author: Conway, J.

text:
    Dows Estates, Incorporated, Respondent, v. Helen H. Smith, Respondent, and Prudence Realization Corporation, Appellant, et al., Defendants.
    Argued April 5, 1943;
    decided June 10, 1943.

      Albert J. Baruth and Irving L. Schanzer for appellant.

      Dudley A. Wilson and Joseph W. Goodwin for plaintiff, respondent.
   Conway, J.

This is an appeal by Prudence Realization Corporation from that part of a judgment entered upon a decision of the Appellate Division affirming a judgment in a mortgage foreclosure action which adjudged and awarded as between plaintiff and Prudence Realization Corporation a deficiency judgment against defendant-respondent, Helen Hueffner Smith (hereinafter called defendant), in the sum of $1,708.31 with interest in favor of the plaintiff and in the sum of $771.24 with interest in favor of Prudence Realization Corporation.

On April 4, 1928, one Samuel Sharlach executed a bond and mortgage in the sum of $16,000 to the Prudence Company, Inc., on premises in Westchester County. By an extension agreement dated September 1, 1931, the defendant covenanted and agreed to pay the mortgage indebtedness. On September 12, 1932, when the mortgage had been reduced to 15,000, the Prudence Company, Inc., entered into a so-called Ownership Agreement with Amalgamated Properties, Inc., by which the ownership of the bond and mortgage was divided between them. That agreement contained, among others, the following clauses:

First: The ownership of the party of the first part [The Prudence Company] in said bond and mortgage is now to the extent of twelve thousand five hundred ($12,500.00) Dollars and interest thereon at the rate of six per centum per annum from the 1st day of September, 1932, and the party of the second part [Amalgamated Properties, Inc.] is the owner of the balance of the principal and interest only of said mortgage debt remaining; but the ownership of the party of the first part is superior to that of the party of second part, as if the party of the first part held a first mortgage for said sum of twelve thousand five hundred ($12,500.00) Dollars and interest thereon as aforesaid, and the party of the second part held a second and subordinate mortgage to secure the principal and interest of the party of the second part in said mortgage debt. *******
Fourth: The party of the first part shall have all the rights of any holder of said bond and mortgage including the right to foreclose the same and to receive the proceeds of sale from the referee, but the party of the second part shall in any and every event, have the right to an accounting for all money received by the party of the first part or any assignee of the interest of the party of the first part in said bond and mortgage in excess of the ownership of the party of the first part in said bond and mortgage. In case of foreclosure the party of the first part shall be under no obligation to protect the interest of the party of the second part upon a sale of the mortgaged premises.”

On September 15, 1932, Prudence Company, Inc., sold to plaintiff the $12,500 interest in the bond and mortgage subject to the said Ownership Agreement. The junior interest of $2,500 was assigned by Amalgamated Properties, Inc., to the Prudence Company, Inc., by instrument recorded March 11, 1940, and thereafter assigned by the trustee in bankruptcy of the Prudence Company, Inc., to Prudence Eealization Corporation (hereinafter called Prudence.)

In March, 1940, plaintiff instituted an action for the foreclosure of the mortgage, making Prudence a party defendant, and asked that judgment be granted in favor of plaintiff and Prudence. Thereafter judgment of foreclosure and sale was entered and the premises were sold to plaintiff for $12,500. A motion was then made by the plaintiff for leave to enter a deficiency judgment on its own account and on account of Prudence against the defendant. In that motion Prudence joined. The matter was referred to an official referee to determine the amount of the deficiency, if any. The official referee found that the indebtedness on the entire mortgage was $18,542.95; that the defendant was entitled to a credit of $1,063.40, the amount of the rents paid over by the receiver to the plaintiff, leaving an aggregate indebtedness owing by the defendant of $17,479.55; that the amount due the plaintiff was $15,271.71 less the credit of $1,063.40 or a total amount of $14,208.31; that the fair and reasonable market value of the property was $15,000 at the date of the foreclosure sale; that a deficiency was owing by defendant in the sum of $2,479.55 (the difference between the aggregate indebtedness of $17,479.55 and the fair value of the property, $15,000). The official referee then apportioned the deficiency between plaintiff and Prudence by awarding to plaintiff the sum of $1,708.31 (the difference between the total due plaintiff of $14,208.31 and the sale price of $12,500) and the balance of $771.24 to Prudence. Judgment was entered accordingly. i

What were the rights of plaintiff and Prudence as between themselves? By contract they were first and second mortgagees. The plaintiff had the right to collect the entire amount of interest due, to retain the amount due it' and then was obligated to remit to Prudence ‘ any balance of interest remaining.” (Ownership Agreement, clause “ Second.”) The plaintiff could collect the entire debt, give a satisfaction of the mortgage and then was obligated to account to Prudence for principal and interest received in excess of the amount due it.

Had plaintiff and Prudence actually been first and second mortgagees with separate bonds for $12,500 and $2,500 respectively and the plaintiff, in a foreclosure action, had made Prudence a party, it would, of course, have been in order to cut off the interest of the latter. In such a case if the amount due the plaintiff had been $14,208.31, the value of the property, as subsequently determined under Civil Practice Act section 1083-a, $15,000 and the plaintiff had purchased the mortgaged premises for $12,500, no deficiency judgment could have been entered, the lien of Prudence as second mortgagee would have been wiped out and it would have been relegated to an action on its bond as second mortgagee. (Weisel v. Hagdahl Realty Co., 241 App. Div. 314; Brenek v. Bednar, 243 App. Div. 622; Danzig v. Gold, 246 App. Div. 671; Realty Associates Securities Corp. v. Hoblin, 247 App. Div. 904; Wachtel v. Tanileff, 255 App. Div. 867.)

The difficulty here, however, is that while, by contract as between themselves, the plaintiff was a first and Prudence a second mortgagee, as against the defendant they were co-owners of a single mortgage. Defendant was obligated to pay on but one instrument, the extension agreement running to plaintiff, as assignee. Defendant could not be sued by Prudence on any bond. The foreclosure action had been brought against defendant by plaintiff on behalf of itself and Prudence and in that action the entire deficiency obligation of defendant had been properly determined to be $2,479.55. That was the total deficiency judgment which could be docketed and which defendant could be made to pay. It was for plaintiff and Prudence to contest between themselves as to their interests in the fund composed of (1) the mortgaged premises purchased by plaintiff at the sale and (2) the deficiency judgment. In that contest defendant has no interest. We are concerned only with the question whether or not there should be apportionment of the deficiency judgment between plaintiff and Prudence as made in the judgment below.

Plaintiff urges that as between it and Prudence, section 1083-a is not applicable. Section 1083-a of the Civil Practice Act provides: “No judgment shall be granted for any residue of the debt remaining unsatisfied as prescribed by the preceding section where an action to foreclose the mortgage has been or shall be commenced during the emergency, * * * except as herein provided. Simultaneously with the making of a motion for an order confirming the sale, * * * the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought * * *. Upon such motion the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises * * * and shall make an order directing the entry of a deficiency judgment. Such deficiency judgment shall be for an amount equal to the sum of the amount owing by the party liable as determined by the judgment with interest, plus the amount owing on all prior liens and encumbrances with interest, plus costs and disbursements of the action including the referee’s fee and disbursements, less the market value as determined by the court or the sale price of the property whichever shall be the higher. * *

The purpose of the section was to set up a new equitable standard for dealing with deficiency judgments so as “ on the one hand, to protect unfortunate mortgagors, and, on the other, to allow mortgagees, when equitable in the circumstances, to secure deficiency judgments.” (Heiman v. Bishop, 272 N. Y. 83, 86.) Prior to the enactment of that section, a judgment of foreclosure and sale could provide for payment to the plaintiff of the residue of the debt remaining unsatisfied after the sale. (See former § 1083.) The docketing of the deficiency judgment was a mere clerical act. (Morris v. Morange, 38 N. Y. 172; Feiber Realty Corp. v. Abel, 265 N. Y. 94.)

The intention of the Legislature as evidenced by sections 1083-a, 1083-b and new section 1083 was that deficiency judgments in mortgage foreclosure actions were to be based on the fair market value of the property as determined by the court or the sale price, whichever was higher. The court “ must ascertain the market value of the property and must enter a deficiency judgment if that value be less than the amount due.” (Clarke v. Schumann, 269 N. Y. 60, 63.)

Prior to the enactment of section 1083-a in 1933, as we have seen, {supra), a deficiency judgment for the difference between the sale price under the foreclosure judgment and the total indebtedness would have been docketed against defendant. Plaintiff would have been entitled to the full difference in cash with obligation over to Prudence for all moneys received over and above its due. The judgment docketed would have been in a sum sufficient to satisfy the amount due both plaintiff and Prudence. Now, under section 1083-a, the purchase of the property by plaintiff and the docketing and payment of the deficiency judgment in the sum indicated will discharge the obligation of the defendant under the mortgage and extension agreement both to plaintiff and Prudence. A. deficiency judgment may, in this instance, however, be entered only for the difference between the market value and the total indebtedness. That is for a lesser amount — in this instance for $2,479.55 instead of for $4,979.55. The remedies of both of the owners of the lien of the mortgage are affected. As between plaintiff and Prudence, plaintiff has received property valued by the referee, as of the date of the foreclosure sale, at a sum greater than the amount of its claim and it should receive nothing more. While under the terms of the Ownership Agreement the deficiency must be docketed in favor of the plaintiff, the latter must account for all moneys received under such deficiency judgment to Prudence. (See Intra-State Investors Corp. v. New York Trust Co., 249 App. Div. 591, affd. 276 N. Y. 527.)

