author: Conway, J. Desmond, J.

text:
    In the Matter of the Accounting of Katharine D. Gruner, as Administratrix with the Will Annexed of Otto H. Gruner, Deceased, Respondent. New York Trust Company, Appellant; United States of America et al., Respondents.
    Argued May 22, 1946;
    decided July 23, 1946.

      «7. Adam Murphy and Robert Nelson Shiverts for appellant.
    I. The assignment by the decedent to the trust company is not rendered invalid by the rule of Benedict v. Ratner (268 U. S. 353). (Schwabacher v. Ehrich, 168 Misc. 869, 254 App. Div. 847, 279 N. Y. 813; Matter of Marchant v. Mead-Morrison M. Co., 252 N. Y. 284; Hangen v. Hachemeister, 114 N. Y. 566; Russell v. Winne, 37 N. Y. 591; Potts v. Hart, 99 N. Y. 168; Frost v. Warren, 42 N. Y. 204; Skilton v. Codington, 185 N. Y. 80; Johanns v. Ficke, 224 N. Y. 513; Sexton v. Kessler, 225 U. S. 90; Matter of Bernard & Katz, 38 F. 2d 40; Manufacturers Finance Co. v. Armstrong, 78 F. 2d 289; McNeeley v. Welz, 166 N. Y. 124; Schermerhorn v. Gardenier, 107 App. Div. 564, 184 N. Y. 612; National Bank of Deposit v. Rogers, 44 App. Div. 357, 166 N. Y. 380.) II. Assignment of a membership in a commercial exchange as collateral is valid. (Matter of Worrall, 79 F. 2d 88; Rubin v. Whitney, 162 Misc. 821; O’Dell v. Boyden, 150 F. 731; Nashua Savings Bank v. Abbott, 63 Mass. 1058; Matter of Smith-Flynn Commission Co., 292 F. 465.) III. A membership upon the New York Stock Exchange is property which is transferable. (Citizens National Banh v. Durr, 257 U. S. 99; Matter of Ulmann v. Thomas, 255 N. Y. 506; Powell v. Waldron, 89 N. Y. 328; Matter of Hearns, 214 N. Y. 426; Matter of Snow v. McLane, 252 App. Div. 369; Sterling v. Chapin, 185 N. Y. 395; Hyde v. Woods, 94 U. S. 523; Page v. Edmunds, 187 U. S. 596; Platt v. Jones, 96 N. Y. 24; Matter of Sand v. Beach, 270 N. Y. 281; Portuguese-American Bank v. Welles, 242 U. S. 7.) IV. The lien of the trust company is prior to any claim of the United States or the State of New York. (United States v. Oklahoma, 261 U. S. 253; United States v. Giger, 26 F. Supp. 624; Spohane County v. United States, 279 U. S. 80; United States v. Sullivan, 19 F. Supp. 695.)

      Charles B. Clancy and Morrison T. Hankins for Katharine D. Gruner, as administratrix, respondent.
    I. The purported assignment to the trust company created no legal or equitable lien. (Benedict v. Ratner, 268 U. S. 353; Matter of M. J. Hoey & Co., 19 F. 2d 764; Zartman v. First Nat. Bank, 189 N. Y. 267.) II. A seat on the Stock Exchange may not be assigned. (Schwabacher v. Ehrich, 168 Misc. 869, 254 App. Div. 847, 279 N. Y. 813; Ketcham v. Provost, 156 App. Div. 477, 215 N. Y. 631; N. Y. ex rel. Whitney v. Graves, 299 U. S. 366.) III. The New York Stock Exchange constitution and by-laws do not recognize an assignment of membership or seat. (N. Y. ex rel. Whitney v. Graves, 299 U. S. 366; Matter of M. J. Hoey & Co., 19 F. 2d 764.)

      John F. X. McGohey, United States Attorney (Thomas G. Donlan of counsel), for United States of America, respondent.
    I. Under the Bules and Constitution of the New York Stock Exchange the appellant was not the holder of a valid assignment of the decedent’s membership or the proceeds thereof. II. The purported assignment to the trust company is fraudulent as a matter of law. (Benedict v. Ratner, 268 U. S. 353; Matter of M. J. Hoey & Co., 19 F. 2d 764.) III. The statutory priority of the United States is superior to. the imperfect lien of the appellant. (U. S. Code, tit. 31, § 191; Price v. United States, 269 U. S. 492; United States v. Texas, 314 U. S. 480; United States v. Waddill Co., 323 U. S. 353.)

      Nathaniel L. Goldstein, Attorney-General (Mortimer M. Kassell and Francis Kelliher of counsel), for State of New York, respondent.
    I. The purported assignments to appellant created no legal or equitable lien and were void as against all other creditors of decedent. (Mutter v. State of New York, 178 Misc. 360; Schaefer Brewing Co. v. Amsterdam Tavern, Inc., 171 Misc. 352 ; Alchar Realty Corp. v. Meredith Restaurant, Inc., 256 App. Div. 853; Matter of Frank v. Lutton, 267 App. Div. 703.) II. The State’s right to preference in the distribution of an insolvent estate is superior to the rights of a creditor unless he has perfected a specific lien. (Surrogate’s Court Act, § 212; Tax Law, § 352; Matter of Atlas Television Co., 273 N. Y. 51; Matter of McClatchey, 170 Misc. 696; Marshall v. New York, 254 U. S. 380; Matter of Brown Printing Co.,
      285 N. Y. 47; Matter of Lincoln Chair & Novelty Co., 274 N. Y. 353; Matter of Carnegie Trust Co., 206 N. Y. 390; Matter of Smith v. Meader Pen Corp., 255 App. Div. 397, 280 N. Y. 554; Spohane County v. United States, 279 U. S. 80; United States v. State Bank, 6 Pet. [U. S.] 29; United States v. Waddill Co., 323 U. S. 353; United States v. Texas, 314 U. S. 480.)
   Conway, J.

There is presented to us the question, among others, of the extent to which an equitable lien may be imposed upon a New York Stock Exchange seat and the remedy available for its enforcement by the assignee.

One Otto Harry Gruner on May 6, 1929, made an assignment to the New York Trust Company (hereinafter referred to as trust company) as security for a loamof $212,000, of all his right, title and interest in and to his membership and seat upon the New York Stock Exchange (hereinafter referred to as the exchange) in words which were in part as follows: “ Said Otto H. Gruner hereby transfers, assigns and sets over to The New York Trust Company free and clear of any claims, liens or encumbrances whatsoever all his right, title and interest, legal and equitable, in and to a full membership and seat upon the New York Stock Exchange. This assignment, though absolute, is nevertheless an assignment as collateral and security for the demand note of said Otto H. Gruner in the amount of Two hundred and twelve thousand Dollars made simultaneously herewith.

“ The intent hereof is to transfer to The New York Trust Company said membership and seat and to confer upon the New York Trust Company full right and power in its absolute discretion to dispose of said seat at any time without any notice to me and without advertisement by sale, public or private, or at auction, to be credited upon said note and any surplus over the amount due on said note and the expenses of sale to be-paid to me. * * * ”

Later, on April 21, 1933, but as of May 6, 1929, Gruner assigned the proceeds of the sale -of the seat in words which were in part as follows: ‘1 Said Otto H. Gruner hereby transfers, assigns and sets over to The New York Trust Company, free and clear of any claims, liens or encumbrances whatsoever, all his right, title and interest in and to the proceeds of a membersMp in and seat upon the New York Stock Exchange. This assignment, though absolute, is nevertheless an assignment as collaterial and security for the demand note of said Otto H. Gruner in the amount of $212,000 made simultaneously with the date hereof.

“ The intent hereof is to assign and transfer to The New York Trust Company the full proceeds of said membership and seat to be credited upon said note and any surplus over the amount due on said note and the expenses of sale to be paid to the undersigned.”

In each of those assignments there were the following clauses: I agree to pay all dues and charges of every kind and character and to do everything necessary to keep said membership one in good standing and to suffer no obligations of any kind in favor of other members of the Stock Exchange, or any firm of which any member of the Stock Exchange may be a member, ever to take precedence over the rights of The New York Trust Company hereunder.

I agree to maintain said membership and seat free of claim and liability for the payment of any obligation to any other member of the New York Stock Exchange or any firm to which any member of the New York Stock Exchange belongs or to anyone else.”

On May 17, 1933, the trust company advised the exchange of the assignment and the exchange acknowledged receipt of its letter. Nothing turns upon the difference in the wording of the two assignments.

At the time of the death of Gruner in December, 1942, there was due the trust company $59,201.93 and on that day the seat had a value of $29,000. There were no charges against it in favor of the exchange, the members of the exchange, or customers of the decedent. The exchange sold the seat in March, 1944, for $49,000 and that sum was turned over to Gruner’s ‘administratrix c.t.a. under a stipulation that such action should be without prejudice to the rights of the trust company. The questions involved herein are presented upon the final accounting of the administratrix rather than in an action which had originally been brought by the trust company against the exchange and Katharine D. Gruner, individually and as administratrix, and which has been discontinued.

A seat on the exchange carries with it certain attributes of property — it is the subject-of ownership, of use, and of sale. As was said in Powell v. Waldron (89 N. Y. 328, 331, 332): “ We think the right of the judgment debtor to a seat in the Cotton Exchange was property. That it had value was proved and is conceded; and that it could be transferred to a certain class of purchasers, under prescribed rules and conditions, is also established. The defendants took it as collateral to the note of Bobbins and held it as security for that debt, and thereby plainly treated it as valuable property. Although of a character somewhat peculiar, its use restricted, its range of purchasers narrow, and its ownership clogged with conditions, it was nevertheless a valuable right, capable of transfer and correctly decided to be property.” (See, also, Matter of Hellman, 174 N. Y. 254.) Under the provisions of the constitution of the exchange, a member may not transfer ownership of the seat to another without the consent of the committee on admissions, which elects new members. A member may not transfer the use of the seat to a nonmember since the privilege of trading at the exchange is a personal privilege which may be exercised only by the owner. (See Platt v. Jones, 96 N. Y. 24.)

