division unanimously affirming the orders at Special Term. These orders have as their bases certain facts, not in controversy, which are common to each proceeding and to which consideration will first be given.

The respondent is a Joint Legislative Committee to Investigate the Educational System of the State of New York, appointed pursuant to a joint resolution of the Senate and Assembly adopted March 29, 1940. After defining in detail the field of inquiry, including the numerous branches of the educational system of the State, its various activities and the methods by which are allocated the funds of the State to meet the cost of public education, the joint resolution extends the investigation to include every other matter or thing not specifically set forth herein which may be deemed by such committee to be relevant to the general subject of its study * * * as though the same had been expressly set forth herein.” To accomplish this broad inquiry the Joint Resolution further provides:

“ 2. That such committee shall consist of six members appointed by the temporary president of the Senate, four of whom shall be Senators and the other two may but need not be Senators, and seven members appointed by the speaker of the Assembly, five of whom shall be members of the Assembly and the other two may but need not- be members of the Assembly.
“ 3. That such committee is authorized to choose a chairman and vice-chairman from its members to adopt rules for the conduct of its proceedings, to employ a secretary, counsel, investigators and such other assistants and employees as it may deem necessary.
<< ¿j. * * *
tt g * * *
“ 6. That such committee is authorized to sit in one or more parts at any place within the state and hold either public or private hearings.
7. That such committee and each member thereof shall have power to administer oaths, take testimony, subpoena and compel the attendance of witnesses and the production of all books, papers, records or documents deemed material or pertinent to its work, and shall generally have, possess and exercise all of the powers of a legislative committee as provided by the legislative law.” (Emphasis supplied.)

Upon the organization of the Joint Legislative Committee and in accord with the Joint Resolution, Senator Frederic R. Coudert, Jr., was chosen vice-chairman and thereafter a resolution was adopted by the committee which provided in part: Resolved that this Committee and each member thereof be authorized to sit at said offices or elsewhere and hold either public or private hearings, and that each member of this Committee shall have power to administer oaths, take testimony, subpoena and compel the attendance of witnesses and the production of all books, papers, records or documents which he may deem material or pertinent to the work of the Committee and that hearings, either public or private, may be held before any member of this Committee sitting as a sub-committee of one.”

In the course of the legislative inquiry conducted by the respondent committee as thus organized, a subpoena duces tecum, addressed to “ The Teachers Union of the City of New York, by Charles J. Hendley, President, 114 East 16th Street, New York City,” was served upon Mr. Hendley calling upon him as such officer to appear before the respondent Joint Legislative Committee at a stated time and place, and then and there to produce certain papers and documents, including the membership lists, past and present, of the appellant union. Before the return of the process the appellant applied at Special Term for an order to vacate the subpoena.

We are thus brought to a consideration of the order in the first of the two proceedings before us, in which the Appellate Division has affirmed the order of Special Term denying the appellant’s application to vacate a subpoena duces tecum. ,

We have examined with care the statements of alleged facts found in affidavits submitted by both parties which relate to the appellant’s contentions that the subpoena duces tecum issued by the committee lacks authority in law. In no instance do we find facts stated in support of the appellant’s position sufficient to overcome the presumption, in which we are required to indulge, “ * * * that the action of the legislative body was with a legitimate object * * *. The same principle which renders it the duty of the courts to hold legislative action illegal when it unduly encroaches upon the province of the judiciary, forbids interference by the latter with the action of legislative bodies or the exercise of their discretion in matters within the range of their constitutional powers.” (People ex rel. McDonald v. Keeler, 99 N. Y. 463, 487.)

The law-making power given to the Legislature authorizes it, by inquiry, to ascertain facts which affect public welfare and the affairs of government. Such power of inquiry, with process to enforce it, is an essential auxiliary to the legislative function. (Wilckens v. Willet, 1 Keyes, 521, 525; People ex rel. McDonald v. Keeler, supra, 481, 482.) A legislative body may act upon common knowledge or information voluntarily contributed. At times it stands in need of more. There is then power to investigate by subpoena under the sanction of an oath.” (People ex rel. Karlin v. Culkin, 248 N. Y. 465, 478; McGrain v. Daugherty, 273 U. S. 135, 174.) Upon such inquiries the Legislature may compel the attendance of witnesses and the production of documentary evidence to the end that it may perform its constitutional functions by the enactment of laws to correct public dangers — either real or apprehended. This power may be delegated to a committee. (Briggs v. Mackellar, 2 Abb. Pr. 30; Burnham v. Morrissey, 14 Gray [Mass.], 226; People v. Learned, 5 Hun, 626; McGrain v. Daugherty, supra, p. 175; Sinclair v. United States, 279 U. S. 263.)

In the present proceeding, as we have seen, we must assume that the legislative inquiry was well intended. If a subpoena is to be quashed in advance of a committee hearing, upon a forecast of the testimony sought and arguments as to its probable effect, the purpose of the inquiry may be thwarted. We cannot say as matter of law, upon the record at hand, that the subpoena now challenged would be futile as an aid to the legislative inquiry instituted by the Joint Resolution. It is only when futility of such process is inevitable or obvious that there must be “ a halt upon the threshold ” of the inquiry. (Matter of Edge-Ho Holding Corp., 256 N. Y. 374, 382.) Proof of such futility is not in the record before us.

