author: Htjbbs, J.

text:
    Commercial Credit Corporation, Appellant, v. Northern Westchester Bank, Respondent.

      "(Argued May 22, 1931;
    decided June 2, 1931.)

      Berthold Muecke, Jr., and Duane B. Dills for appellant.
    The trial court misapplied the Factors’ Act to the stipulated facts. (Pegram v. Carson, 23 N. Y. Super. Ct. 505; Brooks v. Hanover Nat. Bank, 26 Fed. Rep. 301; First Nat. Bank v. Shaw, 61 N. Y. 283 ; 69 N. Y. 624; Kinston Cotton Mills v. Kuhne, 129 App. Div. 258; Kuphick v. Levy, 114 Misc. Rep. 533; Cartwright v. Wilmerding, 24 N. Y. 521; New York Security & Trust Co. v. Lipman, 157 N. Y. 551; Freudenheim v. Gutter, 201 N. Y. 94; Clark v. Flynn, 120 Misc. Rep. 474.) The trial court misapplied the equitable doctrine of estoppel to the facts in this case, and its decision is contrary to and in conflict with legal principles. (Wetzlar v. Wood, 143 App. Div. 311; Martin v. Steinke, 22 Ohio App. 146; General Motors Acceptance Corp. v. Gandy, 200 Cal. 284; Jewett v. Miller, 10 N. Y. 402; Brown v. Bowen, 30 N. Y. 519; Malloney v. Horan, 49 N. Y. 111; McMaster
      v. President, 55 N. Y. 222; Bernard v. Campbell, 55 N. Y. 456; Winegar v. Fowler, 82 N. Y. 315; Andrews v. Ætna Life Ins. Co., 85 N. Y. 334; Thompson v. Simpson, 128 N. Y. 270; Jacobus v. Jamestown Mantel Co., 211 N. Y. 154; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285; Culmer v. American Grocery Co., 21 App. Div. 556; Sutherland v. Mead, 80 App. Div. 103.)

      William H. Weeks and Edward P. Barrett for respondent.
    The court properly applied the Factors’ Act to the facts in the case. (Cartwright v. Wilmerding, 24 N. Y. 521; Howland v. Woodruff, 60 N. Y. 73; Dorrance v. Dean, 106 N. Y. 203; Schwab v. Oatman, 106 N. Y. Supp. 741; Soltau v. Gerdau, 119 N. Y. 380; Freudenheim v. Gutter, 201 N. Y. 94; Sanette Corp. v. Sanette Corp., 230 N. Y. Supp. 102; New York S. & T. Co. v. Lipman, 157 N. Y. 551; Clark v. Flynn, 199 N. Y. Supp. 583; Matter of James, Inc., 30 Fed. Rep. [2d] 555.) Under the Factors’ Act (subd. 1) the bill of sale takes preference over the unrecorded trust receipt. (Matter of James, Inc., 30 Fed. Rep. [2d] 555; Clark v. Flynn, 199 N. Y. Supp. 583.) The doctrine of equitable estoppel was properly applied. (Bernard v. Campbell, 55 N. Y. 456; Jacobs v. Jamestown Mantel Co., 211 N. Y. 154; Metropolitan Life Ins. Co. v. Childs, 230 N. Y. 285; Parker v. Baxter, 86 N. Y. 586; Dows v. Kidder, 84 N. Y. 121; Voorhis v. Olmstead, 66 N. Y. 113; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41; McNeil v. Tenth Nat. Bank, 46 N. Y. 325.) The bill of sale given as collateral security for the payment of the promissory note gave the respondent the right to the possession of the automobile when the dealer failed to pay the note. (Rivara v. Stewart & Co., 241 N. Y. 259; Cartwright v. Wilmerding, 24 N. Y. 521; Gandy v. Collins, 214 N. Y. 293; Stephens v. Meridan Britannia Co., 160 N. Y. 178; Sullivan v. Miller, 106 N. Y. 635; Jones v. Graham, 77 N. Y. 628; Utica Trust & Deposit Co. v. Decker, 244 N. Y. 340.)
   Htjbbs, J.

This is an action in replevin for the recovery of six automobiles. Both appellant and respondent are organized under the Banking Law of the State of New York (Cons. Laws, ch. 2), appellant being engaged in commercial financing and respondent in the general banking business. One John F. Bryan was an automobile dealer and will be designated hereinafter- as “ the dealer.”

Appellant originally acquired title to the six automobiles directly from the manufacturer thereof. The automobiles were delivered to the dealer on his execution of certain trust receipts, held by the appellant, which provided that the dealer should hold the automobiles in trust for the appellant and that the dealer should not lend, rent, mortgage, pledge, incumber, operate, use or demonstrate the same but might sell all or any of them for cash and hold the proceeds in trust for the appellant. The trust receipts also provided for the retaking of the automobiles by appellant in the event of dealer’s default.

The dealer placed the automobiles in his showrooms and thereafter executed and delivered to the respondent certain promissory notes and as collateral security for the payment of the notes delivered to it bills of sale of the six automobiles in question. Subsequently the dealer defaulted in payment of the notes and the respondent took possession of the automobiles. Thereupon the appellant replevied them from respondent pursuant to the writ of replevin issued in this action.

Appellant’s trust receipts were neither filed nor recorded. In fact, it was conceded that the trust receipts were not conditional bills of sale or chattel mortgages and accordingly the statutes relating to the filing and recording of such instruments have no application.

The action was submitted upon a stipulation and agreed statement of facts which sets forth the appellant’s original title, the delivery of the automobilese to the dealer, the execution of the trust receipts, the execution of the bills of sale as collateral security for the promissory notes given by the dealer to respondent at the time of the execution of the bills of sale; that the dealer remained in complete and undisturbed possession of the automobiles until they were taken by respondent upon the dealer’s default in payment of the notes and that respondent had no notice or knowledge of the existence of the trust receipts and no notice, information or knowledge that the dealer was not the owner of said automobiles at the time when the bills of sale and promissory notes were delivered by the dealer to the respondent.

The trial court gave judgment to the respondent upon the ground that the appellant, having clothed the dealer with apparent ownership and having expressly conferred upon him permission to sell, was estopped to deny, as against a creditor in good faith who contracted with such dealer for the sale or disposition of the automobiles, that the dealer had the right to dispose of the same. It was also held that the rights of the parties are governed by the Factors’ Act (Pers. Prop. Law [Cons. Laws, ch. 41], § 43, subd. 1), under the provisions of which an agent intrusted with the possession of merchandise for the purpose of sale is deemed the true owner thereof so far as to give validity to a contract made with the agent for the sale or disposition of the merchandise.

The act in question reads as follows:

“ Factors’ Act. 1. Every factor or other agent, entrusted with the possession of any bill of lading, custom-house permit, or warehouseman’s receipt for the delivery of any merchandise, and every such factor or agent not having the documentary evidence of title, who shall be intrusted with the possession of any merchandise for the purpose of sale, or as a security for any advances to be made or obtained thereon, shall be deemed to. be the true owner thereof, so far as to give validity to any contract made by such agent with any other person, for the sale or disposition of the whole or any part of such merchandise and any account receivable or other chose in action created by sale or other disposition of such merchandise, for any money advanced, or negotiable instrument or other obligation in writing given by such other person upon the faith thereof.”

In the second subdivision thereof it is • provided as follows:

Every person who shall hereafter accept or take any such merchandise and any account receivable or other chose in action created by sale or other disposition of such merchandise in deposit from any such agent, as a security for any antecedent debt or demand, shall not acquire thereby, or enforce any right or interest in or to such merchandise and any account receivable or other chose in action created by sale or other disposition of such merchandise or document, other than was possessed or might have been enforced by such agent at the time of such deposit.”

It is the contention of the appellant that the agreed statement of facts contains no statement of a present consideration for the execution and delivery of the promissory notes and bills of sale, fails to show that the instruments in question were not given as security for an antecedent debt or demand, and fails to show that the respondent made any advance upon the faith of the dealer’s possession of the automobiles. The respondent did not execute any negotiable instrument or other obligation in writing, so that it is not entitled to the benefit of subdivision 1 unless the contracts for the sale or disposition of the automobiles were made for money presently advanced. Unless there is a presumption that a promissory note or bill of sale is given for money presently advanced, it is clear that subdivision 1 of the Factors’ Act has no application.

The extent of the presumption as to the consideration for a negotiable instrument is set forth in the Negotiable Instruments Law, article 4, section 50 (Cons. Laws, ch. 38), which reads as follows:

Every negotiable instrument is deemed prima fade to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.”

By section 51 of the same law it is provided that an antecedent or pre-existing debt constitutes value.

The agreed statement of facts contains only the allegation that the bills of sale were, in each instance, given as collateral security for a certain promissory note “ in the sum of $1000.00.” The bill of sale, made a part of the statement of facts, recites the consideration as follows: “ One Thousand and ..........Dollars paid by the Northern Westchester Bank, receipt whereof is hereby acknowledged.” And the note, also made a part of the statement of facts, reads: On demand after date for value received the undersigned promises to pay,” etc. In neither the bill of sale nor the note referred to is there any statement which shows whether the money advanced by the respondent was presently advanced or had been previously advanced.

No decision has been called to our attention to the effect that the recital of consideration in a bill of sale, not specific as to the time when such consideration was advanced, indicates a present advancement of the consideration and the court must take judicial notice of the fact that such instruments are commonly given as security for or in payment of antecedent debts. In the instant case there is nothing in the instruments or in the statement of facts to indicate a present advancement of money which would entitle the respondent to the benefit of subdivision 1 of the Factors’ Act. As this case was submitted to the court upon an agreed statement of facts, only questions of law were submitted, and the courts cannot draw inferences of fact from the agreed statement unless the inferences follow as necessary inferences as a matter of law. It follows that the judgment must be reversed unless appellant is estopped from setting up its title.

The trial court held that such estoppel existed. The agreed statement of facts sets forth the original title in the appellant. It was, therefore, entitled to judgment unless the statement of facts disclosed that it had been divested of that title. All that is set forth in the statement of facts is the taking of the promissory notes and the bills of sale as collateral security for the payment thereof.

Before the doctrine of equitable estoppel becomes applicable as against the true owner of merchandise in the possession of another, it must appear that the person alleging the estoppel acted and parted with value upon the faith of the apparent ownership or authorization of the person in possession of the merchandise. (Barnard v. Campbell, 55 N. Y. 456.)

