text:
    Lonby Realty Corporation, Appellant, v. Eugene W. Lane, Respondent.
    (Argued January 15, 1929;
    decided February 13, 1929.)

      Samuel H. Michaelson and J. W. Friedman for appellant.

      E. J. Dimock, Clyde Tooker and Eleanor S. Burch for respondent.
   Judgment affirmed, with costs; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Marie C. Baudenbach, Appellant, v. Maurice F. Schlesinger, Doing Business under the Firm Name of Bendiner and Schlesinger, Respondent.
    (Argued January 16, 1929;
    decided February 13, 1929.)

      James' Taylor Lewis for appellant.

      Frank L. Wiswall for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Gust Gunther, Respondent, v. Bertram W. Gifford, Appellant.
    (Argued January 16, 1929;
    decided February 13, 1929.)

      Almet Reed Latson and Harry H. Flemming for appellant.
    Amos Van Etten and William D. Cunningham for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William H. Wood, Appellant, v. Ugo Pace, Respondent.
    (Argued January 16, 1929;
    decided February 13, 1929.)

      John Kelly and Fletcher W. Battershall for appellant.

      Nelson B. Pirnie for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Tague Holding Corporation, Respondent, v. Sidney Harris, Appellant.
    (Submitted February 11, 1929;
    decided February 13, 1929.)

      David Bernstein for motion.

      Charles L. Sylvester, opposed.
   Motion denied, with ten dollars costs.


text:
    The People of the State of New York, Respondent, v. Alzamon I. Lucas, Appellant.
    (Submitted February 11, 1929;
    decided February 13, 1929.)

      William F. Love, District Attorney (William L. Clay of counsel), for motion.
    No one opposed.
   Motion denied.


text:
    Claire Sugg, Respondent, v. George Wandling, Appellant.
    (Submitted February 11, 1929;
    decided February 19, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 250 N. Y. 517.)


text:
    Thomas F. Kelley, Doing Business under the Firm Name of New York Illustrated Press Association, Appellant, v. Champlain Studios, Inc., et al., Respondents.
    (Argued February 11, 1929;
    decided February 19, 1929.)

      William Bell Wait for motion.

      Thomas F. Kelley, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Board of Hudson River Regulating District, Respondent, v. Fonda, Johnstown and Gloversville Railroad Company et al., Appellants.
    ( Submitted February 11, 1929;
    decided February 19, 1929.)
   Motion to amend remittitur. (See 249 N. Y. 445.)

Motion granted. Recall of remittitur requested and the same when returned will be amended by substituting for the words for a term of one year from the date of entry of this order ” the following, “ for a term of one year from the payment or tender of payment by the respondent of the award.”


text:
    In the Matter of the City of Long Beach, Appellant, against Public Service Commission of the State of New York, Respondent. Long Beach Bus Company, Respondent.
    (Submitted February 11, 1929;
    decided February 19, 1929.)
   Motion to amend remittitur denied. (See 249 N. Y. 480.)


text:
    Jesse Stiles, Appellant, v. William A. Robeson et al., Respondents.
    (Argued February 11, 1929;
    decided February 19, 1929.)

      Walter A. Fullerton for motion.

      Jesse Stiles, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Helen V. Carey, Appellant, v. Minor C. Keith, Inc., et al., Respondents.
    (Submitted February 11, 1929;
    decided February 19, 1929.)
   Motion for reargument or to amend remittitur denied. (See 250 N. Y. 216.)


text:
    Gitel Dobrikin, Respondent, Impleaded with Another, v. Union Railway Company of New York City, Appellant.
    (Submitted February 18, 1929;
    decided February 20, 1929.)

      Joseph C. Thomson for motion.

      Frederic W. Frost and Alfred T. Davison, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Claim of Walter Holderer, Respondent, against The Brooklyn City Railroad Company, Appellant. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      Albert A. Kraus, W. Harry Sefton and George D. Yeomans for appellant.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs. Held, that the employer did not have notice of the accident within thirty days after the happening thereof but that the evidence sustains the finding that it was not prejudiced by the failure to serve written notice of injury within the statutory period.

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


text:
    In the Matter of the Claim of William Eppenstein, Respondent, against Ogden R. Adams & Co., Inc., et al., Appellants. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      Harry E. Wareham for appellant.

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

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


text:
    In the Matter of the Claim of Katharine Jessup, Respondent, against G. P. Wrigley et al., Appellants. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      Neile F. Tovmer for appellants.

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

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


text:
    In the Matter of the Claim of Elizabeth Conrad et al., Respondents, against Meldrum Motor Corporation, et al., Appellants. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      Carlton E. Ladd and Alfred W. Andrews for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondents.
   Order of the Appellate Division reversed and claim dismissed, with costs in all courts against State Industrial Board, on the ground that there is no evidence that the employee was in the course of his employment at the time of the accident.

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


text:
    In the Matter of the Claim of Anna M. Schultz, Appellant, against The Beaver Products Company, Inc., Respondent. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      John F. Ryan for appellant.

      William M. Fay for defendant, respondent.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, respondent.
   Order affirmed; 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. Chrystal, Respondent, against United States Trucking Corporation, Appellant. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      Paul Koch for appellant.

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

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


text:
    In the Matter of the Claim of Margaret Thomas, Respondent, against United States Trucking Corporation, Appellant. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      Paul Koch for appellant.

      William R. Dorman and Thomas J. Mooney for claims ant, respondent.

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

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


text:
    In the Matter of the Claim of Max Huhn, Respondent, against Gehnrich Indirect Heat Oven Co., Inc., et al., Appellants. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      Clarence B. Tippett for appellant.

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

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


text:
    In the Matter of the Claim of Sadie Onisk, Respondent, against Knaust Bros. et al., Appellants. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      Clarence B. Tippett for appellant.

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

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


text:
    In the Matter of Peter J. Brennan et al., Copartners under the Firm Name of P. J. Brennan & Son, Respondents, v. The Board of Education of the City of New York et al., Appellants.
    (Submitted February 13, 1929;
    decided March 19, 1929.)

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict, Denis R. O’Brien and J. Joseph Lilly of counsel), for appellants.

      Charles L. Craig 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 Luella M. Raymond et al., Respondents. The Green-Wood Cemetery, Appellant.
    (Submitted February 13, 1929;
    decided March 19, 1929.)
    Roy C. Gasser and Henry H. Anderson for appellant.

      Walter H. Gilpatric 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 4672 Broadway Corporation et al., Respondents, v. The Board of Standards and Appeals of the City of New York et al., Appellants.
    (Submitted February 13, 1929;
    decided March 19, 1929.)

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict, William T. Kennedy and J. Joseph Lilly of counsel), for Board of Standards and Appeals et al., appellants.

      Frederick J. Flynn for Broadway Sherman Realty Co., Inc., appellant.

      Isidore Cohen for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Grace Mona, Appellant, v. Frederick Erion et al., Individually and as Copartners under the Firm Name of Erion Piano Company, Respondents.
    (Argued February 13, 1929;
    decided March 19, 1929.)

      Harold Horowitz and John J. Brown for appellant.

      Percy B. Smith and Harold J. Adams for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    Ruby Steamship Corporation, Ltd., Respondent, v. American Merchant Marine Insurance Company, Appellant. Ruby Steamship Corporation, Ltd., Respondent, v. Globe and Rutgers Fire Insurance Company, Appellant.
    (Argued February 14, 1929;
    decided March 19, 1929.)

      Jeremiah T. Mahoney, T. Catesby Jones and James W. Ryan for appellant.

      Chauncey E. Treadwell for respondent.
   In each action judgment affirmed, with costs; no opinion.

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


text:
    Bernard Miller, as Administrator of the Estate of Harry Miller, Deceased, Respondent, v. Schindler’s Prairie House, Inc., Appellant. Esther Friedman, as Administratrix of the Estate of Mary Friedman, Deceased, Respondent, v. Schindler’s Prairie House, Inc., et al., Appellants.
    (Argued February 14, 1929;
    decided March 19, 1929.)

      Bernard G. Barton for appellants.

      John D. Lyons, Nellie Childs Smith and Louis Rothhard for respondents.
   In each action judgment affirmed, with costs; no opinion.

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


text:
    George Windisch, as Administrator of the Estate of Eugene Windisch, Deceased, Respondent, v. Uvalde Asphalt Paving Co., Inc., Appellant, Impleaded with Others.
    (Argued February 14, 1929;
    decided March 19, 1929.)

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

      Jacob J. Aronson and Henry L. Schaefer 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. Alzamon Ira Lucas, Appellant.
    (Argued February 15, 1929;
    decided March 19, 1929.)

      Leo J. Rice for appellant.

      William F. Love, District Attorney (William L. Clay of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Eugene J. Orsenigo et al., Appellants, v. Lancia Motor Sales Corporation, Respondent.
    (Argued February 15, 1929;
    decided March 19, 1929.)

      Joseph R. Kelley and George F. Handel for appellants.

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

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


text:
    Minnie Huth, Respondent, v. F. W. Woolworth & Co., Appellant.
    (Argued February 15, 1929;
    decided March 19, 1929.)