We come then to the question of sale. The constitution of the exchange provides that upon a transfer of membership, the proceeds of the sale of the seat shall be applied by the exchange to payments of the following: (1) sums due the exchange (2) sums due the Stock Clearing Corporation (3) sums due other members or member firms arising from losses upon the closing out of member contracts (4) sums, in the discretion of the board of governors, which represent any unusual expenses incurred by the exchange in connection with litigation over the disposition of the proceeds of the seat. Provision is then made that the surplus of the proceeds shall be paid directly to the person whose membership is transferred or to his legal representative. The constitution of the exchange as it existed in 1929 is' the applicable one here and it is therefore unnecessary to consider changes made by the constitution adopted in 1941. There is no provision in that constitution, which has been called to our attention, providing for the sale of a member’s seat by a nonmember creditor. Nor has any rule or practice of the exchange been called to our attention under which the exchange may institute involuntary transfer proceedings against a member because of his indebtedness to a nonmember. If such a proceeding be instituted by the committee on admissions on its own initiative against a member because of his indebtedness to other members, payments of the surplus of the proceeds of the sale must be made to the member, or his legal representative. It thus appears that, although the assignment purported to give the trust company power to sell the seat with or without notice to the assignor, 'that power could not be exercised except by the interposition of a court of equity by decree in personam compelling the co-operation of the assignor by directing him to take each and every step necessary to bring about the sale of his seat, since there is no provision in the constitution or rules of the exchange which .makes co-operation of the committee on admissions available as to a nonmember. (Matter of Ulmann v. Thomas [Lehman, J.], 255 N. Y. 506, 512, and cases there cited; Clute v. Loveland, 68 Cal. 254 [where the rules of the San Francisco Stock and Exchange Board were more liberal]; Nashua Savings Bank v. Abbott, 181 Mass. 531; Meyer on the Law of Stock Brokers and Stock Exchanges, pp. 119-120.) In Matter of Ulmann v. Thomas (supra) we said (p. 512): “ Membership in an exchange is property which may be reached by appropriate proceedings supplementary to execution or creditors’ bills, but only where the court obtains jurisdiction by which it can compel an involuntary transfer. (See Freeman on Executions [3d ed.], § 110.) In O’Dell v. Boyden (150 Fed. Rep. 731) Judge Lurton stated: 1 Only by decree in personam compelling the bankrupt member can such a transfer of membership be effectuated as will put the buyer in the place of Henrotin as a member.’ (Cited with approval in Chicago Board of Trade v. Johnson, supra.) No such decree in personam can be made in these proceedings against a judgment debtor not within the jurisdiction.”

When we come to the question of the proceeds of the sale, a different question is presented. Each member of the exchange has a right to the proceeds of the sale of his seat and that right may be assigned. (See Field v. City of New York, 6 N. Y. 179; Hinkle Iron Co. v. Kohn, 229 N. Y. 179.) After the sale of the seat has been consummated, no provision of the constitution or rule of the exchange stands in the way of the assignee. The interest which passed to the trust company here by reason of the assignment was the right to receive the proceeds when they became available after the payments enumerated supra. When they became available, the lien attached. (See Ketcham v. Provost, 156 App. Div. 477, 484, affd. 215 N. Y. 631; Stevens v. Coolidge, 154 App. Div. 884, affd. 211 N. Y. 604; Wrede v. Gilley, 132 App. Div. 293; Clute v. Loveland, supra.) In Stevens v. Goolidge (supra) a brokerage partnership of Stow & Co. discontinued its business in April, 1907, because of inability to meet its obligations. There were but two partners and a seat was in the name of Goolidge. In 1908 Stow and Goolidge borrowed from the plaintiff'in order to obtain money to effect a settlement with their creditors. As security Goolidge pledged and assigned his property interests in the membership and the proceeds of the sale thereof. In 1910 plaintiff brought action to establish and foreclose a lien on the proceeds of the membership, joining as parties defendants the two partners and the exchange, praying for a judgment which should declare and fix plaintiff’s lien and decree the sale of the membership by the exchange. After the commencement of suit, a brankruptcy proceeding was instituted against Goolidge, and the trustee in bankruptcy appeared in the action. Judgment was entered declaring the lien and directing that the surplus of the proceeds (after payment of exchange debts) be paid to plaintiff.

The lien of the trust company here was an inchoate equitable lien which did not become perfected under the circumstances disclosed until the proceeds of the sale of the seat became available after the claims of the exchange and its members were satisfied. (Ketcham v. Provost, supra; United States v. Texas, 314 U. S. 480, 488.)

The cases relied upon by the respondents are not controlling. Benedict v. Ratner (268 U. S. 353) involved an assignment, as collateral, of accounts receivable under which the debtor was permitted to apply moneys paid upon such accounts to his own uses until demand was made by the assignee. The assignment was held to be fraudulent and void as to creditors because dominion was continued in the debtor “ inconsistent with the effective disposition of title and creation of a lien ” (p. 363). In the instant case there was not the reservation of a dominion which permitted the diminishing of the value of the membership in the exchange and of the seat, but, on the contrary, an agreement ‘ ‘ to maintain said membership and seat free of claim and of the New York Stock Exchange or any firm to which any member of the New York Stock Exchange belongs or to anyone else.” In Matter of M. J. Hoey & Co. (19 F. 2d 764) there liability for the payment of any obligation to any other member was an agreement by the owner of a New York Stock Exchange seat to hold it in trust for one who loaned him the purchase price. Again there was the reservation," not found here, in the owner, of the right to diminish the value of the security by incurring debts to other members of the exchange. The court there also suggested that since there was continuation of ostensible ownership, the agreement would be fraudulent as to customers of the member. Here there are no debts due customers. Moreover, full notice of the assignment was given to the exchange. In Zartman v. First National Bank (189 N. Y. 267) a mortgage of shifting stock, which had not been acquired when the mortgage agreement was made, was held to be void where the mortgagor was permitted to sell the shifting stock for his own benefit. In Schwabacker v. Ehrich (168 Misc. 869, affd. 254 App. Div. 847, leave to appeal denied 279 N. Y. 813), no notice of any assignments had been given to the exchange or to Schwabacher & Co. The only opinion written was by the trial court and the statement therein that New York Stock Exchange membership could not be assigned under any circumstances was not a necessary holding in view of the facts there presented. The finding in the Schwabacher case that the rules of the exchange forbade a pledge of a seat is not applicable here, since there is no such provision in the exchange constitution and no exchange rule in evidence forbidding assignments. An examination of the briefs on the application for leave to appeal discloses that the finding there was based upon a circular issued by the exchange to prospective members. The trial court there further found that the rules of the exchange provided that every member who- was a partner was required to declare in the partnership agreement that his membership was contributed to the firm and that the proceeds thereof should be considered as a firm asset in the event of its insolvency; that the partnership articles contained such an agreement made by the assignor Ehrich when he became a member of the firm and that it was in effect when he made the two assignments in controversy which were executed by him after he had granted an option to Schwabacher & Co. to purchase his seat and had received payment in full. The findings of fact, affirmed by the Appellate Division, were there sustained by the evidence and there was nothing for this court to review.

That brings us to the next questions presented which involve the claims of the United States for $21,409.88 for income taxes for the years 1933 and 194-1, and of the State of New York for $2,295.36 for income taxes for the years 1933 and 1937. We shall consider first the claim of the United States.

Section 3466 of the United States Revised Statutes (U. S. Code, tit. 31, § 191) reads as follows: “ Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.”

The statute does not create a lien in favor of the government (Bramwell v. U. S. Fidelity Co., 269 U. S. 483, 488). It simply provides for a priority in payment. The purpose of the statute is “to secure adequate public revenues to sustain the public burden.” (United States v. Emory, 314 U. S. 423, 426.)

The trust company urges that its lien was created before there were any Federal tax claims against the decedent. In other words, that when the lien became perfected there was relation back to the time of its creation. That contention has been held to be without merit, in New York v. Maclay (288 U. S. 290, 293): “ Against mortgagees and purchasers a lien perfected after-wards may take effect by relation as of the date of the inchoate lien through which mortgagees and purchasers became chargeable with notice. The doctrine of relation will not divest the United States of the preference that accrued when receivers were appointed.”

The right of the United States to its statutory priority under section 3466 arose at the moment of the death of the assignor, when ownership in the seat and in the membership in the exchange passed to the administratrix of his insolvent estate. (See Dunphy v. Callahan, 126 App. Div. 11, affd. 194 N. Y. 587; Matter of Hearns, 214 N. Y. 426, 429.) That long antedated the perfecting of the trust company’s lien.

Perhaps it should be pointed out to avoid misunderstanding that, even if the lien had been perfected prior to decedent’s death, it still might not be a “ specific ” lien within the meaning given to that term by the Federal courts when dealing with the priority of the United- States under section 3466 over the statutory lien of State taxes, where no specific property has been seized and appropriated to the satisfaction of the lien or set apart from the general property of the debtor. (United States v. Texas, [Byrnes, J.], supra, 487, 488; New York v. Maclay, supra; United States v. Waddill Co., 323 U. S. 353; Matter of Lincoln Chair & Novelty Co. [Lehman, J.], 274 N. Y. 353, 357-359.) Thus, in United States v. Texas (supra) in referring to a provision of a State statute that all gasoline taxes due by any distributor to the State “ shall be a preferred lien, first and prior to any and all other existing liens, upon all of the property of any distributor, devoted to or used in his business as a distributor * * * ”, the court said that the lien created was nothing more than an inchoate and general lien, and “ did not • of its own force divest the taxpayer of either title or possession. It could not become specific until the exact amount of the taxes due had been determined, and it could not be enforced without the assistance of the courts ” (pp. 484, 488). The court was referring to a statutory lien for taxes which did not become specific, as against the United States under section 3466, even though its amount were determined, until by appropriate action specific property was appropriated and set apart and the taxpayer divested of title or possession of it by the sovereign. Only then might the statutory priority of the United States under section 3466 be avoided. (Matter of Lincoln Chair & Novelty Co., supra, pp. 358, 359.) Thus, even the lien. of a judgment has been held not to be such a specific lien as would deprive the United States of its priority under section 3466. (Thelusson v. Smith, 2 Wheat. [U. S.) 396.) There was also, of course, a common-law possessory specific lien for indebtedness for services performed on the specific chattel upon which the lien, was claimed. There the debtor was divested of possession. (Brown on Personal Property [1936], § 107.) An equitable lien, however, may never be the basis for a possessory action (Pomeroy on Equity Jurisprudence [5th ed.], §§ 165, 1233), but is a charge against a particular item of property and thus has reference to a specific thing, although it does not divest the debtor of title or possession. Court action is necessary to reach the property or its proceeds.

