text:
    Mary R. Hewlett et al., as Executors of and Trustees under the Will of Samuel L. Hewlett, Deceased, et al., Respondents, v. Goodwin-Gallagher Sand and Gravel Corporation, Appellant.

      (Argued March 25, 1930;
    decided May 6, 1930.)

      Abel E. Blackmar and Paul Speer for appellant.
    The ease grants to the defendant the right to excavate “ as they may desire ” and does not require the excavation to start at a thirty-two-foot level. (Woodruff v. Woodruff, 52 N. Y. 53; Atterbury v. Bank of Washington Heights, 241 N. Y. 231; Mullen v. Washburn, 224 N. Y. 413; Anderson v. Erie R. R. Co., 223 N. Y. 277; Shirai v. Blum, 239 N. Y. 172; King v. Leighton, 100 N. Y. 386.) The lease does not require that the defendant shall build a dock and plant on the leased premises so that plaintiffs may measure the sand, gravel and grits on the vessels from it. The defendant has not deprived the plaintiffs of the right to measure the excavated materials. (Potter v. Ontario & Livingston Ins. Co., 5 Hill, 147; Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405.) The remedy by injunction will not be granted where it bears heavily on the defendant without benefiting the plaintiffs. (McClure v. Leaycraft, 183 N. Y. 36; Zipp v. Barker, 166 N. Y. 621; Batchelor v. Hinkle, 210 N. Y. 243; Forstmann v. Joray Holding Co., 244 N. Y. 30; Wigand v. Bachmann-Bechtel Brewing Co., 222 N. Y. 272; Shirai v. Blum, 239 N. Y. 172.)

      William J. Martin and Patrick J. Dobson for respondents.
    The covenants as to the method of excavating are express conditions annexed to the grant of right to excavate, defining the method by which the right is to be exercised; the ordinary meaning of the language is that at every step in the progress of work the required floor depth and grade shall be maintained always; a construction borne out by the entire agreement, the situation of the parties, and the results accomplished by defendant, which it was designed to prevent. (Boskowitz v. Cohn, 197 App. Div. 780; Sweet v. Chase, 2 N. Y. 78; Agate v. Lowenbein, 57 N. Y. 604; Cosgriff v. Dewey, 164 N. Y. 1; Bevin v. Steers, 218 App. Div, 502; Bovin v. Galitzka, 250 N. Y. 228; Genet v. D. & H. Co.,136 N. Y. 593; Wilmore Coal Co. v. O’Brien, 147 Fed. Rep. 931; McIntyre v. McIntyre Coal Co., 105 N. Y. 264; W. U. T. Co. v. S. E. L. & P. Co., 178 N. Y. 330; Marmon v. Curtis, 223 N. Y. 320; Smith v. Kerr, 108 N. Y. 31; Mullan v. Washburn, 224 N. Y. 420.) The spirit and intent of the agreement is that all material shall be measured by the plaintiffs on vessels at the leased premises before it is taken away; a conclusion confirmed by a consideration of the lease as a whole, and the circumstances under which it was made; equity will enforce such a requirement, (Luedinghaus Lumber Co. v. Luedinghaus, 299 Fed. Rep. 111; Wood v. Duff-Gordon, 222 N. Y. 88; Genet v. D. & H. Co., 136 N. Y, 593; Hamilton College v. Roberts, 223 N. Y. 56; Carns v. Bassick, 187 App. Div. 283; Floyd v. U. S., 8 Wall. 77.) Considerations of the alleged expense, disadvantage or hardship to defendant, of the performance of the conditions and covenants, so beneficial to plaintiff, do not warrant refusal of the injunction. (Prospect Park & C. I. R. R. Co. v. C. I. & B. R. R. Co., 144 N. Y. 152; Guffey v. Smith, 237 U. S. 101; McClure v. Leaycraft, 183 N. Y. 44; Round Lake Assn. v. Kellogg, 141 N. Y. 348; Bovin v. Galitzka, 250 N. Y. 228; Erie R. R. Co. v. City of Buffalo, 180 N. Y. 192; Boskowitz v. Cohn, 197 App. Div. 780; Froehlich v. Holding Co., 116 Misc. Rep. 275; Agate v. Lowenbein, 57 N. Y. 604.)
   Lehman, J.

In January, 1924, the defendant leased from Samuel L. Hewlett certain parcels of land on Hemp-stead Harbor together with the exclusive rights, privilege and license to the party of the second part to dig, excavate and remove from said premises hereby leased, sand, gravel and grits as they may desire, said party of the second part to take and carry away from said premises not less than Two Hundred and Twenty-five Thousand yards of sand, gravel and grits per year during this agreement or any extension thereof or pay for said quantity as hereinafter specified.”

The purpose of the lease was to provide a supply of sand and gravel for the defendant’s business. It was made pursuant to options contained in previous leases to the defendant of the same premises. Until the year 1928 the defendant paid the minimum rental, although it excavated no sand, gravel or grits. Then it began excavation on a large scale, and removed the excavated material to another parcel of land where it operates a plant for the cleaning, separating and loading of sand, gravel and grits.

The leased premises rise from a shore road to a height of about 179 feet. The defendant began its excavation at the highest point. The most valuable part of the deposit of sand and gravel lies near tke surface at the higher levels. If the defendant should remove the deposits only from these levels, the landlord would receive back at the termination of the lease an irregular, broken bank from which it would not be profitable to excavate the less valuable remaining deposits.

The lease expressly provided against such a contingency. The defendant agreed “ that where it excavates sand, gravel or grits it will remove the same substantially so that an even grade with a rise of one foot in each one hundred feet shall be maintained and that the floor of the bank shall be maintained at not more than thirty-two feet above high-water level,” etc. The defendant claims that under the terms of the lease it may excavate as it desires, provided only that before the termination of the lease it shall remove the excavated material so that the floor of the bank shall not be more than thirty-two feet above the high-water mark, with a slope rising one foot on each one hundred feet. The Appellate Division has held that the construction for which the defendant contends does not give proper effect to the word “ maintain ” which the parties have used to describe the manner in which the defendant shall conduct such excavation as it desires to make. It has decreed that “ the defendant be * * * restrained * * * from excavating * * * in such way that the floor of the excavation be at any time higher than thirty-two feet above high-water level at the outside or face of the bank with a rise from that point, toward the back or west side of the bank, of one foot in each 100 feet, which level must always be maintained on such floor.”

Read in the light of the purpose for whieh the lease was made and the circumstances surrounding its making, the lease cannot reasonably be construed in any other way. We are now told that it would not be practical to maintain the excavation in accordance with the injunction. No evidence was presented at the trial to show that it would be impractical. Doubtless in the course of the excavation there must be periods when the slope cannot be maintained in literal compliance with the injunction. In one of the earlier leases the parties inserted an express limitation “ so far as is reasonably practicable.” The same limitation is implied, even though not expressed, in the later lease and in the injunction order. Both must be given a reasonable construction.

The lease further provides that a statement of the quantity of sand and gravel shall be rendered at the end of each month to the defendant and all sand and gravel shall be measured in the vessels on which it is loaded and at the dock where the same is loaded.” The defendant has not expressly agreed to give the landlord an opportunity to measure the excavated material before it is removed from the premises, but such a term is necessarily implied in the lease. There can be no doubt that the parties expected that the material would be removed from the premises by vessels, and in view of that expectation they provided for measurement at the dock or on the vessels. The expectation has proven false. The defendant has found it more economical to remove the material to an existing plant than to erect a new plant on the premises. Measurement on vessels is merely part of the machinery for fixing the amount due under the lease. It is not an essential part of the lease and does not justify reading into the contract, by implication, a covenant to build docks and load vessels on the premises merely to facilitate the measurement of the material removed. A court of equity should not by its fiat impose an unnecessary burden upon the parties merely to preserve machinery devised for other conditions. The defendant does not refuse the plaintiff reasonable opportunity to measure the material removed. The court should not decree more.

The judgment of the Appellate Division should be modified by striking therefrom the provisions enjoining the defendant from removing sand, gravel or grits from the leased premises on railroad cars, or without affording the opportunity to measure the same on vessels in front of or on the leased premises, and by adding a provision that either party may apply to the court, at the foot of the judgment, for further directions.