It has been held that “An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury.” (Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 292.)

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

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Elmer H. Lemon, Appellant and Respondent, v. Mildred Elmore et al., Defendants, and Salvatore Caparbo, Respondent and Appellant.

      (Argued March 27, 1931;
    decided June 2, 1931.)

      Henry Hirschberg for defendant, respondent and appellant.
    The statute is unconstitutional and void in that it permits the imposition of penalties and forfeitures without an ascertainment of the facts by jury trial. (Colon v. Lisk, 153 N. Y. 188; Hudson v. Caryl, 44 N. Y. 553; Lipke v. Lederer, 259 U. S. 557; Regal Drug Corp. v. Wardell, 260 U. S. 386; Child Labor Tax Case, 259 U. S. 20; Helwig v. United States, 188 U. S. 605; O’Sullivan v. Felix, 233 U. S. 318.) The statute is unconstitutional in that it confers jurisdiction to enforce the criminal law on a court of equity. (Hedden v. Hand, 90 N. J. Eq. 583; State v. Uhrig, 14 Mo. App. 413; Attorney-General
      v. Tudor Ice Cream Co., 104 Mass. 239; Keeler v. State, 82 Okla. 89; Marshall v. Vicksburg, 15 Wall. [U. S.] 146; Matter of Sawyer, 124 U. S. 200; Boyd v. United States, 116 U. S. 616; Garnharts v. United States, 16 Wall. [U. S.] 162; Dobbins Dist. v. United States, 96 U. S. 395; Shawnee v. United States, 249 Fed. Rep. 583; Stuart v. Supervisors La Salle Co., 25 Am. Rep. 397; Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 370.)

      Franklin A. Schriver, District Attorney, for plaintiff, appellant and respondent.
    The statute is not unconstitutional because it deprives the defendant of a jury trial. (City of Rochester v. Guberlett, 211 N. Y. 309; McKenna v. Meehan, 248 N. Y. 406; Gregg v. People, 65 Col. 390; King v. Commonwealth, 238 S. W. Rep. 373; People v. McCadden, 192 Pac. Rep. 325; Matter of Love, 205 App. Div. 363; Colon v. Lisk, 153 N. Y. 188; Hudson v. Caryl, 44 N. Y. 553; People v. Vandewater, 250 N. Y. 83; United States v. Myers, 215 App. Div. 624; People ex rel. Thrasher v. Smith, 275 Ill. 256; Mugler v. Kansas, 123 U. S. 623; State ex rel. Wilcox v. Ryder, 126 Minn. 95; State ex rel. English v. Fanning, 97 Neb. 224; Chase v. Revere House, 232 Mass. 88; Pompano Horse Club v. State, 111 So. Rep. 801.) The statute does not confer jurisdiction to enforce the criminal law on courts of equity and is not for this reason unconstitutional. (McKenna v. Meehan, 248 N. Y. 206; Matter of Love, 205 App. Div. 363; City of Rochester v. Gutberlett, 211 N. Y. 309; Lawton v. Steele, 119 N. Y. 226; Mugler v. Kansas, 123 U. S. 623; King v. Commonwealth, 238 S. W. Rep. 373; Chase v. Revere House, 232 Mass. 88; Reale v. Judges of Superior Court, 163 N. E. Rep. 893; People ex rel. Thrasher v. Smith, 275 Ill. 256; State ex rel. Herigstad v. McCray, 186 N. W. Rep. 280; People v. McCaddon, 192 Pac. Rep. 325; United States v. Reinking, 283 Fed. Rep. 855.) The judgment of the Appellate Division should be modified to impose the penalty tax of $300. (Hodge v. Muscatine County, 196 U. S. 276; State v. Jerome, 141 Pac. Rep. 753; State v. Stroup, 155 N. W. Rep. 90.)
   Lehman, J.

The defendant Caparbo is the owner of premises which have been used as a house of prostitution. In an action brought pursuant to the provisions of article 17-A of the Public Health Law (Cons. Laws, ch. 45), a judgment was rendered at Special Term enjoining the defendants from " conducting, maintaining, using, occupying or in any way permitting the use or occupancy of said premises and the building located thereon for the purpose of lewdness, assignation, prostitution, or as a disorderly house.” In accordance with the command of the statute the judgment directed the sheriff to effectually close the building located on said premises against its use for any purpose, and to keep the same closed for a period of one year, unless sooner released as provided by law,” and imposes a tax ” of $300 upon the property.

• The maintenance of a house of prostitution constitutes a public nuisance. An owner of adjoining property may complain that he has suffered special damage by the maintenance of such a nuisance which interferes with the legitimate use of his property and renders its occupation unfit or uncomfortable, and he may maintain an action in equity for an injunction. (Cranford v. Tyrrell, 128 N. Y. 341.) Whether in the absence of a statute an action in equity for an injunction might be maintained by a public officer in the public interest to abate such a nuisance is more doubtful. In Attorney-General v. Utica Ins. Co. (2 Johns. Ch. 371) Chancellor Kent has pointed out that courts of equity have interfered only rarely and in limited' classes of cases “ to put down a .public nuisance which did not violate the rights of property, but only contravened the general policy.” The Legislature, by article 17-A of the Public Health Law, has authorized a district attorney to bring actions to enjoin the maintenance of a house of prostitution and has directed courts of equity upon sufficient proof to issue such an injunction and to direct the closing of the building where the nuisance was maintained. The power of the Legislature to authorize or direct such an equitable action to obtain such a judgment is challenged on the ground that it violates article 1, section 2, of the Constitution providing that “ trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.”

At common law the issues of fact upon an assize of nuisance to abate the nuisance and to recover damages were tried by a jury. So, too, were tried all actions for forfeiture. The Legislature cannot deprive a defendant of a right to a trial by jury in such actions by authorizing a court of equity to take jurisdiction. (Hudson v. Caryl, 44 N. Y. 553; Colon v. Lisk, 153 N. Y. 188.) That is not what the Legislature has done here. Remedy by common-law action furnished incomplete protection against injury to the public interest by the maintenance of a public nuisance. Remedy by injunction at the suit of a person who had suffered special injury in his property rights furnished more adequate protection to those rights. The Legislature has determined that similar protection should be afforded to public rights. It did not deprive a defendant of his right to a jury trial in any action where jury trials had previously been the rule. It extended an equitable remedy in a field where coruts of equity had been reluctant to interpose their powers. There never had been a right to trial by jury where the remedy for a wrong was through injunction. The Constitution makes inviolable trial by jury “ in all cases in which it has been heretofore used.” It does not restrict the Legislature from enlarging the scope of equitable remedies or require that a defendant shall have a right to trial by jury where no such right previously existed. The provision that the court shall direct the effectual closing of the building for a year is not a forfeiture nor a penalty. It is imposed not because the owner of the premises has committed an offense, but because under his ownership a nuisance has been created by a person suffered to occupy the premises. It constitutes an appropriate means of definitely and completely ending the nuisance. Its character is established by the provision that if the owner, by filing a bond in the value of the property, gives assurance that “ he will immediately abate said nuisance and prevent the same from being established, or kept therein within a period of one year ” (§ 343-b), the court may, when satisfied of the good faith of the owner, cancel the order of abatement.

The same question has been presented in other jurisdictions by similar provisions in analogous statutes. The great weight of authority accords with the conclusion that an equitable remedy, provided in the public interest against the maintenance of a public nuisance, does not violate any right to a jury trial in “ cases in which it has been heretofore used,” even though previously the only remedy against such a nuisance was by a common-law action. To hold otherwise would in our opinion restrict the Legislature in a manner not contemplated by the framers of the State and Federal Constitutions.

We are told by the defendant-appellant that decisions upholding the padlock provisions of prohibition enforcement laws rest upon special considerations peculiar to that class of cases. (Duignan v. United States, 274 U. S. 195; Grosfield v. United States, 276 U. S. 474; Kling v. United States, 8 Fed. Rep. [2d] 730; certiorari denied, 46 Sup. Ct. 203.) The attempted distinction is of doubtful weight. Many other States have statutes with provisions concededly analogous to those now under consideration. Almost uniformly the courts have sustained these provisions. In some of these States the courts have held that even without a statute, a court of equity had general power to enjoin a public nuisance. Then the contention that a Legislature may not confer or confirm such jurisdiction loses all force. (People ex rel. Thrasher v. Smith, 275 Ill. 256.) Courts of equity have from ancient times exercised such jurisdiction, at least in some cases. (Mugler v. Kansas, 123 U. S. 623.) Perhaps failure to exercise such jurisdiction, except in limited classes of cases] does not show that the courts might not, if they saw fit, exercise such jurisdiction generally. Even if the jurisdiction of courts of equity was limited, the Legislature would have power to enlarge that jurisdiction to cover those cases where remedy was otherwise inadequate. True, in Hedden v. Hand (90 N. J. Eq. 583, 593) the court said: “It is clear that if the legislature may bestow on the court of chancery jurisdiction to grant an injunction and abate a public nuisance of a purely criminal nature, then there can be no valid argument against the power of the legislature to confide the entire criminal code of this state to a court of equity for enforcement.” Respect for that learned court impels us to give careful consideration to its words. Nevertheless, we think there is a clear line of demarcation between what the Legislature may do and what by constitutional limitation it is precluded from doing. That line of demarcation is • indicated by Mr. Justice Stoey in 2 Story, Equity Juris. (§§ 921 and 922), cited in Mugler v. Kansas (supra). Courts of equity “ can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings.” (Mugler v. Kansas, supra, p. 673.) Punishment for past wrongs must be had by criminal prosecution. The Legislature cannot deprive a defendant of his right of trial by jury in a criminal prosecution by conferring criminal jurisdiction upon a court of equity. Injunction against future wrong or the continuance of present wrong can be issued only by a court of equity. The Legislature does not confer criminal jurisdiction upon a court of equity by enlarging the scope of the remedy of injunction. (See State ex rel. Wilcox v. Ryder, 126 Minn. 95; Gregg v. People, 65 Col. 390; Chase v. Proprietors of Revere House, 232 Mass. 88; Williams v. State, 150 Ga. 480; Dowda v. State, 203 Ala. 441.)

Other objections are urged by the defendant-appellant against the constitutionality of the statute. We find them without substance. No provision has been made in the judgment for the sale of any property used in conducting the nuisance. We do not now consider whether those parts of the statute authorizing such sale are valid.