Passing to a consideration of the question presented by the second proceeding, it appears that after the appellant’s motion to vacate the subpoena duces tecum had been denied at Special Term, Mr. Hendley, as president of the Teachers Union of the City of New York, appeared before the Joint Legislative Committee at a meeting thereof at which the only member present was Senator Coudert, its vice-chairman. Upon demand being made of Mr. Hendley that he produce documents called for by the subpoena duces tecum, he produced some of the records specified therein but refused, upon demand therefor made by the vice-chairman of the committee, to produce the membership list of the appellant union. Thereafter, upon an application at Special Term for an order addressed to and served upon Mr. Hendley, as president of that union, directing him to show cause why he should not be adjudged guilty of contempt, Senator Coudert sought to compel the production of the membership list. An order to commit Mr. Hendley for contumacious conduct was granted at Special Term and has been unanimously affirmed by the Appellate Division.

We find in the Joint Resolution, quoted in part aboye, authorization given to the Joint Legislative Committee to sit ‘(in one or more parts ” and “ each member thereof ” is empowered to administer oaths, take testimony, subpoena witnesses and “ compel ” the production of records and documents deemed material (subds. 6 and 7). It is also provided (subd. 7) that “ each member * * * shall generally have, possess and exercise all of the powers of a legislative committee as provided by the legislative law.” These provisions of the Joint Resolution authorized Senator Coudert as a subcommittee of one to issue the subpoena duces tecum which was served upon Mr. Hendley. The same provisions when read with section 62-a of the Legislative Law (Cons. Laws, ch. 32) and subdivision 3 of section 406 of the Civil Practice Act, gave Senator Coudert authority by contempt proceedings to compel the production of the membership list specified in the subpoena. “ The power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for the purpose.” (McGrain v. Daugherty, supra, p. 165. See, also, Matter of Doyle, 257 N. Y. 244, 259, 261; People ex rel. Hastings v. Hofstadter, 258 N. Y. 425, 433, 434.)

The single member of the subcommittee whose authority is challenged by the appellant in this proceeding, is a member of the Legislature. The question whether such a challenge would be sustained, if directed to the authority of a subcommittee of which a non-member of the Legislature is the single member, is not before us for decision.

The orders should be affirmed, without costs.

Loughran, Finch, Conway and Desmond, JJ., concur; Lehman, Ch. J., and Rippey, J., dissent from the decision so far as it affirms the order in the proceeding to punish for contempt on the sole ground that the resolution of the Legislature properly construed does not authorize the committee to appoint a subcommittee of one, even assuming for the purpose of this appeal that the Legislature by resolution has power to grant such authority to a committee which includes persons who are not members of the Legislature.

Orders affirmed.


author: Loughran, J.

text:
    Margaret A. Woods, Appellant, v. Nicholas T. Bard, Respondent.
    Argued January 7, 1941;
    decided March 6, 1941

      Louis O. Bergh and Everett W. Kramer for appellant.

      Stephen R. J. Roach for respondent.
   Loughran, J.

Nicholas T. Bard was married to Margaret A. Woods in January, 1933. In August, 1934, they entered into a valid separation agreement whereby he undertook to pay to her “ for her support and maintenance * * * the sum of Fifty Dollars a month so long as she shall live or until her remarriage.” In September, 1934, she brought suit against him in the State of Nevada for a divorce. When he had made a general appearance in that suit, she was granted therein a judgment of divorce which gave her permission to resume her maiden name and “ approved and confirmed ” their precedent separation agreement.

Despite all this, Mr. Bard on April 8, 1939, commenced in the New York Supreme Court an action to annul his marriage to Margaret A. Woods. Payments due to her under their aforesaid separation agreement were then behind hand in in the sum of $187.50. He was directed by the court to pay to her alimony pendente lite of fifty dollars per month in lieu of payments under the aforesaid separation agreement * * * but without prejudice to the said separation agreement.” When he was faced with contempt process for complete disobedience of that order, Mr. Bard in January, 1940, paid all such accrued alimony in the sum of $450, and was then permitted to discontinue his apparently groundless action against Margaret A. Woods for annulment of their marriage.

She thereupon commenced this present action against him to recover (1) the sum of $187.50 which admittedly was owing to her under their separation agreement when he commenced his action to annul their marriage; and (2) an installment of fifty dollars which (on the face of the agreement) had become due after his discontinuance of the annulment action.

He moved for dismissal of her present complaint in so far as she sought recovery of more than $187.50. She moved for judgment for the full sum of $237.50 demanded by her. His motion was denied. She was granted a partial summary judgment for $187.50. The Special Term said: Ordinarily the plaintiff’s application for alimony in the annulment action would operate as a repudiation and rescission of the separation agreement, and may have had that effect in this case. It appears * * *, however, that she at least attempted to stand on the separation agreement and to preserve her rights thereunder while demanding temporary relief in accordance with its terms by way of a court order in the action. Whether her conduct was, in fact, a repudiation and operated to rescind the agreement, in my opinion, presents an issue of fact * *

On cross-appeals by the parties to the Appellate Division, the order of Special Term was so modified that it now provides: Ordered, that defendant’s motion for partial summary judgment be and the same is hereby granted, and the complaint, save as to the sum of $187.50 for which summary judgment is granted to plaintiff, is dismissed.” The correctness of this modification of the order of Special Term is challenged by the plaintiff on this appeal by her to this court from the order of the Appellate Division.

The Appellate Division said: The non-payment by defendant of the installments due under the separation agreement and his commencement of an action for annulment afforded the plaintiff an election to treat the contract as remaining in existence or as having been abandoned. (Cases cited.) By virtue of the application for temporary alimony, the procurement of an order directing the payment of same, and the enforcement of statutory remedies for collection thereof, the plaintiff made her election. Her rights under the contract and to alimony could not both co-exist. (Cases cited.) While the order granting alimony provided that it was ‘ without prejudice to the said separation agreement,’ this provision, in the light of the election to seek alimony, must be deemed to relate to the right of plaintiff to recover installments which had theretofore accrued.” (259 App. Div. 1093.) This conclusion was reached by the Appellate Division as matter of law. In our judgment, the record did not warrant a summary disposition of the issue in that degree.