When we come to the claim of the State for the income taxes of 1933 and 1937, different principles apply. This State, unlike the United States, has no general statutory priority as to debts due it. By our State Constitution of 1777, section XXXV, it was provided that “such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this state, subject to such alterations and provisions as the legislature of this state shall, from time to time, make concerning the same. * * * ”

The State has succeeded to the Crown’s prerogative right of priority. (Matter of Carnegie Trust Co., 206 N. Y. 390, 396, 397; Marshall v. New York, 254 U. S. 380, 383, 384.) In Matter of Carnegie Trust Co. (supra) it was said (Haight, J.), at p. 396: “We think it clear that at common law the king was entitled to preference in the payment of debts due to him from an insolvent before that of a subject. This is stated in 1 Coke on Littleton (131b). Under the statute (33 Hen. VIII, ch. 39, § 74) it was enacted that the king’s debt shall, in suing out execution, be preferred to that of. every other creditor who has not obtained judgment before the king commenced his suit. This apparently has remained the law of England down through and since the American Revolution. (Giles v. Grover, 9 Bing. 128.) * * * Inasmuch, therefore, as the claims or moneys due the king, for the support and maintenance of the government, whether derived from taxes or other sources of income, were preferred over the' claims of others, it follows that under the first subdivision of the provision of the Constitution of 1777, quoted, such preference became a part of the common law of our state, and is so continued under our present Constitution.”

In speaking of this prerogative priority of onr State in Marshall v. New York (supra) the Supreme Court said (Brandéis, J.) at page 382, et seq.: “ At common law the crown of Great Britain, by virtue of a prerogative right, had priority over all subjects for the payment out of a debtor’s property of all debts due it. The priority was effective alike whether the property remained in the hands of the debtor, or had been placed in the possession of a third person, or was in custodia legis. The priority could be defeated ór postponed only through the passing of title to the debtor’s property, absolutely or by way of lien, before the sovereign sought to enforce his right. Giles v. Grover, 9 Bing. 128, 139, 157, 183; In re Henley & Co., 9 Ch. D. 469. Compare United States v. National Surety Co., decided by this court November 8, 1920, ante, 73. * * # The legislature has never, in terms, limited its scope; and the courts have rejected as unsound every contention made that some statute before them for construction had, by implication, effected a repeal or abridgment of the priority. The only changes of the right made by statute have been by way of enlarging its scope in certain cases. Thus, while by the common law of England, The King (in aid of Braddock) v. Watson, 3 Price, 6, and by that of New York, Wise v. L. & C. Wise Co., 153 N. Y. 507, 511, the priority does not obtain over a specific lien created by the debtor before the sovereign undertakes to enforce its right, the legislature of New York extended the prerogative right, so as to give certain taxes priority over prior incumbrances. An extension of this nature is found in § 197 of the Tax Law which declares in respect to the annual franchise tax, that * Such tax shall be a lien upon and bind all the real and personal property of the corporation, joint-stock company or association liable to pay the same from the time when it is payable until the same is paid in full.’ By reason of that provision the annual franchise tax takes priority over incumbrances on the corporate property. New York Terminal Co. v. Gaus, 204 N. Y. 512. Under the earlier law a debt for franchise taxes was not ‘ a technical lien on specific property ’ and had been ordered paid out of monies in receivers ’ hands. Central Trust Co. v. New York City & Northern R. R. Co., 110 N. Y. 250, 259.” (Emphasis supplied.)

The reason the court in that quotation twice referred to the creation of a lien by the debtor “ before the sovereign sought to enforce his right ” no doubt goes back to the leading case of Giles v. Grover (9 Bing. 128 [1832]), cited (supra) where it was said with reference to a crown debt (p. 139): It is conceded, that the crown cannot avoid an equitable mortgage; Casberd v. Attorney-General [6 Price, 411]: or the lien of a factor; The King v. Lee [6 Price, 369]; or of a wharfinger: The King v. Humphrey [1 M’Cleland & Younge, 173]: or a bona fide assignment in trust for creditors; The King v. Watson, West on Extents, 115: or any other similar assignment or charge; because they are created when the debtor has legal power and authority to create them, and attach upon the goods before the process of the crown, and the crown can only take the goods subject to such liabilities as the debtor has legally created ”, and again at page 156-157: “ If, however, the right of the subject be complete and perfect before that of the king commences, it is manifest that the rule does not apply, for there is no point of time at which the two rights are in conflict; nor can there be a question which of the two ought to prevail in a case where one, that of the subject, has prevailed already. But if whilst the right of the subject is still in progress toward completion, the right of the crown arises, it seems to me that the two rights do come into conflict together at one and the same time, and that the consequence in that case is that the right of the crown ought to prevail.” (See also, note, State’s Prerogative Right of Preference at Common Law ”, 51 A. L. R. 1355, 1370, 1371.) That, of course, is apart from statute. The right of priority of the United States here depends on section 3466. (United States v. State Bank of North Carolina, 6 Pet. [U. ,S.] 29, 35.)

As pointed out in the Marshall case (supra, at p. 386) the right of priority has been likened to an equitable lien. Here the parties were in a court of equity — the Surrogate’s Court. Action was brought by the trust company against the exchange and the administratrix c.t.a., but discontinued by stipulation by which consent was given to the payment of the proceeds of the sale of the seat to. the administratrix. Prior to the sale of the seat and the attachment of the equitable lien to the proceeds of sale, the sovereign State had not “ sought to enforce his [its] right ”, although by statute, Tax Law, section 380, it could have issued a warrant and obtained the equivalent of the lien of a judgment by appropriate proceedings and then acted thereon. Since the parties were in a court of equity, equitable principles and rules govern which are not applicable against the United States by reason of its statutory priority under section 3466. (United States v. Texas, supra; Matter of Lincoln Chair & Novelty Co., supra.) As between the State and the trust company we have what may be likened to an inchoate lien in the former and in the latter a perfected lien. To hold otherwise would make an equitable lien, even though perfected, of no moment or value as against the State in the event of insolvency. An assignor of a chose in action would have his money twice — once when he assigned and again when the State collected his income taxes from the proceeds of the chose in action. To be successful here, the State was required to undertake to assert its rights — as it had the power to do — before the lien attached to the fund. The assignee of a thing in action acquires at once “ an equitable ownership therein, as far as it is possible to predicate property or ownership of such a species of right;

* * * ” (Pomeroy’s Equity Jurisprudence [5th ed.], § 168, р. 221). Where, as in this instance, the chose in action was turned into money and became available in the hands of the exchange for payment to the assignor’s administratrix, the equitable liem attached to it immediately and equitable ownership of the fund passed to the trust company, needing but the action of a court of equity to enforce its right to payment. At that moment, the lien of the trust company, which was greater in amount than the proceeds of the sale of the seat, and of all the assets of the estate, became capable of perfection and so was perfected, and the trust company became a secured creditor. Prior to that time when, upon- Gruner’s death, his administratrix с. t.a. became the owner of the property in the seat and membership in the exchange (Powell v. Waldron, supra), as distinguished from the proceeds of the sale to which the trust company’s lien later attached, section 3466 became applicable because the estate ovas insolvent, and such property in the seat and membership was thereafter subject to the rights of the United States under that statute.

The order and decree so far as. appealed from, should be reversed, without costs, and the matter remitted to the Surrogate’s Court for further proceedings not inconsistent with this opinion.

Desmond, J.

(dissenting in part.) I agree with Judge Conway’s opinion except that I think the State, for its unpaid income taxes, is entitled to priority over the New York Trust Company. It is undisputable that the State of New York, as a sovereign, has a common-law right of priority, with respect to the payment of taxes, over all other creditors of the taxpayer except the United States (Matter of Smith v. Meader Pen Corp., 255 App. Div. 397, 399, aifd. 280 N. Y. 554; N. Y. Terminal Co. v. Gaus, 204 N. Y. 512; Central Trust Co. v. N. Y. C. & N. R. R. Co., 110 N. Y. 250, 259; Matter of Century Steel Co. of America, 17 F. 2d 78; Matter of Lincoln Chair & Novelty Co., 274 N. Y. 353, 356; Matter of Carnegie Trust Company, 206 N. Y. 390, 399). This prerogative right of the State does not depend on statutes and so we do not have to examine into the difference between, for instance, section 219-c of the Tax Law (as to franchise taxes) and section 377 of that Law (with respect to income taxes). Nor can the State be defeated by reference to section 380 of the Tax Law, which provides for the filing of a warrant, etc.

Even if it be the law that this sovereign right of the State must give way to a perfected lien of another creditor, I do not see how the trust company’s lien can be considered to have been perfected as against the State of New York any more than against the United States of America. Both the' trust company and the State came into the Surrogate’s Court to assert their alleged priorities to payment out of a fund which was in the hands of the adminstrator of the debtor’s estate. Neither the State nor the trust company had reduced the property to possession, and no part of the property had been set off to either. The trust company had no “ specific prior lien ”, by attachment, execution or otherwise (see Wise v. Wise Company, 153 N. Y. 507, 511). Even if the trust company’s equitable lien could be considered to have been perfected ” when the proceeds of the sale of the seat became available, that time was subsequent to the accrual of the State’s tax claim. Thus we had an insolvency proceeding with a claim filed by the trust company, as holder of an inchoate lien, and another claim filed by the State of New York for past due income taxes. 1 do not see anything in all that to defeat the State’s undoubted sovereign right to priority over all creditors (except the United States, which has its own special, and paramount, statutory right to first payment).

Loughran, Ch. J., Lewis and Thacher, JJ., concur with Conway, J.; Desmond, J., dissents in part in memorandum; Dye and Fuld, JJ., taking no part.

Ordered accordingly.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    Quaker Oats Company, Respondent, v. City of New York et al., Appellants. Hill Packing Company, Respondent, v. City of New York et al., Appellants.
    Argued June 10, 1946;
    decided July 23, 1946.

