text:
    Juan Hernandez, Respondent, v. Brooklyn and Queens Transit Corporation, Appellant.
    Argued November 14, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for appellant.

      Ralph Stout and Louis Rothbard for respondent.
   Lehman, Ch. J.

The defendant has appealed from a judgment of the Appellate Division, affirming by a divided court a judgment, entered upon the verdict of a jury in favor of the plaintiff, for damages resulting from personal injuries caused by a collision with a trolley car, operated by the defendant. The accident occurred on a rainy afternoon in September, 1936, while the plaintiff was crossing Sands street at its intersection with Pearl street in the borough of Brooklyn, city of New York.

The testimony of the plaintiff and of the witnesses produced by him, which upon the appeal we must accept as true, establishes that as the plaintiff, walking along Pearl street, came to the south curb of Sands street, he saw on his left, about a half block away, a trolley car coming east on Sands street. On his right a west-bound car was about the same distance away. Both cars stopped at the corner, and the door of the east-bound car on the tracks nearest the plaintiff was opened. The plaintiff, carrying an umbrella, crossed five or six feet in front of the standing car, which started as soon as he had passed. While in the space between the east-bound and west-bound tracks, the plaintiff noticed that the west-bound car was also slowly starting; and, as he came to the first rail of the track on which it was moving, it suddenly proceeded much more rapidly. Plaintiff tried to pass ahead of the moving car and was struck by it.

The defendant does not challenge the sufficiency of the evidence to sustain a finding that the defendant was negligent and, perhaps, to sustain a finding that the plaintiff was free from contributory negligence. The question presented upon this appeal is whether the trial judge properly charged that, if the fury should find that both the plaintiff and the defendant were negligent, it must then determine whether the plaintiff is entitled to recover, under the doctrine of “ last clear chance ” as formulated in the charge. The claim of error is not so much that the doctrine was improperly formulated in the charge but that the court was bound, upon the evidence presented in this case, to grant the defendant’s request to charge the jury that the doctrine “ does not apply to this case and that if any negligence on the part of the plaintiff contributed to this accident he cannot recover.”

If plaintiff’s exposure to the danger of collision with the trolley car was not due to any negligence on this part, there is no room for the application_of the doctrine of the last clear chance. That doctrine has_been formulated as a qualification of the rule that no recovery may be had for injuries resulting from a peril to which the injured person was exposed through his own fault or negligence. (Grand Trunk Ry. Co. v. Ives, 144 U. S. 408.) In this State it is well established that the doctrine “ is never wakened into action unless and until there is brought home to the defendant to be charged with liability a knowledge that another is in a state of present peril, in which event there must be reasonable effort to counteract the peril and avert its consequences.” (Woloszynowski v. N. Y. C. R. R. Co., 254 N. Y. 206, 208.) We do not pause to consider whether in other jurisdictions the doctrine is “ wakened into action ” earlier. (Cf. American Law Institute, Restatement of the Law of Torts, §§ 479, 480.)

If the plaintiff had not chosen to pass in front of the car while it was standing on the east-bound tracks, and while another car was standing at the same corner on the westbound tracks, the plaintiff would not have exposed himself to the peril of collision with either car. If after the plaintiff safely passed before the east-bound car he had stopped until the moving west-bound car had passed, he would not have come into collision with that car. By drawing back, he might have avoided that peril up to the very moment when he stepped in front of the advancing car. True, if he had drawn back abruptly without paying attention to the car passing behind him, he might have jumped into the path of the car behind him, but there is no evidence which would justify the conclusion that, if the plaintiff had realized the peril to which he would be exposed by continuing across the track on which a car was advancing, he could not, by exercising care, have stood safely between the two sets of rails. Nor is there any evidence from which the jury could infer that the motonnan on the advancing trolley car actually Imew that a trolley car proceeding in the opposite direction was passing behind the plaintiff. The motorman was under a duty of vigilance to avoid danger to pedestrians crossing the tracks on which his car was running. We may not assume that he was vigilant also to see what was happening on the other tracks.