Any determination other than that Prudence is entitled to the entire amount collected on the deficiency judgment would be to deprive Prudence of its rights under the Ownership Agreement as against plaintiff without granting it anything in return. “ The Legislature may modify or change existing remedies or prescribe new modes of procedure, without impairing the obligation of contracts, provided a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract.” (Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437, 439.) In the instant case, as against Prudence, plaintiff has received property valued under section 1083-a at more than the amount of its claim. It is constitutionally entitled to no more than payment in full. (Gelfert v. National City Bank, 313 U. S. 221, 233.) Both plaintiff and Prudence have been deprived of the right to enter a deficiency judgment based on the difference between the amount due them and the sale price but together they have been given the modified or substituted remedy of taking the property at its market value plus a deficiency judgment for the difference between that value and the amount due.

The judgments should be reversed with costs to appellant in all courts and a judgment entered for the deficiency in favor of plaintiff with appropriate provisions in accordance with this opinion.

Lehman, Ch. J., Lewis and Desmond, JJ., concur; Rippey, J., concurs in result; Loughran, J., dissents and votes to affirm; Finch, J., taking no part.

Judgment accordingly.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Frank Dittiger, Appellant, v. Isal Realty Corporation, Respondent.
    Argued April 21, 1943;
    decided June 10, 1943.

      Isidor Enselman and Gustave G. Rosenberg for appellant.

      Frederick Mellor for respondent.
   Desmond, J.

Plaintiff’s intestate was employed by a painting contractor who had been engaged to decorate a vacant apartment in defendant’s building. Part of the plaster ceiling of the apartment fell on plaintiff’s intestate, injuring him. In this negligence action, the jury found a verdict against defendant but the Appellate Division reversed the judgment on the law, and dismissed the complaint. There was no testimony from either party as to the cause of the descent of the plaster and no showing of any prior actual or constructive notice to defendant, of any defect. No excuse or explanation was offered by defendant. As to the condition of the ceiling before the plaster fell, we have only the testimony of another painter, who was working with plaintiff’s intestate on the job and who, called by defendant, said that “ it just looked as any other ceiling in the house would, just a normal ceiling.” The injured man (who has died since the trial) testified that, as he, for the first time, entered the room which was to be painted, carrying paints and other needed materials, a large segment of plaster fell on his head.

■ The Appellate Division wrote: “ plaintiff may not prevail * * * unless the rule of res ipsa loquitur applies so as to permit the jury to infer negligence from, the mere happening of the accident.” (264 App. Div. 279, 282). We agree to that but, unlike the Appellate Division, we think the case is one of those where mere proof of the happening, without any further proof of defendant’s default, calls for an explanation from defendant. In other words, we think the doctrine or rule of res ipsa loquitur applies here and that defendant failed to explain the accident in such a way as to overcome the case made out by plaintiff’s proof of the sudden fall of the plaster. Indeed, as we see it, defendant really offered no excuse or explanation at all.

Traditionally, the courts have used the rule of res ipsa loquitur in cases of injuries from falling objects. Most such cases involve injuries to persons walking or driving on public streets. (Mullen v. St. John, 57 N. Y. 567; Goll v. Manhattan Ry. Co., 57 N. Y. Super. Ct. 74, affd. 125 N. Y. 714; Hogan v. Manhattan Ry. Co., 149 N. Y. 23; Kearney v. L. B. & S. C. Ry. Co., L. R. 5 Q. B. 411.) This court has been at pains', however, to point out the fallacy of the view that the maxim is one specially designed for cases in which a traveler is injured while on a public highway, or while he is a passenger in the conveyance of a common carrier.” (Marceau v. Rutland R. R. Co., 211 N. Y. 203, 206.) In Grifen v. Manice (166 N. Y. 188, 194, 195), Judge Cullen made it clear, also, that the applicability of res ipsa loquitur does not depend on the relation of the parties, citing the old case of Green v. Banta (16 Jones & Sp. 156, affd. 97 N. Y. 627), where, before there was any statute on the subject, the fall of a scaffold was held to be prima facie evidence of a master’s negligence, in a suit by his employee. Haefeli v. Woodrich Engineering Co. (255 N. Y. 442), a case where the- arch of a cesspool collapsed and injured a man employed to clean it, was decided on the theory of res ipsa liquitur. Following those precedents, we find no basis for a withdrawal from the coverage of the rule, of the case now before us. No logical reason and no precedent distinguishes the unexplained fall of a wall (Mullen v. St. John, supra) from the unexplained fall of a ceiling. A number of cases, throughout the country, apply the rule of res ipsa loquitur to the fall of plaster from a ceiling. (Morris v. Zimmerman, 138 App. Div. 114; Halterman v. Hansard, 4 Ohio App. 268; Law v. Morris, 102 N. J. L. 650; Mintzer v. Wilson, 21 Cal. App. 2d 85; Bonita Theatre v. Bridges, 31 Ga. App. 798, contra, see Thompson v. Cooles, 37 Del. 83.) Slater v. Barnes (241 N. Y. 284), is no contrary authority since there, as Chief Judge Hiscook explains, the apartment in which the plaster fell was not under the control of the defendant landlord but was rented to, and occupied by plaintiff. “ He [defendant] was not in possession of the premises or at a post of observation and, therefore, when the trial judge erroneously imposed upon him this duty of explanation of something which happened beyond the realm of his observation or control, he in effect instructed the jury to find a verdict against him.” (Slater v. Barnes, supra, at p. 287, see Sandler v. Garrison, 249 N. Y. 236, 238.) In the present case the apartment had been vacant, and so in defendant’s control and under its observation, for the better part of a month. Our holding that this is a res ipsa loquitur case imposes on the owner no intolerable burden of absolute liability. It means only that defendant was put to the necessity of coming forward with an explanation of the accident so as to overcome the implications resulting from plaintiff’s proof. Defendant was not foreclosed from showing the age of the plaster and the probable duration of its useful life, or the method of its application, or of describing such inspection as had been made, or of pointing to facts showing that inspection was not reasonably called for. (See Lenz v. Aldrich, 6 App. Div. 178, affd. 154 N. Y. 753; Flood v. Western Union Telegraph Co., 131 N. Y. 603; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418; Foltis, Inc. v. City of New York, 287 N. Y. 108, 112.) Testimony by the other painter that the ceiling looked all right to him on a casual glance was surely not so complete and conclusive an explanation as to prove due care as a matter of law and thus require the dismissal of the complaint.

Defendant argues that it was under no duty to provide these painters with a safe place to work, since “ no responsibility rests upon an owner of real property to one hurt through a dangerous condition which he had undertaken to fix.” (Kowalsky v. Conreco Co., 264 N. Y. 125, 128.) The trial justice charged the rule of Kowalsky v. Conreco Co., but left it to the jury to determine, as a question of fact, whether the painting contractor and his men were engaged to do painting work only, or to make necessary repairs to the plaster, also. The testimony did no more than set up a dispute of fact in that regard, and so the charge was correct.

The judgment of the Appellate Division should he reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

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

Judgment accordingly.


text:
    Metropolitan Savings Bank, Respondent, v. Friend L. Tuttle, as Surviving Executor and Trustee under the Will of Angelo Ubriaco, Deceased, et al., Appellants., et al., Defendants.
    Argued April 6, 1943;
    decided June 10, 1943.

      Friend L. Tuttle for appellants.

      Irving Smith, Jr., A. S. , Hutchins and W. Hutchins for respondent.
   Conway, J.

This is an appeal, by permission of the Appellate Division, First Department, from an order of that court affirming an order denying a motion to dismiss the complaint under rule 106, subdivision 5, of the Buies of Civil Practice on the ground that it appeared on the face thereof that it did not state facts sufficient to constitute a cause of action. The Appellate Division has certified the following question: Does the complaint herein state facts sufficient to constitute a cause of action? ”

The complaint alleges that one Sohmer gave his bond dated December 10, 1923, to plaintiff in the sum of $15,000 by which he obligated himself to pay that sum on December 10, 1928, with interest to be computed from December 10, 1923, at the rate of five and one half per centum per annum to be paid on the first day of March next ensuing and semi-annually, thereafter in each year. That as collateral security he executed and delivered to plaintiff a mortgage dated December 10, 1923, on certain described premises in the Bronx. That the mortgagor covenanted that the principal sum should become due and payable after default in the payment of interest for twenty days. “ That the defendants have failed to comply with the conditions contained in said bond and mortgage by omitting to pay the interest on the principal sum of Fifteen Thousand ($15,000.00) Dollars which became due and payable on the first day of March, 1940, at the rate of six per centum per annum, amounting to the sum of $450.00, no part of which has been paid to the said plaintiff although duly demanded, and that more than twenty days have elapsed since said interest became due and payable, and that by reason of such default the plaintiff herein has elected and does elect, in accordance with the conditions contained in said bond and mortgage, to declare the principal sum immediately due and payable.” There were other allegations proper in actions to foreclose a mortgage but not here material.

In substance, therefore, the complaint alleges that the bond and mortgage matured on December 10, 1928; that the rate of interest provided in the bond and mortgage was five and one half per cent; that there was a default hy reason of the failure to pay interest at the rate of six per cent on March 1, 1940; that by reason of said default, plaintiff is entitled to foreclose the mortgage. Concededly there was no extension agreement ever made and there is no allegation that there was any demand for the payment of principal prior to the emergency period or of interest at a rate greater than five and one half per cent prior to March 1, 1940.

It is the settled law in this State that, in the absence of other agreement by the parties, “ where one contracts to pay a principal sum at a certain future time with interest, the interest prior to the maturity of the contract is payable by virtue of the contract, and thereafter as damages for the breach of the contract.” (O’Brien v. Young, 95 N. Y. 428, 429.) After maturity, in the absence of other agreement, the interest is computed as damages according to the rate then prescribed by law, whether that is more or less than the contract rate. (O’Brien v. Young, supra, p. 430; Ferris v. Hard, 135 N. Y. 354; Title Guarantee & Trust Co. v. 2846 Briggs Avenue, Inc., 283 N. Y. 512.) The rate may continue to be the rate provided in the contract or obligation when so prescribed by statute but the interest is nevertheless that which is authorised by law. (Title Guarantee & Trust Co. v. 2846 Briggs Avenue, Inc., supra.)