The judgment of the Appellate Division should be modified as directed herein and as modified, affirmed, without costs.

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

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Ben C. Albert, Appellant, v. Benjamin H. Freedman, Respondent.
    (Submitted April 10, 1930;
    decided May 6, 1930.)

      Charles S. Rosenschein and Robert Moers for appellant.
    Since neither actual delivery of the fixtures nor tender thereof to the defendant was a condition precedent to recovery, plaintiff was entitled to judgment. (Rawl v. Moore, 142 App. Div. 429; Ziehen v. Smith, 148 N. Y. 558.) Defendant had no right to subrogation. (McGrath v. Carnegie Trust Co., 221 N. Y. 92; Ocean, etc., Corp. v. Hooker, 240 N. Y. 37; American Surety Co. v. Palmer, 240 N. Y. 63; Hanlon v. Union Bank, 247 N. Y. 389; Citizens v. Prescott, 138 Misc. Rep. 884; 224 App. Div. 280; Dixon on Subrogation, 122; Stearns on Suretyship, § 281; North v. North & Son, 93 N. J. Law, 438.)

      Imre M. Schwarz for respondent.
    The plaintiff by his own evidence, having established that he destroyed the property which was the subject of the contract of repurchase, upon which the defendant indemnified the plaintiff’s assignor, is barred from recovery. (Dunlop v. James, 174 N. Y. 411; Borgfeld v. O’ Neill, 38 Misc. Rep. 498; 21 App. Div. 636; Jones v. Bacon, 145 N. Y. 446.)
   Lehman, J.

Prior to January, 1920, the defendant was the owner of the entire capital stock of Freedman Bros. Corporation. Then he sold his stock to the plaintiff and one" Thomas G. O’Brien. At that time the corporation was the lessee of a loft. It occupied part of the leased premises, and subleased the remainder to the Sidney Kleinfeld Corporation. At the time it made the sublease, it sold to the sublessee the trade fixtures and furniture in the portion sublet, but it agreed to repurchase them for $2,500 at the end of the term of the sublease if the Sidney Kleinfeld Corporation elected to resell them.

During the negotiations for the purchase and sale of the stock of the corporation, there was some discussion about the obligation of the corporation to repurchase the fixtures sold to the sublessee. The plaintiff regarded this obligation as a contingent liability to pay the sum of $2,500, and demanded protection or indemnity against that liability. Thereupon the defendant executed an instrument in which he covenanted that he will hold the said Freedman Bros. Corporation safe and harmless from all liability for the repayment of the sum of $2,500 to Sidney Kleinfeld Corporation, the lessee of a portion of the premises of the said Freedman Bros. Corporation and that if the said lessee elects to demand payment of the same under the terms of a lease made to said lessee, dated , as payment for his interest in the fixtures at the expiration of the term thereof, that the said undersigned will pay the same.”

At the expiration of the term of the sublease the sub-lessee elected to resell the fixtures and demanded payment of $2,500 from the corporation. It was not convenient for the corporation to make the payment at that time. Then the corporation agreed to make a new sublease of the same premises including the fixtures. It paid to the sublessee the $2,500 demanded for the fixtures by allowance from the rent.

The defendant refused or failed to pay the $2,500 to the sublessee at the termination of the original sublease. He has refused to pay the $2,500 to the Freedman Bros. Corporation though it is conceded that “ the $2,500 was actually paid by allowance of rent under the lease.” The plaintiff as assignee of the corporation has brought this action to compel repayment of the sum allowed. Recovery has been denied on the ground that the corporation or its assignee cannot enforce the defendant's agreement to indemnify it against the contingent liability for $2,500, without recognition of the indemnitor’s right, by subrogation, to the possession of the resold fixtures.

It is clear that the defendant’s agreement was more than an agreement of indemnity or an agreement to purchase the fixtures from the corporation, if the corporation was compelled to repurchase them from the sublessee. It is an agreement to pay the sum specified as well as to save harmless the corporation against liability for such payment. Distinction between such an agreement and a true indemnity agreement has been frequently pointed out. The agreement to pay is enforceable according to its terms and is not restricted by the agreement to indemnify against loss caused by failure to comply with the agreement to repay. (Belloni v. Freeborn, 63 N. Y. 383, at p. 390; Kohler v. Matlage, 72 N. Y. 259, at p. 266; Hume v. Hendrickson, 79 N. Y. 117.) In the present case the record leaves no room for doubt that the parties intended that if the corporation should be called upon to pay $2,500 for the fixtures, the defendant would make the payment without any consequent right to strip the premises of its fixtures. The contract must be enforced according to its terms and the intent of the parties.

The judgment of the Appellate Division and that of the Trial Term should be reversed and judgment directed in favor of the plaintiff for the amount demanded in the complaint, with costs in all courts.

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

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Fernando DiMaggio, Appellant.
    (Argued January 8, 1930;
    decided February 11, 1930.)

      Frederick B. Adams and Fred J. Sisson for appellant.

      Charles L. DeAngelis, District Attorney {Frank S. Baker of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Helen C. Blank, Appellant, v. James J. Walker et al., Constituting the Commissioners of the Sinking Fund of the City of New York, et al., Respondents.
    (Argued January 8, 1930;
    decided February 11, 1930.)

      William A. Blank for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Joseph P. Reilly of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Christen Bjorlow, Inc., Respondent, v. Joseph Van Roy et al., Appellants.
    (Submitted January 8, 1930;
    decided February 11, 1930.)

      Harold Korzenik and Jesse Kahn for appellants.

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

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


text:
    In the Matter of the Accounting of Abraham J. Michelbacher, as Executor of Ella Michelbacher, Deceased, Appellant. Cora Guiterman et al., Respondents.
    (Argued January 8, 1930;
    decided February 11, 1930.)

      Stephen Callaghan and Samuel F. Frank for appellant.

      Winthrop A. Wilson and Milton S. Guiterman for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Agatha McArdell, as Administratrix of the Estate of August T. Sawmiller, Deceased, Appellant, v. National Accident Society, Respondent.
    (Argued January 8, 1930;
    decided February 11, 1930.)

      A. C. Stevens for appellant.

      M. S. Lockhart and Elgin L. McBurney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Merchants National Bank of Plattsburgh, New York, Appellant and Respondent, v. R. Prescott & Son, Inc., Respondent and Appellant.
    (Argued January 9, 1930;
    decided February 11, 1930.)

      Benjamin F. Feinberg and Harold A. Jerry for plaintiff-appellant and respondent.

      Thomas F. Conway, Thomas E. O’Brien and William F. Pritchard for defendant-respondent and appellant.
   Upon appeal by defendant, judgment affirmed, with costs. Upon appeal by plaintiff, appeal dismissed, without costs; no opinion.

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


text:
    Julius Cohen, Plaintiff, v. Dyker Heights Home Building Company, Inc., et al., Respondents, and Mary E. Kelly, Appellant. Mary E. Kelly, Appellant, v. Dyker Heights Home Building Company, Inc., et al., Respondents, and Clinton Hall Realty Corporation, Appellant.
    (Argued January 9, 1930;
    decided February 11, 1930.)
   Orders affirmed, with one bill of costs; no opinion.

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


text:
    William Degener, as Executor of William Degener, Deceased, Appellant, v. John F. Degener, Jr., et al., as Executors of John F. Degener, Deceased, et al., Respondents.
    (Argued January 9, 1930;
    decided February 11, 1930.)

      John J. O’Connell and Walter D. Wile for appellant. Otto C. Wierum for John F. Degener, Jr., et al., respondents.

      William Shea for William Degener et al, respondents.
   Judgment affirmed, with costs, on the ground that in the circumstances of this case the trier of the facts might properly determine that no good will of substantial value capable of being established in terms of money had been acquired by the surviving partners; no opinion.

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


text:
    Samuel Schoen, Respondent, v. Samuel W. Stoloff, Defendant, and Esther Bernstein, Appellant.
    (Submitted January 10, 1930;
    decided February 11, 1930.)

      Charles Pearle and Joseph J. Schwartz for appellant.

      Irving Moldauer and Leonard F. Manheim for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emil Gross, Respondent and Appellant, v. Henry B. Welsh, Appellant, and B. Titman Company, Respondent.
    (Argued January 10, 1930;
    decided February 11, 1930.)