      H. H. Brown and E. C. Sherwood for appellant.

      Oswald N. Jacoby and Benjamin W. Goldberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Meyer Behrman, Respondent, v. Aaron Bendersky, Appellant.
    (Argued February 15, 1929;
    decided March 19, 1929.)

      Daniel Eberstein, Max Rosner and Leon Forst for appellant.

      Irving Lemov and Samuel Juster for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Blanche S. Goold, Appellant, v. John J. Schmitt et al., Respondents, Impleaded with Another.
    (Argued February 15, 1929;
    decided March 19, 1929.)

      Charles B. Bechtold for appellant.

      Smith O’Brien for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    William A. Baulch, Respondent, v. James S. Glasgow et al., Appellants.
    (Argued February 15, 1929;
    decided March 19, 1929.)

      Joseph P. Hogan for appellants.

      Charles B. Bechtold 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:
    The People of the State of New York, Respondent, v. Benjamin. Wagner, Appellant.
    (Argued February 18, 1929;
    decided March 19, 1929.)

      Benjamin Shalleck and Jesse R. Bacharach for appellant.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment 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. Joseph Silverberg, Appellant.
    (Argued February 18, 1929;
    decided March 19, 1929.)

      Sydney Rosenthal and George C. Lay for appellant.

      Richard S. Newcombe, District Attorney (Thomas F. Thornton of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of William E. McCarthy, Respondent, v. Charles W. Berry, as Comptroller of the City of New York, Appellant.
    (Argued February 18, 1929;
    decided March 19, 1929.)

      George P. Nicholson, Corporation Counsel (Henry J. Shields and J. Joseph Lilly of counsel), for appellant.

      Charles J. McDermott, Thomas B. Hart, Jr., and Oswald M. Murphy for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Agnes Thomas, Respondent, v. Matthias J. Hens et al., as Executors of Irene A. Rooney, Deceased, et al., Appellants.
    (Argued February 19, 1929;
    decided March 19, 1929.)

      Harold S. Brown and Joseph A. Wechter for Mary E. Dillon et al., appellants.

      John V. Maloney and Robert J. Summers for Mary Codd et al., appellants.

      James C. Sweeney and Henry W. Killeen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Redondo Steamship Company, Inc., Respondent, v. Irving Bank-Columbia Trust Company, Respondent, and Kerr Steamship Company, Inc., et al., Appellants, Impleaded with Another.
    (Argued February 19, 1929;
    decided March 19, 1929.)

      Elkan Turk, Max Zaliels, Benjamin Wiener and Herman Goldman for appellants.

      Edward H. Wilson and John J. Kean for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Del Balso Construction Corporation et al., Appellants, v. George J. Gillespie et al., Constituting the Board of Water Supply of the City of New York et al., Respondents.
    (Argued February 20, 1929;
    decided March 19, 1929.)

      Leonard M. Wallstein, Ralph M. Frink and Benjamin Menschel for appellants.

      George P. Nicholson, Corporation Counsel (Denis R. O’Brien and J. Joseph Lilly of counsel), for George J. Gillespie et a!., respondents.

      John F. Collins, Harry S. Bandler and Harry Merwin for Patrick McGovern, Inc., respondent.
   Order affirmed, with costs. Questions certified answered in the negative; no opinion.

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


text:
    Anna Kaplan, Appellant, v. Etta Koenig, Respondent, and Esthetic Realty Corporation, Appellant, Impleaded with Others.
    (Submitted March 18, 1929;
    decided March 19, 1929.)

      Homer I. Harris for motion.

      Herman M. Schaap and Charles Berlin opposed.
   Motion denied on condition that appellants file and serve their briefs on or before March 21, 1929, and each pay ten dollars costs within five days; otherwise, motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    John J. Radel, Appellant, v. 134 West 25th Street Building Corporation, Respondent.
    (Submitted March 18, 1929;
    decided March 26, 1929.)

      Russel H. Kittel for motion.

      David W. Kahn opposed.
   Motion denied, with ten dollars costs.


author: Per Curiam.

text:
    The Greenwich Bank, Respondent, v. Hartford Fire Insurance Company of Hartford, Connecticut, Appellant, and The Hempstead Plains Company et al., Respondents.
    (Submitted March 18, 1929;
    decided March 26, 1929.)
   Per Curiam.

Only one return was filed in this court, and that was in the case of the Greenwich Bank against the Hartford Fire Insurance Company of Hartford, Conn., and others. Consequently, the jurisdiction of this court extends to this case and no other. The agreement which the parties made to the effect that the other cases should abide the decision in the Greenwich Bank case is a matter between themselves and the Supreme Court. If the county clerk refuses to enter judgment upon the consent of the attorneys, relief must be sought in the Supreme Court, not here; if counsel desires to be relieved fropi the stipulation as to the entry of judgments, he must seek relief in the Supreme Court. The motion to amend our remittitur, therefore, and to hand down remittiturs in the other eight cases, is denied.

Motion for reargument denied.


text:
    The Tiffany Realty Company, Appellant, v. Estey Construction Corporation, Respondent.
    (Submitted March 18, 1929;
    decided March 26, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 250 N. Y. 546.)


text:
    Nathan Cohen, Respondent, v. A. F. A. Realty Corporation, Appellant, and Broadway Magnolia Realty Corporation, Respondent.
    (Submitted March 18, 1929;
    decided March 26, 1929.)
   Motion to amend remittitur. (See 250 N. Y. 262.)

Motion granted and remittitur amended by adding thereto the following:

“ It is hereby adjudged that A. F. A. Realty Co. have a lien on the premises described in the complaint for the amount of said judgment and judgment of foreclosure and sale on said lien as provided in the judgment of the Supreme Court to be entered hereon, without prejudice, however, to the right of any purchaser for value and in good faith to litigate the claim that the lien as to such purchaser is invalid.”


text:
    In the Matter of Acquiring Title by the City of New York, Respondent, to Lands North of West One Hundred and Eighty-seventh Street in the Borough of Manhattan. Esam Holding Corporation et al., Appellants.
    (Argued March 18, 1929;
    decided April 16, 1929.)

      Frank C. Laughlin, Joseph W. Kirkpatrick and Isaac E. Bermant for Esam Holding Corporation, appellant.

      James Garfield Moses and Edward W. Murphy for Louise L. Sicher et al., appellants.

      George P. Nicholson, Corporation Counsel (Henry W. Mayo of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Andrew Bervilacqua, Respondent, against Stephen C. Clark et al., Appellants. The State Industrial Board, Respondent.
    (Argued March 18, 1929;
    decided April 16, 1929.)

      William B. Davis and E. C. Sherwood for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs, on the ground that the disability caused solely by the accident is due to the loss of a member.

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


text:
    In the Matter of the Claim of Weldon Miles, Respondent, against Gibbs & Hill, Inc., et al., Appellants. The State Industrial Board, Respondent.
    (Argued March 18, 1929;
    decided April 16, 1929.)

      William B. Davis and E. C. Sherwood for appellants.

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

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


text:
    In the Matter of the Claim of Alexandrine LaJeunesse, Respondent, against Austin Organ Company et al., Appellants. The State Industrial Board, Respondent.
    (Argued March 18, 1929;
    decided April 16, 1929.)

      William B. Davis and E. C. Sherwood for appellants.

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

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


text:
    In the Matter of the Claim of Estelle V. Andrews, Appellant, against Emporium Forestry Company, et al., Respondents. The State Industrial Board, Respondent.
    (Argued March 18, 1929;
    decided April 16, 1929.)

      James O. Sebring for appellant.

      Jeremiah F. Connor for respondents.
   Order of the Appellate Division reversed and award of State Industrial Board confirmed, with costs in all courts, on the ground that the injuries which resulted in the death of Leonard Andrews arose out of and in the course of his employment; no opinion.

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


text:
    In the Matter of the Claim of A. J. Prattinger, Respondent, against Maiden Lane Realty Company et al., Appellants. The State Industrial Board, Respondent.
    (Argued March 18, 1929;
    decided April 16, 1929.)

      Edward P. Mowton for appellants.

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

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


text:
    The People of the State of New York ex rel. John Simons, Appellant, v. Earl Knickerbocker, Respondent.
    (Submitted March 19, 1929;
    decided April 16, 1929.)

      George C. Inman for appellant.

      John J. Moy 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 The Marine Trust Company of Buffalo, as Trustee under the Will of Adelaide R. Kenny, Deceased, Respondent. Rosalind R. Diefenderfer, Appellant. Watts L. Richmond et al., Appellants and Respondents. Fred A. Lewis et al., as Executors of Adelaide K. R. Thomas et al., Respondents and Appellants.
    (Argued March 18, 1929;
    decided April 16, 1929.)

      Mark N. Turner for appellant.

      Walter C. Newcomb, Louis E. Desbecker and Martin Clark for Watts L. Richmond, appellant and respondent.

      Roland Crangle for executor of Frances Richmond, deceased, appellant and respondent.

      Guy B. Moore for Dean Richmond, individually and as administrator of the estate of W. Eugene Richmond, deceased et al., appellants and respondents.

      Daniel Webtser and Edward A. Washburn for Edward D. Richmond et al., appellants and respondents.