When a husband is in default on his obligation to support his wife in accordance with an agreement under which they are living apart, it may be that the wife must at times make an election of remedies. She can then perhaps in some circumstances be made to choose whether she will stand upon the husband’s contract obligation to support her or upon his marital obligation to do so in the manner defined by law. (Sockman v. Sockman, 252 App. Div. 914). At all events, failure of the husband to support the wife can in that case be made by her a basis for rescission of their separation agreement. (See Randolph v. Field, 165 App. Div. 279; Ryskind v. Ryskind, 230 App. Div. 481. Cf. Braunworth v. Braunworth, 285 N. Y. 151, decided herewith.) The Appellate Division was of opinion that in the present case the plaintiff was inevitably to be taken to have adopted such a course against the defendant, with the consequence that she had thus terminated the separation agrément to which she would now hold him. We cannot agree to this hard interpretation of the equivocal affidavits which constitute the gist of the record.

In the action brought by the defendant to annul his marriage to the plaintiff, she was not entitled to alimony in the character of alimony, seeing that their marriage had theretofore been dissolved by the decree of divorce which she had secured in the State of Nevada. Nor did the plaintiff (as defendant in the annulment action) unmistakably demand alimony simply as such. Instead her application in the annulment action was that she be awarded alimony without prejudice to her rights under the separation agreement of August, 1934. The conformable direction of the court was that she have temporary alimony in lieu of payments under the aforesaid separation agreement * * * but without prejudice to the said separation agreement.” Whether such an order should have been made is not the question now. (Cf. Butler v. Butler, 206 App. Div. 214). The question now is whether the plaintiff’s acceptance from the defendant of alimony so awarded was in fact an election by her to rescind their separation agreement. We agree with "the Special Term that this issue was not to be decided without a trial.

The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs to the appellant in. this court and in the Appellate Division.

Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.


text:
    In the Matter of Solomon Turel et al. against John H. Delaney et al., as Members of the Board of Transportation of the City of New York, et al., Respondents. Isidore Mufsen, Appellant.

      Argued January 8, 1941;
    decided March 6, 1941.

      Albert B. Breslow for appellant.

      Trabue Carswell, Paul L. Ross and Ralph R. Monroe for John H. Delaney et al., as members of the Board of Transportation of the City of New York, respondents.
   Loughran, J.

The subject-matter of this controversy is a contract whereby the Board of Transportation of the city of New York retained John J. Moorhead (a physician and surgeon) to supply the medical and surgical care and treatment which the Workmen’s Compensation Law (Cons. Laws, ch. 67) required the Board to provide for workmen employed by it in its operation of the city-owned rapid transit railroads. The principal parts of this agreement (in which Dr. Moorhead is called “ the Contractor ”) are these:

ARTICLE I. * * * The Contractor shall be responsible for the general medical and surgical care and treatment of the employees of the Board injured in the course of their employment * * *. He shall employ * * * assistant doctors and surgeons and nurses, subject to approval by the Board, at the compensation hereinafter stated; he shall direct and supervise such assistant surgeons and graduate nurses and assign them to the duties of treatment and care of injured employees.
“ ARTICLE II. * * * For the performance of the services enumerated in Article I hereof, the Board agrees to pay to the Contractor at the rate of Ten Thousand ($10,000) dollars per year; and at the rate of Three Thousand ($3,000) dollars per year for each assistant surgeon regularly assigned to duty * * *; for each graduate nurse, the sum of Twenty-eight ($28.00) dollars per week and further for a junior surgeon at the rate of One Thousand two hundred ($1,200) dollars per year. The Board further agrees to pay to the Contractor the sum of Ten ($10.00) dollars for that part of each day for which any of his assistants may be engaged in giving testimony before a Referee of the Workmen’s Compensation Commission or testimony before the Industrial Board of such commission. The Board further agrees to pay to the Contractor for each home visit paid by an assistant doctor or surgeon, the sum of Three ($3.00) dollars for each such visit * *

This contract was first made for one year from August 2, 1932, and thereafter was renewed from year to year until the present proceeding was brought to obtain an order directing the Board to cancel the annual renewal thereof that had been effected on August 2, 1939. The petitioners allege that their eligibility for the position of Police Surgeon ” has been certified upon a civil service eligible list which was promulgated by the Municipal Civil Service Commission of the city of New York on August 9, 1935. They ask that the order sought by them shall further direct the Commission to certify this list to the Board of Transportation.

The courts below have held that the foregoing contract with Dr. Moorhead was validly made by the Board of Transportation in the exercise of a discretion left to the Board alone. We cannot assent to that conclusion. A contradictory result is dictated by the State Constitution through its command that merit and fitness shall be the basis of the choice of public servants and that the test of such merit and fitness shall be competitive examinations where competitive examinations are practicable (N. Y. Const. art. 5, § 6.)

Salaries of persons employed by the Board of Transportation are paid out of the revenues derived from operation of the city-owned railroads. (Public Service Law, §§ 133, 136; Cons. Laws, ch. 48.) Appointments and promotions to any class or classes of employment in the operating division of the Board are fundamentally subject to the provisions of the Civil Service Law (Cons. Laws, ch. 7). (So, Public Service Law, § 134|.) It is conceded that the Board could here have enlisted a capable medical and surgical organization by means of competitive examinations. In no possible view, then, is the contract in question to be upheld. (See Schaefer v. City of Long Beach, 271 N. Y. 81.)