      I. Maurice Wormser and Saul S. Streit for appellant.

      Stanley C. Fowler, Ralph 0. L. Fay and M. N. Schleider for plaintiff-respondent and appellant.

      Frederick Mellor for defendant-respondent.
   Judgment affirmed, with costs, in favor of plaintiff against the defendant Welsh and in favor of the defendant B. Titman & Co. against the plaintiff; no opinion.

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


text:
    Marcus S. Lemlich, Respondent, v. 1776 Bedford Avenue Corporation et al., Appellants, Impleaded with Another.
    (Argued January 10, 1930;
    decided February 11, 1930.)

      David M. Palley for appellants.

      Harold M. Kennedy, Meier Sieinbrink and Solomon S. Schwartz for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Erit Realty Corporation, Respondent, v. Sea Gate Association, Appellant.
    (Argued January 10, 1930;
    decided February 11, 1930.)

      Harold M. Kennedy and Meier Steinbrink for appellant.

      Harry L. Kreeger, Maxwell Slade, William Both and Charles Eno for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Bertha Chertok, Respondent, v. Joseph Effremoff et al., Appellants.
    (Argued January 14, 1930;
    decided February 11, 1930.)

      William Dike Reed and K. Courtnay Johnston for Joseph Effremoff, appellant.

      Murray G. Jenkins for Leon Harris, appellant.

      Eugene L. Bondy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People’s National Bank of Pulaski, Respondent, v. L. H. Hewitt, Appellant.
    (Argued January 14, 1930;
    decided February 11, 1930.)

      Clayton R. Lusk for appellant.

      Albert Haskell, Jr., for respondent.
   Judgment modified by reducing the judgment of the Appellate Division to the sum of $24,075, with interest from May 2, 1926, and costs, and as so modified affirmed, without costs in this court; no opinion.

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


text:
    Mattie Bryant, Appellant, v. Village of Potsdam, Respondent.
    (Argued January 15, 1930;
    decided February 11, 1930.)

      Allan L. Gurley for appellant.

      Charles A. Murphy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Susquehanna Line, Inc., Appellant, v. Irving Bank-Columbia Trust Company, Respondent, Impleaded with Others.
    (Argued January 15, 1930;
    decided February 11, 1930.)

      Edward H. Wilson and John J. Kean for appellant.

      Robert C. Beatty for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Andrew Swanson, Respondent, v. Malatias Educational Society, Appellant.
    (Argued January 17, 1930;
    decided February 11, 1930.)

      Le Roy Mandle, J. William Hill and Dieran Simsarian for appellant.

      Frederick H. Rees and G. Everett Hunt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sylvia Abowitz, an Infant, by Jacob Abowitz, Her Guardian ad Litem, Respondent, v. Morris Ghersin, Appellant.
    (Submitted January 17, 1930;
    decided February 11, 1930.)

      Harry Edwards and Max Bochmore for appellant.

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

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


text:
    Harry A. Hanbury, Appellant, v. Metropolitan Securities Company, Respondent, Impleaded with Another.
    (Argued January 6, 1930;
    decided February 11, 1930.)

      George H. Savage for motion.

      Frederick W. Sparks opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Accounting of Laura B. Vogler et al., as Trustees under the Will of Susie D. Smith, Deceased, Respondents. Nellie M. Smith, Appellant.
    (Argued January 16, 1930;
    decided February 18, 1930.)

      Grace Humiston for appellant.

      Stanley C. Fowler, Ralph O. L. Fay and Arthur Sutherland for respondents.
   Order affirmed, with costs payable out of the estate, on the ground that the appellant is concluded by the decree previously entered; no opinion.

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


text:
    Fairview-Chase Corporation, Appellant and Respondent, v. Phillip Scharf, Appellant, and Alice C. McCoy, Respondent.
    (Submitted February 10, 1930;
    decided February 18, 1930.)

      Abraham J. Halprin for motion.

      Frank C. Laughlin opposed.
   Motion denied, with ten dollars costs.


text:
    Wawzyn Nowak, Respondent, v. The Brotherhood of American Yeoman, Appellant. Mary Nowak et al., Respondents, v. The Brotherhood of American Yeoman, Appellant.
    (Submitted February 10, 1930;
    decided February 18, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 465.)


text:
    In the Matter of Grinnell Lithographic Company, Inc., Respondent, v. H. H. Butler Stores, Inc., Appellant.
    (Submitted February 10, 1930;
    decided February 18, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 594.)


text:
    Margaret G. Tully, Appellant, v. Prudential Insurance Company of America, Respondent.
    (Submitted February 10, 1930;
    decided February 18, 1930.)

      Ralph Earl Prime, Jr., for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Frank T. Sage et al., Respondents, against Thomas E. Broderick et al., Constituting the Town Board of the Town of Irondequoit, Appellants.
    (Argued February 10, 1930;
    decided February 18, 1930.)

      Clarence P. Moser for motion.

      John Van Voorhis opposed.
   Motion denied, with ten dollars costs.


text:
    Wadhams J. Rowell, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    (Submitted February 10, 1930;
    decided February 18, 1930.)

      R. S. Johnson for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Isabelle E. Boyd, Appellant, v. Robert H. Boyd, Defendant, and Blanchard P. Atkinson, Respondent.
    (Submitted February 10, 1930;
    decided February 18, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 422.)


text:
    Michael Reynolds, Respondent, v. Elizabeth Dolan et al., Appellants.
    (Submitted February 10, 1930;
    decided February 18, 1930.)

      William A. Scanlan for motion.

      Christopher C. McGrath opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Probate of the Will of Andrew Vogelsang, Deceased. Joseph Vogelsang et al., Appellants; Carl Cedar et al., Respondents.
    (Submitted February 10, 1930;
    decided February 18, 1930.)

      Alex C. Webber for motion.

      Nathan 0. Petty opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion.


text:
    Walter J. McClelland, Appellant, v. Climax Hosiery Mills, Respondent.
    (Submitted February 10, 1930;
    decided February 18, 1930.)
   Motion for reargument or to amend remittitur. (See 252 N. Y. 347.)

Motion granted. Recall of remittitur requested and the same, when recalled, will be amended by striking out the direction for the reassessment of the damages, and in lieu thereof directing judgment in favor of the plaintiff for the amount demanded in the amended complaint, with costs in all courts.


text:
    In the Matter of Russell B. Marchant, as Trustee in Bankruptcy of Bear Tractors, Inc., Appellant and Respondent, against Mead-Morrison Manufacturing Company, Respondent and Appellant.
    (Submitted February 10, 1930;
    decided February 18, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 284.)


text:
    Emanuel Clayton, as Administrator of the Estate of Francis G. Clayton, Respondent, v. City of Niagara Falls, Appellant.
    (Submitted February 10; 1930;
    decided February 18, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 595.)


text:
    James A. Leary et al., Copartners under the Firm Name of Leary & Fullerton, Respondents, v. Charlotte Lipkind, Appellant.
    (Argued February 10, 1930;
    decided February 18, 1930.)

      Walter A. Fullerton for motion.

      Charlotte Liphind opposed.
   Motion granted and appeal dismissed, without costs.


text:
    In the Matter of Isaac G. Johnson and Company, Respondent. The People of the State of New York, Appellant
    (Argued January 17, 1930;
    decided March 18, 1930.)

      Hamilton Ward, Attorney-General (Eugene L. Brisach and Charles E. Congdon of counsel), for appellant.

      John Jay McKelvey, Morgan J. O’Brien, Martin Conboy and Harry B. Chambers for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. William Fong, Respondent, v. Harry C. Honeck, Warden of the City Prison, et al., Respondents. The People of the State of New York, Appellant. The People of the State of New York ex rel. William Fong, Respondent, v. Grover Whalen, as Police Commissioner of the City of New York, Respondent. The People of the State of New York, Appellant.
    (Argued February 10, 1930;
    decided March 18, 1930.)

      George E. Brower, District Attorney (Henry J. Walsh of counsel), for appellants.

      Robert R. Lawson and Irving I. Steinberg for respondent.
   In each proceeding order of the Appellate Division reversed and those of the Special Term affirmed, without costs, on the ground that the relator has not conclusively established that he was not present in the demanding State at the time of the commission of the crime (People ex rel. Gottschalk v. Brown, 237 N. Y. 483, 486; Biddinger v. Commissioner of Police, 245 U. S. 128); no opinion.