So long as the plaintiff could have drawn back from the risk of collision with the trolley car, he was not in helpless danger, and the evidence will not sustain a finding that the motorman in this case knew that the defendant could not extricate himself from any danger to be anticipated from the trolley car until it was too late for the motorman in the exercise of due care to avoid collision. The plaintiff may not by proceeding heedlessly, place upon the defendant the sole responsibility for accident occurring through the continuing negligence of both. " When the negligence of the two persons is contemporaneous, and the fault of each operates directly to cause the injury, neither can recover from the other.” (Panarese v. Union Ry. Co., 261 N. Y. 233, 239.) The defendant is not liable for the plaintiff’s injury unless the motorman failed to exercise care to avert an accident after he knew that the plaintiff was in a position of peril from which there would be no escape by the plaintiff’s own vigilance. Even if it were true that the space between the two sets of rails was too narrow to permit the plaintiff to stand safely while cars were passing on both tracks, the plaintiff could still not escape the consequences of his antecedent negligence without proof, here wanting, that the motorman saw his peril.

If the plaintiff was not negligent in proceeding into the zone of danger he might hold the defendant for its own negligence, but in such case recovery would be based upon a finding of absence of contributory negligence. If in exposing himself to the danger the plaintiff was negligent, then recovery cannot be had under the doctrine of last clear chance, for the evidence is insufficient to permit a finding that the defendant knew of plaintiff’s helpless position. It was, therefore, error for the court to refuse the defendant’s request to charge.

The judgments should be reversed and a new trial granted, with costs to appellant to abide the event.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Lehman, Ch. J.

license: Public Domain

text:
    In the Matter of Gould Realty Co., Inc., et al., Appellants, against Paul V. Reutershan, as Deputy County Treasurer of the County of Suffolk, et al., Respondents.
    Argued November 13, 1940;
    decided December 31, 1940.

      Morris Rochman and Charles H. Stoll for appellants.

      Guy O. Walser and Howard J. Grace for respondents.
   Lehman, Ch. J.

For the years 1935-36, 1936-37, 1937-38, real property belonging to the appellants, in the town of Huntington, county of Suffolk, was assessed at $214,400. The taxes based on these assessments were not paid and, to collect the taxes, tax lien certificates upon the lands were sold as provided in the Suffolk County tax law (Laws of 1920, ch. 311, as amd.). In July, 1939, the appellant Gould Realty Co., Inc., objected to these assessments on the ground that the description in the tax assessment rolls was insufficient. Thereafter, on August 17, 1939, the Board of Assessors of the Town of Huntington executed a certificate of error, admitting the insufficiency of the description and certifying that the tax sales for the non-payment of the taxes for those years should be canceled and that the tax attempted to be imposed should be charged back to the town. The next day Gould Realty Co., Inc., petitioned the Board of Supervisors of the County of Suffolk for similar relief and on August 28th the Board of Supervisors passed a resolution canceling the taxes and the tax sales and directing that the amount of the taxes should be charged against the town of Huntington.

When, in July, 1939, the Gould Realty Co., Inc., made belated complaint concerning the description of its property in the assessment rolls for the years 1935-36, 1936-37, 1937-38, it also complained of the valuation placed upon the property for the years 1938-39, 1939-40 and, after certiorari proceedings had been brought to review those valuations, a compromise agreement was made in regard to the assessed valuation for those years. In accordance with that agreement, on November 9, 1939, the Board of Supervisors of Suffolk County passed a resolution which declared illegal the 1938-39 assessment and reiterated and affirmed its resolution of August 17, 1939, canceling the 1935-36, 1936-37, 1937-38 tax sales. Thereafter, acting upon the direction of the Board of Supervisors of the county, the County Treasurer canceled the tax sales.

Section 141 of the Tax Law (Cons. Laws, ch. 60) provides that:

The department of taxation and finance is hereby authorized and empowered and shall, upon the application of any one whomsoever aggrieved thereby, set aside any cancellation of sale made by the comptroller, the department of taxation and finance, or by any predecessors in office, in any of the following cases:

“ First. When such cancellation was procured by fraud or misrepresentation.

“ Second. When it was procured by the suppression of any material fact bearing on the case.

Third, When it was made under a mistake of fact.

Fourth. When such cancellation was made upon an application which the comptroller, the department of taxation and finance or any predecessors in office, had no jurisdiction or legal right to entertain at the time of such cancellation.”

In accordance with the provisions of section 158 of the Tax Law the County Treasurer now performs the duties in this respect imposed under the statute upon the Department of Taxation and Finance.