We find this record an insufficient basis for a direction that the Municipal Civil Service Commission certify to the Board of Transportation the above-mentioned civil service eligible list.

The orders should be reversed, with costs in all courts to the appellant, and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion. The motion to dismiss the appeal should be denied.

Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. C. Vincent Riccardi, Appellant.
    Argued January 9, 1941;
    decided March 6, 1941.

      Peter L. F. Sabbatino and Edward J. Fontana for appellant.

      John J. Bennett, Jr., Attorney-General (John B. O’Hanlon and Ambrose V. McCall of counsel), for respondent.
   Loughran, J.

By leave of a judge of this court, the defendant appeals from an affirmance of a judgment convicting him of the crime of grand larceny in the first degree. The People charged that he had fraudulently induced the complainant to transfer to him property of the value of $2,851.72 by color or aid of false representations or pretenses. (See Penal Law, § 1290.) The representations as laid in the indictment included assertions as to the character or quality of certain mining properties of Holmes Western Consolidated Mines, Inc., and assertions as to the extent of holdings of the capital stock of that corporation by the defendant and Ms associates. Whether such representations and not sometMng else had prevailed upon the complainant was a close question, but a majority of the court are satisfied that the verdict of guilty had an adequate basis in the evidence.

Hoval A. Smith, a mining engineer, was a witness for the defendant. He testified to Ms belief that the mimng properties of Holmes Western Consolidated Mines, Inc., possessed great future potential value. Counsel for the People then produced a private written report in respect of those properties that had been made at one time by Morris J. Elsing. Mr. Smith acknowledged that he knew of Mr. Elsing as a mining engineer and that he had seen this report. Over objection and exception by the defendant, the People on further cross-examination of Mr. Smith read to the witness the detailed conclusions set forth in the report of Mr.- Elsing. These were essentially contradictory of the testimony Mr. Smith had given on his direct examination. When he was asked whether he agreed with Mr. Elsing, the answer of Mr. Smith was: “ That is his opinion. He has a perfect right to say that the property was not any good * * * I am merely giving my opinion as to the properties. I deem them very valuable, as I have stated here. Mr. Elsing, he has a different view point, by those summarizations.”

In overruling the defendant’s objections to all this, the trial judge said: The rules of evidence provide that when an expert takes the stand and gives an opinion, he may * * * be shown other books and other opinions and asked whether he agrees with the other books or the opinions therein contained.” It is impossible to sustain this broad ruling.

The extracts from Mr. Elsing’s report that were read on Mr. Smith’s cross-examination were not offered in impeachment of any testimony of the witness respecting this report. No reference to the report had been made by Mr. Smith on his examination in chief. (Cf. McEvoy v. Lommel, 78 App. Div. 324, 327. See 6 Wigmore on Evidence [3d ed.], § 1700, pp. 18, 19.) In effect, the People were allowed to use the factual deductions of the absent Mr. Elsing as self-probative direct contradictions of Mr. Smith’s evidence for the defendant. So wide a breach of the rule against hearsay cannot be dismissed as an unsubstantial error .on this record.

The judgments should be reversed and a new trial ordered. (See 285 N. Y. 775.)

Lehman, Ch. J., Finch, Conway and Desmond, JJ., concur; Eippey and Lewis, JJ., dissent on the ground that the error was not prejudicial.

Judgments reversed, etc.


text:
    John Donohue, by Myles Donohue, His Guardian ad Litem, Appellant, v. Erie County Savings Bank, Respondent. Myles Donohue, Appellant, v. Erie County Savings Bank, Respondent.
    Argued January 13, 1941;
    decided March 6, 1941.

      Harold Horowitz for appellants.

      Joseph A. Marion for respondent.
   Loughran, J.

The infant plaintiff, a boy of eight, fell into a defectively covered pit upon premises owned by the defendant and was hurt. In this action to recover for his injuries a judgment in his favor has been reversed and his complaint dismissed on the law. The reversal was put wholly on the ground that there is “ not a scintilla of evidence to support a finding that the boy was an invitee or anything more than a bare licensee.” (258 App. Div. 1,4.)

Defendant’s premises are a tenement house in which are twelve or more apartments. At the time he was hurt, the infant plaintiff was one of a number of boys who were playing together in the yard at the rear of this property. Some of the boys lived in the defendant’s apartment house. The boy plaintiff and the others lived in contiguous properties. All the boys had been wont to play day by day throughout the connecting yards of their homes.

The boys who lived in the defendant’s apartment house were witnesses for the infant plaintiff. One gave this testimony : “ Q. You would go over to his yard and play with him? A. Yes. Q. And he would come over to your yard and play with you? A. Yes.” Respecting the occasion in issue, the same boy testified in this fashion: “ Q. Where did you start playing? A. Over in his yard, I think. Q. You were over there playing with him in his yard? A. Yes. Q. You played in his yard and then came over in your yard? A. Yes.” There was also proof that the defendant previously knew that the boys had played their games upon its premises.

The jury were to consider not merely the facts directly sworn to by the witnesses but also the facts that were fairly and reasonably to be inferred therefrom. On a scanning of the evidence in that way, the jurors may have reckoned that at the time the infant plaintiff was hurt he was upon the defendant’s property at the implied invitation of bis playmates who made their homes there. In that view, he was not a bare licensee of the defendant. (Bowers v. City Bank Farmers Trust Co., 282 N. Y. 442.) We are a long way from being able to say that such an interpretation of the appearances was one that no fair mind could have reasonably arrived at. The verdict recovered by the infant plaintiff should be reinstated,

The father of the infant plaintiff has appealed from a like reversal of a judgment in his favor in his companion action to recover the expenses of the treatment of his son’s injuries. The verdict recovered by him in that action should be reinstated for the same reasons.