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


text:
    In the Matter of Joseph A. Albrecht et al., Copartners under the Firm Name of Albrecht, Maguire & Mills, Appellants. Menno A. Reeb, Respondent.
    (Argued February 10, 1930;
    decided March 18, 1930.)

      Edward N. Mills and William H. Watson for appellants.

      Frank G. Raichle, Jr., and Carlos C. Alden for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Mary A. McConvey, against C. J. Donovan Haas Company et al., Respondents. State Industrial Board, Appellant.
    (Argued February 10, 1930;
    decided March 18, 1930.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for appellant.

      Joseph F. Donovan and Alfred W. Andrews for respondents.
   Order affirmed, with costs against the State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of Tomasina Morini, Respondent, against Erie Railroad Company, Appellant. State Industrial Board, Respondent.
    (Argued February 10, 1930;
    decided March 18, 1930.)

      George F. Roesch, 2d, for appellant.

      Hamilton Ward, Attorney-General {E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Margaret Roberts, Respondent, against Ætna Casualty and Surety Company et al., Appellants. State Industrial Board, Respondent.
    (Argued February 10, 1930;
    decided March 18, 1930.)

      Frank L. Ward for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, respondent.

      John H. O’Day for claimant, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Libbie Miller, Respondent, against Pierson & Williams et al., Appellants. State Industrial Board, Respondent.
    (Argued February 11, 1930;
    decided March 18, 1930.)

      Jeremiah F. Connor and William E. Lowther for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, respondent.

      H. C. Stratton and V. D. Stratton for administratrix of claimant, respondent.
   Order affirmed, with costs. First question certified answered in the affirmative. Second question not answered; no opinion.

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


text:
    In the Matter of the Claim of John E. Smith, Respondent, against Surf Apartments et al., Appellants. State Industrial Board, Respondent.
    (Argued February 11, 1930;
    decided March 18, 1930.)

      Jeremiah F. Connor and William E. Lowther for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order of the Appellate Division reversed and claim dismissed, with costs against the State Industrial Board in the Appellate Division and this court, on the authority of Matter of Hynes v. Pullman Co. (223 N. Y. 342); no opinion.

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


text:
    In the Matter of the Claim of Alice Crowell, Respondent, against American Fruit Growers, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued February 11, 1930;
    decided March 18, 1930.)

      Joseph F. Donovan arid Alfred W. Andrews for appellants.

      Hamilton Ward, Attorney-General {E. C. Aiken of counsel), for State Industrial Board, respondent.

      John F. Wadlin for claimant, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    September Realty Corporation, Appellant, v. Max Goodman et al., Respondents.
    (Argued February 11, 1930;
    decided March 18, 1930.)

      Jay Leo Rothschild, Joseph P. Tolins and I. Henry Kutz for appellant.

      Samuel D. Johnson for Max Goodman et al., respondents.

      Percival E. Jackson, Charles P. Kramer and John P. McKenna for Murray E. Schlein, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Tremont Coal Company, Inc., Appellant, v. Ida Perchik, Respondent, Impleaded with Another.
    (Argued February 11, 1930;
    decided March 18, 1930.)

      Saul Pulver and Jonas J. Shapiro for appellant.

      Jacob M. Leibner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elix Kravitz, Plaintiff, v. B. B. & F. Realty Corporation et al., Defendants. Philip Leizerkowitz, Appellant; Ernest G. Gardner, Respondent.
    (Submitted February 11, 1930;
    decided March. 18, 1930.)

      Max H. Newman for appellant.

      William Walzer and Raymond Gitlin for respondent.
   Order modified by reducing the amount to be paid to the receiver to $47, with interest from July 10, 1929, that being the amount collected by appellant after the appointment of the receiver, and as so modified affirmed, without costs in any court; no opinion.

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


text:
    Patrick H. Murray, Respondent, v. National Surety Company, Appellant.
    (Argued February 11, 1930;
    decided March 18, 1930.)

      John T. Norton and Benjamin McClung for appellant.

      William TI. Murray and John F. Murray for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground that the preponderance of evidence sustains the finding of the trial judge that the written contract fails to express the agreement of the parties and should be reformed as the consequence of mutual mistake; no opinion.

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


text:
    Nettie Grant, as Administratrix of the Estate of John H. Grant, Deceased, Respondent, v. Utica Gas and Electric Company, Appellant.
    (Argued February 13, 1930;
    decided March 18, 1930.)

      Frank H. Hiscock, Myron G. Browner, Woodward W. Guile, Richard, B. Conley and Arthur J. Foley for appellant. James F. Hubbell for respondent.
   Judgment'affirmed, with costs; no opinion.

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


text:
    Morris Becker, as Administrator of the Estate of Bella Becker, Deceased, Respondent, v. Anna Merovitz et al., Appellants.
    (Argued February 13, 1930;
    decided March 18, 1930.)

      Alfred R. Page and Harold M. Phillips for appellants.

      Louis N. Jaffe for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James T. Hallinan, as Executor of Louisa C. Fox, Deceased, Respondent, v. Harry R. Skillen et al., Appellants, Impleaded with Others.
    (Argued February 14, 1930;
    decided March 18, 1930.)

      Charles J. Nehrbas, Jonas J. Hegt and William Matthews for appellants.

      Samuel S. Tripp, Raymond A. McCourt and Theodore J. Groh for respondent.
   Judgment of the Appellate Division reversed on the authority of Vincent v. Rix (248 N. Y. 76) and judgment directed in favor of the appellants Harry Redmond Skillen and George W. Skillen decreeing them to be the owners of the real property in question, subject to the plaintiff’s lien thereon for $7,000, and directing the plaintiffs to account for the rents and profits since the death of Louisa C. Fox, the judgment to contain the same provisions as to costs and allowances as the judgment appealed from; no opinion.

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


text:
    Marlee, Inc., Appellant, v. Thoria Bittar, Respondent, Impleaded with Others.
    (Argued February 14, 1930;
    decided March 18, 1930.)

      Benjamin Lifshitz, Alfred B. Nathan and S. Howard Tmbrey for appellant.

      Herman Kahn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Max Brown, an Infant, by Sam Brown, His Guardian ad Litem, Respondent, v. City of New York, Appellant. Sam Brown, Respondent, v. City of New York, Appellant.
    (Submitted February 14, 1930;
    decided March 18, 1930.)

      Arthur J. W. Hilly, Corporation Counsel (Willard S. Allen, Matthew J. Troy and J. Joseph Lilly of counsel), for appellant.

      Charles Weg for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Francesco Pronio, Appellant.
    (Argued February 17, 1930;
    decided March 18, 1930.)

      T. Arthur Hendricks for appellant.

      Melvin F. Kinkley, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Sadie F. Hall, Respondent, v. First National Bank of Kenmore, Appellant.
    (Argued February 17, 1930;
    decided March 18, 1930.)

      Charles B. Wheeler and Harold V. Cook for appellant.

      Selby G. Smith, John W. Van Allen and Sunderland P. Gardner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of New York State Electric Corporation, Respondent, against Public Service Commission of the State of New York et al., Appellants.
    (Submitted February 17, 1930;
    decided March 18, 1930.)

      Randall Le Boeuf for motion.

      Charles G. Blakeslee opposed.
   Motion denied, with ten dollars costs.


author: Per Curiam.

text:
    Benjamin R. Kittredge, Appellant, v. William C. Langley, Respondent.
    (Submitted February 17,1930;
    decided March 18, 1930.)
    (See 252 N. Y. 405.)

      Frank H. Hiscock for motion.

      R. Randolph Hicks and George F. Canfield, opposed.
   Per Curiam.

We find no adequate reasons for a reargument of this appeal.