      John J. Bennett, Corporation Counsel (Stanley Buehsbanim and Seymour B. Quel of counsel), for appellants.
    I. The Sanitary Code provision involved is a valid exercise of the police power. It does not improperly interfere with interstate commerce. It is adequately definite and does not deny the equal protection of the laws. II. There is no basis for granting a declaratory judgment to the plaintiff. It has failed to show any actual controversy upon which such a judgment could be granted. (Headley v. City of Rochester, 272 N. Y. 197; Matter

      of State Industrial Commission, 224 N. Y. 13; Continental Baking Co. v. Woodring, 286 U. S. 352; Highland Farms Dairy v. Agnew, 300 U. S. 608.) III. The Sanitary Code provision dealing with horseflesh intended for animal feed does not unlawfully interfere with interstate commerce. It in no way conflicts with the specific terms or the general policy of Federal law or regulation. (Missouri Pacific R. Co. v. Norwood, 283 U. S. 249; Chicago, R. I. & Pac. Ry. Co. v. Arkansas, 219 U. S. 453; Missouri, Kansas & Texas Railway v. Haber, 169 U. S. 613; Reid v. Colorado, 187 U. S. 137; Kelly v. Washington, 302 U. S. 1; Crossman v. Lurman, 192 U. S. 189; Sligh v. Kirkwood, 237 U. S. 52; Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740; Sinnot v. Davenport, 22 How. [U. S.] 227; Townsend v. Yeomans, 301 U. S. 441.) IV. Where State action is attacked as contrary to the commerce clause, whether or not Federal legislation is involved, it must meet the test of reasonableness. It is sufficient that the State regulation be reasonable and that the burden of showing unreasonableness is on the one challenging its validity. (Chicago, R. I. & Pac. Ry. Co. v. Arkansas, 219 U. S. 453; Nashville, etc. Ry. v. White, 278 U. S. 456; Savage v. Jones, 225 U. S. 501; Sligh v. Kirkwood, 237 U. S. 52; Armour & Co. v. North Dakota, 240 U; S. 510; S. C. State Hwy. Dept. v. Barnwell Bros., 303 U. S. 177; Detroit Bridge Co. v. Tax Board, 287 U. S. 295; Reid v. Colorado, 187 U. S. 137.) V. The Sanitary Code provision is not inconsistent with the terms or policy of the Federal statutes or regulations in effect at the time of the trial. (Savage v. Jones, 225 U. S. 501; Corn Products Refg. Co. v. Eddy, 249 U. S. 427; Fougera & Co. v. City of New York, 224 N. Y. 269; Atchison Ry. v. Railroad Comm., 283 U. S. 380.) VI. The State may add to the labeling requirements of the Federal law or regulation. (Savage v. Jones, 225 U. S. 501; Corn Products Refg. Co. v. Eddy, 249 U. S. 427.) VII. The Sanitary Code provision does not constitute an unreasonable interference with interstate commerce. (Chicago, R. I. & Pac. Ry. Co., v. Arkansas, 219 U. S. 453; Nashville, etc. Ry. v. White, 278 U. S. 456; Plumley v. Massachusetts, 155 U. S. 461; Crossman v. Lurman, 192 U. S. 189; Armour & Co. v. North Dakota, 240 U. S. 510; Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U. S. 1; Erie R. R. Co. v.
      Williams, 233 U. S. 685; Continental Baking Co. v. Woodring, 286 U. S. 352; Federation of Labor v. McAdory, 325 U. S. 450; Headley v. City of Rochester, 272 N. Y. 197; O’Kane v. State of New York, 283 N. Y. 439; Schieffelin v. Goldsmith, 253 N. Y. 243.) VIII. The Sanitary Code provision is designed to prevent fraud and constitutes a proper exercise of the police power. It does not deny equal protection of the laws. (People v. Perretta, 253 N. Y. 305; People v. Luhrs, 195 N. Y. 377; People v. Kibler, 106 N. Y. 321; People v. Blanchard, 288 N. Y. 145; National Fertilizer Assn. v. Bradley, 301 U. S. 178; Heath & Milligan Co. v. Worst, 207 U. S. 338; Petersen Baking Co. v. Bryan, 290 U. S. 570; Carolene Products Co. v. United States, 323 U. S. 18; Plumley v. Massachusetts, 155 U. S. 461; People V. Arlen Service Stations, 284 N. Y. 340.) IX. The Sanitary Code provision is clear and definite. The delegation of power involved is not unlimited; it is confined by an adequately definite standard. (People v. Blanchard, 288 N. Y. 145; Hy Grade Provision Co. v. Sherman, 266 U. S. 497; Nash v. United States, 229 u. S. 373; Miller v. Strahl, 239 U. S. 426; Omaechevarria v. Idaho, 246 U. S. 343; Chaplinsky v. New Hampshire, 315 U. S. 568.)

      Charles H. Tuttle and Gerald J. Craugh for respondent in first action.
    I. As regards plaintiff’s product the ordinance (subd. 4) is void as an unconstitutional interference with lawful interstate commerce,— and particularly an interference with the Federal scheme governing interstate commerce in this very product. The constitutional power of Congress over interstate commerce is plenary; and when exercised over a given subject matter or in a given field, it is exclusive. Any attempt to govern such subject matter or field by a restrictive municipal license or its equivalent, is inadmissible. (Collins v. New Hampshire, 171 U. S. 30; Schollenberger v. Pennsylvania, 171 U. S. 1; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148; Hill v. State of Florida, 325 U. S. 538; Charleston & Car. R. R. v. Varnville Co., 237 U. S. 597; Erie R. R. Co. v. New York, 233 U. S. 671.) II. Subdivision 4 is also invalid and void as indefinite, unequipped with ascertainable standards, and employing a fictitious term without any accepted or ascertainable meaning, and as a delegation of undefined, legislative and arbitrary power to administrative officers. (Matter of Small v. Moss, 279 N. Y. 288; Matter of Lyons v. Prince, 281 N. Y. 557; Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147; People v. Briggs, 193 N. Y. 457; United States v. Cohen Grocery Co., 255 U. S. 81.) III. Subdivision 4 is also void as arbitrary and unreasonable and as violative of the guarantees of due process and equal protection in both the Federal and State Constitutions. (Aerated Products Co. v. Godfrey, 290 N. Y. 92; Good Humor Corp. v. City of New York, 290 N. Y. 312; Weaver v. Palmer Bros. Co., 270 U. S. 402; People v. Guiton, 210 N. Y. 1.) IV. The amendment made in 1945 to the Federal Regulations only emphasizes the intention of the Federal Government to establish a uniform scheme in the matter of dog food. The plaintiff’s product is in full conformity therewith.

      Arnold J. Brock and William P. Balaton for respondent in second action.
    I. Subdivision 4 of section 327 of the- Sanitary Code, as amended, is unconstitutional and void because it is prohibitory. (Schollenberger v. Pennsylvania, 171 U. S. 1; Plumley v. Massachusetts, 155 U. S. 462; Collins v. New Hampshire, 171 U. S. 30; Good Humor Corp. v. City of New York, 290 N. Y. 312; Adams v. Tanner, 244 U. S. 590.) II. Subdivision '4 of section 327 of the Sanitary Code, as amended, is unconstitutional and void because it is an unlawful interference with and an undue burden upon interstate commerce. (Savage v. Jones, 225 U. S. 501; McDermott v. Wisconsin, 228 U. S. 115; Napier v. Atlantic Coast Line, 272 U. S. 605; Houston, Texas Ry. v. United States, 234 U. S. 342; Hines v. Davidowitz, 312 U. S. 52; Hill v. State of Florida, 325 U. S. 543; Charleston & Car. R. R. Co. v. Varnville Co., 237 U. S. 597; McDermott v. Wisconsin, 228 U. S. 115; Oklahoma v. Wells, Fargo & Co., 223 U. S. 298.) III. Subdivision 4 of section 327, as amended, is unconstitutional and void because it is unreasonable. (Weaver v. Palmer Bros. Co., 270 U. S. 402; Smith v. Cahoon, 283 U. S. 553.) IV. The ordinance is arbitrary and indefinite. (People v. Klinck Packing Co., 214 N. Y. 121; Fifth Ave. Coach Co. v. City of New York, 194 N. Y. 19.)
   Fuld, J.

In each of these actions for declaratory judgment, the question posed involves the constitutionality of an ordinance of the City of New York governing and regulating the sale of horse meat intended for animal -feed. The courts below held it invalid as an unlawful interference with interstate commerce.

In 1943, subdivision 4 of section 327 of the Sanitary Code of New York City was amended to read as follows: “ 4. Horseflesh, whether alone or combined with other ingredients, intended for animal feed shall not be brought into The City of New York, transported, or held, kept, stored, or offered for sale or sold unless decharacterized by harmless coloring or otherwise in a manner and with materials satisfactory to the Department of Health. This- provision, however, shall not apply to horseflesh sold and transported to the New York Zoological Society or the Park Department of The City of New York.” Violation of its provisions is punishable as a misdemeanor (Penal Law, § 1740; New York City Charter, § 558, subd. d; New York City Administrative Code, § 564-6.0), and, in addition,- perhaps subjects the offending product to confiscation (Sanitary Code, § 137).

Both the Hill Pacldng Company and the Quaker Oats Company are engaged in the preparation of horse meat and in its sale throughout the country — the former from its plant in Kansas, the latter from its factory in Illinois. The product of the Hill Company, frozen and packaged in cartons, is intended for both animal use and human consumption; the product of the Quaker Oats Company, known as “ Ken-L-Ration,” packaged in hermetically sealed containers, is sold only as dog food. Labels on each company’s product proclaim it horse meat and announce that the product has been inspected and approved by the Federal Government.

The Hill Company was advised by the city’s department of health that it would have to decharacterize its product by adding either “ ground bone ” or some other ingredient, such as cod liver oil, coal tar dye, granular charcoal, or some harmless vegetable coloring. The city had advised the Quaker Oats Company that it might decharacterize its product by adding ground bone — as the concern indicated it planned doing — or by some other method.

It is well established that the commerce clause does not itself preclude a State — or a municipality (Cuyahoga River Power Co. v. Akron, 240 U. S. 462) — from enacting legislation, in the exercise of its police power, regulating matters which affect interstate commerce. (Stoke, C. J., concurring, Hill v. Florida, 325 U. S. 538, 544; Southern Pacific Co. v. Arizona, 325 U. S. 761, 766-767.) Equally settled is the rule that, even if the Federal Government has legislated in a particular field, local regulation in that field is not necessarily prohibited unless national uniformity is essential. The State or municipal statute will be stricken only if — in terms or in practical administration — it conflicts with the Federal law or infringes on its policy. (Southern Pacific Co. v. Arizona, supra, at p. 766; Hill v. Florida, 325 U. S. 538; Union Brokerage Co. v. Jensen, 322 U. S. 202; Cloverleaf Co. v. Patterson, 315 U. S. 148; Allen-Bradley Local v. Board, 315 U. S. 740; Kelly v. Washington, 302 U. S. 1; Townsend v. Yeomans, 301 U. S. 441; Gilvary v. Cuyahoga Valley Ry. Co., 292 U. S. 57; McDermott v. Wisconsin, 228 U. S. 115; Savage v. Jones, 225 U. S. 501.)

Differentiation between cases where the assumption of Federal powers is exclusive and where it is not, is narrow, but the line has been drawn by the Supreme Court in a number of closely comparable cases dealing with the constitutionality of local legislation governing the preparation and sale of foodstuffs;

In Savage v. Jones (supra), it appeared that the Federal law prohibited interstate shipments of food for domestic animals only if misbranded by bearing “ any statement, design or device * * * false or misleading ”. Indiana enacted a statute which went further; it required that there be attached to every package of the article, offered for sale in the State while in interstate commerce, a tag or label specifying the ingredients of the foodstuff. The court held the State statute constitutional and wrote (225 U. S., at p. 532): “ Congress has thus limited the scope of its prohibitions. It has not included that at which the Indiana statute aims. Can it be said that Congress, nevertheless, has denied to the State, with respect to the feeding stuffs coming from another State and sold in the original packages, the power the State otherwise would have to prevent imposition upon the public by making a reasonable and nondiscriiñinatory provision for the disclosure of ingredients, and for inspection and analysis? ” (Emphasis supplied.)