Defendant’s arguments against the correctness of the charge of the trial judge to the jury are not open to it in this court for the want of requisite exceptions.

The judgments of the Appellate Division should be reversed and the judgments of the Trial Term affirmed, with one bill of costs to the plaintiffs in this court and in the Appellate Division. (See 285 N. Y. 744.)

Lehman, Ch. J., Finch, Rippey, Conway and Desmond, JJ., concur; Lewis, J., taking no part.

Judgment accordingly.


text:
    Mary E. Krause, Appellant, v. William Krause et al., Respondents.

      Argued January 17, 1941;
    decided March 6, 1941.

      John S. Ryan for appellant.

      Milton Rabow and Alfred L. Harrison for William Krause et al., respondents.

      Richard W. Caudell for Anna Severin, respondent.
   Loughran, J.

Gustav Krause and Mary Krause were married in July, 1932. He had then three adult children by an earlier marriage, William Krause, Albert Krause and Anna Severin. On December 20, 1935, he opened in the Buffalo Savings Bank an account in his name “ as trustee for Anna Severin.” On July 19, 1938, he executed two warranty deeds, one to his son William and the other to his son Albert. ' Each deed conveyed to the grantee a parcel of real property, Reserving, however, to the grantor, Gustav Krause, the use, the rents and the profits of the hereinbefore described premises for the remainder of his natural life.” Both deeds were recorded on the day of then-execution. Gustav Krause died on October 17,-1938. The balance in the account in the Buffalo Savings Bank was then $3,552.77.

Mary Krause, the widow of Gustav Krause, is the plaintiff in this action and his three children above named are the principal defendants. As the wife of Gustav Krause, plaintiff had an expectancy that at his death she might share as his surviving spouse in the distribution of his estate. (Newman v. Dore, 275 N. Y. 371.) The theory of this action is that this expectant interest of the plaintiff was unlawfully invaded by the above-described transfers which Gustav Krause made to the principal defendants. The trial court (an official referee) held with the plaintiff that these transfers were meant to be mere cloaks for transactions that at bottom were testamentary in character. The judgment of that court was that Gustav Krause had died seized or possessed of the property so dealt with by him and that the plaintiff had a one-third interest therein under the Decedent Estate Law (Cons. Laws, ch. 13).

On appeal by the principal defendants to the Appellate Division, this judgment was reversed and the plaintiff’s complaint was dismissed. The Appellate Division made these new findings: 1. That on or about the 19th day of July, 1938, the decedent executed two warranty deeds, one to each of his sons, William and Albert Krause, cpvering the two parcels of real estate described in the complaint herein, conveying thereby to each of them the fee absolute of the respective property described, therein. 2. That the deceased Gustav Krause intended to and did make a gift to his daughter, Anna Severin, one of the defendants herein, of the sums of money deposited in the Buffalo Savings Bank.” On this appeal by the plaintiff we have reviewed these findings of the Appellate Division.

Section 18 of the Decedent Estate Law provides: “ Where a testator dies after August thirty-first, nineteen hundred and thirty, and leaves a will thereafter executed and leaves surviving a husband or wife, a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy, subject to the limitations, conditions and exceptions contained in this section.” The trial court made a finding as follows: “ That heretofore and on July 19th, 1938, Gustav Krause executed a Last Will and Testament now on file in the Surrogate’s Office of Erie County, New York, but unprobated, in which he devised and bequeathed all his property to his three children, defendants in this action, share and share alike, entirely ignoring his wife and foiling to mention her name in said Will.” This finding has not been challenged. The controversy has been presented to us on the assumption that the document which has been filed as the will of Gustav Krause is a properly executed testamentary instrument. For the purposes of this appeal, we adopt that assumption and accordingly take for granted that the plaintiff is prima fade warranted in invoking the policy of section 18 of the Decedent Estate Law.

In Newman v. Dore (supra) we said: “ Since the law gives the wife only an expectant interest in the property of her husband which becomes part of his estate, and since the law does not restrict transfers of property by the husband during his life, it would seem that the only sound test of the validity of a challenged transfer is whether it is real or illusory. * * * The test has been formulated in different ways, but in most jurisdictions the test applied is essentially the test of whether the husband has in good faith divested himself of ownership of his property or has made an illusory transfer” (p. 379).

(1) As to the warranty deeds in question: Each of these two deeds was an outright conveyance of a fee subject to a life estate in the grantor-decedent. No power of revocation was contained in either instrument. Both instruments were recorded. The trial court found, however, that each of these two deeds was made by Gustav Krause without consideration. These findings have been reversed but no new contrary finding has been made. The Appellate Division, we take it, was of opinion that whether the defendant-grantees had given any consideration to the grantor was a matter uf no moment. We reach the same conclusion;

The transaction evidenced by either of these deeds was a real transaction in that thereby Gustav Krause divested himself of a major legal estate or interest in real property in accordance with the essential forms of law. (Real Prop. Law, art. 8; Cons. Laws, ch. 50.) We cannot find in section 18 of the Decedent Estate Law any suggestion that such a conveyance by a husband or wife was ever to be defeated by the other spouse merely on the score of its having been voluntary. Rules having to do with voluntary conveyances as frauds upon creditors have no bearing in this connection. In Newman v. Dore (supra) we approved a statement of the now relevant law which had been formulated by the Supreme Court of Pennsylvania in these words: “ The good faith required of the donor or settlor in making a valid disposition of his property during life does not refer to the purpose to affect his wife but to the intent to divest himself of the ownership of the property. It is, therefore, apparent, that the fraudulent intent which will defeat the gift inter vivos cannot be predicated of the husband’s intent to deprive the wife of her distributive share as widow.”