Pursuant to the provisions of the statute, Larremore V. V. Sweezy has made application to the County Treasurer to set aside the cancellation of the tax sales made by the County Treasurer under the direction of the Board of Supervisors of the County of Suffolk. The Deputy County Treasurer, acting in place of the County Treasurer, intends to hear and decide the application so made. A motion made by the appellants for an order restraining and enjoining the Deputy County Treasurer from proceeding -under the application for cancellation of the tax sales, was denied at Special Term, and the order denying the motion has been affirmed by the Appellate Division by a divided court. The question presented upon that motion was not whether there is merit in the application for cancellation but whether the County Treasurer has jurisdiction to hear it (Matter of Baltimore Mail S. S. Co. v. Fawcett, 269 N. Y. 379), and it sufficiently appears that the denial of the motion was based solely upon the conclusion of law that such power has been conferred by the Tax Law upon the County Treasurer. No other question may be considered upon this appeal.

The Suffolk County tax act provides that “ The tax law shall apply and govern in all matters related to taxation in Suffolk county not inconsistent with the provisions of this act ” (§ 32). The problem here presented is whether the special Suffolk County tax act has provisions inconsistent with section 141 of the general Tax Law.

In its original form the Suffolk- County tax act made no provision for the collection of taxes and assessments by sale and no provision for cancellation of any tax sale. At that time the provisions of the general Tax Law exclusively applied in that field and, when a tax sale was canceled, the cancellation of sale might be set aside in accordance with the provisions of section 141 of the same law. Thereafter, by chapter 152 of the Laws of 1929, a new article (2) entitled “ Collection of taxes and assessments by sale ” was added to the Suffolk County tax law. By section 66 of that article it is provided that When it shall be discovered that the proceedings in levying any tax, or in making any assessment, have been so irregular as to render them illegal and void, the board of supervisors may annul them, or may annul all of them, subsequent to and including the irregularity, and such board may direct the board of assessors of the town in which said property is located to levy anew such tax or assessment, or such board may direct the proceedings anew from the point where the irregularity occurred.” By section 3 of the amendatory statute (L. 1929, ch. 152) it is provided that “ This act shall govern and control all tax sales held hereafter for nonpayment of taxes in Suffolk county.”

By rigid construction of the letter of the statute it may be argued that section 66 does not provide for cancellation of a tax sale because of insufficient description of the property or provide for the setting aside of any cancellation of a tax sale which was made improperly or through mistake of fact unless error or irregularity in the levy or assessment of the tax made the tax sale void, and that though the amendatory statute expressly states that “ this act shall govern and control all tax sales,” it does not provide that it shall also govern the setting aside of a cancellation of a tax sale. Such rigid construction would, however, thwart the plain intention of the Legislature to provide a complete and exclusive system for the collection of taxes and assessments by sale in Suffolk county and for the cancellation of tax sales when proper ground for such cancellation is shown. Section 141 of the Tax Law confers administrative power upon the Tax Department to set aside an act performed by the same department under conditions there stated. It was never intended to give to an administrative officer power to review the propriety or validity of a determination made by a different officer or board, intrusted with discretionary powers, yet that would be the effect of a decision that section 141 of the Tax Law authorizes the County Treasurer to set aside a resolution of the Board of Assessors or of the Board of Supervisors of the county canceling a tax sale. The determination embodied in such a resolution may be reviewed by the courts in proper proceeding. It is not to be set aside by an administrative officer.

For these reasons the orders of the courts below should be reversed, without costs, and the motion for an order of prohibition granted.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Orders reversed, etc.


text:
    In the Matter of Home Title Insurance Company. Del Ritz Holding Company, Inc., Appellant; Frederick L. Cranford, as Trustee, et al., Respondents.

      Argued November 12, 1940;
    decided December 31, 1940.

      Charles Waters for appellant.

      Daniel A. Lynch and John A. King for respondent.
   Lehman, Ch. J.

The appellant Del Kitz Holding Company, Inc., is the owner of the equity in a six-story apartment house in the borough of Brooklyn, upon which there is due and unpaid the principal sum of $308,500. Home Title Insurance Company, as holder of the mortgage, issued and guaranteed certificates of participation in this mortgage. That company is now in liquidation and the mortgage is held by a trustee appointed pursuant to a plan of reorganization of the mortgage security promulgated by the holders of the certificates of participation and, thereafter, in amended form, approved by the court pursuant to the provisions of chapter 745 of the Laws of 1933 as thereafter amended, popularly known as the Shackno Act.