      Bayard J. Stedman and Fred A. Lewis for executors of Adelaide K. R. Thomas, deceased, et al., respondents and appellants.

      Thomas R. Wheeler for executors of Henry A. Richmond, deceased, respondents and appellants.

      Allen Keeney for respondent.
   Order affirmed on opinion of Sears, J., at Appellate Division with separate bills of costs payable out of the estate to each party appearing by separate attorneys and filing briefs in this court.

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


text:
    In the Matter of Matthew Peters, Appellant. Willis E. Heaton et al., Composing the Character Committee of the Third Judicial District, Respondent.
    (Submitted March 19, 1929;
    decided April 16, 1929.)

      Matthew Peters, appellant, in person.

      P. C. Dugan for respondent.
   Order affirmed. Question certified answered in the negative; no opinion.

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


text:
    Financial Guild, Inc., Respondent, v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Appellant.
    (Argued March 19, 1929;
    decided April 16, 1929.)

      Frank I. Tierney and Wendell P. Barker for appellant.

      Otto A. Samuels for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Leon V. O’Reilly, Respondent, v. Pennsylvania Textile Mills, Inc., Appellant.
    (Submitted March 19, 1929;
    decided April 16, 1929.)

      A. S. Cutler and I. Arnold Himber for appellant.

      Thomas A. McKennell, Alfred H. Appell and Emanuel Lauterbach for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael Kocaj, Respondent, v. Andro Stefaniak et al., Appellants.
    (Argued March 20, 1929;
    decided April 16, 1929.)

      M. S. Ogonowski for appellants.

      Leon L. Arthur 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:
    The People of the State of New York ex rel. Samuel Ortenberg et al., Respondents, v. Charles F. Bales, Chief Inspector and Acting Superintendent of the Building Department, Borough of Queens, City of New York, Appellant.
    (Submitted March 20, 1929;
    decided April 16, 1929.)

      George P. Nicholson, Corporation Counsel (Willard 8. Allen, J. Joseph Lilly and Robert J. Culhane of counsel), for appellant.

      James E. Doherty for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Namliss Holding Corporation, Respondent, v. The City of New York, Appellant.
    (Argued March 19, 1929;
    decided April 16, 1929.)

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict, Joseph F. Mulqueen, Jr., and J. Joseph Lilly of counsel), for appellant.

      Leopold Blumberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles L. Apfel, Appellant, v. Frank Auditore et al., Respondents.
    (Argued March 21, 1929 ;
    decided April 16, 1929.)

      George X. Levine and Louis H. Moos for appellant.

      Edward H. Wilson and John J. Kean for respondents.
   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:
    James Heffernan, an Infant, by Catherine Heffernan, His Guardian ad Litem, Respondent, v. Employers’ Liability Assurance Corporation, Ltd., Appellant.
    (Argued March 21, 1929;
    decided April 16, 1929.)

      Walter L. Glenney for appellant.

      Sidney J. Loeb and Leon M. Prince for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henrietta C. Weinstock, as Administratrix of the Estate of Louis Weinstock, Deceased, Appellant, v. The State of New York, Respondent. Henrietta C. Weinstock, Appellant, v. The State of New York, Respondent. Blanche R. Steigman, Appellant, v. The State of New York, Respondent.
    (Argued March 22, 1929;
    decided April 16, 1929.)

      John T. Loughran for appellants.

      Hamilton Ward, Attorney-General (Albert J. Danaher of counsel), for respondent.
   In each case judgment affirmed, with costs; no opinion.

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


text:
    Isadore Cohen et al., Appellants, v. Samuel Lipstein, Respondent.
    (Submitted March 22, 1929;
    decided April 16, 1929.)

      Peter Cantline and Maurice Cohen for appellants.

      Charles W. U. Sneed for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sadie Herzog, Appellant, v. Jean Valjean Realty Corporation, Respondent.
    (Argued March 22, 1929;
    decided April 16, 1929.)

      Bernard Gordon and Moses Cohen for appellant.

      Louis Kunen and I. Alfred Levy for respondent.
   Judgment of the Appellate Division and that of Special Term modified by deducting from the defendant’s recovery, as fixed in the judgment of the Special Term, the sum of $700 damages .with interest, and as modified affirmed, with costs to respondent; no opinion.

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


text:
    Louis J. Sigl, Inc., Respondent, v. Simon Wertheimer, Appellant, and Walter W. Grupp & Sons, Inc., et al., Respondents.
    (Argued March 22, 1929;
    decided April 16, 1929.)

      John E. Barry for appellant.

      Frederick F. Grots for plaintiff-respondent.

      Arthur A. Ward for defendants-respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Max Rosenblatt, Appellant, v. Surprise Building Company, Respondent.
    (Argued March 22, 1929;
    decided April 16, 1929.)

      Herman Shulman and Benjamin Algase for appellant.

      Adam K. Stricker and Abraham Benedict 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. Louise Racciatti, Appellant.
    (Submitted March 25, 1929;
    decided April 16, 1929.)

      Vedo M. Candiello for appellant.

      Guy W. Cheney, District Attorney, for respondent.
   Judgment 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, Appellant, v. Morris Galtraf, Respondent.
    (Submitted March 25, 1929;
    decided April 16, 1929.)

      Richard S. Newcombe, District Attorney (Thomas F. Thornton of counsel), for appellant.

      Joseph Lonardo for respondent.
   Appeal dismissed, on the ground it was not allowed in accordance with section 520 of the Code of Criminal Procedure; no opinion.

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


text:
    Ivan A. Laing, as Administrator of the Estate of Muriel Laing, Deceased, Respondent, v. J. P. Duffy Co., Inc., Appellant.
    (Argued March 25, 1929;
    decided April 16, 1929.)

      George F. Hickey and William E. Lowther for appellant.

      Abraham M. Fisch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Van Zandt’s, Inc., Respondent, v. The Department of Labor of the State of New York et al., Appellants. C. W. Ferguson Collar Company, Respondent, v. The Department of Labor of the State of New York et al., Appellants.
    (Argued March 25, 1929;
    decided April 16, 1929.)

      Hamilton Ward, Attorney-General (P. J. Hughes and Alexander A. Tausky of counsel), for appellant.

      Parton Swift for respondent.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Marshall McCabe, Respondent, v. Rosoff Haulage Company, Appellant.
    (Argued March 26, 1929;
    decided April 16, 1929.)

      Lyman A. Spalding, Arthur McCausland and William J. Nolan for appellant.

      James M. Gorman and Paul Speer for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed and complaint dismissed, with costs in all courts upon the ground that the plaintiff has failed to prove that the accident occurred without negligence on his part contributing thereto; no opinion.

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


text:
    Alfred D. Elsworth, Appellant, v. Kathryn Elsworth, Respondent.
    (Argued March 26, 1929;
    decided April 16, 1929.)

      George H. Bruce and Alexander R. Klahr for appellant.

      Joseph H. Hazen for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Hermann A. Veit, Respondent, v. American Exchange Irving Trust Company, as Trustee, Appellant.
    (Argued March 26, 1929;
    decided April 16, 1929.)

      Martin A. Schenck and Carl E. Peterson for appellant.

      Edward H. Wilson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bernice L. Baumann, Respondent, v. Charles L. Baumann et al., Appellants.
    (Submitted April 15, 1929;
    decided April 23, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 250 N. Y. 382.)


text:
    Karl Nathan, Appellant, v. The Equitable Trust Company of New York, Defendant, and Sidney S. Prince et al., Copartners under the Firm Name of Asiel & Co., Respondents.
    (Submitted April 15, 1929;
    decided April 23, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 250 N. Y. 250.)


text:
    Rebecca Friedman et al., Respondents, v. Louis Baron et al., Appellants.
    (Submitted April 15, 1929;
    decided April 23, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 250 N. Y. 552.)


text:
    Leonard P. Markert, Respondent, v. Borris Feinblatt, Appellant.
    (Argued April 19, 1929;
    decided April 30, 1929.)

      Thurlow W. Southwick for appellant.

      Charles P. Butler for respondent.
   Per Curiam.

Doubt exists as to the meaning and extent of the judgment of the Appellate Division modifying that of the Special Term. To dispel this doubt, we state the following:

Judgment of the Appellate Division is modified so as to affirm the paragraph of the judgment of the Special Term numbered third,” to read, however, as follows:

“ Third. That the plaintiff upon receipt from the defendant of the deed and sums of money set forth in the above paragraphs numbered First and Second of this judgment, as modified, execute, acknowledge and deliver to the defendant a good and sufficient warranty deed of conveyance in fee, conveying to the defendant the following described premises:

All that tract or parcel of land situate in the County of Pinellas and State of Florida, described as being Lot Numbered Sixteen (16) in Block Numbered Thirty-one (31) as shown by the map of Pasadena Estates, Section ' C,’ on file in the office of the Clerk of the Circuit Court of Pinella County, Florida, in Book No. 6, page No. 48, subject to a mortgage of eight thousand dollars ($8,000.00), to be assumed by the defendant, with interest thereon, from the 15th day of June, 1927, and subject to all taxes and assessments on said premises since the 15th day of June, 1927.”