Undoubtedly the plaintiff believed that even without independent evidence of the conversion of his bonds, he might recover on the basis of a judgment binding on the firm. Undoubtedly the defendant believed that in the absence of such a judgment and an execution returned thereon, the remedy in equity must fail as a result of the omission to exhaust the remedy at law. In this posture of beliefs there was little stress by either side on evidence upholding or impugning the underlying cause of action. The plaintiff thought the evidence unnecessary, but the defendant thought it harmless. Each understood that it could be readily supplied, and duty to client did not call for an insistence upon barren technicalities. If the obstacle of a missing judgment could be overcome, a prima facie case would be made out upon proof that the bonds belonging to the plaintiff had been delivered to Coster, Knapp & Co., his brokers, and by them converted or fraudulently misappropriated to their own use. The defendant cannot have doubted that this at least could be proved by records easily available. The storm center of the litigation from the beginning had been something very different; the storm center had been the question whether the defendant’s firm at the time of their acceptance of the bonds were holders in good faith, and as to that the burden was on them (Kittredge v. Grannis, 244 N. Y. 168, 173). The plaintiff was not required to give evidence of guilty knowledge as part of his prima facie case. The fundamental facts establishing that case were so nearly undisputed that there can have been little thought by any one of the necessity or advantage of proving them anew.

In the light of present criticisms we have gone over again the colloquy of counsel from which we drew the inference of waiver (252 N. Y. 405, at p. 416). True, indeed, it is that the plaintiff did not recede from his position that proof of the judgment was sufficient to establish liability. This did not deprive him, however, of the privilege of supporting his cause of action by evidence dehors the judgment, if the defendant had consented that such evidence might be considered. We cannot read the colloquy as importing anything less than that consent, a consent directed to something which in the view of each of the contending parties was of subordinate significance. For the sake of brevity we quoted in our opinion a part, and a part only, of the colloquy. There are other parts that tend to the same construction and no other. If your Honor please,” said the plaintiff’s counsel, " that record [i. e., the record of the former trial] is before your Honor and I will not try to interpret the record.” To this the defendant’s counsel gave manifest assent. Those,” he said are already in evidence,” by which obviously he meant those statements in the former record explaining the transaction, and then he added, I do not think there is any other testimony or evidence as to the transaction itself other than what is contained in these voluminous records that is going to help us at this stage.” The voluminous records were the records of the other trial. The defendant had indeed excepted when the judgment-roll with its supporting testimony was offered and received, but this was on the theory that the judgment was irrelevant. The objection overruled and the supporting testimony in, he clearly indicated his understanding that it might be referred to with the same effect as if witnesses had been called and had rehearsed the testimony again.

,We are not unmindful of the fact that the trial judge decided the case in the belief that he was limited to the judgment, and that the underlying evidence was not to be considered. This appears from his opinion. Very likely he had forgotten the colloquy, or did not appreciate its significance. The fact is, however, that it was there. The misconception did not take the evidence out if consent had put it in.

The argument is strongly pressed that the inference of consent or waiver is overcome by the fact that the plaintiff in offering the record of the former trial excluded from his offer a volume of exhibits. There can be no question, however, that the volumes offered and admitted were amply sufficient to make out a prima facie case, which would call upon the defendant for explanation or defense. If the omitted exhibits were important for that purpose, the defendant was at liberty to offer them himself.

The point is also urged that the suggestion of waiver was .not made by counsel for the plaintiff either in his brief or in his oral argument, but originated with the court. At best, the point is indecisive, but it is founded on a misconception of the facts. There was no claim of waiver in the brief. There was, however, on the oral argument. Counsel for the plaintiff called the attention of the court to some of the folios of the record supporting that position, and they were noted and considered.

We think the new trial that we have ordered is in furtherance of justice. The defendant will then be free, if he is so advised, to insist that the cause of action be established anew. What is certain is that the cause will be disposed of on its merits, and not on formal irregularities or technical omissions.

The motion for reargument should be denied with ten dollars costs and necessary printing disbursements.


text:
    Walter J. McClelland, Appellant, v. Climax Hosiery Mills, Respondent.
    (Submitted March 17, 1930;
    decided March 25, 1930.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 252 N. Y. 347.)


text:
    Spencer Aldrich et al., as Trustees for Louise A. Meissner et al., Appellants, v. The City of New York et al., Respondents.
    (Submitted March 17, 1930;
    decided March 25, 1930.)

      Arthur J. W. Hilly, Corporation Counsel (Charles V. Nellany of counsel), Edward M. Grout and Franklin Nevius for motion.

      John J. McBride opposed. '
   Motions granted and appeal dismissed, with costs and ten dollars costs of motions.


text:
    In the Matter of the Claim of Daniel Cameron, Respondent, against Ellis Construction Company et al., Appellants and The United States Fidelity and Guaranty Company, Respondent. State Industrial Board, Respondent.
    (Submitted March 17, 1930;
    decided March 25, 1930.)
   Motion to amend remittitur so as to provide that only so much of the order of the Appellate Division as affirmed the award made by the State Industrial Board to the claimant be reversed, leaving undisturbed that portion of the order of the Appellate Division which dismissed the appeal as against the respondent United States Fidelity and Guaranty Company, with costs as against the appellants Ellis Construction Company and Employers Mutual Insurance Company. (See 252 N. Y. 394.)

Motion granted; recall of remittitur requested and the same when recalled will be amended in accordance with the prayer of the notice of motion.


text:
    In the Matter of the Accounting of Anna Ryan et al, as Executors of and Trustees under the Will of Eugene J. Flood, Deceased. Anna Ryan et al., as Executors and Trustees, Appellants; Susie E. Murray et al., Respondents.
    (Argued March 17, 1930;
    decided March 25, 1930.)

      Arthur T. O’Leary for motion.

      Matthew J. Wheelehan opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Joseph Liben et al., Respondents, v. Gore Building Corporation, Appellant, Impleaded with Another.
    (Argued March 17, 1930;
    decided March 25, 1930.)

      Jacob A. Bernstein for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Matthew F. Quinn, Respondent, v. Joseph L. Sigretto, Appellant.
    (Submitted March 17, 1930;
    decided March 25, 1930.)

      Joseph A. Fagnant for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Chemical National Bank of New York, as Executor of and Trustee under the Will of Roger E. Hill, Deceased, Respondent, v. Susie R. Hill et al., Respondents; Barbara Hill et al., Respondents and Appellants, and American National Red Cross, Appellant and Respondent.
    (Submitted March 17, 1930;
    decided March 25, 1930.)
   Motion to amend remittitur. (See 253 N. Y. 177.)

Motion granted, recall of the remittitur requested, and the same when recalled will be modified by striking out subdivision 36 of the judgments of the Special Term and Appellate Division, by amending subdivisions 22 and 25 as prayed for in the notice of motion of the American National Red Cross, and by amending the modifications heretofore directed as requested at pages 5 to 8 of the affidavit of counsel for the plaintiff, the Chemical National Bank of New York.


text:
    In the Matter of the Accounting of Helen R. B. Sears, Deceased, by Her Executor, Arthur W. Sears et al., as Trustees under the Will of Helen L. Bullard, Deceased. Arthur W. Sears, as Executor, Appellant; Dartmouth College, Respondent. (Two Cases.)
    (Argued March 17, 1930;
    decided April 1, 1930.)

      Leverett J. Luce for appellant.

      Paul G. Gravenhorst and Henry Melville for respondent.
   Orders affirmed, with costs, on the authority of Hollis v. Drew Theological Seminary (95 N. Y. 166); Matter of Durand (194 N. Y. 477), and Ithaca Trust Co. v. United States (279 U. S. 151); no opinion.

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


text:
    In the Matter of The Meadowdale Company, Appellant, against Henry M. Lee et al., Constituting the Board of Appeals of the Village of Bronxville, Respondents.
    (Argued March 17, 1930;
    decided April 1, 1930.)

      Hunter McQuistion and Thomas J. Minturn for appellant.

      Thomas G. Flaherty for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Samuel A. Nash et al., Individually and as Executors of Samuel Y. Nash, Deceased, Appellants, against Thomas M. Lynch et al., Constituting the State Tax Commission, Respondents.
    (Argued March 17, 1930;
    decided April 1, 1930.)

      Edward H. Pattison, Joseph F. McCloy, John L. McMasier and Leo Brady for appellants.

      Hamilton Ward, Attorney-General (Henry S. Manley of counsel), for respondents.
   Order aflrrmed, with costs; no opinion.

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


text:
    In the Matter of Martha J. Smith, as Ancillary Executrix of Mary J. Smith, Deceased, Appellant, against Michael F. Loughman et al., Constituting the State Tax Commission, Respondents.
    (Argued March 17, 1930;
    decided April 1, 1930.)