That brings us to the question as to what is the rate of interest prescribed by statute as to the bond and mortgage here involved. Is it the rate provided in General Business Law, section 370, or that provided in Civil Practice Act, section 1077-cc?

Section 1077-cc reads as follows: “ Interest on evidence of INDEBTEDNESS ORIGINALLY CONTRACTED FOR SIMULTANEOUSLY WITH mortgage. Notwithstanding any inconsistent provisions of this act or of any other general or special law, the rate of interest upon any loan, indebtedness, bond, extension agreement, collateral bond, or other evidence of indebtedness or liability, if the indebtedness originated or was originally contracted for simultaneously with a mortgage upon real property and is secured solely by such mortgage, shall not be increased by reason of the maturity of such obligation during the emergency period as defined in section ten hundred seventy-seven-g of this act, but shall continue after such maturity at the rate specified in such obligation until the expiration of such emergency period.”

Plaintiff contends that section 1077-cc is inapplicable here because the maturity of the mortgage in suit occurred on December 10,1928, which was not during the emergency period, and that, therefore, General Business Law, section 370, is the applicable statute. Unquestionably the statutory rate of interest allowed as damages may be changed during the period between the maturity of an obligation and its payment. (O’Brien v. Young, supra; Title Guarantee & Trust Co. v. 2846 Briggs Avenue, Inc., supra; People ex rel. Emigrant Industrial Sav. Bank v. Sexton, 284 N. T. 57.)

Stripped of phrases and clauses unnecessary for our present consideration, section 1077-cc reads: “ * * * the rate of interest upon any loan, * * * originally contracted for simultaneously with a mortgage upon real property and * * * secured solely by such mortgage, shall not be increased by reason of the maturity of such obligation during the emergency period * * % but shall continue after such maturity at the rate specified in such obligation until the expiration of such emergency period.”

Plaintiff justifies its construction of the section by making the phrase “ during the emergency period ” modify “ maturity.” If we move the four-word phrase so as to make it follow the word “ increased ” so that this portion of the section reads: secured solely by such mortgage, shall not be increased during the emergency period by reason of the maturity of such obligation but shall continue after such maturity at the rate specified in such obligation until the expiration of the emergency period, we would have more clearly presented the legislative intent and the phrase would be placed immediately after the verb “ shall (not) be increased ” which it properly modifies.

Section 1077-cc was enacted (L. 1934, ch. 890) at an extraordinary legislative session in 1934 and became effective August 24,1934. It seems to give evidence of having been put together hurriedly. It had no section heading. It made no reference to any of the then existing emergency laws of 1933 except a reference to that part of section 1077-g which defined the emergency period. It overrode by its terms “any inconsistent provisions of this act or of any other general or special law,” including General Business Law, section 370. It was applicable to all mortgages of whatever date whereas the other emergency statutes of the 1077 series were by section 1077-g applicable only to mortgages dated prior to July 1, 1932. (Footnote )

We may well ask ourselves why was this seeming haste in the enactment of a statute broader than the emergency statutes of August 26, 1933, in view of the fact that it had but approximately ten months to be operative, vis. from August 24, 1934, to July 1, 1935, the date then set for the termination of the emergency period? In addition to that all mortgages affected by the emergency statutes whether they had matured or would mature prior to July 1, 1935, had been extended by law beyond the emergency period. (Footnote )

Thus when section 1077-cc was enacted on August 24, 1934, as regards principal, assuming plaintiff’s construction to be the correct one, there were no matured or open mortgages on which the section could operate, nor would there be until at least six months after July 1, 1935.

Where then was the necessity for the passage of section 1077-cc at an extraordinary session if, as plaintiff urges, the only mortgages to be affected were those maturing during the emergency period- when there were to be no mortgages maturing during the emergency period as then established? Is it not more likely that having suspended the bringing of foreclosure actions for failure to pay principal when due, it was necessary to enact the section so as to protect mortgagors and owners against increases in interest ratesf

From the date of its enactment Civil Practice Act, section 1077-g, limited the operation of the other six emergency statutes effective August 26, 1933, to mortgages dated prior to July 1, 1932. The mortgagors and owners affected by those mortgages were the ones the Legislature believed needed protection and assistance in the emergency. Of those mortgages some would have matured before and some would have matured subsequent to July 1, 1932, but the time of maturity was not the determinant in the legislative mind. That was why the date of the mortgage was made the determining factor.

So anxious was the Legislature to prevent an increase in interest rates by mortgagees that, by chapter 318 of the Laws of 1935, effective April 8, section 1077-d was amended so as to make void and unenforcible any waiver of the protection of section 1077-cc as contrary to the public policy of the State. From whatever angle we view the legislative acts, we behold the legislative intent to preserve the status quo during the period of the emergency both as to principal and interest. With this evidence before us it seems unthinkable that the Legislature intended to exclude from the protection of section 1077-cc the great number of mortgages which must have been matured and open at the commencement of the emergency period in 1933.

We have indicated how well and carefully the Legislature integrated the 1077 series of emergency statutes into a comprehensive plan to relieve the strain on the real property market and to afford temporary relief to those indebted on bonds and real property mortgages.” (City Bank Farmers Trust Co. v. Ardlea Incorporation, 267 N. Y. 224, 227.) In that case, p. 228, it was further said: “ Sections 1083-a and 1083-b were enacted at the same time as sections 1077-a and 1077-b arid as part of the general purpose of affording relief to distressed debtors.

‘ ‘ The sections must be read together, having in mind the purpose of the emergency legislation and the- object which it was enacted to accomplish.” To the same effect are Smith v. People (47 N. Y. 330, 337); People ex rel. Doscher v. Sisson (222 N. Y. 387, 393); Klinke v. Samuels (264 N. Y. 144.)

Section 1077-cc, as well as the other emergency statutes, were enacted for the protection of owners and obligors on bonds and mortgages. The legislative purpose was to prevent foreclosures and the exaction of higher rates of interest during the emergency period. The Legislature undoubtedly intended that the legal rate of interest chargeable as damages for failure to pay the debt when due was to be determined by the rate specified, in this instance, in the bond. The rate so specified became the legal rate as damages during the emergency period. In other words, section 1077-cc established the interest rate allowed by statute as damages in the instances to which it was applicable.

This construction of the statute, it seems to us, is the natural, rational and necessary one in view of the spirit and object of section 1077-cc and the then prevalent hardships sought to be alleviated by the so-called mortgage moratorium statutes.

The orders should be reversed, the motion to dismiss the complaint granted with costs in all courts, and the question certified answered in the negative.

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

Orders reversed, etc.

       It was not until L. 1937, eh. 713, that section 1077-cc was expressly restricted in application to mortgages dated prior to July 1, 1932, and it was not until April 6, 1938, that it was finally integrated with the other 1077 sections by the passage of L. 1938, eh. 500. Finally by L. 1939, ch. 359, it was given its section heading.

       By L. 1934, ch. 357, sections 1077-a and 1077-b were amended, as to all mortgages including the one in suit here, dated prior to July 1, 1932, so that the principal sums of such mortgages which by their terms were then overdue or would become due prior to July 1, 1934, were extended for six months beyond the termination of the emergency period and those becoming due between July 1, 1934, and July 1, 1935, were extended for one year beyond the termination of the emergenev neriod. which was then set at July 1, 1935-


author: Loughran, J.

text:
    In the Matter of Jeremiah McNerney et al., on Behalf of Themselves and Other Members of the Police Department of the City of Geneva Who Join in the Proceeding, Appellants and Respondents, against City of Geneva et al., Respondents and Appellants.
    Argued. April 19, 1943;
    decided June 18, 1943.

      Thomas J. Cleere for petitioners, appellants and respondents.

      James M. Ryan and Arthur T. McAvoy for defendants, respondents and appellants.
   Loughran, J.

This is a proceeding under article 78 of the Civil Practice Act. The defendants are fiscal officers who had managed the police pension fund of the city of Geneva prior to March 15, 1940 — the date on which the members of the local police department (including the petitioners) were admitted to the New York State Employees’ Retirement System through the approval of the Common Council of the city. (See Civil Service Law, art. 5.)

As of that date, the police pension fund of the city amounted to $91,326.82. Section 76 of the statute made this applicable provision: “ Any cash and securities to the credit of the local pension system shall be transferred to the New York state employees’ retirement system as of the date of the approval. The trustees or other administrative head of the local pension system as of the date of the approval, shall certify the proportion, if any, of the funds of the system that represents the accumulated contributions of the members, and the relative shares of the members as of that date. Such shares shall be credited to the respective annuity savings accounts of such members in the New York state employees’ retirement system. The balance of the funds transferred to the New York state employees’ retirement system shall be offset against the accrued liability before determining the special deficiency contribution to be paid by the locality as provided by section seventy-eight. The operation of the local pension system shall be discontinued as of the date of the approval.”

In asserted compliance with these words of the statute, the defendants certified to the New York State Employees’ Retirement System that out of the total of $91,326.82 remaining in the city police pension fund on March 15, 1940, the sum of $7,865.23 represented the accumulated contributions of the members. This reckoning left a balance of $83,461.59 to be credited to the city by way of offset against the liability which the statute imposed upon it in consequence of the participation of the members of its police force in the New York State Employees’ Retirement System.

Dissatisfied with this outcome, the petitioners (as such members) brought the present proceeding to compel the defendants to certify the full amount of the former local police pension fund on March 15, 1940 — $91,326.82'—as the sum of such accumulated contributions. Special Term ordered the defendants to make that certification, citing Matter of Harrington v. City of Lockport (235 App. Div. 895).