The paragraph of the judgment of the Special Term numbered fourth ” is modified to read as follows:

“ That in the event of the said plaintiff’s failure to convey his property in Florida in accordance with the directions contained in paragraph Third of the said judgment of the Special Term, as above quoted, then the contract of exchange made and entered into between these parties is terminated, and the defendant is entitled to and may retain the $200 deposited under the contract in escrow as a binder.”

The judgment should be modified in accordance with this memorandum and as so modified affirmed, without costs to either party.

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

Judgment accordingly.


text:
    Elizabeth M. Hennessey, Respondent, v. William J. Hennessey, Appellant.
    (Argued April 15, 1929;
    decided April 30, 1929.)

      Francis E. Carberry for appellant.

      Edward E. Fay for respondent.
   Order affirmed, with costs. First question certified answered “ yes.” Second question answered no; ” no opinion.

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


text:
    In the Matter of the Claim of Eleanor Smithling, Respondent, against Empire Coal Company et al., Appellants. The State Industrial Board, Respondent.
    (Argued April 15, 1929;
    decided April 30, 1929.)

      Edward T. Wilber and David B. Sugarman for appellants.

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

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


text:
    In the Matter of the Claim of Amos Plouff, Sr., et al., Appellants, against Port Henry Light, Heat and Power Company et al., Respondents. The State Industrial Board, Respondent.
    (Argued April 15, 1929;
    decided April 30, 1929.)

      Walter A. Fullerton and Edward W. Barrett for appellants.

      Harry E. Wareham for defendants-respondents.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Elmer F. Havens, Appellant, v. Thomas R. Dodge, as Treasurer of the Grand Lodge, Brotherhood of Railroad Trainmen et al., Respondents.
    (Argued April 16, 1929;
    decided April 30, 1929.)

      Robert W. Fisher for appellant.

      William T. Moore for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Paulina Smith, Respondent, v. Squire Company, Inc., as Attorney-in-Fact for the Liberty Underwriters of New York, Appellant.
    (Argued April 16, 1929;
    decided April 30, 1929.)

      Guy C. Heater, Arnold L. Davis and Charles R. Coulter for appellant.

      Dana R. Koons for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick Losche, Appellant, v. Jules Hurtig et al., Respondents.
    (Argued April 16, 1929;
    decided April 30, 1929.)

      Harry A. Gair and Solomon Goodman for appellant.

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

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


text:
    Edwina S. Williams, as Executrix of Eliza M. Searles, Deceased, Appellant, v. William B. Mead, Respondent.
    (Argued April 16, 1929;
    decided April 30, 1929.)

      William L. Rumsey and William R. Kellogg for appellant.

      Henry R. Barrett 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 Florence C. H. Belcher, as Administratrix of the Estate of Frederick E. Belcher, Deceased. In the Matter of the Petition of Henriette B. Melson, as General Guardian of Maxine F. Belcher, an Infant, for Revocation of Letters of Administration. In the Matter of the Accounting of Florence C. H. Harlan, as Administratrix of the Estate of Frederick E. Belcher, Deceased. Florence C. H. Belcher, as Administratrix, Appellant; Henriette B. Melson, as General Guardian, Respondent.
    (Submitted April 22, 1929;
    decided April 30, 1929.)

      David Vorhaus for motion.
    No one opposed.
   Motion to dismiss appeal granted and appeal dismissed, without costs.


text:
    Emelia Lisanti, as Administratrix of the Estate of Frank Lisanti, Deceased, Respondent, v. William F. Kenny Co., Inc., Appellant.
    (Argued April 17, 1929;
    decided May 3, 1929.)

      T. Carlyle Jones, Theodore H. Lord and James B. Henney for appellant.

      George W. Smyth, Austin G. Cocuzza, Samuel L. Sargent and Victor L. Anfuso for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Miriam L. Bell, Appellant, v. Frederick C. Metz, Jr., Respondent.
    (Argued April 17, 1929;
    decided May 3, 1929.)

      Emanuel S. Cohn for appellant.

      R. Randolph Hicks and Lloyd F. Thanhouser for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Duro Pump Company, Inc., Respondent, v. Raymond Conway and Company, Appellant.
    (Argued April 17, 1929;
    decided May 3, 1929.)

      J. Edward Conway and John T. Loughran for appellant:

      Newton H. Fessenden for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anna Kaplan, Appellant, v. Etta Koenig, Respondent, and Esthetic Realty Corporation, Appellant, Impleaded with Others.
    (Argued April 18, 1929;
    decided May 3, 1929.)

      L. S. Lewis and H. M. Schaap for plaintiff-appellant.

      Charles Berlin and James E. Sampson for defendant-appellant.

      Homer I. Harris and Harry M. Peyser for respondent.
   Judgment affirmed, with costs against both appellants; no opinion.

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


text:
    Lewis H. Reynolds, Respondent, v. Browning, Wells & Co., Inc., Appellant.
    (Argued April 18, 1929;
    decided May 3, 1929.)

      Robert Kelly Prentice for appellant.

      Thomas C. Burke 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 and O’Brien, JJ. Not sitting: Hubbs, J.


text:
    Sisson Realty Corporation, Appellant, v. George B. Mathews, Respondent, Impleaded with Another.
    (Submitted April 18, 1929;
    decided May 3, 1929.)

      Frank L. Cubley for appellant.

      George H. Bowers for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John H. Gallinger, Appellant and Respondent, v. Commercial Casualty Insurance Company, Respondent and Appellant.
    (Argued April 19, 1929;
    decided May 3, 1929.)

      Glenn A. Stockwell for plaintiff, appellant and respondent.

      Frank Gibbons for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    James Littrell et al., Respondents, v. The Allemania Fire Insurance Company of Pittsburgh, Pa., et al., Appellants.
    (Argued April 19, 1929;
    decided May 3, 1929.)

      Charles B. Sullivan for appellants.

      John J. McMullen for respondents.
   Order of the Appellate Division reversed and judgment of the Special Term affirmed, with costs in this court and in the Appellate Division. First and second questions certified answered in the negative; and the third question not answered; no opinion.

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


text:
    Felix Q. Rast, Respondent, v. Pipe and Tube Bending Corporation of America, Appellant.
    (Submitted April 19, 1929;
    decided May 3, 1929.)

      Harry J. Leffert and Robert E. Samuels for appellant.

      Julian Hartridge for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    J. & E. Realty Corporation, Appellant, v. John J. Dillon, Respondent.
    (Argued April 18, 1929;
    decided May 3, 1929.)

      Benjamin F. Schwartz and Isadore Shapiro for appellant.

      M. E. Kelley for respondent.
   Judgment, of the Appellate Division and that of the Trial Term reversed and new trial granted, with costs to abide the event, on the ground that the evidence was sufficient to establish a prima facie case that plaintiff was employed by defendant to sell the real property in question for an agreed commission, and that he produced a purchaser ready, willing and able to purchase the premises at the price fixed by the defendant; no opinion.

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


text:
    Leon V. O’Reilly, Respondent, v. Pennsylvania Textile Mills, Inc., Appellant.
    (Submitted April 29, 1929;
    decided May 3, 1929.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 250 N. Y. 597.)


text:
    C. Woodford Deming, Appellant, v. Philip S. Hill et al., Respondents, Impleaded with Another.
    (Submitted April 29, 1929;
    decided May 3, 1929.)

      Frank M. Van Wagonen for motion.

      Andrew S. Derby opposed.
   Respondents’ motion to dismiss appeal denied on payment to the respondents within ten days of ten dollars costs, and appellant’s motion for an order directing respondents to accept a copy of the undertaking heretofore filed with the clerk of the Supreme Court, Westchester county, White Plains, N. Y., and to accept the appellant’s briefs and notice of argument for the next session of this court, and relieve the appellant of the failure to file the undertaking within the time prescribed by section 593 of the Civil Practice Act thereupon granted.


author: Cardozo, Ch. J.

text:
    American Surety Company of New York, Respondent, v. Wallace L. Conner, Defendant, and Bessie F. B. Conner, Appellant.

      (Argued April 30, 1929;
    decided May 28, 1929.)

      Louis P. Eisner, Eugene J. Raphael and Ralph H. Raphael for appellant.
    Defendant-appellant is a bona fide owner and holder of the property in question for value. (Foley v. Ronalds, 107 Misc. Rep. 125; 191 App. Div. 882; De Hierapolis v. Reilly, 44 App. Div. 22; 168 N. Y. 585; Smith v. Allen, 87 Mass. [5 Allen] 454; Ogden v. McHugh, 167 Mass. 276; Prewit v. Wilson, 103 U. S. 22; Magniac v. Thompson, 7 Pet. 348; Matter of Moncrief, 235 N. Y. 390; Matter of Wadsworth, 100 Misc. Rep. 439; Prignon v. Daussat, 4 Wash. 199.) A creditors’ action to set aside a fraudulent conveyance can only be maintained after the recovery of judgment and the return of execution thereon unsatisfied. (Adsitv. Butler, 87 N. Y. 585; Adee v. Bigler, 81 N. Y. 349; Southard v. Benner, 72 N. Y. 424; Scott v. Neeley, 140 U. S. 106; Abbott v. Nat. Gravure

      Circuit, Inc., 200 App. Div. 47; Newton v. Otselic Valley National Bank, 224 App. Div. 527; Orinoco Realty Co. v. Bandler, 233 N. Y. 24; Zimmerman v. Merriman, 130 Misc. Rep. 163.)