However, in McDermott v. Wisconsin (supra), the State act was held invalid, since, according to the court, Wisconsin prohibited that which the Federal Government sanctioned. In that case, it appeared that, under the Pure Food and Drugs Act, the government permitted a product to be sold simply labeled “ Corn Syrup with Cane Flavor.” The State enacted a law which, proscribing any other designation or brand on the package,” required glucose mixtures to be labeled Glucose flavored with ” the flavoring material. Accordingly, the State condemned a mixture bearing the label “ Karo Corn Syrup ” “10% Cane Syrup, 90% Corn Syrup,” although, as indicated, it met the requirements of the Federal authorities. In ruling that the State could not require a label on articles in interstate commerce different from that which the Federal Government considered proper, the Supreme Court declared (228 U. S., at p. 133): “ Conceding to the State the authority to make regulations consistent with the Federal law for the further protection of its citizens against impure and misbranded food and drugs, we think to permit such regulation as is embodied in this statute is to permit a State to discredit and burden legitimate Federal regulations of interstate commerce, to destroy rights arising, out of the Federal statute which have accrued both to the Government and the shipper, and to impair the effect of a Federal law which has been enacted under the Constitutional power of Congress over the subject.” (Emphasis supplied.)

In the Cloverleaf Company case (supra), the petitioner was engaged in manufacturing renovated butter from packing stock butter; The Federal legislation subjected the business of making such butter to inspection, regulation, and condemnation of the final product if unfit for human consumption. Though requiring inspection of the raw material — pacldng stock butter — the Federal statute did not provide for its condemnation or seizure. Alabama enacted a regulatory law of its own which specifically empowered one of its officials to seize and condemn packing stock butter being held for renovation. Noting a conflict in that the State condemned what the government permitted, the court held the State legislation unconstitutional and said (p. 169): “Congress hardly intended the intrusion of another authority during the very preparation of a commodity subject to the surveillance and comprehensive specifications of the Department of Agriculture. To uphold the power of the State of Alabama to condemn the material in the factory, while it was under federal observation and while federal enforcement deemed it wholesome, would, not only hamper the administration of the federal act but would be inconsistent with its requirements. Whether the sanction used to enforce the regulation is condemnation of the material or the product is not significant. Since there was federal regulation of the materials and composition of the manufactured article, there could not be similar state regulation of the same subject.” (Emphasis supplied.)

Turning to the case at hand, it is our conclusion that the local provision is inconsistent with the requirements of the Federal law, for, as we view it, the city forbids to interstate commerce what the government has authorized. In reaching that decision, we consider the Federal law, not as it read at the trial, but as it reads today in its amended form (Civ. Prac. Act, § 344-a, subd. A, par. 5; see Graybar Elec. Co. v. New Amsterdam Cas. Co., 292 N. Y. 246, 250), since rights and other legal relations are to be determined as of the time they are declared. As amended, the pertinent portion of the regulation provides (Code Fed. Reg., 1945 Supp., tit. 9, § 268.12, subd. [c]): “(c) Dog food or other animal food prepared, in whole or in part, from materials derived from cattle, sheep, swine, goats or horses, shall be distinguished from articles of human food, so as to avoid the distribution of such animal food as human food. To accomplish this, labeling of hermetically sealed, conventional retail size containers as, for example, ‘ dog food ’ will be considered sufficient. If not in such containers, the product must not only be properly identified, but it must be of such character or so treated (denatured or decharacterized) as to be readily distinguishable from an article of human food. Dog food shall not be represented as being a human food.” (Emphasis supplied.)

The claim of conflict before this new regulation was promulgated rested, essentially, on the possibility that adding coloring matter or employing another method of decharacterization demanded by the city might offend against the Federal law. With the new" regulation in force, however, there is no need to speculate about potential and hypothetical conflicts. The local statute insists upon the addition of harmless coloring or other means of deeharacterization. The Federal Government — in lieu of decharacterization — permits the use of hermetically sealed containers, accompanied by appropriate labeling. Here we have a conflict, actual and open, on the very face of the two provisions.

The point is made, though, that the city has never withheld its consent to the use of hermetically sealed containers. That is immaterial. The local law does not endow the health authorities with power to permit their use. The ordinance is explicit; the product must, “ by harmless coloring or otherwise ”, be deeharaeterized. The term, though unusual and somewhat inartistic, clearly signifies some alteration of the product sufficient to change its character. Packing horseflesh in a hermetically sealed container cannot alter its character. While it may achieve the purpose for which decharacterization is required, it is not decharacterization.

Quite obviously, the ordinance does not supplement the Federal prescription; rather, it infringes upon it. Simply put, the government sanctions the use of hermetically sealed containers; the city adds a further requirement and burden. To paraphrase what was said in the Cloverleaf case (supra, p. 158) and the McDermott case (supra, p. 133), “ to permit such regulation as is embodied in this statute is to permit ” a city “ to discredit and burden legitimate Federal regulations of interstate commerce, tq destroy rights arising out of the Federal statute which have accrued both to the Government and the shipper, and to impair the effect of the Federal law.”

The inconsistency affects the Quaker Oats Company directly, since it markets its dog food in sealed containers. It is of no consequence that the company was not ordered to alter its product. The ordinance is on the books and permits the enforcing agency no alternative, no discretion. It demands that the product be deeharaeterized, even though in hermetically sealed containers. Failure to comply with the provision calls for criminal punishment and other penalties. Regardless of the temper of the enforcing authority, regardless of its inclination, the ordinance places the product of the Quaker Oats Company, as well as its management, in jeopardy and gives rise to the essential “ controversy.” Under such circumstances, action for a declaratory judgment and for an injunction properly lies. (Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147, 153; cf. Good Humor Corp. v. City of New York, 290 N. Y. 312.) As Judge Loughrak declared in the Acorn Employment case (p. 153): “ We believe the Corporation Counsel is mistaken in his assumption that such commands can be reviewed only upon a showing of actual or imminent detriment resulting therefrom. (See Columbia System v. U. S. 316 U. S. 407, 417.)”

With respect to the Hill Packing Company, however, the situation is different. The conflict noted in the other case is not here present, for the Hill Company’s foodstuff is not contained in hermetically sealed containers. Both under Federal and local law, it is required to decharaeterize its product. If the decharacterization features of both controls be identically administered, the Hill Company will have no cause for complaint. Insofar as consistent, both statutes may coexist; the municipal agency may enforce its local law “ at least until such time as it is ousted ” by the Federal authorities exercising their own paramount jurisdiction. (Matter of Davega-City Radio v. Labor Board, 281 N. Y. 13, 24.) We need not now consider at what point the local department of health would be displaced, for, as stated in the Davega-City Radio case (supra) it “is sufficient that in the present case ” the Federal department “ has not acted ” (p. 24).

That does not, however, mean that .plaintiff Hill Packing Company is not entitled to a declaratory judgment. (Cf. Rock-land Light and Power Co. v. City of New York, 289 N. Y. 45.) The potentiality of conflict in administration, particularly in view of the city’s insistence upon compliance with the command of the ordinance, justifies a declaration of rights. As indicated, though, such a declaration may not invalidate the ordinance in advance of its being administered in a manner inconsistent with Federal law. Accordingly, the Hill Company must follow the ordinance’s demands as to decharacterization — at least until the Federal Government announces a different method of decharacterization. In the meantime, the ordinance continues operative.

The other objections urged against the ordinance lack substance. Clearly, as Special Term ruled, the ordinance is sufficiently definite and certain; it was within the legislative competence of the city to enact; it is consonant with the requirements of the due process clause (People v. Blanchard, 288 N. Y. 145; People v. Arlen Service Stations, 284 N. Y. 340; Carolene Products Co. v. United States, 323 U. S. 18; Nat. Fertilizer Assn. v. Bradley, 301 U. S. 178; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Heath & Milligan Co. v. Worst, 207 U. S. 338; Plumley v. Massachusetts, 155 U. S. 461), and the equal protection of the laws clause (People v. Teuscher, 248 N. Y. 454; Matter of City of New York [Bronx River Parkway], 284 N. Y. 48; Matter of Stracquadanio v. Department of Health, 285 N. Y. 93); and it does not constitute an invalid delegation of legislative power. (Yakus v. United States, 321 IT. S. 414; Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381; United States v. Grimaud, 220 U. S. 506.)

Accordingly, insofar as the contention under the commerce clause is concerned, the ruling in the Quaker Oats Company case should be affirmed; the ruling in the Hill case should be reversed, and judgment directed adjudicating and declaring the rights of the parties in accordance with the views set out above.

The judgment in the Quaker Oats case should be affirmed, with costs. The judgments in the Hill Packing Company case should be reversed and judgment directed adjudicating and declaring the rights of the parties in accordance with the views expressed in this opinion, with costs in all courts.

Loughran, Ch. J., Lewis, Conway, Desmond and Thaoher, JJ., concur; Dye, J., taking no part.

Judgment accordingly.


author: Per Curiam.

text:
    David Gundershein, an Infant, by Arthur Gundershein, His Guardian ad Litem, Appellant, v. Bradley-Mahony Coal Corporation et al., Respondents, et al., Defendants.
    Submitted May 22, 1946;
    decided July 23, 1946.

      Isidor Enselmcm and Louis Solomon for appellant.
    The judgment should be reversed. (Sheehan v. North Country Community Hosp., 273 N. Y. 163; Miller v. Town of Irondequoit, 243 App. Div. 240; Louden v. Slate of New York, 181 Misc. 139.)

      Gregory A. Lee and Daniel Miner for Bradley-Mahony Coal Corporation, respondent.
    Plaintiff’s action is barred by the Statute of Limitations. (Frehe v. Schildwachter, 263 App. Div. 379, 289 N. Y. 250; Brand v. Union Railway Co., 173 Misc. 224; McDowell v. Chemical Bank and Trust Co., 38 N. Y. S. 2d 248.)

      John J. Stewart and John P. Smith for Vermilyea Realty Co., respondent.
    Plaintiff’s action is barred by Statute of Limitations. (Frehe v. Schildwachter, 263 App. Div. 379, 289 N. Y. 250; Matter of Becker, 28 Hun 207.)
   Per Curiam.

The judgment dismissing the prior action brought in behalf of the infant plaintiff was ordered because of failure of diligent prosecution by the guardian ad litem. Since that judgment was not rendered upon the merits, it does not prevent the present action for the same cause of action (Civ. Prac. Act, § 482). Hence the present action, which was commenced within the period of the plaintiff’s infancy, is not barred by the Statute of Limitations (Civ. Prac. Act, § 49, subd. 6; § 60, subds. 1, 3).