On appeal by the defendants, the order of Special Term was modified by the Appellate Division for reasons stated as follows : In Matter of Harrington v. City of Lockport (235 App. Div. 895) the order of the Special Term was affirmed by this court without opinion. It was held in that case that all of the moneys in the local fire pension fund should be certified as representing the accumulated contributions of the members of the fire department. The statute was construed to mean that the accumulated contributions of the members of a local pension system consisted of money ‘ accumulated by their own acts or donated for their sole benefit. ’ We believe that this construction of the statute should not be extended so as to include moneys which before the creation of the local pension fund were used for general purposes of the city. Adopting this construction, we conclude that the moneys in the Geneva police pension fund derived from the following sources should be certified as accumulated contributions of the members of the police force: The deductions from the salaries of present and former members of the police force. Rewards paid to the police force or to the members thereof. The proceeds of benefit entertainments given by the police force. The interest received by the city on the above items.” (261 App. Div. 754, 756.) As so modified, the order of Special Term was affirmed.

Items of the local police pension fund which were thus excluded from the accumulated contributions of the members had been taken from court fees, bail forfeitures, fees for dog licenses, fines, recompense for the care of insane persons and liquor taxes. (See L. 1911, ch. 391; L. 1916, ch. 288; Geneva Local Laws, No. 4 of 1927 and No. 2 of 1935.) The case is now here on cross-appeals from the order of the Appellate Division.

, In our New York statutes regulating the retirement benefits of civil employees, the word contributions ” has uniformly been used to signify sums deducted from the pay of an employee for transference to his “ annuity ”; the extra public commitment to the employee has been described as his “ pension ”; and such “ annuity ” plus such pension ” has been called the “ retirement allowance.” (Civil Service Law, § 50, subds. 11, 12, 15, 16, 17; Education Law, § 1100, subds. 10, 12, 13, 14; Administrative Code of the City of New York, § B3-1.0, subds. 13, 14, 15; L. 1937, ch. 929.) We think this definitive statutory usage requires us here to declare that the fraction of the police pension fund of the city of Geneva whidh (with the interest thereon), had its source in the salaries of those who were participators on March 15, 1940, was then the whole of “ the accumulated contributions of the members ” within the scope and meaning of that phrase of section 76 of the Civil Service Law.

Argument invoking the fairness of a looser construction of that phrase is out of place. “ The power of extending the meaning of a statute beyond its words, and deciding by the equity, and not the language, approaches so near the power of legislation, that a wise judiciary will exercise it with reluctance and only in extraordinary cases.” (Monson v. Inhabitants of Chester, 22 Pick [Mass.] 385, 387. See Fisher v. Long Island Lighting Co., 280 N. Y. 63; Matter of Rogalin v. New York City Teachers’ Retirement Board, 290 N. Y. 664.) In this instance, we see no substantial reason for thinking that the customary letter of the statute does not completely express the intent of the Legislature.

The orders should be reversed, without costs, and the matter remitted to the Special Term for further disposition not inconsistent with this opinion.

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

Orders reversed, etc.


text:
    Lurleen Jackson, Respondent, v. Edward E. Jackson, Appellant.
    Argued April 5, 1943;
    decided June 18, 1943.

      Emil F. Baar and David E. Winer for appellant appearing specially.

      George Gordon Battle and Jacob Rosenberg for respondent.
   Desmond, J.

Plaintiff is defendant’s wife. Her complaint sets out two causes of action, one for a separation on the grounds of abandonment and nonsupport, and another for the invalidation of a separation agreement between the parties. The separation agreement, a copy of which is annexed to the complaint, was executed about nine months before this suit was brought, and provides for the payment by the husband to the wife of a lump sum of $5,500, plus an amount for the wife’s Jegal expenses, plus the payment by the husband of certain outstanding debts. It embodies also an arrangement for a division between the parties of certain household effects, etc. In the separation agreement it is stated that the wife " accepts the consideration herein mentioned from the First Party as and for the full, satisfactory, reasonable and sufficient provision for the whole support, maintenance and alimony of the Second Party during her life, and the Second Party agrees that such provision for her support and maintenance is ample * * *.” It is undisputed that the husband has carried out all the engagements undertaken by him in the separation agreement. From 'the complaint, however, we are informed that the plaintiff wife now claims that this separation agreement was obtained from her by duress and by means of representations which were fraudulently false, that the money and property arrangements were inadequate in view of her husband’s income and wealth, and that the whole agreement is null and void under the public policy of this State, as expressed in section 51 of our Domestic Relations Law. The agreement was executed by the parties in New York City. It recites that the parties have been living apart for some months, and describes the wife as a resident of New York City and the husband as residing in Ohio.

Service on the husband of the summons in this action was made personally, but outside New York State, pursuant to an order authorizing such constructive service. Defendant, appearing specially, moved to set aside that service, arguing that the action, taking into account all the allegations of the complaint, is not one “ where the complaint demands judgment * * * for * * * a separation.” (Civ. Prac. Act, § 232, subd. 5.) So much of the complaint, says appellant, as is directed toward the setting aside of the separation agreement, runs in personam, not in rem. Thus, says appellant, the case is not one where constructive service of process may be allowed since plaintiff, by her own theory of action, is seeking relief in personam against her husband, as a preliminary step toward relief in rem in the form of a judgment of separation. Special Term denied the motion to set aside the service. In its memorandum it said that, although the second cause of action is not one within section 232 of the Civil Practice Act, nevertheless the two causes of action are not independent one of the other but are inextricably bound up together. “ In effect, then,” says the Special Term memorandum, only one cause of action need have been alleged.” The Appellate Division affirmed unanimously without opinion, but gave defendant leave to appeal to this court.

If the two counts of the complaint, read together, did fairly state only one cause of action, then that cause of action, we think, would necessarily be partly in rem and partly in personam. Since no court may award a judgment that runs, wholly or in part, in personam, against a nonresident not personally served within the court’s jurisdiction and not voluntarily appearing (Pennoyer v. Neff, 95 U. S. 714), possibly a holding that this complaint really states but one hybrid cause of action might lead to a granting of defendant’s motion to vacate the service of the summons. But the complaint does allege two causes of action, separable and separated. It is plain that one of them is a cause of action in personam and that no judgment can be had against this defendant on that cause of action, since there has been no personal service of process on .him within the jurisdiction, npr has there been a general appearance by him. It does not necessarily follow, however, that the court, for that reason, lacks jurisdiction to decree to plaintiff a judgment in rem, for separation. It is not a sufficient ground for setting aside the service that “ plaintiff demands a greater measure of relief than could be given him [her] in an action begun without personal service of the summons.” (Chesley v. Morton, 9 App. Div. 461, 464, see Holmes v. Camp, 219 N. Y. 359, 364.) Ordinarily it is enough, as against a motion to set aside service by publication or personally outside the State, that there be found in the complaint allegations which, if proven, would entitle plaintiff to a judgment in rem. Other allegations of personal liability may, at,this point in the litigation, be disregarded, likewise such parts of the prayer for judgment as demand a judgment in personam. “ If the plaintiff has stated in his complaint what he will be unable to prove at the trial, he will pay the usual penalty.” (Chesley v. Morton, supra, p. 465.) But we are told that the defect in this complaint is more serious than merely alleging too much, and asking too much. Here, it is argued, plaintiff seeks a judgment in personam the granting of which, says defendant, is a prerequisite to any consideration by the court of the other cause of action in rem. That argument bases itself on certain language and certain holdings of this court in Galusha v. Galusha (138 N. Y. 272, 283) and Goldman v. Goldman (282 N. Y. 296, 300). This court did say and hold in those cases that so long as a separation agreement " remains unimpeached, it must be the measure of the allowance for the support of the plaintiff, which the defendant shall pay. ’ But the Galusha and Goldman cases had to do with agreements for regular, substantial, periodic payments to the wives, representing admeasurements and determinations, in dollars, of the husbands ’ continuing obligations to support their wives. Where the parties have by an agreement “ lawful in form and apparently valid ” (Galusha case, supra, p. 283) fixed an amount for support, the courts will treat their agreement, so long as it remains unrevoked, as the proper measure of compensation. But an agreement to pay, and a payment of, a lump sum to a wife in return for a release of the husband from all future liability for the wife’s support, is something quite different. By such an agreement the husband does not recognize, and join with his wife in measuring, his persisting liability to support her. In lump sum agreements, the husband buys his release for a price. Of such an agreement, this court wrote in Kyff v. Kyff (286 N. Y. 71, 74): “ clearly this is not an agreement whereby the husband and the wife have mutually agreed upon the scale on which the husband shall support the wife. On the contrary, it is an attempt by the husband to purchase exemption from his continuing duty by the terms of an agreement which are expressly forbidden by section 51 of the Domestic Relations Law.” Of course we are not in this opinion laying down any broad rules as to the effect and validity of lump sum separation agreements. The only question before us on this appeal is as to whether the court, by personal service of this defendant outside the State, obtained jurisdiction to hear this cause. The only argument against such jurisdiction bases itself on the presence in the complaint of a separate cause of action in personam to set aside a separation agreement. Defendant says that there cannot be a judgment in rem for a separation in such a case, unless and until the court first sets aside the agreement, since the cause of action to set aside the agreement must first be disposed of before the court can go on to consider the separation demand. Under the authority of Kyff v. Kyff (supra), that is not necessarily so. It will be possible, on a proper showing at the trial, for the court to award plaintiff a judgment for separation without making any direct adjudication as to the separation agreement. So viewed, the demand for an annulment of the agreement does not affect the court’s jurisdiction in rem over the separation cause, since the prayer for relief in personam (including of course the prayer for alimony) is merely a demand for additional relief which the court cannot give under the •circumstances (Chesley v. Morton, supra). All this being so, the motion to set aside the summons on jurisdictional grounds, was properly denied.

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

Lehman, Ch. J., Loughran, Lewis and Conway, JJ., concur. Rippey, J., concurs in result.

Order affirmed, etc.


author: Per Curiam.

text:
    Eleanor Dalton, Respondent, v. Costes Dritras, as President, and Sam Kramberg, as Treasurer of Cafeteria Employees Union, Local 302, Appellants.
    Submitted May 17, 1943;
    decided June 18, 1943.

      Max Delson for appellants.

      Elsie E. Kovacs and Leon R. Nemore for respondent.
   Per Curiam.