There remains only for consideration the provision of the statute requiring that when a permanent injunction issues * * * there shall be imposed upon said building and the ground upon which the same is located and against the person or persons maintaining said nuisance and the owner, or agent of said premises, a tax of three hundred dollars, which shall be known as a penalty tax.’ The imposing of said tax shall be made by the court as a part of the judgment.” (§ 343-w.) The Appellate Division has held that this “ tax ” is in effect a penalty and has modified the judgment by eliminating therefrom the imposition of a tax of $300.

It is urged that Hodge v. Muscatine County (196 U. S. 276,279) is authority that the “ penalty tax ” is in true sense a tax. There the State of Iowa, in section 5006 of its Code, forbade in general terms the manufacture, sale, exchange or disposition of cigarettes or cigarette paper, and in section 5007 provided that there shall be assessed a tax of three hundred dollars per annum against every person, partnership or corporation and upon the real property and the owner thereof, within or whereon any cigarettes * * * are sold or given away. * * * Such tax * * * shall be assessed, collected and distributed in the same manner as the mulct liquor tax law, and shall be a perpetual hen upon all property used in connection with the business.” The Supreme Court of the United States said that it would treat the charge as a “ tax ” and apply to the proceedings for its assessment and collection the standards of due process of law applicable to tax assessments.

In that case the charge was denominated a tax; here it is denominated a penalty tax.” There it was annually assessed by the regular tax assessors. Here it is imposed by the court, and only where a judgment is rendered in an equitable action. There the proceeds of the tax were to be distributed in the same manner as other taxes. Here twenty-five per centum of proceeds of the charge shall be paid to the attorney representing the State in the injunction action, and the remainder, after payment of certain costs, “ shall be distributed in the same manner as fines collected for the keeping of houses of prostitution.” (§ 343-z.) It seems to us that in view of these distinctions, the analogy becomes illusory. In the Iowa statute there was ground for a possible inference that the Legislature was seeking revenue for the State by the imposition of an added burden upon a traffic which it was at the same time seeking to suppress. Here no tax was assessed by tax officials upon the traffic but was imposed by a judgment of the court of equity as an integral part of a judgment suppressing the traffic. It is in effect a penalty for an offense, and its proceeds are treated in the same way as a fine. The Legislature, since the offense was committed, has amended the statute by eliminating those features from the statute which were evidently intended to give to a penalty the outward appearance of a tax. It still leaves the distribution of its proceeds as it was. Though the amendment to the statute has no application here, it sheds some light upon the true nature of the charge. That part of the statute violates a right to trial by jury which the Constitution has declared shall remain inviolate. We look behind the form to the substance.

The judgment should be affirmed, without costs. Cardozo, Ch. J., Pound, Crane, Kellogg, O'Brien and Hubbs, JJ., concur.

Judgment affirmed.


author: Lehman, J. Crane, J.

text:
    The Long Island Railroad Company, Appellant and Respondent, v. Department of Labor of the State of New York et al., Respondents and Appellants. The Delaware, Lackawanna and Western Railroad Company, Appellant and Respondent, v. Department of Labor of the State of New York et al., Respondents and Appellants.

      (Argued May 13, 1931;
    decided June 2, 1931.)

      Alfred A. Gardner, Louis J. Carruthers and Joseph F. Keaney for Long Island Railroad Company, appellant and respondent.
    Article 8-A of the Labor Law cannot be sustained upon the principle that the State may determine for itself and its municipalities the hours required and rates of wages which it and they will pay. (Atkin v. Kansas, 191 U. S. 207; People ex rel. W. E. & C. Co. v. Metz, 193 N. Y. 148; Campbell v. City of New York, 244 N. Y. 317; Adair v. United States, 208 U. S. 161; Coppage v. Kansas, 236 U. S. 1.) The act cannot be sustained upon the theory that it comes within the police power of the State. (Wilson v. New, 243 U. S. 332; Tyson & Bro. v. Banton, 273 U. S. 418; People ex rel. W. E. & C. Co. v. Metz, 193 N. Y. 148; Adkins v. Children’s Hospital, 261 U. S. 525.) The Legislature by characterizing grade crossing work as public work cannot bestow upon itself the power to fix hours of labor and rates of wage for the workmen employed by the railroad companies and their contractors in carrying out such work. (People v. Crane, 214 N. Y. 167; McFarland v. American Sugar Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 6.) The statute is void for indefiniteness. (General Construction Co. v. Connally, 3 Fed. Rep. 666; Webster v. Fall, 266 U. S. 507; New v. Oklahoma, 195 U. S. 252; Tefft, Weller & Co. v. Munsuri, 222 U. S. 114; United States v. More, 3 Cr. 159; The Edward, 1 Wheat. 261; Connally v. General Construction Co., 269 U. S. 385; Campbell v. City of New York, 244 N. Y. 317; Small Co. v. American Sugar Refining Co., 267 U. S. 233; Standard Chemicals Corp. v. Waugh Chemical Corp., 231 N. Y. 51; Cline v. Frink Dairy Co., 274 U. S. 445.) Article 8-A of the Labor Law, in so far as it attempts to regulate the hours of service, wages and working conditions of the railroad’s employees, is in conflict with the commerce clause of the Federal Constitution. (Hours of Service Act, U. S. Code, tit. 45, §§ 61-64; Railway Labor Act, U. S. Code, tit. 45, §§ 151-163; Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548; Erie R. R. Co. v. New York, 233 U. S. 671; People v. New York Central, 163 App. Div. 79; Staten Island Rapid Transit Ry. Co. v. Public Service Comm., 16 Fed. Rep. [2d] 313; People ex rel. Delaware & Hudson Co. v. Public Service Comm., 226 App. Div. 43; Napier v. Atlantic Coast Line, 272 U. S. 605; Missouri Pacific v. Porter, 273 U. S. 341; Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 278; People ex rel. Angerstein v. Kenney, 96 N. Y. 302; McFarland v. American Sugar Co., 241 U. S. 79.)

      Austin J. McMahon and Douglas Swift for Delaware, Lackawanna and Western Railroad Company, appellant and respondent.
    The statute, in so far as it attempts to regulate hours of service, wages and working conditions of the railroad’s employees, is in conflict with the commerce clause of the Constitution. (Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146; Philadelphia, Baltimore & Wash. R. R. Co. v. Smith, 250 U. S. 101; Lombardo v. Boston & Maine R. R. Co., 223 Fed. Rep. 427; Houston & Texas Ry. Co. v. United States, 234 U. S. 342; Southern Ry. Co. v. Railroad Comm. of Indiana, 236 U. S. 439; Southern Ry. Co. v. United States, 222 U. S. 20; Colorado v. United States, 271 U. S. 153; People ex rel. D. & H. R. R. Co. v. Pub. Serv. Comm., 226 App. Div. 43; Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548; St. L. & I. M. S. Ry. v. Edwards, 227 U. S. 265; Erie R. R. Co. v. New York, 233 U. S. 671; Savage v. Jones, 225 U. S. 501; Whish v. Public Service Comm., 205 App. Div. 756; 240 N. Y. 677; Staten Island Rapid Transit Ry. Co. v. Pub. Serv. Comm., 16 Fed. Rep. [2d] 313.) Congress has taken over the field of wages and hours of service of all employees of interstate carriers. (Wilson v. New, 243 U. S. 332; Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548.) The power of Congress to make regulations in regard to agencies for interestate commerce is not defeated by the fact that some of its necessary incidents when considered alone are of non-interstate character. (Gibbons v. Ogden, 9 Wheat. 187; Welton v. Missouri, 91 U. S. 275; Northern Securities v. United States, 193 U. S. 197; Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548; Stafford v. Wallace, 258 U. S. 495; Interstate Commerce Comm. v. Goodrich Transit Co., 224 U. S. 194; Dayton-Goose Creek Ry. v. United States, 263 U. S. 456; Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33; Second Employers’ Liability Cases, 223 U. S. 1.)

      John J. Bennett, Jr., Attorney-General (Hamilton Ward, Frank P. Walsh, Claude T. Dawes, Wendell P. Brown and Amos D. Moscrip of counsel), for Department, of Labor et ah, respondents and appellants.
    Article 8-A of the Labor Law does not violate any provision of the Federal Constitution. The State may regulate the wages and hours of labor of persons engaged in public work. (L. 1897, ch. 415; L. 1899, ch. 567; L. 1900, ch. 298; L. 1906, ch. 506; L. 1909, ch. 292; L. 1913, ch. 494; L. 1916, ch. 152; L. 1921, ch. 642; L. 1927, chs. 166, 563; L. 1930, ch. 804; Campbell v. City of New York, 244 N. Y. 317; 277 U. S. 573; People ex rel. Williams Eng. & Cont. Co. v. Metz, 193 N. Y. 148.) The work of grade crossing elimination is public work; a railroad is a public highway and a railroad corporation is an agent of the State. (Olcott v. Supervisors, 16 Wall. [U. S.] 678; Beekman v. Saratoga & S. R. Co., 3 Paige, 45; Bloodgood v. Mohawk & H. R. Co., 18 Wend. 1; Worcester v. Railroad Co., 4 Metc. 564; Charles River Bridge Co. v. Warren, 7 Pick. 495; Sun Pub. Assn. v. Mayor, 152 N. Y. 257; Matter of Niagara Falls R. R. Co., 108 N. Y. 375; People v. Kerr, 27 N. Y. 188; Clarke v. City of Rochester, 24 Barb. 446; Chicago R. R. Co. v. Chicago, 140 Ill. 309; White River Turnpike Co. v. Vermont Cent. R. Co., 21 Vt. 590; Cherokee Nation v. So. Kan, R, Co., 135 U. S.