The judgments should be reversed and the motions denied, with costs in all courts.

Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher, Dye and Fuld, JJ., concur.

judgments reversed, etc.


text:
    In the Matter of the Arbitration between Belding Heminway Company, Appellant, and Wholesale and Warehouse Workers’ Union, Local 65, C.I.O., Respondent.
    Submitted June 13, 1946;
    decided July 23, 1946.

      William R. Fisher and Frank G. Fisher for appellant.
    I. Appellant is entitled to relief under section 1458 of the Civil Practice Act. (Schafran & Finkel, Inc., v. Lowenstein & Sons, Inc., 280 N. Y. 164; Matter of Pierce v. Brown Buick Co., Inc., 258 App. Div. 679, 283 N. Y. 669; Matter of Bullard v. Grace Co., 240 N. Y. 388; Matter of Kelley, 240 N. Y. 74; Matter of Eagar Const. Corp. v. Ward Foundation Corp., 255 App. Div. 291; Matter of Exeter Manufacturing Co. v. Marrus, 254 App. Div. 496; Matter of Towns & James (Federal Labor Union), 183 Misc. 181; Matter of Lipman (Haeuser Shellac Co.), 289 N. Y. 76; Matter of Kramer & Uchitelle, Inc., 288 N. Y. 467.) II. The evidence raises a substantial issue on the question of the authority of "the association to bind the company to a contract affecting a warehouse in any place but New York City. (Matter of Gresham & Co., Ltd., 202 App. Div. 211; Matter of Palmer & Pierce, Inc., 195 App. Div. 523; Matter of Gold (Broido, Inc.), 185 Misc. 1039.) III. The circumstances under which the contract of April 25, 1945, was made, show that the contract and the arbitration clause therein apply only to matters in dispute concerning the company employees and-warehouse in New York City. (Matter of Marchant and Mead-Morrison Mfg. Co., 226 App. Div. 397, 252 N. Y. 284, 253 N. Y. 534, 282 U. S. 808.)

      Edward Kunts for respondent.
    I. Appellant failed to present on its motion evidentiary facts raising a substantial issue. (Busch Jewelry Co., Inc., v. United Retail Employees’ Union, Local 830, 10 N. Y. S. 2d 519.) II. Appellant under its contract is bound to submit to arbitration.
   Per Curiam.

Whether the appellant was bound to employ at its New Jersey plant members of the respondent union was a debatable question which called for a decision as to the scope of the collective bargaining agreement between the parties. This question, we think, was for the court, not for the arbitrators. (Matter of Bullard v. Grace Co., 240 N. Y. 388, 395.) The orders should be reversed and the matter remitted to Special Term for decision of the preliminary issue above stated.

The orders should be reversed and the matter remitted to the Special Term for further proceedings in accordance with this opinion, with costs to abide the event.

Loughkan, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ., concur; Dye, J., taking no part.

Orders reversed; etc.


text:
    Anne E. Batchelor, Respondent, v. Clarence D. Batchelor, Appellant.
    Argued June 3, 1946;
    decided July 23, 1946.

      Charles Bothenberg, Daniel J. McMahon and Abraham Wilson for appellant.
    Plaintiff made no offer, bona fide or otherwise, to resume marital cohabitation with defendant before she brought this suit. (Solomon v. Solomon, 290 N. Y. 337.)

      Joseph H. Broderick and S. Bertram Friedman for respondent.
    By entering into formal separation agreements on two occasions, defendant admitted the right of the plaintiff to live separate and apart from him and thereby conceded her right to support during such separation.
   Per Curiam.

Before plaintiff was entitled to a judgment of separation upon the ground that defendant had failed to support her while they were living separate and apart by mutual consent, it was necessary for her to establish that she offered in good faith to return to her husband and resume the marital status. Lack óf that proof required a dismissal of her second cause of action. (Solomon v. Solomon, 290 N. Y. 337. 340-341; cf. Mirizio v. Mirizio, 242 N. Y. 74, 82.) Accordingly it was error to direct judgment of separation in favor of plaintiff and against the- defendant. Insofar as the judgment directs that plaintiff is entitled to a separation and alimony it should be reversed and the complaint dismissed, without costs; otherwise the judgment should be affirmed, without costs.

The judgments should be modified in accordance with this opinion, and, as so modified, affirmed, without costs.

Loughrax, Ch. J., Lewis, Conway, Desmond and Thaoher, JJ., concur; Dye and Fuld, JJ., taking no part.

Judgment accordingly.


text:
    In the Matter of Rose L. Miranda, Appellant, against Ordway Tead et al., Constituting the Board of Higher Education of the City of New York, Respondents.
    Argued May 23, 1946;
    decided July 23, 1946.

      J. George Levy and Irving 8. Ottenberg for appellant.
    The Board was without power to abolish petitioner’s position on October 18th retroactively as of September 1st. Since petitioner’s services were available to the Board from September 1st to October 18th, she could not be deprived of salary for that period. (Matter of Hunt, 60 St. Dep. Rep, 210; Steinson v. Board of Education of N. Y., 165 N. Y. 431; Gunnison v. Board of Education, 176 N. Y. 11; Matter of Gelson v. Berry, 233 App. Div. 20, 257 N. Y. 551; Cooke v. Dodge, 164 Misc. 78; Libby v. Douglas, 175 Mass. 128; Board of Education v. Couch, 63 Okla. 65; Randolph v. Saunders, 22 Tex. Crim. App. 331; McKay v. Barnett, 21 Utah 239.)

      Benjamin M. Zelman for Teachers’ Union, amicus curice, in support of appellant’s position.

      A. Marh Levien for New York Teachers’ Guild, amicus curice, in support of appellant’s position.

      John J. Bennett, Corporation Counsel {Arthur H. Kahn, Seymour B. Quel and Michael A. Castaldi of counsel), for respondents.
    The Board has the power to abolish petitioner’s position at any time. Petitioner is not entitled to any compensation after September 1, 1943, the effective date of her separation from the college. (Matter of Divisich v. Marshall, 281 N. Y. 170; Lapolla v. Board of Education, 172 Misc. 364, 258 App. Div. 781, 282 N. Y. 674; Buchbee v. Board of Education, 115 App. Div. 366, 187 N. Y. 544; Matter of Daley, 49 St. Dept. Rep. 201; Juddson v. Board of Education, 255 App. Div. 1024; Matter of Emery, 62 St. Dept. Rep. 124.)
   Per Curiam.

Petitioner’s position as a teacher in The College of the City of New York was declared in excess by a resolution adopted by respondents on October 18, 1943, which also purported to abolish the position retroactively as of September 1, 1943. Petitioner’s services, however, were available to respondents from September 1,1943, to the day her position was abolished and she is entitled to receive her salary for that period. Insofar as the resolution attempts to deprive petitioner of her salary by abolishing her position retroactively, it is invalid. The orders should be modified to the extent of directing respondents to pay petitioner her salary for the period from September 1, 1943, to October 18, 1943, and, as so modified, affirmed, without costs.

The orders should be modified, without costs, in accordance with this opinion, and, as so modified, affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ., concur; Dye, J-, taking no part.

Ordered accordingly.


text:
    In the Matter of John Broderick et al., Respondents, against City of New York et al., Appellants, et al., Defendants. In the Matter of Richard Welling, Respondent, against Patrick Walsh, as Commissioner of the Fire Department of the City of New York, et al., Appellants, and James W. O. Wood et al., Interveners, Appellants, Impleaded with Another.
    Argued February 20, 1945;
    reargument ordered October 25, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel and Harry Hollander of counsel), for City of New York and others, appellants in first above-entitled proceeding.

      Edward G. Bathon and Charles R Barrett for James W. 0. Wood and others, appellants in first proceeding.

      Albert Be Roode for John Broderick and others, respondents in first proceeding.

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel and Harry Hollander of counsel), for Patrick Walsh, as Commissioner of the Fire Department of the City of New York, and others, appellants in second above-entitled proceeding.

      Edward G. Bathon for interveners, appellants in second proceeding.

      H. Eliot Kaplan for respondent in second proceeding.

      H. H. Nordlinger and J. M. Binnes for Citizens Budget Commission, Inc., amicus curies, in support of respondents’ position in both proceedings.
   Reargument ordered and cases set down for argument during the second week of the November 3945 session. The question whether the modifications of the personal service schedule of the Fire Department in the expense budget of New York City for the fiscal years 1942-1943 and 1943-1944 which are involved in this case were authorized by section 128 of the New York City Charter, read in connection with section 123 of the same charter, should be fully briefed and argued. Upon reargument, consideration should be given to the history. and practice of transferring appropriations from one line to another within the same schedule, provided the total appropriation for the applicable code item is not increased ”, both before and after the adoption of the present New York City Charter, and to the question whether such transfers, made in accordance with the Terms and Conditions ” set forth in the budget, are authorized by section 128 of said charter, when not specifically authorized by the board of estimate otherwise than by its approval of the terms and conditions under which such transfers were made. In this connection consideration should of course be given to the meaning in section 128 of the phrase with the approval of the board of estimate.”


text:
    Salvatore T. Gambino, Appellant, v. City of Peekskill, Respondent.
    Argued October 1, 1945;
    decided October 25, 1945.

      Edward G. Griffin and Arnold E. Feldman for appellant.

      Isadore Vogel, Corporation Counsel, for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Medalie, JJ.


text:
    The People of the State of New York ex rel. Doctors Hospital, Inc., Respondent, against James J. Sexton et al., Formerly Constituting the Board of Taxes and Assessments of the City, of New York, et al., Appellants.
    Argued October 2, 1945;
    decided October 25, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Oscar L. Tucker, Arthur H. Goldberg, Edmund B. Eennefeld and Leo Brown of counsel), for appellants.

      John G. Saxe, Eli Whitney Debevoise and Edward D. Burns for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Dye and Medalie, JJ. Taking no part: Thacher, J.


text:
    The People of the State of New York, Respondent, v. Blocksom & Co., Appellant.
    Argued October 1, 1945;
    decided October 25, 1945.

      Murray L. Gilman for appellant.

      Nathaniel L. Goldstein, Attorney-General (Saul A. Shames, Orrin G. Judd and Alfred E. Sarno of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dye and Medalie, JJ.


text:
    In the Matter of Alexander’s Department Stores, Inc., Respondent, against Bertha Cohen et al., Doing Business under the Name of Alexander’s Department Store, Appellants.
    Submitted October 3, 1945;
    decided October 25, 1945.

      Herbert S. Felner and Karl A. Blaustein for appellants.