In this action to recover death benefits because of the death of her husband who was a member of the defendant union, plaintiff’s asserted right depends upon article XI of the Union’s by-laws. Only dependents of a member of the Union who dies in good standing are entitled to receive death benefits (art XI, § 1) and this right is subject to and expressly limited by rules, regulations, definitions and exceptions specified in the subsequent sections of article XI, including section 3 which provides: “ 3. A member in good standing within the meaning of this Article is one who for the year just prior to his death has fully paid all dues, assessments and fines of Local 302 falling due within said year, and who had not been in arrears more than two calendar months at a time vithin said year.” Thus the prescribed condition is not merely that there shall be no arrears when death occurs, but that there shall not have been arrears for more than two calendar months at a time within one year prior to death.

It was conceded upon the trial that for the year immediately preceding his death, Edward Dalton (plaintiff’s deceased husband) had been in arrears more than two months at a time. The courts below erroneously held plaintiff entitled to recover because Dalton was not in arrears at the time of his death. We could not hold that acceptance of payment of arrears before death waives or removes the further condition imposed by section 3 of article XI except by striking it out. This we may not do.

The judgments should be reversed and the complaint dismissed, without costs.

Lehman, Ch. J., Loughran, Ripfey, Lewis, Conway, Desmond and Thacher, JJ., concur.

Judgments reversed, etc.


author: Rippey, J.

text:
    Bedcro Realty Corporation, Appellant, v. Title Guarantee and Trust Company, Defendant, and Brooklyn Trust Company, as Trustee, Defendant-Respondent.
    Argued April 12, 1943;
    decided June 18, 1943.

      Bruce R. Duncan and Robert B. Duncan for appellant.

      Patrick J. Mahoney and Ralph W. Crolly for respondent.
   Rippey, J.

Plaintiff brought this action to compel the defendants to return a guaranteed mortgage certificate of the face value of $15,000, and for an accounting of income received’ thereon and the payment thereof to plaintiff.

As security for the payment of interest on a mortgage debt of the plaintiff to the Title Guarantee & Trust Company and for the payment of taxes, assessments and water rents against the real property secured by the mortgage, the Trust Company held a guaranteed mortgage participating certificate of the face" value of $15,000, belonging to plaintiff, which was secured by a mortgage on other property. The security was not used for that purpose but was still in the possession of the mortgagee when it foreclosed the mortgage for default in the payment of interest and taxes. The mortgage was given to secure the payment of the principal amount of $475,000. Upon the sale of the property on foreclosure to satisfy the entire mortgage debt, including the unpaid interest and taxes, the mortgagee bid in the property for $1,000, subject to taxes, water rates and assessments, leaving a deficiency in the amount required upon the sale of $559,481.96. Title to the property passed to an assignee of the bidder and the referee’s report of sale was confirmed. Prior to the confirmation of the referee’s report, an application was made for leave to enter a deficiency judgment but it was subsequently withdrawn. Accordingly, no application was made as required by section 1083-a of the Civil Practice Act and no deficiency judgment was secured. In those circumstances, as expressly provided by section 1083-a, “ the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist.” Failure to move for a deficiency judgment as authorized by that section raised a conclusive presumption that the value of the property received by the mortgagee on foreclosure equaled, at least, the entire mortgage debt ” and no right remained to enforce payment thereof, in whole or in part, from any other security. Taxes and interest were an integral part of the “ mortgage debt ” within the meaning of section 1083-a at the time of the entry of judgment of foreclosure and sale of the mortgaged property (Rossbach v. Rosenblum, 284 N. Y. 745; White v. Wielandt, 286 N. Y. 609) and the mortgagee so construed the section when it brought its action to foreclose for default in the payment of interest and taxes.

Certificates of indebtedness in the bond and mortgage, guaranteed by the Bond and Mortgage Guarantee Company, were issued by the Title Guarantee and Trust' Company and sold to the public. In a proceeding under chapter 19 of the Laws of 1935, as amended, approving a plan of reorganization of the rights of certificate holders, the Brooklyn Trust Company was appointed trustee for the mortgage certificate holders and acquired title to the real property and to a guaranteed mortgage participation certificate for $15,000 which had previously been issued to the Mortgage Commission in the place of the certificate originally issued to the Title Guarantee and Trust Company as trustee for the plaintiff. Thereafter, the Brooklyn Trust Company transferred the real, property to one Siegelbaum for a sum less than that reported in the referee’s report of the foreclosure sale as needed to satisfy the mortgage debt and costs and expenses of the suit. The trustee is claiming that it may apply the certificate now in its hands and the income therefrom on the balance of the deficiency arising after the transaction with Siegelbaum. The Brooklyn Trust Company as assignee of the substituted certificate has no greater right to apply that certificate .and income therefrom toward the liquidation of that deficiency than the original mortgagee, the Title Guarantee and Trust Company, had to apply the original certificate with accrued income thereon which it held as trustee for plaintiff toward the liquidation of a part of the original mortgage debt.

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

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

Judgment accordingly.


text:
    Chelrob, Inc., et al., Suing on Behalf of Themselves and All Other Stockholders of Queens Borough Gas & Electric Company Similarly Situated, Who May Join in This Action, Appellants, v. Edward F. Barrett et al., Respondents.
    Submitted June 7, 1943;
    decided June 18, 1943.

      Harry Tabershaw and Milton Paulson for motion.

      Edward J. Crummey and Thomas A. Gaffney opposed.
   Per Curiam.

The amount paid to the printer for 100 printed copies of the record on appeal in the Appellate Division was $5,133.90. The defendants’ attorney agreed with the attorney for the plaintiffs that in ease the plaintiffs thereafter appealed to the Court of Appeals “ there shall be available to you for purchase [at the printer’s price for the second fifty copies] fifty copies of the record on appeal.” Upon the taxation of costs by the defendants after the decision by the Appellate Division in their favor, items of expense, aggregating $863.50, which were included in the amount paid to the printer, were stricken out upon plaintiffs’ objection. Whether or not these items were a necessary disbursement for printing the record on appeal in the Appellate Division is immaterial, for it is undisputed that the amounts stricken out were actually paid to the printer as part of the cost of printing the record on appeal in the Appellate Division and consequently these items did not constitute any part of the additional " printer’s price for the second fifty copies.”

Motion for order directing that the appeal may proceed and be heard upon filing with this court five copies of the record used in the Appellate Division, together with nineteen printed copies of the necessary additional papers, granted, unless the respondents make available to the appellants fifty copies of the printed record on appeal used in the Appellate Division for the price of $145.


author: Lewis, J. Conway, J.

text:
    Rudolph R. Loening et al., Constituting the Charter Commission of the City of Glen Cove, Appellants, v. William H. Seaman, as Mayor of the City of Glen Cove, et al., Respondents.
    Argued June 11, 1943;
    decided June 18, 1943.

      Samuel D. Smoleff for appellants.

      Jacob J. Pincus for respondents.
   Lewis, J.

In this submitted controversy the Appellate Division has ruled that it is not the duty of the defendants — the Mayor, Councilmen and the City Clerk of the City of Cien Cove — to submit to the voters of that city at a special election to be held on June 29, 1943, a proposed new city charter. The case is here on appeal by permission of the Appellate Division granted to the plaintiffs.

On April 29, 1943, the plaintiffs, who are the duly designated members of the Charter Commission of the City of Cien Cove,” filed with the defendant City Clerk a proposed new city charter to replace the present charter adopted on June 8, 1917. Simultaneously the Charter Commission filed with the City Clerk a written communication, signed by each member, which stated in part that —

< i * * * in accordance with the terms of the said Local Law [No. 4, for the year 19411 we have designated Tues day, June 29,1943, as the date of a special election for the submission of the said new charter to the voters of the city.
“ Will you kindly transmit to the City Council of the City of Glén Cove, our request that the Council make the necessary arrangements with the election officials for the conduct of such a special election and the submission thereat of the question: ‘ Shall the charter proposed by the Charter Commission be adopted V as required by section 20 of the City Home Rule Law; also our request that the Council provide for the printing of the charter herewith submitted, make copies available to all interested citizens, and give it such further publicity as it may deem suitable, in accordance with the requirements of the said section.” (Emphasis supplied.)

The proposed new charter had been prepared by the Charter Commission created by Local Law No. 4 (1941) of which section 4 authorized the Commission “ * * * in accordance with the provisions of subdivision three of section twenty of the City Home Rule Law to prepare a draft of a new charter for the City of Glen Cove and to provide for its submission to the voters of the city at a special election.” (Emphasis supplied.) It was in accord with that authorization that the Charter Commission, simultaneously with the filing of the proposed new -charter, had requested the City Council to make the necessary arrangements for a special election to be held' on June 29, 1943, when the proposed new charter could be submitted for approval to the local electorate.

In apparent disregard of such request by the Charter Commission the defendants, according to the agreed facts now before us, “ * * * have not taken any steps, and, unless directed-by the Court, do not intend to take any steps to cause the proposed charter to be submitted at the said special election designated by the Charter Commission. Defendant City Council, at its next regular meeting held on May 11, 1943, after the filing of the proposed charter with the City Clerk, adopted a resolution in terms as follows:

“ ‘ Resolved that the proposed charter, as submitted by the Charter Commission, be submitted for vote on November 2nd, 1943; and be it further
‘ Resolved that the City Clerk he and she hereby is directed to notify the Board of Elections to place upon the voting machine the question:
“ ‘ “ Shall the charter proposed by the Charter Commission be adopted? ” and to take any and all necessary steps to submit properly such proposition to the voters. ’ ”

The assertion is made on behalf of the City Council that by disregarding the communication received from the Charter Commission it acted within its legal rights when by formal resolution it designated as the date when the proposed new charter would be submitted to the electors, November 2,1943,— that being the date of a general election. It is said that the Council’s authority to make such designation is granted by the City Home Rule Law, section 20, subdivision 3, which provides in part: “ * * * Such new charter shall be completed and filed in the office of the city clerk in time for submission to the electors not later than the second general election after the election at which members of the charter commission are elected or, if no members of the commission are chosen by election, after the election at which the commission is authorized. The local legislative body shall provide for such publication or other publicity in respect to the provisions of the proposed charter as it may deem proper, and for its submission to the electors of the city at a special city election or a general election held not earlier than sixty days after the filing thereof in the office of the city clerk and not later than the next general election which does not occur within the said sixty days, provided, however, that if such general election occurs within ninety days after the said filing, the proposed charter shall be submitted at such general election. At such election, except as hereinafter provided, there shall be submitted to the qualified electors of the city the question: Shall the charter proposed by the charter commission be adopted?’ * * (Emphasis supplied.)