      Gerald Morrell, George L. Naught and James E. Finegan for respondent.
    The conveyance of the real property, and the transfer of the jewelry described in the complaint in this action to the defendant-appellant, was voluntary and without consideration. (Foley v. Ronalds, 107 Misc. Rep. 125; 191 App. Div. 882; DeHierapolis v. Reilly, 44 App. Div. 22; 168 N. Y. 585; Cajole v. Ferris, 23 N. Y. 90; Ostro v. Ostro, 169 App. Div. 790; Perry v. Perry, 2 Paige Ch. 501; Matter of Moncrief, 235 N. Y. 390; Price v. Price, 124 N. Y. 589; Jones v. Brismade, 183 N. Y. 258; Rubin v. Joseph, 215 App. Div. 91.) The conveyance of the real property and the transfer of the jewelry described in the complaint in this action, to the defendant Barker, was fraudulent as a matter of law as to this plaintiff. (Debtor and Creditor Law, §§ 270, 273.) A claim may be adjudicated and a conveyance set aside in one action, by a creditor, under article 10 of the Debtor and Creditor Law. (Marcus v. Cain, 18 Fed. Rep. [2d] 722; Lipskey v. Voloshen, 140 Atl. Rep. 402; Morse v. Roach, 229 Mich. 538; Fisowitz v. Cordoro Construction Co., 140 Atl. Rep. 573; Conway v. Raphel, 141 Atl. Rep. 804; Wilson v. McCarroll, 80 N. H. 580; Lightfoot v. Davis, 198 N. Y. 261.)
   Cardozo, Ch. J.

Conner, the manager of a savings bank, stole its money for many years till at last the total of his thefts was about $100,000. In 1923 he proposed marriage to Bessie Barker, who was then seeking a divorce from her husband. She promised to marry him on obtaining her divorce if he would make provision for her future. This he undertook to do, binding himself to convey to her in consideration of the marriage his real estate at Amityville, Long Island, as well as a quantity of jewelry. While she was still at Reno, Nevada, suing for a divorce, he made a deed of the land in her name as grantee, and placed it on record. The judgment of divorce was granted July 2, 1924, and six days later the new marriage was celebrated. The night of the marriage, Conner handed to his wife the jewelry and the deed, and told her they were hers.

Three months later the crash came. Conner was arrested for forgery and embezzlement, and was sent to prison for a term of years. His wife brought suit against him to annul the marriage on the ground of fraud, and judgment of annulment was thereafter rendered. The plaintiff, a surety on Conner’s bond, made good the losses of the bank, and was substituted by assignment to its rights and remedies. This action followed in October, 1926. Its purpose was to subject the land and jewelry to the payment of the husband’s debt. The trial court and the Appellate Division were at one in holding that neither land nor jewelry had been purchased with the stolen money. In the absence of such proof, the case does not involve any question of a trust or an equitable lien attaching to the fruits of theft (Lightfoot v. Davis, 198 N. Y. 261). If the plaintiff is to prevail, it must be either through succession to Conner on the theory that there was a failure of consideration when .the marriage was annulled, or by virtue of a right as creditor on the theory that the retention of the property involves the commission of a fraud. The Special Term held that there was neither failure of consideration nor fraud, and so dismissed the complaint. The Appellate Division held that the retention of the property, even if permissible against Conner, was without consideration, and so in fraud of creditors, when the marriage was at an end. The decree directing restitution is now before us for review.

A question of procedure confronts us at the threshhold. Neither the bank nor its assignee, the plaintiff, had recovered judgment against Conner when this action was begun. In the absence of enabling statute, it has been the practice of equity to refuse relief against a conveyance in fraud of creditors till the suitor has recovered a judgment at law establishing the debt (Briggs v. Austin, 129 N. Y. 208; Southard v. Benner, 72 N. Y. 424; Case v. Beauregard, 101 U. S. 688; National Tube Works v. Ballou, 146 U. S. 517; Pusey & Jones Co. v. Hanssen, 261 U. S. 491). Such exceptions to this practice as have been admitted had their origin in rare emergencies where there was need of instant action (People ex rel. Cauffman v. Van Buren, 136 N. Y. 252; Whitney v. Davis, 148 N. Y. 256), or in the presence of some impediment whereby judgment had been made impossible (National Tradesmen’s Bank v. Wetmore, 124 N. Y. 241; Trotter v. Lisman, 209 N. Y. 174, 181). In addition to a judgment there has been need of execution. If the subject of the suit was tangible property — land or goods and chattels — the plaintiff might remove the fraudulent obstruction upon showing that an execution had been issued, whether already returned or still outstanding with the sheriff (Geery v. Geery, 63 N. Y. 252; Fox v. Moyer, 54 N. Y. 125, 129; Lichtenberg v. Herdtfelder, 33 Hun, 57; 103 N. Y. 302; Macauley v. Smith, 132 N. Y. 524, 532; Koechl v. Leibinger & Oehm Brewing Co., 26 App. Div. 573). If the sub j ect was a chose in action or other equitable asset, equity would not act except upon a showing that execution had been returned unsatisfied (Braem v. Merchants’ National Bank, 127 N. Y. 508; First National Bank v. Shuler, 153 N. Y. 163). On the other hand, there were times when a creditor was free, if he pleased, to renounce the aid of equity altogether. If the property fraudulently transferred was land or goods and chattels, things subject to levy under execution as distinguished from equitable assets, he might treat the conveyance as a nullity, and levy his attachment or execution in spite of it (Smith v. Reid, 134 N. Y. 568; Hess v. Hess, 117 N. Y. 306, 308; Anthony v. Wood, 96 N. Y. 180; Thur ber v. Blanck, 50 N. Y. 80). In such circumstances, he might find it necessary to indemnify the sheriff, and, when the seizure was erroneous, assumed the risk of error. Amendments to the Code (Code Civil Proc. § 655), carried forward into the present act (Civil Practice Act, § 922), made breaches here and there in these doctrines of the chancery. In the main, they stood unchallenged when the Debtor and Creditor Law (Cons. Laws, ch. 12) was amended in 1925 by the adoption of article 10 as to fraudulent conveyances.

How far the adoption of that article has changed the preliminary conditions governing the remedy in equity, is the question now before us. Article 10 of the Debtor and Creditor Law is substantially the same as the Uniform Fraudulent Conveyance Act, prepared by the Commissioners for the Promotion of Uniformity of Legislation in the United States, and is to be so interpreted and construed as to effectuate its general purpose to make uniform the laws of those states which enact it ” (Debtor & Creditor Law, § 281). Section 270 gives the definition of a creditor. “ ‘ Creditor ’ is a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent.” Section 278 states the remedies available to a creditor whose claim has matured. Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may, as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from such a purchaser, a. Have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim, or, b. Disregard the conveyance and attach or levy execution upon the property conveyed.” Section 279 states the remedies available to a creditor whose claim, has not matured. Where a conveyance made or obligation incurred is fraudulent as to a creditor whose claim has not matured he may proceed in a court of competent jurisdiction against any person against whom he could have proceeded had his claim matured, and the court may, a. Restrain the defendant from disposing of his property. b. Appoint a receiver to take charge of the property, c. Set aside the conveyance or annul the obligation, or d. Make any order which the circumstances of the case may require.”

We think the effect of these provisions is to abrogate the ancient rule whereby a judgment and a lien were essential preliminaries to equitable relief against a fraudulent conveyance. The Uniform Act has been so read in other States (Gross v. Penn. Mtg. Co., 101 N. J. Eq. 51; United Stores Realty Corp. v. Asea, [N. J.] 142 Atl. Rep. 38; Morse v. Roach, 229 Mich. 538; Lipskey v. Voloshen, 155 Md. 139). Decisions cited to the contrary were made without reference to the statute and without professing to construe it (see e. g., Lipman v. Manger, 185 Wis. 63). The reading seems to be inevitable, aside from any precedent. The act is explicit that a creditor may now maintain a suit in equity to annul a fraudulent conveyance, though his debt has not matured. It is not believable that a creditor with a debt already due was to be placed in a less favorable position, or beset by greater obstacles. For the one as for the other, the path is to be cleared of harassing impediments to the swift pursuit of justice. The act in its definition of a creditor seeks a rule of uniformity, and in so doing levels distinctions that at times had been the refuge of the dilatory debtor. It did not level them at the beginning to restore them later on. Certainty would, indeed, have been promoted if it had said^ in so many words that judgment and a lien should no longer be essential. We think it said as much, however, by fair and natural implication. The creditor may reject the aid of equity, and levy attachment or execution at law (§ 278, subd. b), as he might before the statute. He may seek the aid of equity, and without attachment or execution, may establish his debt, whether matured or unmatured, and challenge the conveyance in the compass of a single suit. This he might do, even before the statute, if the debtor waived compliance with the preliminary conditions (Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371; Matter of Metropolitan R. R. Receivership, 208 U. S. 90, 109, 110). What once he might do of favor, he now may do of right. Questions may arise hereafter as to the proper mode of trial where the debt is in dispute (cf. Broiestedt v. South Side R. R. Co., 55 N. Y. 220; Di Menna v. Cooper & Evans Co., 220 N. Y. 391, 395; Syracuse v. Hogan, 234 N. Y. 457, 464; Scott v. Neely, 140 U. S. 106) or as to the proper, form of judgment in the event that there are successive suits or several and competing creditors (cf. Day v. Washburn, 24 How. [U. S.] 352). The creditor who acts under section 278 is to set aside the conveyance “ to the extent necessary to satisfy his claim,” but when he acts under section 279, the restriction, if it exists, is implied and not expressed. The solution of these difficulties and others of like order may be postponed till they develop. Enough for present purposes that the plaintiff has a standing to challenge the conveyance.