      641; People v. N. Y. C. R. R. Co., 28 Hun, 543.) The statute is not vague or indefinite. (Connally v. General Constr. Co., 269 U. S. 385; Case v. State of New York, 254 N. Y. 568.) The statute is not subject to attack because of its penalty provisions. (Rail Coal Co. v. Yaple, 236 U. S. 338; Portland R. R. Co. v. Portland, 230 U. S. 525; Wadleigh Southern R. Co. v. Georgia, 235 U. S. 651; St. Louis R. R. Co. v. Arkansas, 240 U. S. 519.) The trial court erred in holding that the Railway Labor Act made inoperative the provisions of article 8-A of the Labor Law as to railroad employees engaged in grade crossing elimination. (Adkins v. Children’s Hospital, 261 U. S. 525; Munn v. Illinois, 94 U. S. 113; O’Gorman v. Hartford Assurance Co., 282 U. S. 251; New York Central R. R. Co. v. Williams, 199 N. Y. 108; Erie R. R. Co. v. Williams, 199 N. Y. 525; Howard v. Illinois C. R. R. Co., 207 U. S. 463; Houston Ry. Co. v. United States, 234 U. S. 342; Southern Ry. Co. v. United States, 222 U. S. 20; Baltimore & Ohio R. R. Co. v. Interstate Commerce Comm., 221 U. S. 612; New York Central R. R. Co. v. Carr, 238 U. S. 260; Erie R. R. Co. v. Collins, 253 U. S. 77.)

      Frederick L. Hackenburg and Frank Pedlow for District Council of New York City of United Brotherhood of Carpenters and Joiners of America, amicus curice.

    The elimination of grade crossings is public work within the meaning of article 8 and article 8-A of the Labor Law. (McAvoy v. New York, 52 App. Div. 485; U. S. v. Ætna Indemnity Co., 40 Wash. 87; Matter of New York Central R. R. Co., 136 App. Div. 760; Matter of Boston R. R. Co., 64 App. Div. 257; 170 N. Y. 619; People v. Kerr, 27 N. Y. 188; Missouri, K. & T. R. R. Co. v. Oklahoma, 271 U. S. 303; Erie R. R. Co. v. Board of Public Utility Commrs., 254 U. S. 394; Transit Comm. v. Long Island R. R. Co., 253 N. Y. 345.) Article 8-A of the Labor Law does not abridge the privileges and immunities of plaintiffs nor deprive the plaintiffs of their property without due process of law nor deny to the plaintiffs the equal protection of the laws and does not violate the Fourteenth Amendment of the Constitution of the United States nor sections 1 and 6 of article 1 of the Constitution of the State of New York. (Atkins v. Kansas, 191 U. S. 207; People ex rel. W. E. & C. Co. v. Metz, 193 N. Y. 148; Muller v. Oregon, 208 U. S. 412; Campbell v. City of New York, 244 N. Y. 317.) Article 8-A is neither vague, uncertain nor indefinite and the standard therein set is capable of ascertainment. (Campbell v. City of New York, 244 N. Y. 317; Case v. State of New York, 254 N. Y. 568.) Article 8-A does not in any respect interfere directly with or burden interstate commerce and is not in conflict with clause 3 of section 8 of article 1 of the United States Constitution. (Erie R. R. Co. v. Board of Public Utility Commrs., 254 U. S. 394.) Article 8-A is not in violation of, nor in conflict with the Hours of Service Act, the Railway Labor Act. (Chicago & N. W. R. Co. v. Railroad Warehouse Comm., 280 Pac. Rep. 387; N. Y. C. R. R. Co. v. White, 243 U. S. 188; Raymond v. C., M. & S. R. Co., 243 U. S. 43; M. & S. L. R. Co. v. Winters, 242 U. S. 353; Buyonfski v. Lehigh Valley R. R. Co., 228 N. Y. 248; Shanks v. D., L. & W. R. R. Co., 239 U. S. 556; C., B. & Q. R. R. Co. v. Harrington, 241 U. S. 177; Matter of Otterstadt, 234 N. Y. 203; Klochynv. N. Y. C. R. R. Co., 218 App. Div. 295.)
   Lehman, J.

The State has determined that dangerous railway crossings at grade should be eliminated from the highways of the State. To promote that work the People of the State have adopted a new section of the Constitution which permits legislative authorization of a debt or debts of the State not exceeding in the aggregate three hundred million dollars “ to provide moneys for the elimination, under State supervision, of railroad crossings at grade within the State, at the expense of the State, railroad companies, counties and cities, as- hereinafter provided. Of the expense of a grade crossing elimination to which any of the proceeds of such a debt are applied, fifty per centum shall be borne by the railroad company.” (Art. VII, § 14.) The Legislature has authorized the creation of such a debt, and has, by chapter 678 of the Laws of 1928, provided for the elimination of grade crossings outside the cities of New York, Buffalo and Syracuse, and, by chapters 677, 679 and 825 of the Laws of 1928, has provided for such elimination within those cities. The machinery set up for the “ supervision ” by the State of the work to be done is not identical in all these statutes. In the city of New York the railroad company is required to perform the entire work, while elsewhere, at least in the absence of other direction, the railroad company performs the work exclusive of the approaches ” and the State or a civil subdivision thereof performs the work relating to the approaches.” In all cases the railroad company is required to pay only one-half of the cost of the work. The remainder of the cost is borne by the State or county.

Before these statutes were adopted, we had said tha.t the public policy of the State declared by successive Legislatures during a period of thirty years * * * exacts the payment of the rate of wages prevailing in the vicinage to laborers and mechanics employed upon public works.” (Campbell v. City of New York, 244 N. Y. 317, 324.) There we considered and sustained provisions of the Labor Law which regulated the hours of work of laborers, workmen and mechanics and required payment to them of not less than the prevailing rate for a day’s work,” etc., upon public works.” The term public works ” was limited in the statute to work performed by, or under a contract with, “ the state or a municipal corporation or a commission appointed pursuant to law,” and of course this court used that term in the same sense. By chapter 804 of'the Laws of 1930, the Legislature has added a new article to the Labor Law (Cons. Laws, ch. 31), regulating in similar manner the hours of work and the wages of laborers, workmen and mechanics upon all work of every kind upon the elimination of railroad grade crossings under article seven, section fourteen of the constitution * * * for the cost of which work the state and/or its civil divisions is liable in any proportion.” Such work is by the statute declared to be public work for the state and /or for its civil divisions.”

The Long Island Railroad Company is a corporation, created by the State of New York and operating a railroad in this State. The Delaware, Lackawanna and Western Railroad Company is a corporation, created by the State of Pennsylvania and operating railroad lines in the State of New York, which are owned or leased by it, pursuant to authority conferred upon it by the Legislature of this State. Both companies, in the operation of their railroad lines, are engaged in interstate commerce. These lines, at many places, cross public highways at grade. The State has directed the elimination from its highways of some of these crossings. It will in the future direct the elimination of others. The railroad companies, claiming that the enforcement of the provisions of article 8-A of the Labor Law upon any work performed by them in accordance with the directions of the State, in the elimination of grade crossings, would constitute a violation of their constitutional rights, have brought these actions to enjoin such enforcement.

Even though the railroad companies must pay one-half the expense of the work done by the State, or a civil division thereof, upon the approaches or other parts of crossing elimination, the plaintiffs do not contend that as to such work the provisions of the statute are invalid or unenforceable. By amendment to the Constitution of the State in 1805, it was expressly provided that the Legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed by the State or by any county, city, town, village or other civil division of the State, or by any contractor or subcontractor performing work, labor or services for the State, or for any county, city, town, village or other civil division thereof.” (Art. XII, § 1.) In Atkin v. Kansas (191 U. S. 207, 222) the Supreme Court of the United States decided that the exercise of such power by the State violated no right of a municipality or of a contractor which was guaranteed by the Constitution of the United States, saying we can imagine no possible ground to dispute the power of the State * * * that no one undertaking work for it or for one of its municipal agencies, should permit or require an employee on such work to labor in excess of eight hours each day.” The amendment of 1905 destroyed all vestiges of an earlier doctrine that the exercise of such a power could constitute an invasion of the constitutional rights of a municipality or other civil division of the State. (Campbell v. City of New York, supra.) It was intended to do no more. It precluded further assertion of the existence of a limitation upon the control of the State over municipal corporations or other civil divisions of the State. It removed any restrictions which the State might, by its own Constitution, have imposed upon the exercise of a power which was not restricted by the Federal Constitution. It could not remove the restrictions imposed by the Federal Constitution for the protection of subjects of the State, and it did not by implication limit the exercise of any powers which the Legislature had previously enjoyed. The railroad companies maintain that they are not civil divisions of the State, or even agents of the State, in performing the work of elimination of grade crossings. If that contention is sound, then we must look elsewhere for any legislative power to regulate the hours of work and wages of workmen on those parts of the work of grade crossing elimination performed by the railroads under command of the State.

The work of eliminating railroad crossings at grade from the highways of the State is, doubtless, public work. It is a public undertaking in behalf of the * * * people of this State, * * * in which the railroads are to pay a part of the cost.” (Transit Commission v. Long Island R. R. Co., 253 N. Y. 345, 350.) “ It is elementary that for the safety and convenience of the public, the State, either directly or through its municipalities, may reasonably regulate the construction and use of highways where they cross railroads. The legitimate exertion of police power to that end does not violate the constitutional rights of railroad companies. They may be required at their own expense to construct bridges or viaducts whenever the elimination of grade crossings reasonably may be required, whether constructed before or after the building of the railroads.” (Missouri, Kansas & Texas Ry. Co. v. Oklahoma, 271 U. S. 303, 307; Atchison, Topeka & Santa Fe Ry. Co. v. Railroad Commission, 283 U. S. 380.) The State might, if it saw fit, do the work itself, and when the railroads in obedience to the command of the State perform the work of changing a highway grade they are in fact performing a function intrusted to them by the State. (Fries v. N. Y. & Harlem R. R. Co., 169 N. Y. 270; Transit Commission v. Long Island R. R. Co., supra.)

Even though all this be true, the railroad companies when acting under the direction of the State are not, in true sense, its agents. They act under compulsion of the State in the performance of an obligation they owe to the State. Though, to the extent necessary to perform that obligation, they must be intrusted with State powers and functions, yet in all else they are acting for themselves, and not as representatives of the State. Towards third parties they may at times be cloaked by the State with the same immunity which the State would enjoy if the State did the work itself (Fries v. N. Y. & Harlem R. R. Co., supra); yet their relations to the State are in no wise those of principal and agent. The cost and burden is theirs, and theirs alone, except to the extent that the State chooses to relieve them of that burden.