We do not think that the procedure outlined in section 20, subdivision 3, of the City Home Rule Law, upon which the defendants rely, is exclusive. The Legislature indicated its intention to be otherwise when, by section 31 of the same chapter, it provided: “A permissive procedure authorized by this chapter shall not be deemed to be exclusive or to prohibit the use of any other procedure authorized by any act of the legislature, city charter or local law lawfully adopted but shall be deemed an alternative thereto.”

Local Law No. 4 (1941) was “ lawfully adopted ” after a petition for its submission to the electorate and its subsequent adoption by popular vote (City Home Rule Law, § 20, subd. 2). It thereby became a local law ” within the definition set forth in section 2 of the City Home Rule Law. The proposal voted upon by the electors was clearly set forth, and the procedure was thereby authorized by which a charter commission, charged with the duty of preparing a new city charter, should “ * * * provide for its submission to the voters of the city at a special election.” The submission to the voters of the proposal, which later became Local Law No. 4 (1941), as the means of empowering the Charter Commission to perform the duties with which it was charged, had the unanimous approval of the City Council-

No fatal inconsistency is to be found between the Local Law and section 20, subdivision 3, of the City Home Rule Law. The clause in Local Law No. 4, section 4, authorizing the Charter Commission to make provision for the submission of any proposed new charter to the voters of the city at a special election ” was a valid delegation of power to the Charter Commission (City Home Rule Law, § 11, subd. 3; cf. L. 1934, ch. 867, § 4; and see Matter of Mooney v. Cohen, 272 N. Y. 33, 39). The enactment of Local Law No. 4 validly restricted the power theretofore granted to the City Council by City Home Rule Law, section 20, subdivision 3, — which it now claims the right to exercise by fixing the general election of November 2, 1943, as the date when the proposed charter shall be submitted for popular vote — and empowered the Charter Commission to provide for the submission of the proposed new charter to popular vote at a special election. Such a restriction of the City Council’s power, as that power was defined by section, 20, subdivision 3, of the City Home Rule Law, is a matterx which relates itself to the government and affairs of the City of Glen Cove and is within the field of legislation open to a city under the Home Rule provision of the Constitution (art. IX, § 12) and under the City Home Rule Law adopted by the Legislature to carry out the constitutional mandate. (See New Rochelle Trust Co. v. White, 283 N. Y. 223, 229, 231; Bareham v. City of Rochester, 246 N. Y. 140, 146, 147.)

There are substantial reasons why the City Council, which submitted Local Law No. 4 to a popular vote, and the electorate which adopted it, may have preferred a “ special election ” rather than a general election as the occasion for registering the choice of the electors upon a proposed new charter. We cannot say that the designation in Local Law No. 4, section 4, of a “ special election ” to determine the electors’ approval or disapproval of the Charter Commission’s proposal may not have exerted a deciding influence upon the popular vote.

The judgment of the Appellate Division should be reversed, without costs, and judgment granted declaring that it is the duty of the defendants to submit the proposed charter of the City of Glen Cove at a special election to-be held on June 29, 1943.

The judgment should be reversed and judgment directed in favor of the plaintiffs without costs.

Conway, J.

(dissenting). The question presented to us for decision is a simple one. It is whether the local legislative body of a city or a charter commission selected in accordance with the provisions of City Home Buie Law, section 20, subdivision 2, shall determine whether the charter is to be submitted to the electors of the city at a special city election or a general election and which body shall determine, if it be a special city election, the date on which the submission to the electors shall be made. The determination of that question depends in the final analysis upon the construction of the City Home Buie Law, section 31, to which reference will later be made.

The fundamental principles of government applicable here are found in the following quotations from the opinions of this court: “ The power to provide for a referendum must be found in the City Home Rule Act (Mills v. Sweeney, 219 N. Y. 213). Otherwise it is unauthorized. Direct legislation in cities must always rest on some constitutional or statutory grant of power. Government by representation is still the rule. Direct action by the people is the exception. The test of validity, therefore, is whether Local Law No. 16 has been adopted as a local law coming within the powers delegated to the city by such law. The power asserted by the city must fail unless the local law squares itself with the restrictions therein contained. (Browne v. City of New York, 241 N. Y. 96.) ” (Matter of McCabe v. Voorhis, 243 N. Y. 401, 413.)

The legislative power of the State is vested in the Senate and Assembly (State Const. Art. III, § 1). It may not delegate that authority to any other legislative body or to the electors except where the Constitution authorises such delegation. Even then it may delegate legislative power only in manner and form permitted by the Constitution.

“ ' Direct legislation in cities must always rest on some constitutional or statutory grant of power. Government by representation is still the rule. Direct action by the people is the exception ’ (Matter of McCabe v. Voorhis, 243 N. Y. 401, 413) * * * The Constitution of the State does not provide in the Home Buie Amendment or the County Beform Amendment how a local law shall be enacted. It placed upon the Legislature the duty of determining how local laws may be enacted. * * * The test of the validity of a local law is whether, within the field of legislation delegated to the city, it has been enacted in accordance with the provisions of the statute.” (Burke v. Kern, 287 N. Y. 203, 211.)

The Legislature has defined a local law in City Home Buie Law, section 2. It has provided in section 20, subdivision 2, that a local law for the creation of a commission to draft a new city charter may be adopted upon the petition of a specified number of qualified electors of a city and the affirmative vote of a majority of the qualified electors of such city voting thereon. The grant of power to the electors to act by petition and referendum in the adoption of such local law is a limited one. The petition is to be “ for the creation of a commission to draft a new city charter * * The proposed local law “ shall.fix or provide the method of determining the number of members of such commission and shall either name such mémbers or provide for the election or appointment of such members, or the election of some and the appointment of others.” (City Home Buie Law, § 20, subd. 2.) The qualified electors have no power under that grant to determine whether the charter shall be voted upon at a special city election or a general city election nor have they the power to determine the date upon which a special city election shall be had.

In the same section (§ 20) in subdivision 3 the Legislature has provided “ the local legislative body shall provide for such publication or other publicity in respect to the provisions of the proposed charter as it may deem proper, and for its submission to the electors of the city at a special city election or a general election * *

The legislative plan is plain. The electors may determine whether there shall be a commission to draft a new city charter and may select the personnel of the commission. Representative government as embodied in the local Legislature must determine whether the charter shall be voted on at a special or general election. The electors are powerless to write into the petition a proposal that there be a special election and that the charter commission to be selected determine the time of that election and an attempt so to do is a nullity.

The wisdom of the Legislature in this instance is evidenced by the fact that the petition was filed and the Local Law adopted when we were not at war. At that time good judgment might have dictated .the holding of a special election at which to adopt or reject the proposed charter. Today we are at war. Service men, of whom it is claimed there are one-tenth of the total population of the city, may vote only at a general election. Large numbers of the residents of Glen Cove are employed in defense activities in airplane factories at Bethpage, Farmingdale, Port Washington and other places throughout the country, many returning home infrequently. There may be absentee voting only at a general election. The Election Law provides for a two hour period for working people to vote while the polls are open at a general election. Here the local legislative body, to whom the decision of this question has been confided, has apparently determined that the proposed charter shall be voted on at a general election rather than a special election to be held on June 29th. It seems to us their authority is supreme.

In City Home Rule Law, section 30, entitled “ Legislative intent ” it is provided: “ It is not the intention of the Legislature hereby to abolish or curtail any powers or rights heretofore conferred upon or delegated to a city or cities or to any board, body or officer thereof, unless a contrary intention is clearly manifest from the express provisions of this chapter or by necessary intendment therefrom; * * V’ There is here no express provision at all so it cannot be urged that a nonexistent express provision makes anything clearly manifest or has any necessary intendment.

Concededly if the appellants are to find any justification for their position it must be found in the following sentence of City Home Buie Law, section 31: “A permissive procedure authorized by this chapter shall not be deemed to be exclusive or to prohibit the use of any other procedure authorized by any act of the legislature, city charter or local law lawfully adopted but shall be deemed an alternative thereto.” Even assuming that Local Law No. 4, subdivision 4, was lawfully adopted, and we have shown under the authorities and the statute {supra) that there was no power in the electors to adopt it, nevertheless this section 31 is of no assistance to appellants. It was mandatory upon the local legislative body to submit the proposed charter to the electors. (City Home Buie Law, § 20, subd. 3, supra.) There was nothing permissive about that requirement. The charter could be adopted in no other way and permission was not granted to any group or body other than the local legislative one to submit the proposed charter to the electors or to determine whether the submission was to be at a special or general city election. The City Home Buie Law contains no such permissive alternative.

The Constitution and the Legislature determine the plan of government under which we live. Courts should preserve that plan and let changes therein come from the people or the Legislature. .

The local legislative body on the submission of this controversy under sections 546-548 of the Civil Practice Act has asked for an answer to the following question: “Is it the duty of the defendants [City Council and City Clerk] to submit the proposed city charter to the voters of the City of Glen Cove at a special election to be held on the 29th day of June, 1943?” That question should be answered in the negative.

The judgment appealed from should be affirmed with costs.

Lehman, Ch. J., Loughran, Desmond and Thacher, JJ., concur with Lewis, J. Conway, J., dissents in opinion in which Rippey, J., concurs.