It follows that the deed from Gustav Krause to the defendant William Krause and the deed from Gustav Krause to the defendant Albert Krause must stand.

(2) As to the account in the Buffalo Savings Bank: This account was opened December 20, 1935, by Gustav Krause in his name as trustee for Anna Severin.” No withdrawal was ever made thereon. We have noticed that at the death of Gustav Krause on October 17,1938, the balance in the account was $3,552.77. Anna Severin (the defendant daughter of Gustav Krause by his former marriage) lives in Germany. It does not appear that she was ever in this country. The sole evidence of the aim of the account is the form of the deposit. In these circumstances, we are to draw the inference that the depositor intended to create a trust but intended to reserve power during his lifetime to deal with the deposit in any way he should choose.” (1 Scott on the Law of Trusts, p. 358; Matter of Totten, 179 N. Y. 112.) The record does not suggest that this tentative trust was ever altered by the settlor to the advantage of the beneficiary. There was no foundation for a finding that Gustav Krause made a gift inter vivos to Anna Severin of the sums deposited by him in the Buffalo Savings Bank. She cannot claim to have had any real interest therein during his lifetime. (See Scott, supra, p. 360.)

■ In respect of that transaction, the trial court made the finding “ that said settlement or transfer was an illusory settlement or transfer.” This finding was reversed by the Appellate Division. We think the trial court was right on this branch of the case and that its finding should be reinstated. (Newman v. Dore, supra.)

The ultimate conclusion of the trial court — that the plaintiff had a one-third interest in this bank account — was not called for. Any determination of the extent of the plaintiff’s interest in the estate of Gustav Krause should have awaited probate of his will.

The judgment of the Appellate Division should be modified in accordance with this opinion and- the matter remitted to the Special Term for further proceedings, without costs to any party.

Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.


text:
    Samuel Adler, Inc., Respondent, v. Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    Argued January 14, 1941;
    decided March 6, 1941.

      Robert G. Blabey and Milo R. Kniffen for appellant.

      Samuel Rubin for respondents.
   Loughran, J.

This is an appeal by the Commissioner of Agriculture and Markets from an affirmance of a judgment granted by the Albany County Court in this form: “ Adjudged that the plaintiff, Samuel Adler, Inc., recover of the defendant, Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, the sum of $250, together with interest thereon from January 29th, 1937, amounting to the sum of $41.01, making a total of $291.10, together with the sum of $72 costs as taxed, making a total sum of $363.10, and that plaintiff have execution therefor.” The Commissioner-appellant takes the ground that this judgment assumes to impose a liability upon the State of New York. If he is right in that position, the judgment is a nullity, because the State of New York has not consented that any action to recover a stun of money may be brought against it in any of its tribunals other than the Court of Claims (Court of Claims Act, §§ 12,12-a [L. 1920, ch. 922, as amd.] see now §§ 8, 9 [L. 1939, ch. 860]).

Article 21 of the Agriculture and Markets Law (Cons. Laws, ch. 69) provides: An "applicant for a license to operate as a milk dealer shall file an application upon a blank prepared under authority of the commissioner * * *. Such application shall be accompanied by the license fee required to be paid.” (§ 258.) The commissioner shall deposit to his credit all license fees and other moneys collected by the division [of milk control] under this chapter in a responsible bank, banking house or trust company in the city of Albany which shall pay the highest rate of interest for such deposit. On or before the tenth day of each month the commissioner shall pay over to the department of taxation and finance, division of finance, all license fees received by the division [of milk control] from those to whom licenses were issued during the preceding month and all other moneys received by the division during the preceding month. Such money shall be paid into the state treasury to the credit of the general fund.” (§ 258-i.) (Cf. State Finance Law [Cons. Laws, ch. 56], § 121.)

Pursuant to these provisions, plaintiff on March 6, 1936, made application to a predecessor in office of the present Commissioner for a license to operate as a milk dealer tendering therewith the requisite fee of $250. This application was denied on September 2, 1936. Plaintiff’s subsequent demand for a return of the amount of the fee so transmitted had no result. These facts were set forth in the complaint in this action which was thereafter brought by the plaintiff in the Albany County Court. The foregoing judgment followed and has been affirmed by the Appellate Division.

' It will be noticed that license fees received from those to whom licenses were issued ” were the only license fees which the statute directed the Commissioner to pay over for deposit in the State Treasury. Stressing this aspect of the statute, the County Court reasoned that therefore upon the denial of an application for a license, a demand for the return of the money so deposited is not in a strict sense an application for a refund, but rather for the return of the moneys deposited conditionally.” On that interpretation, the Commissioner was found to be suable personally as a wrongful possessor of “ the ” money of the plaintiff. We think we should not assent to this conception of the nature of the controversy.

The statute commanded the Commissioner in the first instance to deposit to his credit in a single fund all moneys collected by the Division of Milk Control. The fee paid by this plaintiff was absorbed into that general fund and had thereafter no severable character. This action was one to compel restitution to the plaintiff of an equivalent of that payment. But the Commissioner had no authority to repay the plaintiff. Any duty to make such reimbursement was a duty of the State. The Legislature has now made this plain. (See L. 1940, ch. 178.) The present record is consistent with no different idea. The Commissioner was sued by the title of his office. The judgment accosts him in his official status. The State is the real defendant here.

The judgments should be reversed and the complaint dismissed, with one bill of costs in all courts in this case and in Adler’s Quality Milk, Inc., v. Noyes (285 N. Y. 625), decided herewith.