The plan as originally promulgated provided that “An extension agreement shall be entered into with the owner of the premises in form satisfactory to the trustee, which agreement shall, among other things, provide as follows: * * The only matters thereafter specifically provided for in the proposed plan were (1) the term for which the mortgage should be extended, (2) the amount of amortization payments that were to be made by the owner during the extended term, and (3) reduction of the interest from six per cent to five per cent. The tentative plan contemplated that other provisions might be inserted in the extension agreement to be entered into with the owner of the premises and it made the trustee- the arbiter of the form of such an agreement.

The plan was, however, amended before it was approved by the court and the amended plan_ provided that After the entry of a final order herein, approving the plan as herein modified and subsequent to the transfer of the trust estate to the trustee, appointed by the court, an extension and modification agreement shall be entered into with the owner upon the terms and conditions hereinafter set forth.” Under that provision “ the terms and conditions hereinafter set forth ” were to constitute the terms and conditions of the extension and modification ” agreement and there is no suggestion, as there was in the original tentative_ plan, that such extension and modification agreement should contain other terms and conditions in addition to those specifically set forth in the plan. The trustee has offered to the owner an extension and modification agreement containing many terms and conditions not provided for by the plan approved. The owner of the property is at present not liable upon the bond. Under the proposed modification and extension agreement the owner must assume the obligation of the bond and must in other respects provide, for the benefit of the holders of the certificates, more adequate protection than is provided in the original bond. Upon the owner’s refusal to sign the proposed agreement and to pay certain costs and expenses demanded by the trustee, the trustee moved in the Supreme Court for an order eliminating the extension and modification provisions of the plan of reorganization ” approved by the order of that court dated the 3d day of November, 1937, and the final order of the court dated the 19th day of January, 1938. The owner of the property made a counter motion to compel the trustee to enter into an extension and modification agreement in accordance with the terms of the plan of reorganization and without any additional terms substantially increasing the owner’s obligation to the certificate holders.

The justice at Special Term held that substantially all the terms and conditions of the extension agreement proposed by the trustee, including the provision that the owner should assume the obligation of the bond, were reasonable and an order was entered which provided that “ the extension and modification provisions ” of the interlocutory and final orders theretofore entered should be vacated unless within ten days the owner of the mortgaged premises closes such extension ” and pays expenses which the court found proper charges against him. The Appellate Division has unanimously affirmed that order.

We assume upon this appeal that the trustee is not seeking to compel the owner of the mortgaged premises to accept any terms or conditions which a savings bank or other prudent investor might not reasonably demand as a condition for any extension or modification of the mortgage. The question, however, is not primarily whether such terms and conditions are reasonable but whether the trustee has power to exact even reasonable terms and conditions not provided in the plan of reorganization. The trustee holds the bond and mortgage and other property and under the terms of the order may deal with it “ as in his discretion he shall deem for the best interest of said certificate holders, subject to the limitations imposed by this plan as finally approved, and by the declaration of trust to be executed by the trustee upon acceptance of the trust estate.” The plan provides, as we have said, that the modification and extension agreement shall be made “ upon the terms and conditions hereinafter set forth,” and the trustee is free to deal with the bond and mortgage as he shall deem for the best interest of the certificate holders only in so far as the plan as finally approved does not place upon the trustee the duty to deal with the bond and mortgage as therein provided. The court by approval of the plan has decided what the terms and conditions shall be. The trustee may make no other contract than that which by approval of the plan the court has determined will serve the best interest of the certificate holders.

The orders should be reversed without costs, and the matter remitted to the Special Term to proceed in accordance with this opinion.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.


text:
    In the Matter of Patrick F. Rox, Respondent, against Joseph A. Doherty, Appellant, and Arthur J. Leonard, as Commissioner of Public Safety of the City of Saratoga Springs, et al., Respondents.
    Argued November 12, 1940;
    decided December 31, 1940.

      James D. Connor for appellant.

      William E. Morris for petitioner, respondent.

      Spencer B. Eddy for Arthur J. Leonard, as Commissioner of Public Safety of the City of Saratoga Springs, respondent. The appellant has no right to appeal.
   Lehman, Ch. J.