The declaration of the Legislature that such work is “ public work for the state and /or for its civil divisions ” cannot alter the facts or enlarge the legislative power. (People v. Crane, 214 N. Y. 154, 167.) The actual facts that the work is public and performed under the supervision of the State upon highways of the State for the benefit of the people of the State, and in part at the cost of the State, are doubtless sufficient basis for the exercise of the power of the Legislature to regulate the performance of the work in order to promote the public welfare, and even the public convenience, in the use of the highways to which the highways are dedicated. On the other hand, the fact that the work is performed by corporations which are neither subdivisions of the State nor in full sense agents of the State, but are entitled to the protection of the Fourteenth Amendment of the Federal Constitution against invasion by the State of their rights to liberty and property, restricts, in some degree, the exercise of that legislative power of regulation. The problem in this case is whether the Legislature has transcended those restrictions.

Doubtless the police power of the State does not extend generally to the regulation of .the hours of labor or the wages to be paid for work performed within its borders in accordance with the views of one school of social thought or another. Even where such work is clothed with a public interest, the State’s power of regulation is not unlimited. The regulation must tend reasonably to advance that interest. “ The power to regulate property, services or business can be invoked only under special circumstances; and it does not follow that because the power may exist to regulate in some particulars it exists * * * in all.” (Tyson & Brother v. Banton, 273 U. S. 418, 429.) There the court, after reviewing the decisions where price regulation has been sustained, stated that they “ turned upon the existence of conditions, peculiar to the business under consideration, which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use.” (Tyson & Brother v. Banton, 273 U. S. 418, 438.)

In truth, when the courts indulge in legal fictions, it is difficult to define the conditions which justify the fiction or the limits to which the fiction may be carried. At best, these fictions are merely a form of explanation for the decision of the courts. The decision must be dictated by the facts in each case, and not by any fiction or set formula. In some work and business, the interest of the public is so great that the public welfare may require the State to interfere in the conduct of the work or business, by regulations which tend reasonably to protect or conserve the interest of the public. Here the interest of the public is so direct and substantial that there can hardly be doubt that the State may, at least in some measure, regulate the work which the railroads have been commanded to perform. The difficulty lies in determining the question of whether the statute is a reasonable exercise of that power.

We are not, in this case, called upon to attempt definition of the power of the State to regulate the conduct of the affairs of corporations maintaining railways in the State, either because the railway lines are themselves in some sense highways ” of the State or because the State has reserved a power to amend the charters of such corporations. The problem here is simpler. The control of the State over its own highways is almost, if not quite, plenary, and the work which the railways have been commanded to perform is work on the highways of the State. Railway crossings at grade upon these highways are dangerous. The State, as we have shown, has concededly the right to order the railways to remove the danger. Concededly, too, the State has the right to determine the manner in which the railways shall be carried across the highways of the State. The State is directly interested in preventing all unnecessary or dangerous obstructions in the highway, whether such obstructions are permanent or merely temporary, while work is being performed upon the highways. It may cause or permit the railroads to do work upon the public highway, but its duty towards the people to keep the highway free from unnecessary obstructions or dangers is not interrupted nor its power abdicated while that work is proceeding. A regulation which tends to promote the efficient and uninterrupted performance of work performed under command of the State, to carry out an obligation owed to the State, upon a highway of the State, is not unreasonable and beyond the power of the State. We need not here resort to any legal fiction. The railroad companies operating the railway lines in fact knew that they were under a duty to the State to eliminate highway crossings upon the highways of the State and were subject to the commands of the State which reasonably tend to promote the use of the highways of the State.

That brings us to the question of whether the provisions regulating hours and wages are reasonable. Perhaps the provision that no workman should be permitted or required to work more than eight hours a day, if standing alone, might have only a remote bearing upon the speed and efficiency of the work. We do not now decide whether such a provision would be valid. (See Wilson v. New, 243 U. S. 332.) Here provisions as to hours of work and that for such a day’s work the workman should receive at least the rate of wages prevailing in the locality are inextricably intertwined. Together these provisions insure that hours and pay should not fall below the standards which are commonly accepted by workmen and employers. Our problem is whether the Legislature had power to impose such standards upon this form of public work.

It seems to a majority of the court that these standards are reasonable and violate no constitutional rights of the railroad companies. Opposing views may be urged in regard to the question of whether short hours and high wages tend to produce more efficient work. Within the limits of its regulatory power over this form of public work, the Legislature may decide such questions — the courts have no such power. Generally wages and hours of work are fixed by the law of supply and demand. The workman will seek to obtain work at the highest wages and under the best conditions which he can command; the employer will seek to obtain men who will do his work at the lowest cost to him. It follows that, at least in times where there is no extraordinary unemployment, the workmen who will work for more than eight hours a day at a rate of wages less than the rate prevailing in the same trade or occupation in that locality are men who lag behind others in skill and efficiency, and cannot command the same wages as they receive. A regulation that all workmen shall be paid for a day’s work of eight hours not less than the rate of wages prevailing in the locality where the work is performed is at least some assurance that the workers employed will not be drawn from the least skillful group. Then, too, such a regulation is some assurance that the work will not be interrupted and delayed by labor unrest. The laborer who is paid at the prevailing rate of wages for a day’s work of eight hours has more to lose if discharged and less to gain if he seeks work elsewhere, than one who receives a wage less than the majority of workers receive.

We recognize that, perhaps, some of the work requires no skill or training, and could be performed as well by men brought from other localities who are willing to work long hours at low wages. But for the provisions of the statute, the company would be free to determine for itself whether it should adopt the policy of employing the cheapest labor it can obtain in the cheapest market or the policy of paying at least as much as the average workman would receive in the locality where the work is to be done. The railroad company might even be willing to assume the risk that the employment of poorly paid laborers would cause unrest and consequent delays and interruptions in work performed for the public benefit upon public highways. To that extent the Labor Law may increase the cost of the work and the burden of the railroad company; but it seems to us that such an increased burden cannot be regarded as unreasonable when balanced against the advantage to the State of having the work performed under conditions which give some assurance that the work will be completed without interruptions or delay by workmen of average skill. To secure that advantage for the State, the Legislature had the power to impose the increased burden upon the railroad company.

Even if these considerations are deemed insufficient to justify the State in imposing the regulations upon the work, the court is unanimous that such regulations would still be a valid exercise of the power of the State to determine the conditions upon which the moneys or credit of the State shall be used in meeting fifty per centum of the cost of the work. As we have said, the State might have directed the railroad to perform the entire work at its own cost. When it chose to bear half the cost itself, it might have imposed any conditions it saw fit. The constitutional amendment expressly provides that bonds may be issued only for elimination of crossings “ under state supervision.” The Legislature in enacting the Grade Crossing Elimination Acts, under which this work is proceeding, acted under the authority given by the constitutional amendments. The railroad companies have elected to accept the benefit conferred upon them in pursuance of the constitutional amendments. They cannot, then, reject its burden. They have consciously subjected this work to state supervision." The State is itself directing the work in accordance with the public interests which the State has a duty to conserve. Under its power of supervision ” it may direct that the work proceed in a manner that will reasonably tend to promote efficiency and diminish danger of delay and interruption. A narrower definition of the term “ supervision ” would defeat the purpose of the constitutional amendment. The statute which the railroad companies attack constitutes a valid exercise of the power of supervision.

We have not overlooked the contention of the railroad companies that the standard of wages to be paid is too indefinite for enforcement, at least until the “ prevailing ” rate has been determined by the proceedings authorized for that purpose in the statute. (Connally v. General Construction Co., 269 U. S. 385.) We have considered a similar contention in Campbell v. City of New York (244 N. Y. 317). Much that we have said there is applicable in this case, though the problem presented is not in all its aspects the same. The Labor Law now defines how the rate of wages prevailing in a locality may be fixed. It may be difficult at times to obtain all the required data; there may, at times, be dispute as to the correctness of data used, but when reliable data has been obtained, the prevailing rate can be calculated with exactness. When that rate has been determined by order made by the authorized State officer, it cannot be contended that the standard of wages is in any degree indefinite. Until that time a railroad company or contractor is not subject to any penalty for failure to pay the statutory rate of wages. If before that order is made it may, in some instances, be impossible to determine with certainty what wages should be paid or received, the only disadvantage that the railroad company or contractor suffers is the possibility of mistake in determining the cost of the work to be done and the difficulty of arriving at a fair figure for a contract for such work. Even so, the statute provides a definition which makes calculation of cost possible with a reasonable degree of certainty. Any remaining uncertainty in fixing costs in advance is a consideration which may affect the wisdom of the legislative action, but where the Legislature has power to decide, the courts may not consider the wisdom of its decision. Here the Legislature did have such power, and the statute is not too indefinite for enforcement in accordance with its provisions.

In our consideration of the validity of the statute, we have, up to this point, excluded from our consideration the question of whether the Legislature in regulating the work done by the railroads on highway crossings has invaded the field of interstate commerce assigned under the Constitution of the United States to Congress. The work upon the highways of the State is not in itself interstate commerce, and the burden placed upon the railroads, even though interstate carriers, cannot be said to be an unreasonable burden on interstate commerce. (See Interstate Commerce Comm. v. United States, 280 U. S. 52; Atchison, Topeka & Santa Fe Ry. Co. v. Railroad Comm., supra.) The railroad companies do not contend otherwise, but they maintain that in so far as the statute regulates the hours of work and the wages of employees of interstate carriers, the Legislature has invaded a field in which Congress has already assumed exclusive jurisdiction. Doubtless even though the work in which these employees are engaged is not interstate commerce, a regulation as to the hours they may work or as to the wages they are to be paid may at least indirectly affect interstate commerce. Congress by the Hours of Service Act (Mason’s U. S. Code, tit. 45, ch. 3, §§ 61, 66) has regulated the hours of work of certain classes of employees of carriers engaged in interstate commerce and by the Railway Labor Act (Mason’s U. S. Code, tit. 45, ch. 7-A, § 146) has provided a method for adjusting disputes between interstate carriers and their employees concerning rates of pay. The question here is whether these acts so cover the field of the hours of labor and rate of wages of employees of interstate carriers that the State is entirely excluded from that field even for the purpose of regulating work which is not part of interstate commerce.

Where employees are engaged both in interstate and intrastate commerce, regulation of their hours of labor and their wages by congressional action shall be construed as an exclusion of the States from the same field. (Erie R. R. Co. v. New York, 233 U. S. 671.) The work of a carrier is for most purposes a unit, and it would hardly be feasible to segregate work in interstate commerce or the employees engaged therein from other work and employees. Excessive hours of labor performed in intrastate work may diminish the efficiency of a worker, thereafter employed in interstate commerce. Difference in wages paid to men doing the same grade of work for the same employer and even at times shifted from one form of work to another may create labor unrest which will affect interstate commerce. Congress may, therefore, assume exclusive jurisdiction in such matters.