Judgment reversed, etc.


text:
    In the Matter of New York Telephone Company, Appellant. William F. Canough, as Commissioner of Assessment of the City of Syracuse, Respondent. (2 Proceedings — 1941 and 1940 Assessments.)
    Argued March 4, 1943;
    decided June 18, 1943.

      Edward L. Blackman, George R. Fearon and Frank A. Fritz for appellant.

      James C. Tormey, Corporation Counsel (Edward Garfield of counsel), for respondent.

      Thomas D. Thacher, Corporation Counsel (Arthur A. Segall, Robert H. Wrubel and Edward Garfield of counsel), for City of New York, amicus curiae, in support of respondent’s position.

      Andrew P. Ronan, Corporation Counsel (Herbert A. Hickman of counsel), for City of Buffalo, amicus curiae, in support of respondent’s position.
   Per Curiam.

The orders should be affirmed, with costs, on the authority of Matter of New York Telephone Co. v. Ferris (257 App. Div. 415, 282 N. Y. 667).

There is no conflict between the Ferris case and People ex rel. New York Edison Co. v. Feitner (99 App. Div. 274, 181 N. Y. 549). The Tax Law has long defined real property ” as including “ All mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting steam, heat, water, oil, electricity * * *.” (§ 2, subd. 6). This provision was held by the Feitner case not to include equipment which the Edison Company had placed in private premises of its customers for the purpose of connecting the premises with the company’s feed mains in the street. The decision was that such equipment was not laid or placed in, upon, above or under any public or private street or place.” The word “ place,” as so used, was taken by the court to signify a short thoroughfare or square.

The orders should be affirmed, with costs.

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

Orders affirmed.


text:
    In the Matter of the Estate of Mary O'Connor, Deceased. Alleyne M. Runyon, Respondent; Agnes Rampe, as Administratrix of the Estate of Mary O'Connor, Deceased, Appellant.
    Submitted January 5, 1943;
    decided February 25, 1943.

      Thomas D. Austin, Elwood D. Hooper and Stephen J. Masse for appellant.

      Frank, J. McEwen for respondent.
   Order affirmed with costs payable ont of the estate. No opinion.

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


text:
    Lillian Fazio, Appellant, v. Stanley-Mark-Strand Corporation, Respondent. Frank Fazio, Appellant, v. Stanley-Mark-Strand Corporation, Respondent.
    Argued January 5, 1943;
    decided February 25, 1943.

      Bernard Ellenbogen, Samuel E. Aronowitz and Andrew J. Malatesta for appellants.

      John J. Scully for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Mary E. McMenamy, Appellant, against Arthur N. Aitken, Individually and as Superintendent of Niagara County Sanatorium, Respondent.
    Argued January 6,1943;
    decided February 25, 1943.

      Philomena R. Marsicano for appellant.

      Robert L. Rice, Jr., for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Bippey, Lewis, Conway and Desmond, JJ.


text:
    President and Directors of the Manhattan Company, Appellant, v. Bankers Trust Company, Respondent, et al., Defendant.
    Submitted January 8, 1943;
    decided February 25, 1943.

      James J. Milligan for appellant.

      J. Adam Murphy and Adrian D. Stevenson for respondent.
   Judgment affirmed, with costs, no opinion.

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


text:
    Martin F. Shea et al., as Executors of William J. Shea, Deceased, Respondents, v. Atlantic Beach Homes Corporation, Appellant.
    Argued January 11, 1943;
    decided February 25, 1943.

      Otto C. Sommerich, Maxwell C. Katz and Elvin N. Edwards for appellant.

      Thomas E. Shea for respondents.
   Judgment affirmed with costs; no opinion.

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


text:
    Edith W. Bayreuther, Appellant v. Joel E. Reinisch et al., Respondents.
    Argued January 4, 1943;
    decided February 25, 1943.

      Winfred C. Allen for appellant.

      William A. Smith for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Mary S. Burdak et al., Appellants; James F. Egan, as Public Administrator of New York County, et al., Respondents.
    Argued January 5, 1943;
    decided February 25, 1943.

      Theodore E. Wolcott and Meyer Weltsner for appellants.

      Joseph A. Cox, Joseph G. Blum, Joseph H. Stern and Joseph T. Arenson for respondents.
   Order affirmed; no opinion.

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


text:
    Richard Koester, Respondent, v. T. C. E. Corporation, Appellant, et al., Defendants.
    Submitted January 5, 1943;
    decided February 25, 1943.

      James J. McLoughlin, Robert F. White and Thomas F. Harrigan for appellant.

      Benjamin H. Siff and Charles Rosenberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Martin H. Newman, as Administrator with the Will Annexed of William Newman, Deceased, Appellant, v. Benjamin A. Roth et al., Individually and as Executors of and Trustees under the Will of Henry Roth, Deceased, et al., Respondents, et al., Defendants.
    Argued January 7, 1943;
    decided February 25, 1943.

      Adolph Feldblum for appellant.

      Lloyd B. Kanter and Oscar A. Lewis for respondents.
   Judgment affirmed, with costs, on the ground that the transfer of the Necaro Co., Inc., shares by appellant was the agreed consideration for the release of appellant from his obligation under the agreement of guaranty. No opinion. (See 290 N. Y. 865.)

Concur: Lehman, Ch. J., Loughran, Finch, Riffey, Lewis, Conway and Desmond, JJ.


text:
    Josephine Golembowski, as Administratrix of the Estate of Ignatius Golembowski, Deceased, Appellant v. Ignatius Golembowski, Jr., Defendant, and Sophie Golembowski et al., Defendants-Respondents.
    Submitted January 12, 1943;
    decided February 25, 1943.

      Michael A. Gurda for appellant.

      Charles E. Neier for Sophie Golembowski, respondent.

      Arthur O. Maharay, Jr., and Melvin G. Vernon for Calvin Crawford et al., as trustees, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ. Loughran, J., dissents on the ground that the findings of the Special Term are in accord with the weight of evidence.


text:
    Joseph P. Kissling, as Executor of Cathleen G. Hearn, Deceased, Appellant, v. William G. Hearn, Respondent.
    Submitted January 5, 1943;
    decided February 25, 1943.

      George Rubenfeld and Joseph P. Kissling for appellant.

      Gabriel Rubino for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gaspare Puccio, Appellant, v. Metropolitan Jockey Club, Respondent.
    Argued January 7, 1943;
    decided February 25, 1943.

      Harry Fieldsteel, Vincent P. Rao and Anthony J. Siminerio for appellant.

      Olin S. Nye and Reginald V. Spell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lillian Miller et al., Appellants, v. Home Owners’ Loan Corporation, Respondent, et al., Defendants.
    Argued January 11, 1943;
    decided February 25, 1943.

      Edwin C. Morsch and Edwin B. Goddin for appellants.

      Jacob D. Menkes, Simon H. Trevas and Neal L. Thompson (of the District of Columbia bar) for respondent.
   Judgments reversed and a new trial granted, with costs to the appellants to abide the event, solely on the ground the record presents a question of fact whether the defendant-owner exercised reasonable care in the selection of a contractor. No opinion. (See 290 N. Y. 739.)

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


text:
    In the Matter of Bernarr Macfadden, Respondent, against Felix C. Benvenga, as One of the Justices of the Supreme Court of the State of New York, et al., Appellants.
    Argued January 4, 1943;
    decided February 25, 1943.

      Maurice V. Seligson and Myer I. Kleinberg for appellants.

      Edward S. McLean, Charles D. Breitel and Oscar Stabiner for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Estate of Leopold Edelmuth, Deceased. Stern Brothers, Appellant; Sidney F. Katz, Respondent.
    Argued January 5, 1943;
    decided February 25, 1943.

      Bernard I. Kamen and Sol S. Ostertag for appellant.

      Alexander S. Levine, S. F. Katz and J. F. Katz for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Long Beach Gas Company, Inc., Appellant, against Milo R. Maltbie et al., Individually and as Members of the Public Service Commission of the State of New York, et al., Respondents.
    Argued January 6,1943;
    decided February 25, 1943.

      Stephen Callaghan, Ralph Stout and Thomas A. Gaffney for appellant with respect to payments made to E. L. Phillips & Co.

      Charles G. Blakeslee and John J. Donohue for appellant with respect to item of $33,532.16.

      Gay H. Brown and George H. Kenny for Public Service Commission, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    James Anton, Appellant, v. Mike Pappas et al., Respondents.
    Argued January 7,1943;
    decided February 25, 1943.

      Murray Sprung and Arthur M. Laufer for appellant.

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

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


text:
    National Mortgage Corporation et al., Respondents, v. James R. Deering, Appellant.
    Argued January 11, 1943;
    decided February 25, 1943.

      James R. Deering, appellant, in person.

      Edward J. McGratty, Jr., and Ralph M. Carson for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sam Bruno, Appellant, v. Rockwell’s Bakery, Inc., Respondent.
    Argued January 7, 1943;
    decided February 25, 1943.

      Louis E. Schwartz, Irving Hoffman and Hyman Sommer for appellant.

      Charles F. Bachmann, Thomas F. Keane, George A. Kuittinen and John P. Smith for respondent.
   Judgments reversed and a new trial granted with costs to the appellant to abide the event on the ground that questions of fact were presented by the record both as to defendant’s negligence and as to plaintiff’s freedom from contributory negligence. No opinion.

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


text:
    In the Matter of 249 West 45th Street and 238-250 West 46th Street in the City of New York (New York Title & Mortgage Company). Dorsar Enterprises, Inc., Appellant; Alfred J. Callahan, as Trustee, et al., Respondents.
    Argued January 11, 1943;
    decided February 25, 1943.

      Milton R. Weinberger, William Klein and Adolph Lund for appellant.

      Lewis F. X. Cotignola, James R. Kelly and Edward F. Keenan for Superintendent of Insurance of State of New York, respondent.

      Lazarus Joseph, Jacob S. Demov and Charles L. Grad for Alfred J. Callahan, as trustee, respondent.