      Joseph F. McCloy, John L. McMaster, Leo Brady, Edward H. Pattison and Herbert W. Smith for appellant.

      Hamilton Ward, Attorney-General (Henry S. Manley of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Abraham N. Levy, as Committee of the Estate of Andrew Traulko, an Incompetent Person, Respondent. Emanuel B. Cohen, Appellant.
    (Argued March 18, 1930;
    decided April 1, 1930.)

      Harris Berlack and Frank Aranow for appellant.

      William A. Gilhrist, James A. Clark and Abraham N. Levy for respondent.
   Order of the Appellate Division and that of the Special Term reversed and application denied, on the ground that the vacated orders were made by a court having jurisdiction of the subject-matter and the parties, and constitute a protection to the committee for all acts done in good faith thereunder; no opinion.

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


text:
    Sophie Floor, Appellant, v. Edward Floor, Respondent.
    (Submitted March 24, 1930;
    decided April 1, 1930.)

      Chester T. Krouse for motion.
    No one opposed.
   Motion granted and appeal dismissed, without costs.


text:
    Katherine Hill, Individually and as Administratrix of the Estate of Frederick Beyer, Deceased, Respondent, v. Jacob Gross et al., Respondents, and The People of the State of New York, Appellant.
    (Argued March 19, 1930;
    decided April 8, 1930.)

      Hamilton Ward, Attorney-General (Borden H. Mills and William F. Huyck of counsel), for appellant.

      Henry F. Gardner for plaintiff-respondent.

      Vincent N. Elwood for Jacob Gross et al., defendants-respondents.

      Eugene H. Bouton for Edna Hendrickson, respondent. John D. Lyons and Nellie Childs Smith for Robert Bonzer, defendant-respondent.
   Judgment affirmed with costs; no opinion.

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


text:
    Harold A. Pierce, Respondent, v. Armour & Company, Appellant.
    (Argued March 19, 1930;
    decided April 8, 1930.)

      Patrick J. Tierney for appellant.

      Kenneth H. Holcombe and Wallace E. Pierce for respondent.
   Judgment affirmed with costs; no opinion.

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


text:
    Bank of New York and Trust Company, Respondent, v. Atterbury Brothers, Inc., Appellant.
    (Argued March 19, 1930;
    decided April 8, 1930.)

      Louis O. Van Doren, J. A. Stevenson, Jr., and William W. Lancaster for appellant.

      Karl T. Frederick and John Schubert for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ.; Crane, J., dissents as to the bill of lading dated April 29, 1926.


text:
    Albert Anderson, Respondent, v. New York, Ontario and Western Railway Company, Appellant.
    (Argued March 19, 1930;
    decided April 8, 1930.)

      John Bright and Abram F. Servin for appellant.

      Jesse L. Rosenberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Lehman, O’Brien and Hubbs, JJ.; Crane and Kellogg, JJ., dissent on the ground that there is no evidence of defendant’s negligence.


text:
    Alfred R. Fish, Respondent, v. The Estate of Elizabeth M. McCarthy, Inc., Appellant.
    (Argued March 20, 1930;
    decided April 8, 1930.)

      Merwin W. Lay for appellant.

      L. Earl Higbee for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. 71 Park Avenue, Inc., Appellant, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    (Argued March 20, 1930;
    decided April 8, 1930.)

      Harold Swain and Arthur H. Indell for appellant.

      Arthur J. W. Hilly, Corporation Counsel (William H. King and Patrick A. Bolger of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Julia Spurius, Respondent, v. Anton Meister, Appellant.
    (Argued March 20, 1930;
    decided April 8, 1930.)

      Arthur T. Holmes and Clarence S. Nettles for appellant.

      David C. Broderick and Louis H. Schleider for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Lapolte, Appellant.
    (Argued March 21, 1930;
    decided April 8, 1930.)

      Peter L. F. Sabbatino for appellant.

      Thomas C. T. Crain, District Attorney (John C. McDermott of counsel), for respondent.
   Judgment of the Appellate Division and that of the trial court reversed and new trial ordered for the error of the trial judge in refusing to instruct the jury that the defendant might be found guilty of a lower degree of larceny than that charged in the indictment (Code Crim. Pro. § 444; People v. Walker, 198 N. Y. 329; People v. Schleiman, 197 N. Y. 383); no opinion.

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


text:
    Paul Hirschman, Respondent, v. Hudson-Athens Ferry Company, Ltd., Appellant.
    (Argued March 21, 1930;
    decided April 8, 1930.)

      Samuel B. Coffin and Harold E. Fritts for appellant.

      R. Monell Herzberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Pasquale Camellera, Appellant.
    (Argued March 24, 1930;
    decided April 8, 1930.)

      Anthony J. Contiguglia and Sanford T. Church for appellant.

      James J. Hosmer, District Attorney (Albert H. Clark of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Stephen Ziolkowski, Appellant.
    (Argued March 24, 1930;
    decided April 8, 1930.)

      Thomas L. Newton for appellant.

      Guy B. Moore, District Attorney {Walter F. Hofheins of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Charles Antku, Respondent, v. Zinsser & Company, Appellant.
    (Argued March 24, 1930;
    decided April 8, 1930.)

      Alfred M. Bailey for appellant.

      Charles D. Lewis and Thomas J. O’ Neill for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Patrick Lee, Respondent, v. New York, Ontario and Western Railway Company, Appellant.
    (Argued March 24, 1930;
    decided April 8, 1930.)

      .!Thomas Downs and M. Harvey Smedley for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed and complaint dismissed, with costs in all courts, on the ground there is no evidence of defendant’s negligence; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Hudson View Gardens, Inc., Respondent.
    (Argued March 25, 1930;
    decided April 8, 1930.)

      Thomas C. T. Grain, District Attorney (.Robert Daru of counsel), for appellant.

      Joseph M. Dreyer and Irving L. Evans for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Angelo Molino, Appellant.
    (Argued March 25, 1930;
    decided April 8, 1930.)

      Samuel Furstenburg for appellant.

      Thomas C. T. Crain, District Attorney (Robert Daru of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Lojo Realty Company, Inc., Appellant, v. Estate of Isaac G. Johnson, Incorporated, Respondent.
    (Argued March 24, 1930;
    decided April 8, 1930.)

      Charles Hollender, Max Turner and John H. Unlandherm for appellant.

      John Jay McKelvey for respondent.
   Per Curiam.

The first, third and fourth questions certified are improper in form.

We interpret the second question as propounding an inquiry whether specific performance may be granted to an assignee of such a contract as is pleaded in the complaint if he has failed to tender a bond executed by his assignor. So interpreting it, the answer must be “ no.”

The order should be affirmed, with costs; the second question certified answered no; and the other questions are not answered.

Caedozo, Ch. J., Pound, Cbane, Lehman, Kellogg, O’Beien and Hubbs, JJ., concur.

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v. Carmine Vignola, Appellant.
    (Argued March 26, 1930;
    decided April 8, 1930.)

      Henry Hirschberg for appellant.

      Elmer H. Lemon, District Attorney, for respondent.
   Per Curiam.

The order should be reversed and the case remitted to the Appellate Division, to decide the motion for enlargement of tune and to dismiss the appeal upon the merits, upon authority of People v. Pennestri (253 N. Y. 318).

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

Ordered accordingly.


text:
    In the Matter of Silvio A. Lanza, Appellant, against George J. Ryan et al., as Members of the Board of Education of the City of New York, et al., Respondents.
    (Argued March 26, 1930;
    decided April 11, 1930.)

      Vito F. Lanza for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and Thomas W. A. Crowe of counsel), for respondents.
   Order affirmed, with costs. Eighth question certified answered in the negative. Other questions not answered; no opinion.

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


text:
    Mabel Clark, Respondent, v. New York Hotel Statler Co., Inc., Appellant.
    (Argued March 26, 1930;
    decided April 11, 1930.)

      Clarence S. Zipp and E. C. Sherwood for appellant.

      B. Gordon Mackay for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Kantor Silk Mills, Inc., Appellant, v. The Century Insurance Company, Limited, of Edinburgh, Scotland, Respondent.
    (Argued March 27, 1930;
    decided April 11, 1930.)