There may be doubt whether Congress has regulated the hours of labor of any employees of the railway companies who might be used in grade crossing elimination. The Hours of Service Act applies only to a limited class of employees. We do not now decide whether the State may not regulate the hours of labor of other employees. (Baltimore & Ohio R. R. Co. v. Interstate Commerce Comm., 221 U. S. 612, 621.) Here, as we have pointed out, the regulation of hours of labor is inextricably interwined with the regulation of rate of wages and they must stand or fall together.

The Railway Labor Act covers a broader field. It provides a method for fixing wages of employees by free contract or adjustment of labor disputes. It includes as an employee subject to its provisions “ every person in the service of a carrier * * * who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission.” Its purpose of ending labor disputes may be thwarted by any regulation of the State compelling payment of wages to employees ” at a different rate. It seems to us clear that Congress intended to exclude any interference by any State in the field of wages of employees of interstate carriers. The Labor Law of this State may for these reasons not be applied to any employee,” as defined in the Federal act, where the carrier is directed to perform work by its own employees. It is enforceable whenever the railroad company is directed to perform the work otherwise.

The judgment should be affirmed, without costs.

Crane, J.

(concurring). When the railroads accepted the offer of State aid to the extent of sharing one-half of the cost of changing grade crossings, they also accepted the requirements of the State in connection with the doing of such work, except as prohibited by Federal regulations. This is fair and reasonable. Interstate commerce is not restricted when the expense is less than it would be if the railroads had to pay the entire cost.

For this reason, I concur in the result.

Cardozo, Ch. J., Pound, Kellogg and O’Brien, JJ., concur with Lehman, J.; Crane and Hubbs, JJ., concur in result in memorandum by Crane, J.

Judgment affirmed.


text:
    In the Matter of the Accounting of the Empire Trust Company et al., as Executors of George K. Garvin, Deceased, Appellants and Respondents. Dorothea M. Garvin, Appellant; Georgena K. Garvin, an Infant, by Robert J. Mahon, Her Guardian, Respondent.
    (Argued May 18, 1931;
    decided June 9, 1931.)

      Martin Conboy and Phillip S. Hill for Empire Trust Company et al., appellants and respondents.
    The finding of the Appellate Division that the executors were negligent in failing to dispose of the stock to the extent necessary to pay the infant’s share in the estate, is not supported by the evidence. (Matter of Carmody, 134 Misc. Rep. 11; Matter of Wagner, 40 Misc. Rep. 490; Matter of Clark, 136 Misc. Rep. 881; Matter of Weston, 91 N. Y. 502; Matter of Varet, 181 App. Div. 446; 224 N. Y. 573; Hancox v. Meeker, 95 N. Y. 528; Matter of Thompson, 41 Misc. Rep. 420; 87 App. Div. 609; 178 N. Y. 554; Matter of Murphy, 155 N. Y. 557; Smith v. Robertson, 89 N. Y. 555.) There is no authority for directing that an allowance for counsel fees in the guise of an allowance to the guardian be paid by the executors individually. (Morgan v. Hannas, 49 N. Y. 667; Parker v. Day, 155 N. Y. 384.)

      N. Otis Rockwood and M. Glenn Folger for Dorothea M. Garvin, appellant.
    The findings made by the Appellate Division are fully justified by the evidence, and upon such findings the failure of the executors to exercise the degree of care, prudence, diligence, sagacity and vigilance required of them is thoroughly established. (King v. Talbot, 40 N. Y. 76; Matter of Hurlbut, 210 App. Div. 456; Matter of Clark, 136 Misc. Rep. 881.) The action of the executors was neither consented to nor authorized by the widow. (Adair v. Brimmer, 74 N. Y. 539; Matter of United States Trust Co., 189 App. Div. 75.)

      John E. Mack, Wilfrid N. O’Neil and Robert J. Mahon for respondent.
    The infant’s share was set apart by statute as a paramount distributive share requiring strict administration. It could not be limited or modified by the will or otherwise. (Matter of Murphy, 144 N. Y. 557; Smith v. Robertson, 89 N. Y. 555; Yung v. Blake, 163 App. Div. 502; McCrum v. McCrum, 141 App. Div. 83; Obecny v. Goetz, 116 App. Div. 809; Matter of Mulqueen, 213 App. Div. 637; 241 N. Y. 31; King v. Talbot, 40 N. Y. 76; Matter of Yung, 103 Misc. Rep. 358; Villard v. Villard, 219 N. Y. 482; Matter of Hall, 164 N. Y. 196; Matter of Burr, 48 Misc. Rep. 74; Warren v. Union Bank, 157 N. Y. 259; Matter of N. Y. Life Ins. & Trust Co., 86 App. Div. 247; Matter of Hulbert, 210 App. Div. 436; Matter of Belcher, 129 Misc. Rep. 218.) The evidence clearly shows that the executors were negligent; and that the individual executor acted in bad faith. (Bankers Trust Co. v. Bowers, 23 Fed. Rep. [2d] 941; Matter of Schroeder, 113 App. Div. 204; 186 N. Y. 537; Fulton v. Whitney, 66 N. Y. 555; Carpenter v. Taylor, 164 N. Y. 171; Matter of Hirsch, 116 App. Div. 367; 188 N. Y. 584; Matter of Sandrock, 49 Misc. Rep. 318; 189 N. Y. 557; Pyle v. Pyle, 137 App. Div. 568; Gould v. Gould, 126 Misc. Rep. 54.) The amount of the award to the infant is correct. (Matter of Hamlin, 226 N. Y. 407; Kaumagraph Co. v. Stampagraph Co., 235 N. Y. 1; Livingston v. Ward, 248 N. Y. 193.)
   Lehman, J.

Corporate stock appraised at the date of the testator’s death at a value of $200 per share was held by the executors until it became valueless. Their course was dictated or at least influenced by the expressed wish of the testator that the stock should be held as part of a trust fund. Towards the widow, who was a beneficiary of the trust fund, and who acquiesced in, if indeed she did not encourage retention of the securities, failure to sell was a misfortune, not a wrong. So the Appellate Division held. It also held that towards the testator’s infant daughter, who was entitled to a one-ninth share of the estate, the executors were under a duty to sell the stock within a reasonable time, and that in the exercise of reasonable care the executors could and should have sold the stock at the price of $200 per share not later than May 10th, 1920. Though perhaps a trier of the facts might have reached opposite conclusions, the findings of the Appellate Division are not against the weight of evidence.

Payment by the executors to the infant must be confined to the amount the infant would have received if the stock had been sold at the price of $200 per share on May 10th, 1920. Her share of the estate has been fixed at the sum of $22,353, and the executors have been directed to pay her that amount, with interest from May 10th, 1920. The Federal estate tax was a charge upon the entire estate, and if the stock had been sold the infant’s share would have been reduced by a proportionate part of the tax. If deduction has not been made in the decree for the proportionate part of the tax assessed against the estate, including the taxes which have not been paid and are perhaps not collectible, then such deduction should now be made.

The infant has received income derived from dividends paid to the estate on the corporate stock held by it. To the extent that such income was derived from dividends, which accrued to the estate after May 10th, 1920, the infant has profited by the retention of the stock. That profit must be offset against the interest which the executors have been directed to pay, and the decree must be modified accordingly. The infant was entitled to a proportionate part of the dividends which accrued upon the stock before that date either as an accretion to her share of the estate or as income thereon. Income derived from such dividends should be offset against interest only if the sum which the executors have been directed to pay includes such income as an accretion to the infant’s share of the estate.

Even though the Surrogate’s Court Act does not specifically authorize the court to charge the executors personally with costs and allowance, it has the power to impose that charge against them as an expense caused by their wrong. (See Matter of Hidden, 243 N. Y. 499.)

Proceedings remitted to the Surrogate’s Court for the entry of a decree fixing the amount payable by the executors in accordance with this memorandum.

The order of the Appellate Division and the decree of the Surrogate’s Court should be modified in accordance with this memorandum and as modified affirmed, without costs, and the matter remitted to the Surrogate’s Court for further proceedings in accordance herewith.

Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.


author: Kellogg, J.

text:
    In the Matter of the Claim of Tony Vincent, Respondent, against Allerton House Company et al., Appellants. State Industrial Board, Respondent.
    (Submitted May 12, 1931;
    decided June 9, 1931.)

      William E. Lyons and Barnett Cohen for appellants.
    The Industrial Board was without power to make the award. (Schaefer v. Buffalo Steel Car Co., 250 N. Y. 507; Jacobus v. Colgate, 217 N. Y. 235.)

      John J. Bennett, Jr., Attorney-General (Boy Wiedersum and E. C. Aiken of counsel), for respondent.
   Kellogg, J.

The claimant, who had theretofore lost his right eye, sustained an injury through an accident occasioned by his employment, whereby the vision of his left eye was impaired. In the year 1927 he was awarded compensation, as for a permanent partial disability (Workmen’s Compensation Law; Cons. Laws, ch. 67, § 15, subd. 3) on the basis of a sixty per cent loss of use of his left eye, which was thereafter paid in full. The case was reopened in the year 1929, when it was found that his loss was eighty per cent of vision, or, under the statute (§ 15, subd. 3-p), a total loss of use of the left eye. As he had then lost the use of both eyes, and it was not then certain that vision in the left eye might not be partially restored, he was awarded compensation as for a temporary total disability, the compensation to continue, with certain limitations, until the disability ceased. (§ 15, subds. 2, 3-u.) This was a reclassification of disabilities. (Matter of Schaefer v. Buffalo Steel Car Co., 250 N. Y. 507.) After the accident and injury had occurred subdivision 6-a was added to the law. It reads: The board may, within one year from the date of accident, upon its own motion, or on application of any party in interest, reclassify a disability upon proof that there has been a change in condition, or tho,t the previous classification was erroneous and not in the interest of justice.” (Laws of 1927, ch. 557, in effect July 1st, 1927.) This subdivision was effective to forbid reclassification unless made within one year of the occurrence of the accident. (Matter of Schaefer v. Buffalo Steel Car Co., supra.) In this instance the reclassification was not made within the time fixed. We think that this subdivision was intended to have application, in respect to a reclassification of all injuries, whether previously or subsequently occurring; that it affected the remedy and not the right; that it was applicable to the case of this claimant. Therefore, the Board had no power to make the award in question.