The remedy being appropriate, we are brought to a consideration of the merits.

Analysis will be aided if we ask at the beginning whether the husband could have relief if he were suing to reclaim what he had parted with, and from this pass to the inquiry what greater right, if any, is vested in a creditor.

We think the husband, if he were suing, would be dismissed without relief. The transfer was made in consideration of a promise of marriage. The marriage, it is true, has been annulled, but for the fraud of the husband, not for the misconduct of the wife. The law did not condition the annulment upon a return by the wife of benefits received. What it ended was a contract, but a

contract resulting in something more important, a status or relation, which was ended at the same time. The grounds for terminating the status or relation have been fixed by the law for the welfare of society. When once they exist, they do not cease to be effective because tender or an accounting might be exacted as a condition of rescission in respect of contracts generally. The marriage being effectively annulled without return of benefits, the question remains as to the effect of the annulment upon another and separate contract, under which property was conveyed for something given in return. The husband suing after annulment to recover what he had parted with on the ground of a failure of consideration, partial or complete, would be subject to the general rule that recovery for failure of consideration is governed by equitable principles (3 Williston, Contracts, §§ 1457, 1530). The decree of annulment destroyed the marriage from the beginning as a source of rights and duties (Matter of Moncrief, 235 N. Y. 390, 397), but it could not obliterate the past and make events unreal. For two years and more this marriage had subsisted; for part of those years, there had been life together as man and wife. Gains there had been and losses beyond the process of appraisal. The man had enjoyed the society of a woman, with the opportunity of offspring, who, if born, would have been legitimate (Civ. Prac. Act, § 1135, subd. 4). The woman had given herself to the society of a man, to be associated for the rest of her life with him and with his name in the thought of friends and relatives. If the woman had been the wrongdoer rather than the victim, and a man, innocent of fault, were suing after annulment to reclaim what he had lost, the recovery would not fail because he might be left in possession of gains not subject to appraisal, the enjoyment of her society while the marriage bond subsisted (Rubin v. Joseph, 215 App. Div. 91; P. v. P., [1916] 2 Irish Rep. 400, 414). Let the tables be turned, and still the wrongdoer must suffer whether plaintiff or defendant. One who does not know what to restore to another, may not insist upon restitution to himself if it is his own guilt and not the other’s that has engendered the confusion (Ring v. Ring, 127 App. Div. 411, 412; 199 N. Y. 574). The wrongdoer will be left in the toils of his duplicity (Hammond v. Pennock, 61 N. Y. 145; Butler v. Prentiss, 158 N. Y. 49, 63, 64; Heckscher v. Edenborn, 203 N. Y. 210, 228). At least this will be so when appraisal must be lacking in approximate precision, if possible at all. The hardship of forcing the defendant to return what she had received, without allowance or abatement, would be even plainer if she had been a maiden when married to the plaintiff, or if children had been born, so that for the rest of her life she would be left with the responsibilities of motherhood. The difference, however, is one of degree, and nothing more. If annulment of the marriage ab initio involves a failure of consideration so complete as to give to the wrongdoer a right to restitution “ in integrum,” the same result must follow whether the marriage has been brief or long, with children or without. The gain and the loss are incommensurable in the one case as in the other.

The precedents, so far as there are any, lend aid to this conclusion. Ogden v. McHugh (167 Mass. 276) is a case where a man conveyed property to his wife in fulfillment of an ante-nuptial contract. After his death it was found that the woman’s first husband, who had been thought to be dead, was alive, so that the second marriage was a nullity. The heirs brought a suit to set aside the conveyance. The holding was that the wife might retain what she received. It was no longer possible, the court said, to place her in the condition in which she would have been but for the acts that she had done in performance of the contract. It would be unjust in such circumstances to take back what had been given. The situation differs in features more or less significant from the one at hand, yet the difference is not so great as to involve a variance of principle. Other cases may be cited, not so similar in their facts, and yet pointing in the same direction (Ring v. Ring, supra; De Hierapolis v. Reilly, 44 App. Div. 22; 168 N. Y. 585; Dunbar v. Dunbar, [1909] 2 Ch. 639; cf. Galusha v. Galusha, 116 N. Y. 635, 644, 645, where there was divorce, not annulment). After all, the underlying principle, running through the cases, is this and nothing more, that the action for money had and received upon a failure of consideration, partial or complete, is to be ruled by broad considerations of equity and justice, and that the plaintiff may not prevail if he fails to satisfy the court that what the defendant has received should in conscience be returned (Schank v. Schuchman, 212 N. Y. 352, 358; Kingston Bank v. Eltinge, 66 N. Y. 625, 627; Williston, supra; Whincup v. Hughes, L. R. 6 C. P. 78; Woodward, Quasi Contracts, §§ 23, 130).

The question remains whether the plaintiff as a creditor has any greater right to reclaim the land and jewels than would belong to the husband or the husband’s assignee. There is no pretense that the transfer was a fraud upon creditors when it was made in 1924. The rule was settled at common law that marriage or the promise of marriage was a valuable consideration (De Hierapolis v. Reilly, supra; Smith v. Allen, 5 Allen, 454). We do not need to inquire whether the Debtor and Creditor Law (§ 272) has established another test of value, for it did not take effect till April, 1925, and could not invalidate a transfer previously made. If the transfer of the property was not fraudulent when made, it did not become fraudulent by retroaction when at some time in 1926 the marriage was annulled. The wife was not guilty of a fraud upon creditors in refusing to return the benefits received unless proved to be in excess of benefits conferred. The title was then hers, and if divested at all, it could only be by the power of an equity greater than her own. A creditor may insist upon the satisfaction of his debt out of any property of the debtor fraudulently conveyed. He may not have satisfaction out of property innocently conveyed though there has been failure of consideration afterwards, unless the failure is such that there is a call for restitution in equity and honor.

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

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

Judgment accordingly.


author: Kellogg, J. Crane, J.

text:
    Ethel Madfes, Respondent, v. Beverly Development Corporation et al., Defendants, and The Coalecon Company, Inc., Appellant.

      (Argued April 27, 1929;
    decided May 28, 1929.)

      John Van Voorhis for appellant.
    There is no evidence to sustain the findings of fact that the gas ranges were physically annexed to the building so as to become part and parcel of the real estate. (Freeland v. Southworth 24 Wend. 191; Cosgrove v. Troescher, 62 App. Div. 123; Central Union Gas Co. v. Browning, 210 N. Y. 10; Cohen v. 1165 Fulton Ave. Corp., 222 App. Div. 378; Ratchford v. Cayuga County C. S. & W. Co., 217 N. Y. 565; Craine Silo Co., Inc., v. Alden State Bank, 218 App. Div. 263; Creamery Package Mfg. Co. v. Horton, 178 App. Div. 467; Mc Keage v. Hanover Fire Insurance Company, 81 N. Y. 38; Towne v. Fiske, 127 Mass. 125; Guthrie v. Jones, 108 Mass. 191; Vaughan v. Haldeman, 33 Penn. St. 522.)

      Leon J. Shapiro and Bernard D. Barnett for respondent.
    The conditional bill of sale of the defendant-appellant is invalid as against the plaintiff. (Kohler Co. v. Brasun, 249 N. Y. 224; Cohen v. 1165 Fulton Avenue Corp., 222 App. Div. 378.)
   Kellogg, J.

The defendant the Coalecon Company, Inc., under a conditional sale contract reserving title in the seller until payment had been made, sold to the defendant the Beverly Development Corporation, certain gas ranges to be installed in an apartment house owned by the purchaser. The gas ranges were installed, and, to the extent that the gas piping in each range was attached by a simple coupling to the gas service pipe which delivered gas to the various apartments, were annexed to the building. Thereafter the defendant the Beverly Development Corporation, for the purpose of securing the payment of a sum of money borrowed from the plaintiff, executed and delivered to her a mortgage upon the apartment house premises. The mortgage was taken and the loan made by the plaintiff without knowledge on her part of the conditional sale contract or that title to the gas ranges had been reserved to the seller. After the execution and delivery of the mortgage and after ■the same had been duly recorded, the conditional sale agreement, whereby the gas ranges had been sold, was filed in the appropriate public office. In this action to foreclose the mortgage it has been held that the gas ranges were subject to the lien thereof and will pass to the purchaser at foreclosure sale.