      J. Norman Lewis and Jam.es P. Durante for respondent.
   Order of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division, upon the ground that the petitioner did not establish facts sufficient to justify relief under section 964 of the Penal Law. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Medalie, JJ.


text:
    In the Matter of Arnold A. Hutschnecker, Appellant, against The Board of Regents of the University of the State of New York, Respondent.
    Argued October 1, 1945;
    decided October 25, 1945.

      Harry Kalman and Lillian D. Rock for appellant.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Orrin G. Judd of counsel), for respondent.
   Order affirmed, with costs; no opinion. [See 295 N. Y. 637.]

Concur: Loughs an, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Medalie, JJ.


text:
    In the Matter of Acorn Employment Service, Inc., Respondent, against Paul Moss, as Commissioner of Licenses of the City of New York, Appellant.
    Argued October 3, 1945;
    decided October 25, 1945.

      Ignatius M. Wilkinson, Corporation Counsel '(Richard L, Baltimore, Jr., of counsel), for appellant.

      William E. Vogel and Frank X. O’Donnell, Jr., for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    In the Matter of the Accounting of Hilda R. Gilman, as Administratrix of the Estate of Cyrus Rheims, Deceased, as Guardian of Roslyn Feldmann, an Infant, Appellant and Respondent. Roslyn Feldmann (Former Infant), Respondent and Appellant.
    Submitted October 1, 1945;
    decided October 25, 1945.

      Avel B. Silverman for Hilda R. Gilman, appellant and respondent.

      Bernhardt M. Meisels for Roslyn Feldmann, respondent and appellant.
   Order affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Medalie, JJ.


text:
    In the Matter of Paul J. Hines, Appellant, against Patrick Walsh, as Fire Commissioner of the City of New York, Respondent.
    Argued October 2, 1945;
    decided October 25, 1945.

      Benjamin H. Siff and William W. Reiberger for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro and James Rail Prothero of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loitghban, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    Robert Burkhardt, Respondent, v. A. & H. Karsten, Inc., et al., Appellants.
    Argued October 3, 1945;
    decided October 25, 1945.

      Robert J. Syhes, C. Murray Kavanagh and Leo F. Potts foi A. & H„ Karsten, Inc., appellant.

      Jacob D. Fishman and John E. Liggio for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dye and Medalie, JJ.


text:
    Atlantic Metal Products, Inc., Appellant and Respondent, v. Samuel Minskoff et al., Respondents and Appellants, et al., Defendants.
    Argued October 3, 1945;
    decided October 25, 1945.

      Benjamin Heffner and Philip Stanley Abrahams for plaintiff, appellant and respondent.

      David N. Aberman and Florence Raider for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dye and Medalie, JJ.


text:
    Queenside Hills Realty Co., Inc., Appellant, v. William Wilson, as Commissioner of Housing and Buildings of the City of New York, Respondent.
    Submitted October 1, 1945;
    decided October 25, 1945.


text:
    In the Matter of New York State Labor Relations Board, Appellant, against Holland Laundry, Inc., et al., Respondents.
    Submitted October 15, 1945;
    decided October 25, 1945.
   Motion by appellant for reárgument denied, with $10 costs and necessary printing disbursements. [See 294 N. Y. 480.]


text:
    The People of the State of New York ex rel. City of Buffalo. Respondent, against Isidore J. Mazurowski et al., as Assessors of the Town of Cheektowaga, Erie County, Appellants.
    Submitted October 9, 1945;
    decided October 25, 1945.
   Motion by respondent for reargument denied, with $10 costs and necessary printing disbursements. [See 294 N. Y. 370.]


text:
    James H. Johnson, Appellant, v. State of New York, Respondent.
    Submitted October 8, 1945;
    decided October 25, 1945.

      James H. Johnson, in person, for motion.
    No one opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements on the ground that the order does not finally determine an action or a special proceeding within the meaning of the Constitution. [See. 295 N. Y. 636.]


text:
    John Davignon, Respondent, v. Racquette River Paper Company, Appellant, et al., Defendants.
    Submitted October 22, 1945;
    decided October 25, 1945.

      Frank L. Cubley for motion.

      Patrick J. Tierney opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Frank N. Taras, Appellant, against Robert J. Kirby, as Warden of Sing Sing Prison, Defendant. The People of the State of New York, Respondent.
    Submitted October 22, 1945;
    decided October 25, 1945.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd of counsel), and Charles P. Sullivan, District Attorney, for motion.

      Joseph Lonardo opposed.
   Motion granted and appeal dismissed unless appellant perfects his appeal and brings the case on for argument during the third week of the February, 1946, session, in which event the motion is denied.'


text:
    Technical Research Laboratories, Incorporated et al., Respondents, v. Joseph Steigman, Appellant.
    Submitted October 22, 1945;
    decided October 25, 1945.

      Jack Klaw for motion to dismiss appeal and in opposition to cross motion.

      Kenneth Garroad for cross motion and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed unless within 10 days from the service of this order appellant file and serve a record on appeal, and a proper undertaking for costs, and pay $10 costs of this motion, in which, event the motion is denied.

Motion for leave to prosecute appeal on three copies of the Appellate Division record, etc., and to dispense with the filing of an undertaking granted to the extent that appellant is permitted to present his appeal on three printed copies of the Appellate Division record with necessary added papers and to serve one copy only thereof on counsel for respondents, otherwise denied, without costs. t


text:
    In the Matter of the Claim of Abraham Puschett, Appellant, against Playland Park, Inc., et al., Respondents. State Industrial Board, Respondent.
    Argued October 4, 1945;
    decided October 26, 1945.

      Abraham Kaplan for appellant.

      George J. Hayes and Bernard Katsen for Playland Park, Inc., and State Insurance Fund, respondents.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    The People of the State of New York, Respondent, v. Hygrade Food Products Corporation, Appellant.
    Argued October 9, 1945;
    decided October 26, 1945.

      Alfred J. Callahan for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (James Mall Prothero and Fred Iscol of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    Margaret Franciosa, Plaintiff, v. Salvatore Franciosa, Defendant. Thomas H. Crone, Appellant; Salvatore Franciosa, Respondent.
    Argued October 10, 1945;
    decided October 26, 1945.

      Thomas M. Crone, appellant in person.

      William L. Clay for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Oh. J., Lewis, Conway, Desmond, Thacheb, Dye and Medalie, JJ.


text:
    Edith Boyce, Appellant, v. 228th & Carpenter Ave. Holding Co., Inc., Respondent.
    Argued October 3, 1945;
    decided October 26, 1945.

      Martin M. Kolbrener for appellant.

      William J. Tropp for respondent.
   Judgments reversed and a new trial granted, with costs in all courts to abide the event, upon the ground that the evidence presented a question of fact for the jury as to whether or not at the place of the accident a condition of peculiar danger existed. No opinion.

Concur: Conway, Thacher, Dye. and Medalie; JJ. Dissenting: Loughran, Ch. J., Lewis and Desmond, JJ.


text:
    In the Matter of the Claim of Theodore Gallagher, Respondent, against Mundett Cork Co. et al., Appellants. State Industrial Board, Respondent.
    Argued October 4, 1945;
    decided October 26, 1945.

      Jeremiah F. Connor for appellants.

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum Orrin G. Judd and Lester D. Voile of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thagher, Dye and Medalie, JJ.


text:
    Helen H. Haimes, Respondent, v. Paul O. Schonwit, as Executor of Cornelius J. Crich, Deceased, Appellant.
    Argued October 8, 1945;
    decided October 26, 1945.

      Frederick E.- Weinberg and Nathan H. Elman for appellant.

      Jules Both for respondent.
   Judgment affirmed, with costs, on the ground that the defendant failed to sustain the burden of establishing his partial defense of the Statute of Limitations. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    Bradley Delehanty, as Trustee, Appellant and Respondent, v. Eugene R. Hurley et al., Respondents, and County of Nassau, Appellant.
    Argued October 9, 1945;
    decided October 26, 1945.

      Fred L. Gross for plaintiff, appellant and respondent.

      Marcus G. Christ, County Attorney (G. Bur chard Smith of counsel), for County of Nassau, appellant.

      Arthur A. Kaye and Eugene B. Hurley, in person, for Eugene R. Hurley, respondent.

      G. Burchard Smith and Marcus G. Christ for James L. Dowsey, respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Medalie, JJ.


text:
    Hotel Edison Corporation, Appellant, v. Deems Taylor, as President of American Society of Composers, Authors and Publishers, Respondent.
    Argued October 4, 1945;
    decided October 26, 1945.

      John W. Davis, William B. Meagher, William Klein, Milton B. Weir and Adolph Lund for appellant.

      Louis D. Frohlioh, Arthur H. Schwartz and Herbert P. Jacoby for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkan, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    In the Matter of John J. Shattls, Appellant, against Archibald R. Watson, County Clerk of New York County, Respondent.
    Submitted October 5, 1945;
    decided October 26, 1945.

      Jacob Gottin for appellant.

      Hyman W. Gamso and Archibald B. Watson, in person, for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Thacheb and Dye, JJ. Desmond and Medalie, J J., dissent and vote to reverse and remit the proceeding to Special Term with instructions to grant the mandamus order prayed for, on the ground that the County Clerk has no' discretion as to whether or not to accept for filing a certificate of doing business under an assumed business name, where, as here, the use of the assumed name shown on the certificate does not appear to violate any law.


text:
    Ella Green, Respondent, v. Murray M. Rosenberg, Inc., Appellant.
    Argued October 4, 1945;
    decided October 26, 1945.

      Harold M. Harkavy and Frederick M. Garfield for appellant.

      Paul O’Dwyer and Milton 8. Harrison for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    Teresa Lo Verde, as Administratrix of the Estate of Angelo Lo Verde, Deceased, Respondent, v. Four Sixty Nine Realty Corporation, Appellant.
    Argued October 8, 1945;
    decided October 26, 1945.

      Thomas F. Keane, Charles F. Bachmann and John P. Smith for appellant.

      Harry'Fieldsteel and Jacob Zelenlw for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Medalie, JJ.


text:
    The People of the State of New York ex rel. Cenwest Corp., Appellant, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued October 4, 1945;
    decided October 26, 1945.

      Isidore Feil for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Philip. A. Paul-son, Leo Brown and Oscar L. Tucker of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Medalie, JJ. Taking no part: Thacher, J.


text:
    The People of the State of New York, Respondent, v. Thomas Muscolino, Appellant.
    Submitted October 9, 1945;
    decided October 26, 1945.

      Edward A. Cunningham for appellant.