On August 22, 1939, Patrick F. Rox, a detective in the police department of the city of Saratoga Springs, was suspended from the police department by the Commissioner of Public Safety of the city. On November 22, 1939, written charges of neglect of duty were served upon the suspended detective. On November 28, 1939, the detective served a written answer to the charges and on December 6th he was notified by the Commissioner that his answer was “ unsatisfactory and insufficient ” and that he was dismissed from the department. At the election held in November, 1939, after the detective’s suspension but before service of the written charges, the Commissioner of Public Safety was defeated for re-election. On the 1st day of January, 1940, at the beginning of his term, the newly-elected commissioner attempted to reinstate the dismissed detective.

Thereafter, the dismissed and reinstated detective commenced a proceeding under article 78 of the Civil Practice Act asking for an order reviewing and annulling the determination of Joseph A. Doherty in removing him from his position as detective in the police department of the City of Saratoga Springs, N. Y., and commanding Arthur J. Leonard as Commissioner of Public Safety of said city forthwith to reinstate petitioner to the position of detective from which ex-Commissioner Doherty wrongfully removed him.” Though the petitioner asked no affirmative relief against the former Commissioner, Doherty, he was made a party to the proceeding to review his determination. The court at Special Term made an order annulling and setting aside the petitioner’s dismissal by Commissioner Doherty and ordering the new Commissioner, Arthur Leonard, to reinstate him.

Former Commissioner Doherty appealed from that order to the Appellate Division. Commissioner Leonard, who has been commanded to reinstate the petitioner, did not appeal, nor did the Commissioner of Finance of the City of Saratoga Springs, who has been directed to pay to the petitioner his salary from the date of his removal. The Appellate Division affirmed, with costs against the appellant, the order appealed from, holding that though “ the charges, if true, were sufficient to justify the suspension,” yet extraneous evidence points inescapably to the conclusion that the determination was based upon motives and considerations wholly outside of the charges themselves.” (260 App. Div. 260, 262.)

Former Commissioner Doherty has now appealed to this court. Since the appellant was no longer an officer of the city when application was made by the petitioner for an order reviewing his dismissal by the appellant and since by that order the appellant was not directed to perform any act and since no costs have been imposed by that order against him, he had no legal interest in maintaining the order made at Special Term and he was not an aggrieved party with right to appeal to the Appellate Division. True, there was finding against him that Ms order of dismissal, though perhaps based on good motives, was arbitrary and not the “ result of an honest and just consideration of both the charges and the answer,” but the appellant urges more strenuously that Ms determination may not be reversed on such a ground, citing People ex rel. Kennedy v. Brady (166 N. Y. 44) than that the finding is not based upon sufficient evidence. The rule has long been established that a board or officer whose determination is subject to judicial review can neither appeal from an order of the court reversing the proceedings, nor be heard on the appeal. (People ex rel Breslin v. Lawrence, 107 N. Y. 607; People ex rel. Burnham v. Jones, 110 N. Y. 509.) ” (People ex rel. Steward v. Board of Railroad Commissioners, 160 N. Y. 202, 212.) Even where an officer is properly made a party to such proceedings wMle still in office, an appeal taken in his name after he has ceased to hold office and without authorization from his successor must be dismissed. (People ex rel. Walker v. Ahearn, 200 N. Y. 146.)

We are asked to distinguish these decisions on the ground that, since they were rendered, the Legislature, by chapter 526 of the Laws of 1937, has enacted section 1290 of article 78 of the Civil Practice Act, which provides that “ whenever necessary to, accomplish substantial justice, a proceeding under this article may be maintained against an officer whose term of office has expired * * *.” Even before new article 78 was enacted by the Legislature, the appellant, under the provisions of old section 1292 of the Civil Practice Act, would have been a proper party to a proceeding for the review of his determination even though he no longer held office, and section 1290 has made no change there. Such a former officer does not, however, act as a representative of the public and is not authorized to represent the interests of the public. That duty has devolved upon those who now hold office and even in a case where there might be room for the argument that the interests of the public would be served by an appeal, the appellant may not perform the duties which have devolved upon them. He had no right to appeal either to the Appellate Division or to this court.

The appeal should be dismissed, with ten dollars costs.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Appeal dismissed.


author: Per Curiam.

text:
    United States of America, Appellant, v. Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of the United States Branch of the First Russian Insurance Company, Respondent, Impleaded with Others.
    Argued November 18, 1940;
    decided December 31, 1940.

      John T. Cahill, United States Attorney (Francis M. Shea, Irvin C. Butter, Edward J. Ennis and Noel Hemmendinger of counsel), for appellant.