It is provided in section 67 of the Personal Property Law (Cons. Laws, ch. 41), a new section added by the Laws of 1922, chapter 642, section 2, in part as follows: If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become part thereof but to be severable without material injury to the freehold, the reservation of property shall be void after the goods áre so affixed as against subsequent purchasers of the realty for value and without notice of the conditional seller’s title, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are or are to be affixed thereto, shall be filed before such purchase in the office where a deed of the realty would be recorded or registered to affect such realty.”

Certain chattels have such a determinate character as movables that they remain personal property, after their annexation to real estate, independently of any agreement between the owner of the chattels and the owner of the realty which so provides. (Cosgrove v. Troescher, 62 App. Div. 123; Central Union Gas Co. v. Browning, 210 N. Y. 10.) Other chattels, such as the brick, stone and plaster placed in the walls of a bui'ding, notwithstanding an agreement to the contrary, conclusively become real estate after annexation thereto. (Ford v. Cobb, 20 N. Y. 344, 351; Voorhees v. McGinnis, 48 N. Y. 278, 287; Tifft v. Horton, 53 N. Y. 377; East New York El. Co. v. Petmaland Realty Co., 243 N. Y. 477.) It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot in general be changed by the convention of the parties.” (Ford v. Cobb, supra.)If the property had in its own nature a determinate legal character, either as realty or personalty, the manner in which the parties treated it would not change that character.” (McRea v. Central National Bank of Troy, 66 N. Y. 489.)

Between the two classes of chattels, those which, after annexation, due to the inherent nature of the subject or the mode of annexation, remain personalty, and- those which, due to the mode and purposes of annexation, conclusively become real estate, there was, at common law, a large class of movables which, after attachment, continued to be personal property, or became real estate, accordingly as the owner of the chattels and the owner of the real estate might have agreed. (Ford v. Cobb, supra; Tifft v. Horton, supra; Fitzgibbons Boiler Co. v. Manhasset Realty Corp., 125 App. Div. 764; revd., on the dissenting opinion of Scott, J., 198 N. Y. 517; De Bevoise v. Maple Avenue Construction Co., 228 N. Y. 496; East N. Y. El. Co. v. Petmaland Realty Co., supra; Dunts v. Granger Brewing Co., 41 Misc. Rep. 177; 96 App. Div. 631; 184 N. Y. 595.) The limitation set to this doctrine was that it should not include a chattel “ where the subject or mode of annexation is such that the attributes of personal property cannot be predicated of the thing in controversy ” (Ford v. Cobb, supra); “ as where the property could not be removed without practically destroying it, or where it or part of it, is essential to the support of that to which it is attached.” (Tifft v. Horton, supra.) At common law, articles of this third class, excepting those within the group excluded by the limitation, when sold under a conditional sale contract reserving title to the seller, ■ after annexation retained their original character and continued to be the property of the seller, as against subsequent purchasers for value of the real estate, although, but for the intention of the parties evidenced by the contract, they would have become real property. (Duntz v. Granger Brewing Co., supra; Fitzgibbons Boiler Co. v. Manhasset Realty Co., supra; De Bevoise v. Maple Avenue Construction Co., supra; East N. Y. El. Co. v. Petmaland Realty Co., supra.)

Self-evidently, the provision quoted from section 67 of the Personal Property Law was intended to affect only chattels belonging to the class which we have denominated third. It was the legislative purpose that a condition reserving title in the seller, to be found in a conditional sale contract, should no longer have the effect of impressing upon articles, annexed to a building by the purchaser in such a manner as otherwise to have become real estate, the continuing character of personal property. The provision in terms relates to none other than goods “ so affixed to realty at the time of a conditional sale or subsequently as to become part thereof but to be severable without material injury to the freehold.” Goods affixed to realty which, in the absence of an agreement that their original character should be retained, would not have “ become part thereof ” but would in any event have remained personalty, are not affected by the provision. The statute provides merely that, in certain instances, a failure to file the contract will render the condition as to reservation of title void. The avoidance of the condition would not convert property sold, which is intrinsically personalty, into realty to become the subject of a real estate mortgage. In order that it might become real estate so that the statutory provision would take effect it must be property which after annexation, except for an agreement to the contrary, would have become part and parcel of the mortgaged land.

That gas ranges, independently of an agreement to that end between buyer and seller, retain their character as personalty, after annexation, has been held in two well-considered cases. In Cosgrove v. Troescher (supra), cited with approval in Central Union Gas Co. v. Browning (supra), the subject considered was gas ranges which were owned absolutely by the proprietor of an apartment house. They had been attached to a building which was subsequently mortgaged by its owner to a third person. The ranges were annexed to the real estate to the extent only that they were connected by couplings to the gas service pipes of the building. It was held that they were movables as a matter of law and were not subject to the lien of the real estate mortgage. In Central Union Gas Co. v. Browning (supra) gas ranges connected to a building by the usual attachment to the gas service pipe were held to retain their character as personal property after such annexation and not to be subject to a real estate mortgage placed upon the premises. The court said: “According to our view of the evidence, these ranges were not so £ attached ’ to the building that, as matter of law, they became part of it.”

In his dissenting opinion herein, Judge Crane reminds us that apartment houses today are massive affairs, housing hundreds of families and occupying entire blocks; that gas ranges are the universal equipment of every apartment in all such buildings. He expresses the view that, in holding that gas ranges, after attachment to real estate, do not become a part thereof, we are pressing the facts into an old-fashioned mold. The difficulty is that, when the case of Central Union Gas Co. v. Browning (supra) was decided, apartment houses of similar size and equipment to those referred to by Judge Cbane were then familiar structures. The complaint against the employment of an old-fashioned mold to give to gas ranges the outworn shape of movable chattels was as meritorious then as now. Nevertheless this court, in reversing the Appellate Division, held them to be personalty. It so held notwithstanding the fact that the very argument now urged by Judge Cbane was advanced by the Appellate Division in support of its holding. Thus this court laid down a rule of property which has doubtless governed the conduct of buyer and seller in innumerable sales which have since been made. We do not feel it to be the province of the court now to alter a rule of property so well established. If relief be needed, the Legislature may provide it.

The case of Central Union Gas Co. v. Browning (supra) is conclusive upon this issue and requires us to hold that the gas ranges in question are not subject to the hen of the mortgage held by the plaintiff. In so deciding we are not unmindful of the decision in Kohler Co. v. Brasun (249 N. Y. 224). In that case the subject considered was a machine, designed to furnish electric power and light, which had been sold under a conditional sale contract. The trier of fact had found that the machine had been so affixed to real estate as to become a part thereof, although easily severable therefrom without material injury to the freehold. The finding had been affirmed at the Appellate Division. We were dealing, therefore, with a typical case in which a condition reserving title, contained in a conditional sale contract, would have had the effect, except for the provisions of section 67, of imparting the quality of personal property to a machine which otherwise, after annexation, would have taken on the character of real property. For this reason section 67 was effective, in aid of a subsequent purchaser for value, to restore to the machine its natural attributes as a real estate fixture and to make it subject to a real estate mortgage so that a purchaser, after foreclosure thereof, acquired title. Here we are asked to hold that the section has the effect of converting into real estate that which, irrespective of an agreement to that end, is intrinsically personalty. We think that the statute cannot properly be given a construction which would effectuate that result.

The judgment of the Appellate Division and that of the Special Term should be modified to provide that the gas ranges are the property of the Coalecon Company, Inc., which is entitled to their possession, and that the same are not subject to the hen of the mortgage, and as modified affirmed, with costs to the appellant.

Crane, J.

(dissenting). In dissenting, I will express my views so that the Legislature may understand the confusion which has been caused by the present state of the statutes.

This court held in Central Union Gas Company v. Browning (210 N. Y. 10) that, according to the evidence in that case, gas ranges installed in housekeeping apartments were not so attached to the building that as matter of law they became part of it. Retaining their characteristics as personal property they did not come within the conditional sales statute as it existed at that time. (Personal Property Law [Cons. Laws, ch. 41; Laws of 1909, ch. 45], sec. 62, as amended in 1904.) That statute read: Every such contract for the conditional sale of any goods and chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or incumbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chattels at such building, such contract shall have been duly and properly filed and indexed.”

The law is based upon fundamental principles and for a decision like this we must look through the facts to discover if possible the principle involved. For instance the law does not under all circumstances classify property. Buildings are realty, and such articles as stoves and ranges and refrigerators are personalty. There are circumstances, however, when the law considers realty as transformed into personalty and chattels so annexed to the realty as to become a part thereof. In other words, ranges or cook stoves may be so attached and annexed to the realty as to lose their identity as merely personal property; it depends upon circumstances, conditions, custom and the various other elements which enter into a question of fact. All these matters are questions of fact and have so been treated by the courts. A range, therefore, at one period of time and under certain conditions might be personalty; at another time it might be considered a chattel real. (Jennings v. Valley, 183 Mass. 47.) The nature of the article and the object and effect and the mode of annexation are all to be considered. (Hook v. Bolton, 199 Mass. 244.) In that case, writing of gas stoves, kitchen ranges, etc., the court said: It is entirely possible that the mode of construction and use of certain lands of houses may be such that articles of this kind will be made a part of the house for permanent retention and use in the places where they are put. If it becomes a practice to build and use houses in such a way these articles may be put in as fixtures. As to the application of the law, we agree with Lord Halsbury in what he said in Leigh v. Taylor ([1902] App. Cases, 157, 161) in regard to the decisions of the courts: The facts have been regarded in different aspects, according to the fashion of the times, the mode of ornamentation, and the mode in which houses were built, and the degree of attachment which from time to time became necessary or not according to the nature of the structure which was be’ng dealt with.’ ”

The court in the Browning case cited Cosgrove v. Troescher (62 App. Div. 123), which in turn cited Freeland v. Southworth (24 Wendell, 191). The Cosgrove case dealt with carpets, window shades, gas fixtures and movables; also ranges not set in any place specially constructed for them and which set out wholly disconnected from the walls, talcing on the nature of portable furnaces, stoves and stove pipes. These articles were always considered personal property and at the time in which these cases were written were customarily carted about by the tenant from, place to place. They were not deemed or considered in the habits of the people to be a part of the realty or the rented establishments. The cases cited in these various authorities dealt with a time and a condition where these necessary utens’ls, furnishings or stoves were part of the belongings of the tenant. The mode of living did not make the cook stove the almost universal equipment of houses and apartments supplied by the landlord or owner.