The order of the Appellate Division should be reversed and the determination annulled, with costs against the State Industrial Board in the Appellate Division and in this court, and the matter remitted to the State Industrial Board for further proceedings in accordance with this opinion.

Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.


author: Per Curiam.

text:
    Mary D. Ketcham, an Infant, by Ida D. Vrooman, Her Guardian ad Litem, Appellant, v. Fred B. Wilbur, as Executor of Mary B. Hand, Deceased, Respondent.
    (Argued February 11, 1931;
    decided March 24, 1931.)

      Henry E. Newell for appellant.

      Mark E. Conan and Willis H. Michell for respondent.
   Per Curiam.

Upon the record in this case, the trial judge was not required, if indeed he had the power, under a fair construction of the statute, to add interest to the verdict.

The question of the constitutionality of the statute is not involved or considered.

The order should be affirmed, with costs, and the question certified answered in the negative.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Order affirmed, etc.


author: Crane, J.

text:
    Alma P. Harvey, as Ancillary Executrix of George Harvey, Deceased, Respondent, v. Guaranty Trust Company of New York, Appellant, Impleaded with Others.
    (Argued January 12, 1931;
    decided March 24, 1931.)

      Royal E. T. Riggs for appellant.

      Alexander S. Andrews for respondent.
   Judgment affirmed, with costs; no opinion.

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

Crane, J.

(dissenting). George Harvey is claimed to have loaned the Atlantic Coast Electric Railroad Corporation $15,000, for which he took, among others, nineteen bonds of the Atlantic Coast Electric Light Company, a separate and distinct corporation. The indebtedness was evidenced by a note of the railroad dated September 14, 1901.

The light company received none of the consideration, and being a public utility company, .it was not only against the law, but contrary to public policy to issue its bonds as security or collateral for the debts of a railroad company. These facts were all known to Harvey, who was president of the railroad company. His subsequent action conclusively proved that he knew there was no consideration for these bonds. The fact that the railroad company owned all the stock of the light company did not wipe out all rules of corporate responsibility or permit the officers to use the funds of either company as if there were but one corporation. The stockholders of the railroad company, as owners of the stock of the light company, never authorized the disposition of the light company’s assets in this fashion, even if they had power to do so, which, in my judgment, they did not have.

In 1902 Buchanan and Smock brought action against Harvey and others to declare the bonds held by them, including these here in question, to have been an illegal issue, without consideration, and void. Harvey defaulted, failed to answer the bill of complaint, and for a period of twenty-one or twenty-two years thereafter made no claim whatever on the bonds. He did not even present the coupons to the trustee for payment, although he knew that interest was being paid on the legal bonded indebtedness of the light company. Although the railroad company went into the hands of a receiver in 1902 and its property was sold at foreclosure, no claim was made by Harvey in such receivership on his alleged indebtedness, nor did he thereafter make any attempt to collect on his collateral, as any intelligent man would have done. All concede George Harvey was intelligent.

The claim is now made that these bonds are valid outstanding obligations of the light company binding upon its successors, and that the Guaranty Trust Company of New York, the trustee, is liable for breach of duty in having treated them as spurious.

The trust company, in my judgment, was right, and the judgment recovered against it should be reversed, and the complaint dismissed as to the nineteen bonds and coupons.

Judgment affirmed.


text:
    In the Matter of the Application of the People of the State of New York, by James A. Beha, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of the Second Russian Insurance Company, Respondent. Hamburg Insurance Company, Appellant.
    (Argued February 9, 1931;
    decided March 24, 1931.)

      Hartwell Cabell and William B. Devoe for appellant.

      James F. Donnelly, Alfred C. Bennett, John M. Downes and Clarence C. Fowler for Superintendent of Insurance, respondent.

      Robert J. Sykes and Albert Bonynge for Second Russian Insurance Company, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of E. Arthur Tutein, Inc., Respondent, v. Hudson Valley Coke and Products Corporation, Appellant.
    (Argued February 11, 1931;
    decided March 24, 1931.)

      Joseph M. Hartfield, Vermont Hatch and Carlos L. Israels for appellant.

      Samuel H. Kaufman, Emil Weitzner and Raphael L. Elias for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Laura E. Murnane, Appellant, v. Edward J. Murnane, Respondent.
    (Argued February 11, 1931;
    decided March 24, 1931.)

      Thomas A. McGrath for appellant.

      Herbert G. Smyth, Jr., for respondent.
   Order affirmed, without costs. Questions certified answered in the negative; no opinion.

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


text:
    Kate L. Peck, Respondent, v. New Jersey and New York Railroad Company, Appellant.
    (Submitted February 11, 1931;
    decided March 24, 1931.)

      John Bright for appellant.

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

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


text:
    Continental Leather Company, Respondent, v. Liverpool, Brazil & River Plate Steam Navigation Company, Ltd., Defendant, and Lamport & Holt, Ltd., Appellant.
    (Argued February 13, 1931;
    decided March 24, 1931.)

      G. Noyes Slayton for appellant.

      Neil P. Cullom, James E. Freehill and Henry W. Steingarten for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Earl P. Coventry, Appellant, v. New York Indemnity Company, Respondent.
    (Argued February 14, 1931;
    decided March 24, 1931.)

      B. Loyal O’Connell for appellant.

      J. Stanley Carter for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Raymond Gerber, Appellant.
    (Argued February 16, 1931;
    decided March 24, 1931.)

      John V. Maloney, Robert J. Bummers and Charles A. Hahl for appellant.

      Guy B. Moore, District Attorney (.Leo J. Hagerty of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Carmine Licenziata, Appellant.
    (Argued February 16, 1931;
    decided March 24, 1931.)

      Edward J. Reilly for appellant.

      William F. X. Geoghan, District Attorney {Henry J. Walsh of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Astoria Planet Corporation, Appellant, v. R. T. R. Realty Corporation, Respondent.

      (Argued February 16, 1931;
    decided March 24, 1931.)

      Raymond Gitlin, Irving Cyruli and William Walzer for appellant.

      William V. Hagendorn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward Sautter, Respondent, v. Belle Frick et al., as Administratrices of the Estate of Charles F. Lane, Deceased, Appellants.
    (Argued February 16, 1931;
    decided March 24, 1931.)

      Walter W. Wilcox for appellants.

      Charles P. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Lundstedt et al., Respondents, v. Fritz Brieger, Defendant, and Woodboro Realty Co., Inc., et al., Appellants.
    (Argued February 17, 1931;
    decided March 24, 1931.)

      Harold R. Medina, William F. McNulty, George J. Schnéller and R. Leslie Smith for appellants.

      Julius F. Newman and James V. Kilroe for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Salvatore Reina, Appellant, v. United States Casualty Company, Respondent.
    (Submitted February 18, 1931;
    decided March 24, 1931.)

      Edwin Hort and Frank C. Korman for appellant.

      Harold B. Medina, William F. McNulty and William Butler for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Philip Shlansky, Appellant.
    (Argued February 18, 1931;
    decided March 24, 1931.)

      Harry G. Anderson, Alex B. Mutterperl and Frank G. Colgan for appellant.

      William F. X. Geoghan, District Attorney {Henry J. Walsh and Thomas J. Sefton of counsel), for respondent.
   Judgment of the Appellate Division and that of the Court of Special Sessions reversed and information dismissed on the ground that there is no evidence that the defendant had knowledge of any damage within the meaning of the statute; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Jacob Schenkel, Appellant.
    (Argued February 18, 1931;
    decided March 24, 1931.)

      A. F. Walsh for appellant.

      John B. Smith, District Attorney (William E. Bennett of counsel), for respondent.
   Judgment of the County Court reversed and case remitted to the trial court for the preparation of a new return on the ground that the return made insufficiently states the evidence upon which the conviction was obtained. The trial judge was charged with a duty to keep proper minutes of the trial. If he chose to delegate that duty to a stenographer and cannot obtain a copy of the minutes except by paying for them he should pay whatever is necessary for the discharge of his official duty; no opinion.

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


text:
    George A. Gast, Respondent, v. Rayford W. Alley, Appellant.
    (Argued February 18, 1931;
    decided March 24, 1931.)

      Tracey S. Voorhees for appellant.

      John Caldwell Myers, John F. Keating and Arthur C. Solomon for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bessie R. Blackburn, Appellant, v. Davis Baker, Respondent.
    (Argued February 18, 1931;
    decided March 24, 1931.)

      Walter A. Fullerton for appellant.

      Lloyd Paul Stryker and Harold Shapero for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel Ellis, as Executor of Owen Williams, Deceased, Appellant, v. Hugh Williams, Respondent.
    (Argued February 19, 1931;
    decided March 24, 1931.)

      A. G. Senior, Warnick J. Kernan and C. J. Fuess for appellant.

      Edward W. Bock and Woodward W. Guile for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick H. Hurdman et al., as Administrators of Mary Moran, Deceased, Respondents, v. Royal Development Company, Inc., Appellant.
    (Argued February 19, 1931;
    decided March 24, 1931.)

      Humphrey J. Lynch, John Preston Phillips and Frank E. Clarke for appellant.

      William A. Davidson, John W. Davidson and Henry C. Henderson for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emma Whittaker, as Administratrix of the Estate of Ernest Whittaker, Deceased, Respondent, v. New York Central Railroad Company, Appellant.
    (Argued February 19, 1931;
    decided March 24, 1931.)

      K. 0. Mott-Smith, William Mann and Jacob Aronson for appellant.

      Sidney A. Syme for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lifland Holding Corporation, Appellant, v. Kenneth Rogers Construction Company, Inc., Respondent.
    (Argued February 19, 1931;
    decided March 24, 1931.)

      Meyer Kraushaar, Jesse Climenko and Morris Bunderoff for appellant.

      Hyman Marx and William Marx for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Herbert Hilder, Respondent, v. Ralph P. Thomas, Defendant, and Morris W. Roberts, Appellant.
    (Argued February 19, 1931;
    decided March 24, 1931.)

      Milford D. Whedon for appellant.