      Henry J. Block for Certificate Holders, respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Floyd DeL. Brown, Respondent, v. The Chaminade Velours, Inc., et al., Appellants. Charles J. Amm, Appellant, v. United States Fidelity & Guaranty Company, Respondent, and Floyd DeL. Brown, Impleaded Respondent.
    Submitted January 5, 1943;
    decided February 25, 1943.

      Benjamin Heffner and Philip Stanley Abrahams for appellants.

      George Heitler and George R. Coughlan for respondents.
   Order affirmed, with costs. First question certified answered in the negative. Other questions certified not answered. No opinion.

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


text:
    In the Matter of the Claim of Frances Schulman. Mary Cotton et al., Copartners, Doing Business under the Name of Central Custard Stand, Respondents. Frieda S. Miller, as Industrial Commissioner, Appellant.
    Argued January 5, 1943;
    decided February 25, 1943.

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan and Henry Epstein of counsel), for appellant.
    No appearance for respondents.
   Order affirmed without cost's. No opinion.

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


text:
    R. Adele Schaffner, Appellant, v. New York Trust Company, As Trustee under the Will of Cortlandt F. Bishop, Respondent.
    Argued January 7, 1943;
    decided February 25, 1943.

      Everett M. Seixas, Jr., and Marvin W. Levy for appellant.

      Marie F. Hughes and Pierce J. Gerety for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Pinch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Leon Sanders, Appellant, v. Favorable Realty Corporation, Respondent.
    Argued January 11, 1943;
    decided February 25, 1943.

      Alfred Sobol for appellant.

      Alexander E. Rosenthal and Irving Segal for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. William J. Maloney, Respondent, against Mark Graves et al., Constituting the State Tax Commission, Appellants.
    Submitted January 18, 1943;
    decided February 25, 1943.
   Motion for reargument, stay and return of remittitur denied with ten • dollars costs and necessary printing disbursements. (See 289 N. Y. 178.)


text:
    Central Hanover Bank and Trust Company, as Trustee, Respondent, v. Sarah B. Russell et al., Defendants, and David F. Cohen, as Guardian ad Litem for Adele Carew et al., Infants, Defendants-Appellants.
    Argued January 11, 1943;
    decided March 4, 1943.

      David F. Cohen for appellants.

      Hersey Egginton, Albert B. Maginnes, T. R. Iserman and Edward H. Lockwood for respondent.

      Leo P. Dorsey and F. W. H. Adams for New York State Bankers Association, amicus curiae, in support of respondent’s position.
   Judgment affirmed with costs payable out of the trust fund. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippet, Lewis, Conway and Desmond, JJ.


text:
    Nola Arndt, Respondent, v. Edwin J. Altman et al., Copartners Doing Business under the Name of M. B. Altman Sons, Appellants.
    Argued January 19, 1943;
    decided March 4, 1943.

      Clarence J. Shearn for appellants.

      Tobias A. Keppler and David C. Lewis for respondent.
   Judgments reversed and a new trial granted with costs to the appellant to abide the event on the ground that as matter of law there has been no judicial determination by the trial court. No opinion.

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


text:
    City of Rochester, Respondent, v. Albert Rappaport, Appellant.
    Submitted January 21, 1943;
    decided March 4, 1943.

      Harold H. Stone for appellant.

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

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


text:
    Prudence Realization Corporation, Appellant, v. George J. Atwell, et al., Respondents.
    Argued December 10, 1942;
    decided March 4, 1943.

      Irving L. Schanzer and Albert J. Baruth for appellant.

      Harold H. Corbin, Mark F. Hughes and Alfred J. Callahan for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    Rosalyn Danger et al., Appellants, v. Metropolitan Life Insurance Company, Respondent.
    Argued January 14, 1943;
    decided March 4, 1943.

      Lawrence Kovalsky, David Goldstein and Irving M. Berry for appellants.

      Eugene T. O’Neill for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, on the ground that the question as to the nature of the indisposition suffered by the insured in 1937 was one of fact for the jury. No opinion.

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


text:
    Maud H. Loyd, Respondent, v. Third Avenue Railways Company, Appellant.
    Argued January 13, 1943;
    decided March 4, 1943.

      Alfred T. Davison, Addison B. Scoville and J. Stuart Riedel for appellant.

      Stanley J. Harte and Sidney S. Allen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry W. Flexner, Appellant, v. B. T. Babbitt, Inc., et al., Respondents, et al., Defendants.
    Argued January 14, 1943;
    decided March 4, 1943.

      Harold H. Levin, C. Walter Randall and Monroe Percy Bloch for appellant.

      Avrom M. Jacobs and Robert G. Poskanzer for Jennie M. Mendleson et al., as executors of Jerome Mendleson, Deceased, respondents.

      Horace S. Manges, Frank L. Weil and Gabriel Kaslow for B. T. Babbitt, Inc., respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Thomas W. Morrell, on Behalf of Himself and Others Similarly Situated, Appellant, v. City of New York et al., Respondents.
    Argued January 18,1943;
    decided March 4, 1943.

      Austin B. Mandel for appellant

      William C. Chanler, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Shore Bridge Corporation, Appellant, v. City of Hornell, Respondent.
    Argued January 20, 1943;
    decided March 4, 1943.

      William F. Conway for appellant.

      Albert E. Hollis for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch J., Loughran, Finch, Rippey, Lewis, and Desmond, JJ. Conway, J., dissents and votes to grant a new trial.


text:
    Raymond Concrete Pile Company, Respondent, v. Federation Bank and Trust Company, Appellant.
    Reargued January 19, 1943;
    decided March 4, 1943.

      Horace R. Lamb for plaintiff-respondent on reargument.

      John W. Davis, Morris Buchter, Sidney Abrams and Harold M. Hoffman for defendant-appellant on reargument.
   Upon reargument, the court adheres to its original decision, viz: Judgment of Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. No opinion.

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


text:
    In the Matter of Elizabeth V. Talbot, Respondent, against Board of Education of City of New York et al., Appellants.
    Argued January 18, 1943;
    decided March 4, 1943.

      William C. Chanler, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), for appellants.

      Austin B. Mandel for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Elizabeth M. Morgan et al., Respondents, v. Fiduciary Trust Company of New York, as Trustee, et al., Respondents, and Joseph Lorenz, as Trustee in Bankruptcy of Richard Whitney et al., Individually and as Copartners under the Name of Richard Whitney & Company, Appellant.
    Argued January 20,1943;
    decided March 4, 1943.

      Randolph H. Guthrie, George L. Trumbull and Jesse G. Heiges for appellant.

      C. Dickerman Williams for plaintiffs-respondents.

      Malcolm I. Ruddock and F. Sims McGrath for Fiduciary Trust Company of New York, as trustee, et al., defendants-respondents.

      George B. Francis and Wendell Davis as Guardian ad Litem for Edwin D. Morgan, III, et al., infants, defendants-respondents.
   Judgment affirmed, with costs to the respondents payable out of the fund. No opinion.

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


text:
    Mary H. Leach, Respondent, v. Town of Eastchester, Appellant.
    Argued January 21, 1943;
    decided March 4, 1943.

      George J. Conway and George A. Garvey for appellant.

      Ralph A. McClelland for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Arthur B. Reddington, Appellant, v. Ætna Life Insurance Company, Respondent.
    Argued January 13, 1943;

    decided March 4, 1943.

      Meyer Fix and Joseph P. Hogan for appellant.

      Daniel E. Macken for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John J. Sweeney, Appellant, v. National City Bank of Troy, Respondent, et al., Defendants.
    Argued January 15, 1943 ;
    decided March 4, 1943.

      Howard Osterhout, Chester W. Cuthell and Robert W. Maloney Jr., for appellant.

      Frederick E. Draper for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Herman L. Kasha, Appellant, against The Board of Regents of the University of the State of New York, Respondents.
    Argued January 18, 1943;
    decided March 4, 1943.

      Terence J. McManus, Herman L. Weisman and Wolfe R. Charney for appellant.

      Nathaniel L Goldstein, Attorney-General (Bernard Bienstock of counsel), for respondents.
   Order of the Appellate Division in so far as it affirms the determination of the Board of Regents sustaining that portion of the charges designated as Fifth (b) as amended on the hearing, reversed on the ground that the evidence is insufficient in law to sustain that charge. The order in so far as it affirms other findings of fact of the Board of Regents affirmed, but since it does not conclusively appear that the Board of Regents would deem that the same disciplinary action is appropriate upon those findings of fact, which we affirm, the proceeding is remitted to the Board of Regents for action under paragraph (e) of subdivision 2 of section 1264 of the Education Law.

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


text:
    Syracuse Grade Crossing Commission, Appellant and Respondent, v. Delaware, Lackawanna & Western Railroad Company et al., Respondents and Appellants; A. Cooper Metal Co., Inc., et al., Respondents, et al., Defendants.
    Argued December 9, 1942;
    decided March 4, 1943.

      Basil B. Aylesworth for Delaware, L. & W. R. R. Co., et al., appellants.

      James C. Tormey, Corporation Counsel (Arthur M. Beach and John E. Walrath of counsel), for Syracuse Grade Crossing Commission, plaintiff, appellant and respondent.

      George H. Kenny, Sherman C. Ward and Gay E. Brown for Public Service Commission, respondent and appellant.

      Stewart F. Hancock and Morris Berman for Wilson & Greene Lumber Co., Inc., appellant, Stewart F. Hancock and Morris Berman for Wilson & Greene Lumber Co., Inc., et al., respondents.

      Basil B. Aylesworth for Delaware, L. & W. Coal Company, respondent.
   Judgment affirmed, with costs to defendants-respondents A. Cooper Metal Co., Inc., et al. No opinion.

Concur: Loughran, Finch, Rippey and Conway, JJ. Lewis and Desmond, JJ., dissent insofar as the judgment determines that the tenants are entitled to compensation from the State. Taking no part: Lehman, Ch. J.