But there comes a time when the law must keep abreast of the changes in social conditions; when we as judges must recognize the circumstances under which the business of housing is now conducted. We must look at the facts as they are and not try to press them into an old-fashioned mold. Today people live in apartments. Some of these, as we all know, are massive affairs, housing hundreds of families and occupying entire blocks. They are owned and operated by realty corporations existing solely for this purpose. They are equipped with modern improvements. Science has revolutionized the art of living. The gas range or cook stove and electric light fixtures and ice boxes are now common in most every apartment. The tenants do not furnish these things; they are considered a part of the realty and are so treated by every owner and by the tenants. No tenant carries away any of these things when leaving. The mortgagee would be startled if all the ranges and radiators were removed by the mortgagor. They are attached to and form part of the realty as a fact, and it is only a fiction of law which considers them under certain circumstances as strictly personal property. If intention has any bearing upon the question of fixtures it is quite apparent that under modern conditions the gas range in the kitchen has become a part of the realty. “ The controlling intention is not the initial intention at the time of procuring the article in question, nor the secret intention with which it is affixed, but the intention which the law deduces from all the circumstances of the annexation.” (Roderick v. Sanborn, 106 Maine, 159.) The fashion of the times and the mode in which houses are built ” no longer classify the cooking range as portable or movable within the meaning of the older cases.

This was the condition of affairs when chapter 642 of the Laws of 1922 amended the Personal Property Law in relation to conditional sales, by conforming it to the law recommended for adoption by the Commissioners on Uniform State Laws. This provided:

“§ 67. Fixtures. If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become a part thereof and not to be severable wholly or f n any portion without material injury to the freehold, the reservation of property as to any portion not so sever-able shall be void after the goods are so affixed as against any person who has not expressly assented to the reservation. If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become part thereof but to be severable without material injury to the freehold, the reservation of property shall be void after the goods are so affixed as against subsequent purchasers of the realty for value and without notice of the conditional seller’s title, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are or are not to be affixed thereto, shall be filed befóte such purchase in the office where a deed of the realty would be recorded or registered to affect such realty.”

In his notes on this provision of the Uniform Act (2-A Uniform Laws, Annotated, § 64), George G. Bogert says: “This section is intended to establish a special filing section for the conditional sale of fixtures. * * * if the conditional sale ■ is concerned with goods which are to be attached to land, the object so sold is to be held out to the world as a part of the realty, although the parties to the conditional sale contract may agree that it shall keep its status as personalty. Creditors and purchasers, the persons for whose benefit the recording acts are enacted, are going to regard the goods conditionally sold as a part of the realty to which they are attached and any searches made will be concerned with real property records. The theory of the Act is that a conditional seller of a fixture should be given protection and allowed to retain title as security for the payment of the price of the fixture, but that in order to retain such title he should be required to give notice adapted as nearly as possible to reaching dealers in real property.”

To me it is quite evident that taking into consideration modern conditions and the nature and purpose, as thus declared, of the Uniform Sales Act, cook stoves and ranges placed in the ordinary apartment house and attached in the place built and designed for them become part of the building; a portion of the apartment, the same as doors and windows or mantel pieces; form “ a part of the realty; ” they are goods which are so affixed to the realty as to become a part thereof, but to be severable without material injury to the freehold within the meaning of section 67, above quoted. This was intimated, if not decided, in Kohler Co. v. Brasun (249 N. Y. 224).

Holding these views, I am forced to dissent from the majority opinion.

Cardozo, Ch. J., Pound, Lehman, O’Brien and Hubbs, JJ., concur with Kellogg, J.; Crane, J., dissents in opinion.

Judgment accordingly.


author: Kellogg, J.

text:
    Lizzie Cohen, Respondent, v. 1165 Fulton Avenue Corporation et al., Defendants, and Charles Tisch, Inc., Appellant.
    (Argued April 15, 1929;
    decided May 28, 1929.)

      Vincent A. O’Connor for appellant.
    Plaintiff did not acquire any right, title or interest to the gas ranges installed in the premises. (Kirby v. Clapp, 155 App. Div. 37; Cosgrove v. Trosecher, 62 App. Div. 123; Central Union Gas Co. v. Browning, 210 N. Y. 10; Kohler Co. v. Brasun, 249 N. Y. 226; McCluskey v. Cromwell, 11 N. Y. 593; Uihlein v. Matthews, 172 N. Y. 154; Matter of Eisle v. Woodin, 205 App. Div. 452; Matter of Quimby v. Public Service Commission, 223 N. Y. 244; Matter of Dwire, 192 App. Div. 72; Crayton v. Larabee, 220 N. Y. 493.)

      Henry Simon and Harry C. Soffer for respondent.
    Under the provisions of section 67 of the Personal Property Law, a mortgagee of the realty in a foreclosure action acquires title to gas ranges which are attached to the realty in an apartment house in the usual and customary manner as against the title of the vendor of such ranges under an unrecorded bill of sale. (Central Union Gas Co. v. Browning, 210 N. Y. 10; Southworth v. Freeland, 24 Wend. 191; Cohoes Iron Foundry & Machinery Co. v. Glavin, 190 App. Div. 87; Kohler Co., v. Brasun, 249 N. Y. 224; Roderick v. Sanborn, 106 Me. 159; Hoak v. Bolton, 199 Mass 244.) Section 67 of the Personal Property Law (Laws of 1922, .chap. 642) must be complied with in order to permit a reservation of title in gas ranges which have become part of the realty. (Crocker Wheeler Co. v. Genesee Recreation Co., 160 App. Div. 373; Price v. Case, 10 Conn. 381; Cohen v. 1165 Fulton Avenue Corporation, 222 App. Div. 378.)
   Kellogg, J.

The defendant 1165 Fulton Avenue Corporation was the owner of an apartment house. It purchased a quantity of gas ranges from the defendant Charles Tisch, Inc., under a conditional sale contract which reserved title therein to the seller, placed them in the several apartments of the building and attached the same by couplings to the gas service pipe which distributed gas to the various apartments. Thereafter the defendant owner executed and delivered to the plaintiff a mortgage upon the apartment house premises, in order to secure the repayment of a sum of money borrowed from her. The mortgage, after describing in detail the real estate mortgaged, continued with words descriptive of the subject of the mortgage as follows: Together with all fixtures and articles of personalty now or hereafter attached to or used in connection with the premises, all of which are covered by this mortgage.” Within these descriptive words gas ranges belonging to the mortgagor would necessarily be included. In this respect the issues here are widely different from those presented in Madfes v. Beverly Development Corp. (251 N. Y. 12). There the question to be determined was whether or not gas ranges after attachment to a building became real property and, as such, were subjected to the lien of a real estate mortgage. Here the question is: Did the mortgagor have title to the gas ranges, so that they became in part the subject-matter of a mortgage executed by it, which covered not only a building owned by the mortgagor but all articles of personalty attached thereto? The answer is found in the provisions of section 65 of the Personal Property Law (Cons. Laws, ch. 41), added by the Laws of' 1922, chapter 642, section 2. The section provides as follows: Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided.” Under section 61 of the same act these definitions are given: “ ‘ Purchase ’ includes mortgage and pledge; ” “ ‘ Purchaser ’ includes mortgagee and pledgee.” The mortgage was taken by the plaintiff without knowledge of the provision of the conditional sale reserving title, prior to the time when the contract had been filed in the appropriate public office. The plaintiff was, therefore, within the meaning of section 65, a purchaser ” who “ without notice of such provision ” purchased the gas ranges before the contract for their sale had been filed. Consequently, as to the plaintiff, the condition reserving title was void and the mortgage upon chattels given to her created a hen upon the ranges in the possession of the mortgagor, as fully as would have been the case had an absolute title thereto been acquired by it. For these reasons, and these reasons only, the order appealed from was properly granted.

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

Cardozo, Ch. J., Pound, Lehman, O’Brien and Hubbs, JJ., concur with Kellogg, J.; Crane, J., concurs in result for reasons stated in his dissenting opinion in Madfes v. Beverly Development Corp. (251 N. Y. 12).

Order affirmed, etc.