Lehman, Ch. J., Finch, Lewis, Conway and Desmond, JJ., concur; Rippey, J., dissents.

Judgments reversed, etc.


text:
    In the Matter of the Claim of Georgetta Brown, Respondent, against New York State Training School for Girls et al., Appellants. State Industrial Board, Respondent.
    Submitted January 8, 1941;
    decided March 6, 1941.

      George J. Hayes and William F. O’Rourke for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.

      Edward H. Best for claimant, respondent.
   Lewis, J.

An award of Statutory compensation is sanctioned by the Workmen’s Compensation Law (Cons. Laws, ch. 67) only in the event of proof that the act which caused the disability or death of the employee was “ * * * one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work.” (Matter of Heitz v. Ruppert, 218 N. Y. 148, 152. See, also, Matter of Connelly v. Samaritan Hospital, 259 N. Y. 137, 141.)

We apply that test to the record at hand from which it appears that the claimant’s husband met his death when, in an effort to alleviate pain following an operation made necessary by a compensable injury, he mistakenly swallowed a bichloride of mercury tablet instead of a tablet containing a mild sedative which had been prescribed by his surgeon.

The decedent, while employed as a farm laborer at the State Training School for Girls at Hudson, New York, sustained a crushing injury to his right foot on November 20,1935. Six months thereafter, on May 26,1936, the onset of osteomyelitis made necessary the amputation of the terminal phalanx of the right great toe. Post-operative treatments continued until June 16, 1936, when he was discharged by his surgeon by whom we are told that The wound was [then] closed over. No other dressings were necessary.” At that time a sedative tablet was prescribed “ which may have been aspirin for pain or it may have been a nerve sedative.” At no time following the amputation did the decedent’s surgeon prescribe bathing the right foot in bichloride of. mercury solution, nor did the decedent inform his surgeon that he was using such a solution. It appears, however, that on an occasion in 1930 ■— five years prior to the amputation mentioned above — the decedent had suffered an injury to the same foot which had then become infected. On that prior occasion the same surgeon — who five years later performed the operation following the injury suffered in 1936 — had treated the decedent and had prescribed in 1930 the application of wet dressings of bichloride of mercury solution to the area then infected. At that time bichloride of mercury tablets were dispensed to the decedent in an envelope which • was labeled Poison ” and upon which the surgeon wrote directions for preparing the solution to be used locally as a wash.” From these antecedent facts we pass to events in 1936 which led to the decedent’s death.

On June 21, 1936, five days after the decedent had been discharged by bis surgeon following the amputation which had taken place on May 26, 1936, he experienced pain in his right leg and foot. During the day he took the sedative tablets which his surgeon had prescribed and before retiring for the night he bathed his foot in hot water.

Early the following morning, after a night of pain, the decedent called his wife, the present claimant, and asked her to summon a doctor. He then said to her, “ I believe I have taken the wrong tablet * * * I believe I have taken the mercury tablet.” His surmise- proved to be correct. Instead of taking the sedative tablet, which had been prescribed for pain, he had taken one of the bichloride of mercury tablets which had been in a medicine cabinet with other medicines for the period of five years since his prior injury in 1930. The decedent’s death followed within five days and concededly was due to bichloride of mercury poisoning.

The award made to the claimant by the State Industrial Board, which has been affirmed by the Appellate Division, one justice dissenting, rests upon findings that “ The taking of this bichloride of mercury tablet by mistake, the painful injury to his right foot as aforesaid, and the attempt to minister thereto by taking the bichloride of mercury tablet by mistake to alleviate said pain, flow directly from and were the result of his employment as aforesaid, andjwere related to the said accident of November 20, 1935, and his death was the result of the said accidental injuries * * * and arose out of and in the course of his employment,”

We find in the record no evidence which gives support to such findings. The facts here differ from those upon which rests the decision in Matter of Russjak v. Metal Stamping Co. (234 App. Div. 642; affd., 259 N. Y. 575), upon which the respondents rely. There the claimant’s husband had suffered in an industrial accident the loss of four fingers of each hand. More than a year later, while bathing his injured hands in hot water to relieve pain, the decedent fell to the floor sustaining head injuries which brought on a general paresis and caused his death. A close examination of the record in that case discloses, however, that the decedent struck his head upon the floor when he swooned by reason of the intense pain which related itself directly to the prior industrial accident. Likewise in Matter of Chiodo v. Newhall Co. (228 App. Div. 740; affd., 254 N. Y. 534) and Matter of Prentice v. Weeks (239 App. Div. 227; affd., 264 N. Y. 507), cited by the respondents, there was in each case proof of a direct relation, without an intervening cause, between the first industrial accident and the later injury sustained by the claimant for which an award of compensation was granted.

In the case at bar we find no evidence that the accident which befell the decedent on November 20, 1935, and the amputation which followed, were sufficient to derange the decedent’s mind or to affect his eyesight. (Cf. Matter of Delinousha v. National Biscuit Co., 248 N. Y. 93, 95, 96.) True, he had suffered pain throughout the day and night which preceded his fatal mistake. But proof of pain, standing alone, does not permit the implication that such a derangement had taken place as would have caused the decedent to make the mistake which took his life.

The proof is not disputed that an independent act by the decedent intervened to cause his death. His fatal act of taking internally a bichloride of mercury tablet, instead of the mild sedative prescribed for his use, did not relate itself to the accident which he sustained on November 20, 1935. Following such independent act by the decedent there remained intact no chain of causation between his accidental injury and the fatal consequences of his mistake.

Having tested the record by the rule first quoted above, we cannot say that the decedent’s death was a natural consequence of the risks incidental to his employment; nor was it directly connected with his work. (Matter of Heitz v. Ruppert, supra, p. 152.)