      David Goldstein, Thomas G. Frost and Alex Davis for appellant.

      Walter H. Pollak, Frederic C. Pitcher and Ruth I. Wilson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alonzo E. DeBaun, Respondent, v. John W. Block, Jr., Defendant, and Jessie B. Graff et al., Appellants.
    (Argued March 28, 1930;
    decided April 11, 1930.)

      Matthew J. Wheelehan for Clarence E. Block et al., appellants.

      Charles H. Kelby for John F. McCabe et al., as administrators, et al., appellants.

      Abel E. Blackmar and William H. Orr for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary T. Myers, Respondent, v. Amherst Construction Company, Appellant.
    (Submitted March 28, 1930;
    decided April 11, 1930.)

      James I. Cuff, Harold V. Angevine and Grattan B. Shults for appellant.

      Helen P. McCormick for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed and complaint dismissed, with costs in all courts, on the ground that there is no evidence of defendant’s negligence; no opinion.

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


text:
    Carner Brothers, Inc., et al., Respondents, v. Julius Steinberg et al., Appellants.
    (Submitted March 28, 1930;
    decided April 11, 1930.)

      Meier Steinbrink and Harold M. Kennedy for appellants.

      Joseph P. Tolins and I. Henry Kuts for respondents.
   Judgment modified by deducting the sum of $500 allowed for the brokers’ commissions and as modified affirmed, with costs to the respondents; no opinion.

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


text:
    Harry Lefton et al., Respondents, v. Jacob Carner, Appellant, Impleaded with Another.
    (Submitted March 28, 1930;
    decided April 11, 1930.)

      Joseph P. Tolins and I. Henry Kutz for appellant.

      Forrest B. Chilton and Daniel Epstein for respondents.
   Judgment of the Appellate Division and that of the Trial Term reversed and new trial granted, costs to abide the event, on the ground that there was error in the exclusion of defendants’ Exhibit A; no opinion.

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


text:
    Guido Ciccolini, Appellant, v. Vocafilm Corporation of America, Respondent.
    (Argued April 9, 1930;
    decided May 6, 1930.)

      Joseph R. Margulies and Milton C. Weisman for appellant.

      Sidney Handler and Jacob M. Mandelbaum for respondent.
   Per Curiam.

The Appellate Division had authority to reverse the judgment as a matter of discretion. It did not exercise that power, however, but reversed as a matter of law. No error of law was involved. We are, therefore, compelled to reverse. The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division.

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

Ordered accordingly.


text:
    In the Matter of the Application of The People of the State of New York, by James A. Beha, as Superintendent of Insurance, Appellant, for an Order to Take Possession of the Property of the Second Russian Insurance Company, Appellant. Fred S. James & Company et al., Respondents.
    (Argued March 17, 1930;
    decided May 6, 1930.)

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

      Robert J. Sykes, Paul Bonynge and John E. Booth for Second Russian Insurance Company, appellant.

      Louis J. Wolff and David Rumsey for respondents.
   Order affirmed, with costs, on opinion in Matter of People (First Russian Insurance Company) (253 N. Y. 365); no opinion.

Concur: Cardozo, C'h. J., Pound, Crane, Lehman, Kellogg, O’Brien and Huber, JJ.


text:
    In the Matter of the Application of Eleanor G. Sullivan, Appellant, against Teachers’ Retirement Board, Respondent.
    (Argued March 18, 1930;
    decided May 6, 1930.)

      J. M. Cohen for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and William E. C. Mayer of counsel), for respondent.
   Appeal dismissed, without costs, on the ground that the order appealed from is not final; no opinion.

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


text:
    Mechanics and Metals National Bank of the City of New York, et al., Appellants, v. Merchants National Bank of the City of Buffalo, Respondent.
    (Argued March 20, 1930;
    decided May 6, 1930.)

      Henry Root Stem, George L. Trumbull and Joseph F. Hunter for appellants.

      Daniel J. Kenefick, James McCormick Mitchell and Frits Fernow for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Village of Chateaugay, Respondent, v. Chasm Power Company et al., Appellants.
    (Argued March 25, 1930;
    decided May 6, 1930.)

      Frank Irvine, Wallace E. Pierce and Edmund B. Naylon for appellants.

      Patrick J. Tierney and Thomas J. Fitzpatrick for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Winifred Samuels, Appellant, v. Terry Holding Co., Inc., Respondent. William Samuels, Appellant, v. Terry Holding Co., Inc., Respondent.
    (Submitted April 1, 1930;
    decided May 6, 1930.)

      Milton Speiser and Joseph Speiser for appellants.

      A. Arthur Klar and Samuel W. Dorfman for respondent.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    In the Matter of Joseph P. Collins et al., Respondents, against The Board of Standards and Appeals of the City of New York et al., Appellants, and Marben Realty Corporation, Appellant.
    (Argued April 1, 1930;
    decided May 6, 1930.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and William T. Kennedy of counsel), for the Board of Standards and Appeals et ah, appellants.

      John J. Curtin and Wesley S. Sawyer for Marben Realty Corporation, appellant.

      Lawrence R. Condon for respondents.
   Order affirmed, with costs, on the ground that the allegations of the return, if accepted as true, fail to justify a variation of the uses prescribed by the zoning resolution; no opinion.

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


text:
    Frank Colonna et al., Copartners under the Firm Name of Colonna & Company, Respondents, v. The State of New York, Appellant. Frank Colonna, Respondent, v. The State of New York, Appellant.
    (Argued April 1,1930;
    decided May 6,1930.)

      Hamilton Ward, Attorney-Qeneral {James Gibson of counsel), for appellant.

      Herbert T. Reed and Charles G. Signor for respondents.
   Judgment in the first action affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman and O’Brien, JJ. Kellogg, J., votes for reversal and new trial. Not sitting: Hubbs, J.

Judgment in the second action affirmed, with costs; no opinion.

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


text:
    Helen E. Judson, as Administratrix of the Estate of David H. Judson, Deceased, Respondent, v. John Fielding, Appellant, Impleaded with Another.
    (Argued April 1, 1930;
    decided May 6, 1930.)

      H. D. Bailey for appellant.

      Robert E. Dineen for respondent.
   Judgment against defendant Fielding affirmed, with costs; no opinion.

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


text:
    Troy Union Railroad Company, Appellant, v. City of Troy, Respondent.
    (Argued April 1, 1930;
    decided May 6, 1930.)

      Robert E. Whalen, Alexander S. Lyman and Joseph Rosch for appellant.

      T. Stewart Hubbard, Corporation Counsel {John T. Norton of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Marie B. Birkmire, Appellant, v. Campus Realty Corporation et al., Respondents.
    (Argued April 2, 1930;
    decided May 6, 1930.)

      Douglas Mathewson and Joseph T. Brown for appellant.

      Harding Johnson for respondents.
   Judgment of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the dissenting opinion of Proskauer, J., at the Appellate Division; no opinion.

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


text:
    Chauncey A. DeLevante, Appellant, v. Dolly M. MacPherson et al., Respondents. Chauncey A. DeLevante, Appellant, v. Mac-Stone Stucco Company, Inc., Respondent.
    (Argued April 2, 1930;
    decided May 6, 1930.)

      Sidney A. Clarkson, Albert A. Hovell and Harry W. McChesney for appellant.

      Milton Hertz and A. B. Reed for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Eva Macomber et al., Respondents, v. Frank Sterling et al., Appellants, Impleaded with Others.
    (Argued April 2, 1930;
    decided May 6, 1930.)

      Charles D, Thomas for appellants.

      Chester J. Winslow for respondents.
   Appeal dismissed, without costs, on the ground that the judgment appealed from is not final (Webster v. Webster, 243 N. Y. 520; Matter of City of New York, etc., 243 N. Y. 522); no opinion.

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


text:
    United States Merchants and Shippers Insurance Company et al., Appellants, v. George A. Brenker, Respondent.
    (Argued April 3, 1930;
    decided May 6, 1930.)

      Charles F. Quantrell and P. J. Kooiman for appellants.

      Frank M. Patterson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emma L. Rhinock, as Executrix of Joseph L. Rhinock, Deceased, Respondent, v. Edward F. Simms, Appellant.
    (Argued April 3, 1930;
    decided May 6, 1930.)