      John M. Downes and Alfred L. Green for respondent.

      Albert G. Avery for Frederick H. Cattley et al., amici curiæ.

      Paul C. Whipp for surviving directors of First Russian Insurance Company, amici curiæ.

      Borris M. Komar for George Brussendorff et al., amici curiæ.

      Samson Selig, Abraham J. Multer and William F. Roche for Andrew Ditmars et al., amici curiæ.

      Allen W. Dulles and Inzer B. Wyatt for Association of American Creditors of Russia, amicus curiæ.

   Per Curiam.

The judgment appealed from is in accord with the decision of this court in Moscow Fire Ins. Co. v. Bank of New York (280 N. Y. 286; affd., without opinion by an equally divided court, 309 U. S. 624; rehearing denied, 309 U. S. 697). Three of the judges of this court concurred in a forceful opinion dissenting from the court’s decision in that case, but the decision left open no question which has been argued upon this appeal. We are agreed that without again considering such questions this court should, in determining title to assets of First Russian Insurance Company, deposited in this State, apply in this case the same rules of law which the court applied in the earlier case in determining title to the assets of Moscow Fire Insurance Company deposited here.

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgment affirmed.


text:
    Bernard Kramer, Appellant, v. News Syndicate Co., Inc., Respondent.
    Argued November 27, 1940;
    decided December 31, 1940.

      Lee Hazen, Julius M. Arnstein and Joseph Dannenberg for appellant.

      Stuart N. Updike and James W. Rodgers for respondent.
   Per Curiam.

The majority of the court are agreed that the question of whether the plaintiff is entitled to any damages is one of fact rather than of law. We are all agreed that there should be a new trial on the ground that the trial court erroneously admitted testimony of the witness Daniel.

The judgment of the trial court and the judgment of dismissal of the Appellate Division should be reversed and a new trial granted, with costs to the appellant to abide the event.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgments reversed, etc.


text:
    In the Matter of Charles F. Nield, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Submitted December 2, 1940;
    decided December 31, 1940.

      M. E. Harby for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
   Per Curiam.

Upon the evidence presented here, the conclusion that the payment to this appellant is taxable has no substantial basis. That is a question which the Appellate Division was required to pass upon.

The order of the Appellate Division should be reversed and the determination of the State Tax Commission annulled, with costs to appellant in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Conway, JJ., concur; Sears, J., dissents.

Ordered accordingly.


text:
    H. V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v. Arthur E. Landel, Doing Business as Williamsville Dairy, et al., Appellants. H. V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v. Sterling Amherst Farms Dairy, Inc., et al., Appellants.
    Argued December 3, 1940;
    decided December 31, 1940.

      Irving G. Hubbs, Merritt A. Switzer and Henry S. Manley for appellants.

      Harry D. Suitor for Niagara Frontier Co-operative Milk Producers’ Bargaining Agency, Inc., amicus curiæ.

      Robert G. Blabey, Milo R. Kniffen and Louis S. Wallach for respondent.

      Francis L. McElroy for Metropolitan Milk Producers Bargaining Agency, amicus curiæ.

   Per Curiam.

The contention of appellants, that the decision in Matter of Guernsey Breeders Co-op., Inc., v. Noyes (284 N. Y. 197) had the effect of removing Guernsey milk from the operation of order 127 until such time as the Commissioner of Agriculture will pass upon Guernsey’s claim for a differential, is untenable in view of the statutory provision that: Such equalization shall include milk of all grades and produced by all breeds of cows ” (Agriculture and Markets Law, § 258-m, subd. 6, as amended by L. 1939, ch. 760; Cons. Laws, ch. 69). The effect of our prior decision was to sustain the order as valid, but to direct the Commissioner to proceed to determine Guernsey’s claim for a differential. Under the provisions of the order as it now stands, Landel and Sterling Amherst are the marketers ” who are liable for payment to the equalization fund in view of the provision in article VI, section 1, of the order, which requires them to pay not less than the uniform price to each producer and to each collecting co-operative. It is unnecessary now to pass upon the effect of the provisions of the New York order which, it may be noted, contains different language in this respect.

The judgments should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgments affirmed.


text:
    In the Matter of the Accounting of Hilda S. Sullivan et al., as Executrices of George Schuster, Deceased, Appellants. Elizabeth S. Schuster, as Executrix of Louise Schuster, Deceased, Respondent.
    Argued May 21,1940;
    decided October 1, 1940.