      John F. Doyle for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emma M. Stock et al., Appellants, v. William D. Mann et al., Defendants, and Henry B. Newhall, as Committee of the Estate of Edith Kimball, Appellant. Nathan Richman, Respondent.
    (Submitted February 16, 1931;
    decided March 24, 1931.)
   Motion for reargument or to amend remittitur denied. (See 255 N. Y. 100.)


text:
    Ebsary Gypsum Company, Inc., Respondent, v. George H. A. Ruby, Appellant, Impleaded with Others.
    (Submitted March 23, 1931;
    decided March 25, 1931.)

      jHarlan W. Rippey for motion.

      Francis S. Macomber opposed.
   Motion granted and appeal dismissed, with costs arid ten dollars costs of motion, unless appellant files notice of appeal in the clerk’s office and perfects the appeal within ten days and pays the respondent ten dollars costs.


text:
    Marion M. Schaad, Appellant, v. Russell Gardens, Inc., Respondent, Impleaded with Another.
    (Submitted March 23, 1931;
    decided March 31, 1931.)

      Martin P. O’Leary for appellant.

      John S. Russell for respondent.
   Per Curiam.

Upon the appeal by the defendant from the order of the Special Term which denied the defendant’s motion for judgment upon the pleadings, it was error for the Appellate Division to decide as a matter of law that the covenant of the grantor contained in the deed from Frederick Russell to Herman B. Schaad is limited to a part of the next to the last sentence therein.

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

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


text:
    In the Matter of the Accounting of Morton Rosenberg et al., as Executors of and Trustees under the Will of Charles Rosenberg, Deceased, Appellants. Fred Mayer et al., Respondents.
    (Argued March 23, 1931;
    decided March 31, 1931.)

      Harrison B. Weil for motion.

      Henry A. Blumenthal opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York ex rel. Florence C. Kight, Respondent, v. Thomas M. Lynch et al., Constituting the State Tax Commission, Appellants.
    (Submitted March 23, 1931;
    decided March 31, 1931.)
   Motion to amend remittitur denied. (See 255 N. Y. 323.)


text:
    Berardino Rapa, Appellant, v. The John Hancock Mutual Life Insurance Company of Boston, Massachusetts, Respondent.
    (Argued March 23, 1931;
    decided March 31, 1931.)

      Thomas McCall for motion.

      Maurice M. Klein opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    J. Aron & Company, Inc., Respondent, v. Panama Rail Road Company, Appellant.
    (Submitted March 23, 1931;
    decided March 31, 1931.)
   Motion to amend remittitur or for reargument. (See 255 N. Y. 513.)

The conclusion would be the same whether the vessel was seaworthy or unseaworthy. (Grace & Co. v. Panama R. R. Co., 12 Fed. Rep. [2d] 338; certiorari denied, 273 U. S. 715.)

Motion denied.


text:
    Lifshitz Bros., Inc., Respondent, v. American Stove Company Appellant.
    (Submitted March 23, 1931;
    decided March 31, 1931.)

      Max Epstein for motion.

      M. M. War dell opposed.
   Motion denied, without costs.


text:
    John Jennings, an Infant, by Michael Jennings, His Guardian ad Litem, Appellant, v. Albert Delaney, Respondent.
    (Submitted March 23, 1931;
    decided March 31, 1931.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 255 N. Y. • 626.)


text:
    Jacob Thomann, Respondent, v. The City of Rochester, Appellant.
    (Submitted March 23, 1931;
    decided March 31, 1931.)

      Charles S. Gordon for motion.

      Clarence M. Platt and Charles B. Forsyth opposed.
   Motion denied.


text:
    Louis R. Gans, Appellant, v. Stephen Callaghan, Respondent, Impleaded with Others.
    (Submitted March 23, 1931;
    decided March 31, 1931.)

      Harold M. Kennedy for motion.

      Louis R. Gans opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Martha C. Callaghan et al., Appellants, v. Adelia M. Corbin, Respondent.
    (Submitted March 23, 1931;
    decided March 31, 1931.)
   Motion to amend remittitur denied. (See 255 N. Y. 401.)


text:
    Mojac Finance Co., Inc., Respondent, v. Waterside Holding Corporation et al., Defendants, and The Continental Insurance Company, Appellant.
    (Submitted March 23, 1931;
    decided March 31, 1931.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 255 N. Y. 639.)


text:
    Matter of Tri-State Investors Corporation, Appellant, v. Frederick McH. Kitching et al., Defendants. Elizabeth F. Vilkomerson, Respondent.
    (Submitted March 23, 1931;
    decided March 31, 1931.)

      Elisabeth F. Vilkomerson for motion.

      Albert Adams opposed.
   Motion denied.


text:
    Allan Fox Company, Inc., Appellant and Respondent, v. Ignatz Wohl, Respondent and Appellant.
    (Submitted March 23, 1931;
    decided March 31, 1931.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 255 N. Y. 268.)


text:
    Eric Stephan, Respondent, v. The Merchants Collateral Corporation et al., Appellants, Impleaded with Others.
    (Submitted March 23, 1931;
    decided March 31, 1931.)

      Edwin J. Dryer for motion.

      Forrest M. Anderson opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title to Lands for the Purpose of Establishing a Public Beach in the Borough of Brooklyn. Theodore W. Kramer et al., Respondents.
    (Argued March 23, 1931;
    decided April 7, 1931.)

      Arthur J. W. Hilly, Corporation Counsel (Patrick S. MacDwyer of counsel), for appellant.

      Charles Lamb and Alfred J. Talley for Theodore W. Kramer et al., respondents.

      W. B. Roulstone for Frank E. Lonas, respondent. Francis P. O’Connor and Edward W. Murphy for Alice Dunne et al., respondents.

      James F. Quigley for Joseph Huber, respondent.
   Order affirmed, with costs; question certified answered in the negative on opinion in Matter of City of New York (Feltman) (256 N. Y. 156); no opinion.

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


text:
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title to Real Property for Additions to Inwood Hill Park and Isham Park in the Borough of Manhattan. Carl Voelcker et al., Respondents.
    (Argued March 23, 1931;
    decided April 7, 1931.)

      Arthur J. W. Hilly, Corporation Counsel (Joel J. Squier and William B. B. Faber of counsel), for appellant.

      Martin Conboy, Charles C. Lockwood, Dcwid Asch and Edwin N. Moore for respondents.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Accounting of William R. Rose, as Trustee under the Will of Al Hayman, Deceased, and of William R. Rose et al., as Executors of Minnie Hayman, Deceased, Respondents. Irene Coleman et al., Appellants; Lucille B. Milner et al., Respondents and Appellants.
    (Argued March 23, 1931;
    decided April 7, 1931.)

      Arthur T. O’Leary for Irene Coleman, appellant.

      Herbert H. Maass for May Straus, appellant.

      Robert E. Samuels and Robert H. Wrubel for Alice H. Kerbs, appellant.

      Henry A. Spiegelman, John F. Collins, Harry L. Haas and A. Loeb Salkin for Lucille B. Milner et al., respondents and appellants.

      Nathan Ottinger for Grace A. Seymour et al., respondents and appellants.

      Joseph Fischer and Louis J. Vorhaus for William R. Rose et al., as executors of Minnie Hayman, deceased, respondents.

      Sol M. Stroock and Robert D. Steefel for Montefiore Hospital, respondent.
   Order affirmed, with costs to the respondents filing briefs in this court payable out of the estate; no opinion.

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


text:
    The People of the State of New York ex rel. Anna Peltz, Respondent, v. Sidney Brewster, Warden of the Second District Prison of the City of New York, Defendant. The People of the State of New York, Appellant.
    (Argued March 24, 1931;
    decided April 7, 1931.)

      Thomas C. T. Crain, District Attorney (Felix C. Benvenga of counsel), for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for the State of New York.

      John McKim Minton, Jr., for respondent.
   Order affirmed; no opinion.

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


text:
    William S. Rhodes, Respondent, v. Little Falls Dairy Company, Inc., Appellant.
    (Argued March 24, 1931;
    decided April 7, 1931.)

      Richard B. Conley, WarnicJc J. Kernan and Arnold R. Blumberg for appellant.

      William S. Rhodes for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Claim of Anna Lebeda against Steven Pongracz et al., Respondents. The State Industrial Board, Appellant.
    (Argued March 24, 1931;
    decided April 7, 1931.)

      John J. Bennett, Jr., Attorney-General (E. C. Aiken of counsel), for appellant.

      Thomas D. Scoble, Jr., and John P. Smith for respondents.
   Order affirmed, with costs against the State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of John Collier, Respondent, against William S. Dangard et al., Appellants. The State Industrial Board, Respondent.
    (Argued March 24, 1931;
    decided April 7, 1931.)

      Prepared by State Reporter from Appeal Papers

      Clarence B. Tippett and John V. McCarthy for appellants.

      John J. Bennett, Jr., Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of William Huetten, Respondent, against Niagara Box Company et al., Appellants. The State Industrial Board, Respondent.
    (Argued March 24, 1931;
    decided April 7, 1931.)

      Clarence B. Tippett for appellants.

      John J. Bennett, Jr., Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of John Franklin, Respondent, against Hinkle Iron Company, Appellant. The State Industrial Board, Respondent.
    (Argued March 24, 1931;
    decided April 7, 1931.)

      Jeremiah F. Connor for appellant.

      John J. Bennett, Jr., Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Anna M. Pflug, against Roesch & Klinck, Inc., et al., Respondents. The State Industrial Board, Appellant.
    (Argued March 24, 1931;
    decided April 7, 1931.)

      John J. Bennett, Jr., Attorney-General (E. G. Aiken of counsel), for appellant.

      Carlton E. Ladd and Alfred W. Andrews for respondent.
   Order affirmed, with costs against the State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of Blair Link, Respondent, against George Kennedy et al., Appellants. The State Industrial Board, Respondent.
    (Argued March 24, 1931;
    decided April 7, 1931.)

      Rollin B. Sanford and John T. De Graff for appellants.

      John J. Bennett, Jr., Attorney-General {E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Catherine Fronce against The Prosperity Company, Inc., et al., Appellants. The State Industrial Board, Respondent.
    (Submitted March 30, 1931;
    decided April 7, 1931.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. . (See 255 N. Y. 613.)


text:
    Marjorie Fearman, an Infant, by Frank Fearman, Her Guardian ad Litem, Appellant, v. New York Central Railroad Company, Respondent.
    (Submitted March 30, 1931;
    decided April 7, 1931.)

      Mark N. Turner for motion.

      John S.. Lambert opposed.
   Motion denied, with ten dollars costs.