      John W. Davis, William C. Cannon, Russel S. Coutant, Francis W. Phillips and Richard Reid Rogers for appellant.

      John Godfrey Saxe for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Prominent Folding Box Company, Inc., Respondent, v. Rich & McLean, Inc., Appellant.
    (Argued April 3, 1930;
    decided May 6, 1930.)

      John T. Loughran for appellant.

      Eugene L. Bondy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sherwood Automobile Corporation, Respondent, v. The Century Insurance Company, Limited, Appellant.
    (Argued April 3, 1930;
    decided May 6, 1930.)

      William F. Unger, Russell T. Mount and Harris L. Greene for appellant.

      Robert B. Knowles and Otto A. Hack for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Progressive Foundry Works, Inc., Respondent, v. Joseph Amdoursky, Appellant, and City of Rochester, Respondent.
    (Argued April 3, 1930;
    decided May 6, 1930.)

      Ira H. Morris and Charles E. Bostwick for appellant.

      Henry L. Crittenden for plaintiff-respondent.

      Clarence M. Platt, Corporation Counsel, for defendant-respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ralston & Haltenhof, Inc., Respondent, v. William H. Reynolds, Appellant.
    (Argued April 3, 1930;
    decided May 6, 1930.)

      Max Turner and David B. Tolins for appellant.

      Henry Muller and Joseph H. Muller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Leo Gilman, by Peter Gilman, His Guardian ad Litem, Respondent, v. Edgar N. Fox, Appellant. Peter Gilman, Respondent, v. Edgar N. Fox, Appellant.
    (Argued April 4, 1930;
    decided May 6, 1930.)

      E. Reed Shutt for appellant.

      Harry A. Sessions for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Albany Packing Company, Inc., Respondent, v. Dominick Crispo et al., Appellants.
    (Argued April 4, 1930;
    decided May 6,1930.)

      John J. McManus for appellants.

      David A. Woodcock, Holland S. Duell and William T. Jones for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Catalena Wagoner, as Administratrix of the Estate of Cornelius Wagoner, Deceased, Appellant, v. Fidelity and Casualty Company of New York, Respondent.
    (Argued April 4, 1930;
    decided May 6, 1930.)

      Newton B. VanDerzee for appellant.

      Charles B. Sullivan and Edwin A. J ones for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Filer Realty Corporation, Respondent, v. Rachel E. Little, Appellant.
    (Argued April 7, 1930;
    decided May 6, 1930.)

      Andrew F. VanThun, Jr., and Samuel E. Farm for appellant.

      David L. Blick for respondent.
   Order affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Julius F. Bard et al., Appellants, v. Columbia University Club, Respondent.
    (Submitted April 7, 1930;
    decided May 6, 1930.)

      Frank C. Briggs for appellants.

      Charles J. Lane for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank P. Clair, Appellant, v. Henry Wrege, Respondent.
    (Argued April 7, 1930;
    decided May 6, 1930.)

      Edward H. Wilson for appellant.

      Julian V. Carabba and Samuel Hart for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anna Colwell, Respondent, v. Herbert Farris, Appellant.
    (Argued April 7, 1930;
    decided May 6, 1930.)

      John W. Bonney for appellant.

      Thomas F. Franklin and Herman J. Wittstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Milton Goldberg, by Hyman Goldberg, His Guardian ad Litem, Respondent, v. Elizabeth Adelman, Appellant. Hyman Goldberg, Respondent, v. Elizabeth Adelman, Appellant.
    (Argued April 7, 1930;
    decided May 6, 1930.)

      Arthur J. W. Hilly, Corporation Counsel (Henry J. Shields, Charles C. Marrin and J. Joseph Lilly of counsel), for appellant.

      Robert L. Turk for respondent.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    In the Matter of Henry C. Littick, an Attorney, Appellant. Mortimer W. Byers, Respondent.
    (Argued April 8, 1930;
    decided May 6, 1930.)

      Charles H. Kelby for appellant.

      Harold M. Kennedy and Meier Steinbrink for respondent.
   Order affirmed; no opinion.

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


text:
    John L. Curley et al., as Executors of James Shewan, Deceased, et al., Respondents, v. Edward Moore, Jr., et al., as Executors of Edward Moore, Deceased, et al., Appellants, Impleaded with Another.
    (Argued April 8, 1930;
    decided May 6, 1930.)

      E. Crosby Kindleberger and Albert Stickney for appellants.

      Patrick J. Dobson and William J. Martin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Max Reicher, Appellant, v. Harry C. Honeck, Warden of the City Prison, Respondent.
    (Argued April 9, 1930;
    decided May 6, 1930.)

      William A. Blank for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Joseph T. Berry and Benjamin Millstein of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    William Henck, Respondent, v. Dollar Steamship Line, Appellant.
    (Argued April 9, 1930;
    decided May 6, 1930.)

      Vernon S. Jones and Raymond Parmer for appellant.

      Leonard F. Fish and George A. Grabow for respondent.
   Order affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Carl Von Scharfenberg, Appellant, v. Martin S. Bernet, Defendant, and John A. Klemann et al., Respondents.
    (Argued April 9, 1930;
    decided May 6, 1930.)

      A. Lewis Spitzer and Leonard Acker for appellant.

      Alvin C. Cass, Jacques W. Bacal and Charles Snow Kellogg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Otis Elevator Company, Respondent, v. Graham & Norton Company, Defendant, and Kidansky & Levy, Inc., Appellant.
    (Argued April 9, 1930;
    decided May 6, 1930.)

      William E. Lyons, Barnett Cohen and Frank J. O’ Neill for appellant.

      Jacquin Frank for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis H. Gura, Respondent, v. Sydney H. Herman et al., as Executors of Edgar Guggenheim, Deceased, Appellants.
    (Argued April 9, 1930;
    decided May 6, 1930.)

      Leonard Klaber for appellants.

      Irving I. Goldsmith and Maurice B. Rich for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel W. Eager, as Trustee in Bankruptcy for Vincent Bergamo, Appellant, v. Vincent Bergamo et al., Respondents.
    (Argued April 10, 1930;
    decided May 6, 1930.)

      John Bright and Abram F. Servin for appellant.

      Henry Hirschberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Jennie P. Parker, Appellant. The Tonawanda Band of Seneca Indians, Respondent.
    (Argued April 10, 1930;
    decided May 6, 1930.)

      John L. Heider for appellant. '

      George W. Watson and William- J. Darch for respondent.

      Hamilton Ward, Attorney-General {Henry S. Manley of counsel), amicus curice.

   Order affirmed, with costs; no opinion.

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


text:
    Leland Y. Robinson, Respondent, v. Antonia K. Zak et al., as Executors of Johanna Remling, Deceased, Respondents, and Thaddeus C. Slawski, Appellant.
    (Argued April 10, 1930;
    decided May 6, 1930.)

      Guy 0. Walser for appellant.

      Harold Ashare for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Theresa A. Guarino, as Administratrix of the Estate of Vito Auliso, Deceased, Respondent, v. O. Civil Truckman, Incorporated, Appellant, Impleaded with Another.
    (Argued April 11, 1930;
    decided May 6, 1930.)

      Albert Eberline, Benjamin C. Loder and John H. Scully for appellant.

      Leonard F. Fish,'George A. Grabow and Edward Gordon for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Greenspon-Newman, Inc., Appellant and Respondent, v. The Cunard Steam Ship Company, Ltd., Respondent and Appellant.
    (Argued May 5, 1930;
    decided May 6, 1930.)

      George de Forest Lord for motion.

      Barry D. Thirkield opposed.
   Motion for leave to withdraw appeal and to dismiss plaintiff’s appeal granted upon tender by the defendant to the plaintiff of the sum of $2,140.48, such tender to be made within ten days.


text:
    In the Matter of Peter J. Hagen.
    (Submitted May 5, 1930;
    decided May 7, 1930.)
   Motion for permission to take the State bar examination.

Ordered that on complying with the rules in other respects, Peter J. Hagan and all others similarly situated may be admitted to the June, 1930, bar examinations without further study of law on the successful completion of three years of law school work in a school which, before the new rules as to preliminary education requirements took effect, required two years or more of college work for the admission of students as candidates for a degree.