      Samuel J. Foley, District Attorney (George Tiber and Herman J. Fliederdlum of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    The People of the State of New York ex rel. 270 Park Avenue Corporation et al., Respondents, against James J. Sexton et al., as Commissioners of Taxes and Assessments of the City of New York, et al., Appellants.
    Argued October 4, 1945;
    decided October 26, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Oscar L. Tucker and Leo Brown), for appellants.

      Herbert C. Smyth, Jr., and Thomas F. Dougherty for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lohghran, Ch. J., Lewis, Conway, Desmond, Dye and Medalie, JJ. Taking no part: Thacher, J.


text:
    Moe Oltarsh, Appellant and Respondent, v. Max Oltarsh et al., Respondents and Appellants.
    Argued October 8, 1945;
    decided October 26, 1945.

      Joseph B. Kaufman for plaintiff-appellant and respondent.

      Sydney But and Maurice Danson for defendant-respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dye and Medalie, JJ.


text:
    George W. McKibbin, Appellant, v. City of New York, Respondent.
    Submitted October 9, 1945;
    decided October 26, 1945.

      T. Robert Gabrielli for appellant.
    ■ Ignatius M. Wilkinson, Corporation Counsel (Howard G. Fishbach and Francis J. Bloustein of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughrah, Ch. J., Lewis, Cohway, Desmohd, Thaoher, Dye and Med alie, JJ.


text:
    In the Matter of Samuel I. Berman, Respondent, against William J. Heffernan et al., Constituting the Board of Election of the City of New York, Respondents, and George J. Beldock, Appellant.
    Argued October 25, 1945;
    decided October 26, 1945.

      Charles PoTcorny, George Franhenthaler, Matthew M. Levy, Samuel C. Duberstein and Abraham Both for appellant.

      Abraham J. Mutter and John P. McGrath for petitioner, respondent.
   Order affirmed. Upon the conceded facts in this case petitioner had the right to file objections under section 142, and the right to bring this proceeding under section 330, of the Election Law, No opinion.-

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medaire, JJ.


text:
    379 Madison Avenue, Inc., et al., Respondents, v. Dore Bloom, Appellant.
    Argued October 8, 1945;
    decided October 26, 1945.

      Julius Weiss and Isidor Niner for appellant.

      Maurice I'sermm for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ.


text:
    In the Matter of Louis Blitzer, Doing Business as 31st Street Trading Co., Appellant, against Edgar Bromberger, as Commissioner of Investigation of the City of New York, Respondent.
    Argued October 9, 1945;
    decided October 26, 1945.

      Mack F. Goldman and Morris H. Beer for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro and James Hall Prothero of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lottghran, Lewis, Conway, Desmond, Thacheb, Dye and Medat.te, JJ.


text:
    In the Matter of Edward F. Curley, Jr., Respondent, against William J. Heffernan et al., Constituting the Board of Elections of the City of New York, Respondents, and John F. X. Masterson, Appellant.
    Argued October 25, 1945;
    decided October 26, 1945.

      Fiorello H. La Guardia, Fred Hertan and Lewis Abrahams for appellant.

      John P. McGrath and Abraham J. Flutter for petitioner, respondent.
   Order affirmed upon the ground that the findings of the courts below are in conformity with the clear weight of the evidence. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Med alie, JJ.


text:
    In the Matter of Cornelius A. Hall, Respondent, against William J Heffernan et al., Constituting the Board of Elections of the City of New York, Respondents, and Robert S. Woodward, Appellant.
    Argued October 24, 1945;
    decided October 26, 1945.

      William! A. Smith for appellant.

      Benjamin Gassman and Angelo Constantino for Cornelius A. Hall, respondent.

      Samuel D. Smoleff for Citizens Unión of the City of New York, amicus curia.

   Order affirmed; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Medalie, JJ. •


text:
    William A. Schenck, Appellant, v. Joseph Meyer, Jr., et al., Respondents.
    Submitted October 22, 1945;
    decided October 26, 1945.

      E. F. W. Wildermuth for motion.

      George F. Reid and John M. Keating opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of New York State Labor Relations Board, Respondent, against Bethlehem Steel Company et al., Appellants.
    Argued October 2, 1945;
    decided November 29, 1945.

      G. A. McLain and Daniel J. KeneficTc for appellants.

      William E. Grady, Jr. for respondent.
   Order affirmed, with costs; no opinion. [See 295 N. Y. 664.]

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, and Dye, JJ. Taking no part: Med alie, J.


text:
    Alphonso Allick, Respondent, v. Columbian Protective Association, Appellant.
    Argued October 11, 1945;
    decided November 29, 1945.

      Eli Thomas Scott for appellant.

      Bernard Jacobson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, and Dye, JJ. Taking no part: Medalie, J.


text:
    The People of the State of New York, Respondent, v. Joseph V. Augello and Bernard Berman, Appellants.
    Argued October 23, 1945;
    decided November 29, 1945.

      William B. Mahoney and John B. Corcoran for appellants.

      Leo J. Eagerly, District Attorney (Maurice Frey and George E. Metz of counsel), for respondent.
   Judgments affirmed; no opinion.

Concur: Loughban, . Ch. J., Lewis, Conway, Desmond, Thacheb, and Dye, JJ. Taking no part: Medalie, J.


text:
    In the Matter of Trustees of Columbia University in the City of New York et al., Respondents, against Paul M. Herzog et al., Constituting the New York State Labor Relations Board, Appellants. In the Matter of New York State Labor Relations Board, Appellant, against Trustees of Columbia University in the City of New York et al., Respondents.
    Argued October 25, 1945;
    decided November 29, 1945.

      William E. Grady, Jr., Philip Feldblum and Jay G. Kramer for appellant.

      Paul Windels, John Godfrey Saxe and Henry J. Kennedy for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Thacheb, and Dye, JJ. Taking no part: Medalie, J.


text:
    Allegheny Ludlum Steel Corporation, Appellant, v. William J. Kelley et al., Constituting the New York State Labor Relations Board, Respondents.
    Argued November 19, 1945;
    decided November 29, 1945.

      Welles V. Moot, William H. Eckert and William G. Gonable for appellant.

      William E. Grady, Jr. (Philip Feldblum and Norbert M. Phillips of counsel), for. respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ. Taking no part: Medalie, J.


text:
    In the Matter of the Intermediate Accounting of Hetty Goldman et al., as Executors of Julius Goldman, Deceased, Respondents. United States Trust Company of New York, as Trustee under the Will of Julius Goldman, Deceased, Appellant; Sidney C. Koff, for Himself as a Stockholder and All Other Stockholders of the American Metal Company, Limited, in Like Situation, Respondent.
    Argued October 22, 1945;
    decided November 29, 1945.

      Williamson Pell, Jr., and William A. W. Stewart for appellant.

      Felix A. Fishman, Henry L. Moses, Henry B. Singer and Arthur Levy for Hetty Goldman and others, as executors of Julius Goldman, deceased, respondents.
   Order affirmed, with costs payable out of the estate to all parties appearing separately and filing briefs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond. Thacheb and Dye, JJ.. Taking no part: Medalie, J.


text:
    City of Utica, Respondent, v. County of Herkimer et al., Appellants. City of Utica, Respondent, v. County of Oneida et al., Appellants. City of Utica, Respondent, v. John M. Leach et al., Appellants.
    Argued October 25, 1945;

    decided November 29, 1945.

      Leonard W. Burdich and Charles T. Severn for Town of New Hartford, appellant.

      Francisco Penberthy and Milton D. Nelson for Towns of Deer-field, Trenton and Marcy, appellants.

      Edmond J. Fitzgerald for Village of Yorkville, appellant.

      Chester J. Winslow for County of Herkimer, appellant.

      Pirnie Pritchard for County of Oneida, appellant.

      Harold Hartness for Town of Whitestown, appellant.

      James C. Bronner for Town of Salisbury, appellant.

      Bartle Gorman for respondent.
   In each case, judgment affirmed, with costs. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ. Taking no part: Medalie, J.


text:
    Helen M. Staub, Appellant, v. City of New York, Respondent.
    Submitted October 22, 1945;
    decided November 29, 1945.

      Ralph Stout, Joseph Rothbard and Louis Rothbard for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Fred Isool and James Hall Prothero of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thaoheb and Dye, JJ. Taking no part: Medalie, J.


text:
    Mary H. McGunn, as Administratrix of the Estate of Arthur McGunn, Deceased, Respondent, v. American Mutual Liability Insurance Company et al., Appellants.
    Argued October 8, 1945;
    decided November 29, 1945.

      Joseph J. Brophy, Edward A. Shanclell and Desmond T. Barry for appellant.

      Thomas F. J. Connolly and Robert J. McKeever for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lougi-iban, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ. Taking no-part: Meoalie, J.


text:
    Sylvester Holmes, as Administrator of the Estate of Frances Holmes, Deceased, Respondent, v. City of New York, Appellant.
    Argued October 23, 1945;
    decided November 29, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Joseph F. Mulqueen, Jr., and James Hall Prothero of counsel), for appellant.

      Nemo Convisser and Sidney G. Hollander for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher and Dye, JJ. Taking no part: Medalie, J.


text:
    Devonshire, Jr., Inc., Appellant, v. Louis J. Cohn et al., Copartners Trading as Pat Hartly, Respondents.
    Argued October 10, 1945;
    decided November 29, 1945.

      David Goldstein and Lawrence Kovalshy for appellant.

      Stanley Ide La Gov for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loitghrah, Ch. J., Lewis, Con way, Desmoed, Thacher and Dye, JJ. Taking no part: Medalie, J.


text:
    Shore Bridge Corporation, Plaintiff, v. Utica Structural Steel, Inc., et al., Defendants. Fidelity and Deposit Company of Maryland et al., Appellants; First Trust Company of Albany, Respondent.
    Argued October 5, 1945;
    decided November 29, 1945.

      P. G. Dugan for Fidelity & Deposit Company of Maryland, appellant.
    P. G. Dugan and Thomas E. White for Alice R. Johnson, as assignee, appellant.

      Edward 8. Rooney for respondent.
   , Judgment affirmed, with costs; no opinion.

Concur: Lottghean", Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ. Taking no part: Medalie, J.


text:
    The People of the State of New York, Respondent, v. Howard Blue, Appellant.
    Argued October 10, 1945;
    decided November 29, 1945.

      William L. Clay for appellant.

      Daniel J. O’Mara, District Attorney (Harry L. Rosenthal of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Dye, JJ. Taking no part: Medalie, J.


text:
    Helene Weinstein, Appellant, v. Domur Realty Corp., Respondent.
    Submitted October 11, 1945;
    decided November 29, 1945.

      Harry Tannenbaum for appellant.

      Julius L. Rosenthal, Louis Helfenstein and Joseph 8. Robinson for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ. Taking no part: Medalie, J.