Finding no evidence that his death resulted from an accidental injury arising out of and in the course of employment (Workmen’s Compensation Law, § 2, subd. 7; § 10) the order of the Appellate Division should be reversed, the award of the State Industrial Board vacated, and the claim for death benefits should be dismissed, with costs in this court and in the Appellate Division against the State Industrial Board.

Lehman, Ch. J., Loughran and Finch, JJ., concur; Rippey, Conway and Desmond, JJ., dissent.

Ordered accordingly.


text:
    In the Matter of the Claim of May B. Oram, Appellant, against Byron G. Moon Co., Inc., et al., Respondents. State Industrial Board, Appellant.
    Argued January 8, 1941;
    decided March 6, 1941.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum, Joseph A. McLaughlin and Isaac Frank of counsel), for State Industrial Board, appellant.

      William Harvey Smith for claimant, appellant.

      William B. Davis and E. C. Sherwood for respondents.
   Lewis, J.

The claimant was employed as assistant to the president by The Byron G. Moon Co., Inc., an advertising agency which has its principal office in the city of New York. According to testimony by the president, the claimant was under a “ standard instruction to look after whatever comes up as my assistant in the conduct of our business as a company.” Her time from nine o’clock in the morning until she left as late as ten or twelve at night * * * [was] entirely at the disposal of the company.” She had a luncheon hour, but the conditions at the office were described as such that her luncheon was “ a very movable occasion.”

On the day of the accident which befell the claimant she had luncheon at the noon hour with two other employees. One of her companions was the head of the copy and art department, the work of which was carried on at the company’s office. Her other companion was a stylist whose work for the company took her out of the office during business hours, and whose entire time was paid for by a single client of the agency. The claimant described the noon hour engagement as “ a business luncheon on behalf of the company ”— a time when these three employees from different departments “ had been going over matters that [they] were working on together.” Her statement upon that phase of the case finds support in testimony by the company’s president that on the day of the accident the claimant had been asked to meet with the company’s stylist to discuss matters which the stylist had undertaken for the single client who engaged her time. The luncheon engagement thus made had been arranged to include the head of the copy and art department. Such meetings, according to the president, were in line with the general policy that these people meet frequently to serve our clients’ interests.”

The office of the claimant’s employer was at No. 401 Broadway, which is on the westerly side of the street. The luncheon attended by the claimant and her two co-employees was at Schrafft’s restaurant which is also located on the westerly side of Broadway north of Chambers street and eight blocks south of their employer’s office. When the luncheon and conference were at an end the claimant walked across Broadway to the Chambers street office of the Emigrant Savings Bank, where she made a deposit to her personal account. Having accomplished her purpose there she passed northerly through the bank to an exit on Reade street from whence she returned — a distance of less than a city block — to Broadway and proceeded northerly on the easterly side toward her employer’s office. She had walked northerly two blocks on the easterly side of Broadway and had reached the southeast corner of Broadway and Thomas street when she fell and sustained the personal injuries which are the subject of her present claim.

The State Industrial Board made an award based upon findings that the claimant’s injuries were sustained accidentally while she was returning to her employer’s office after a luncheon conference which she attended in the interest of her employer and that such injuries arose out of and in the course of her employment. The Appellate Division, two justices dissenting, reversed the award and dismissed the claim upon the ground that following her luncheon engagement the claimant had attended to a personal errand and that, at the time and place of her injuries, she had not regained the route she would have followed in returning from her luncheon to her employer’s office.

There is ample evidence to support the finding by the Industrial Board that the luncheon engagement attended by the claimant was connected with and in furtherance of her employer’s business. Her injuries were sustained when she was returning from the luncheon to her employer’s office. True it is, that between the time she left the luncheon and the time of her injuries the claimant had walked less than a block east of Broadway to attend to an item of personal banking. But having left the bank she returned directly to Broadway and was proceeding to her employer’s office along the easterly side of that thoroughfare when she was injured.

We regard it as too narrow a view of the problem to hold, as has the Appellate Division, that the claimant’s injuries were non-compensable because she met with accidental harm while returning from a business luncheon to her employer’s office on the west side of Broadway by a course which led along the east side instead of the west side of that thoroughfare. We find no proof from which an inference may fairly be drawn that at the time and place of her injuries the claimant had temporarily abandoned her employment. It was to further the interests of her employer that she had kept her luncheon engagement; it was her employment which caused her, after her personal errand at the bank had been completed, to regain the course along Broadway by which she was to return to her employer’s office. We cannot say as matter of law that by reason of a deviation, measured by the width of a city street, the claimant, at the time of her injuries, was not in the course of her employment. (See Riley v. Standard Oil Co., 231 N. Y. 301, 304, 306; Matter of Schwimmer v. Kammerman & Kaminsky, 262 N. Y. 104, 105, 106; Matter of Graves v. Tide Water Oil Sales Co., 249 App. Div. 911; affd., 275 N. Y. 583; Matter of Theyken v. Diplomat Products, Inc., 243 App. Div. 822; affd., 268 N. Y. 658; Matter of Gibbs v. Macy & Co., 214 App. Div. 335; affd., 242 N. Y. 551 ; Matter of Harby v. Marwell Bros., Inc., 203 App. Div. 525; affd., 235 N. Y. 504.)

The findings by the State Industrial Board that the claimant sustained accidental injuries which arose out of and in the course of her employment (Workmen’s Compensation Law, § 2, subd. 7, § 10; Cons. Laws, ch. 67) are sustained by substantial evidence.

It follows that the order of the Appellate Division should be reversed, and the award by the State Industrial Board affirmed, with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

Ordered accordingly.