      Chester B. McLaughlin and Gordon W. McKean for appellants.

      Charles P. Carney for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Finch, Rippey, Sears and Lewis, JJ. Conway, J., dissents and votes to reinstate the order of the Surrogate’s Court. Taking no part: Lehman, Ch. J.


text:
    In the Matter of the Will of Henry Evans, Deceased. David Rumsey, Jr., et al., Appellants; Elizabeth B. Rumsey et al., Respondents.
    Argued May 23, 1940;
    decided October 1, 1940.

      John S. Sheppard for David Rumsey, Jr., et al., appellants.

      Joseph Lorenz and John F. X. Finn for Kenneth E. Sturm et al., appellants.

      William Britton Stitt as special guardian, appellant.

      Philip J. Dunn as special guardian, appellant.

      Louis D. Frohlich, David Fogelson, Herman Finkelstein, Arthur H. Schwartz and Herbert P. Jacoby for Elizabeth B. Rumsey et al., respondents.
   Orders affirmed, with costs payable out of the estate to all parties appearing separately and filing briefs. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Abe Geller, Appellant.
    Submitted June 3, 1940;
    decided October 1, 1940.

      Abe Geller in person, appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld of counsel), for respondent.
   Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York ex rel. The Prosperity Company, Inc., Respondent, against Rolland B. Marvin, as Mayor of the City of Syracuse, et al., Appellants.
    Argued June 3, 1940;
    decided October 1, 1940.

      Benjamin E. Shove for motion.

      James C. Tormey, Corporation Counsel (John F. Hmiel of counsel), opposed.
   Motion denied.


text:
    In the Matter of Fleetwood Bank. Fleetwood Bank et al., Appellants; Henry E. Stohldreier et al., Respondents.
    Submitted July 23, 1940;
    decided October 1, 1940.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 157.)


text:
    In the Matter of the Claim of Maurice Holzman, Appellant, against Gottfried Baking Co., Inc., et al., Respondents. State Industrial Board, Respondent.
    Submitted July 23, 1940;
    decided October 2, 1940.

      Maurice Holzman, in person, for motion;

      Samuel Schub opposed.
   Motion dismissed on the ground that the appellant has not complied with section 591 of the Civil Practice Act.


text:
    J. Ernest Welhaven et al., Appellants, v. Jeannette Kohn, Respondent.
    Submitted July 23, 1940;
    decided October 2, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 282 N. Y. 705.)


text:
    In the Matter of Louis K. Maylender, Jr., Appellant, against John T. Morrison et al., Constituting the Board of Elections of the County of Fulton, et al., Respondents.
    Argued October 3,1940;
    decided October 4, 1940.

      Laurence Arnold Tanzer for appellant.

      John T. Morrison and Alfred D. Dennison for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Estate of Charles S. Baker, Deceased. New York Central Railroad Company et al., Appellants; Seth Baker, Respondent.
    Argued May 27, 1940;
    decided October 8, 1940.

      George E. Phillies for motion.

      Mark N. Turner, John E. Leach and William R. Van Campen opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion, without prejudice to the right of the appellants to move in the Appellate Division for a resettlement of its order to state the nature of the further proceedings to be taken in the Surrogate’s Court.


text:
    Ruth de Santes, Respondent, v. Mural Transportation Corporation et al., Appellants, and Brooklyn and Queens Transit Corporation et al., Defendants.
    Submitted July 23, 1940;
    decided October 8, 1940.

      Gustave Schwarts for motion to dismiss and in opposition to motion for leave to appeal.

      Samuel N. Leiterman and E. Edan Spencer for motion for leave to appeal and in opposition to motion to dismiss.
   Motion to dismiss appeal granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the reversal of the judgment of dismissal entered after - the trial in favor of one defendant, does not constitute a modification of the judgment in favor of the plaintiff against the other defendants. (See 284 N. Y. 584.)

Motion for leave to appeal granted.


text:
    In the Matter of Jean Kay, Respondent, against Board of Higher Education of the City of New York, Respondent. Bertrand Russell, Appellant.
    Submitted September 30, 1940;
    decided October 8, 1940.

      Osmond K. Fraenkel for motion.

      Joseph Goldstein opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    Joseph Kantor, as Trustee, Respondent, v. Isadore Janowitch et al., Defendants, and National City Bank of New York et al., as Executors of Aaron Lipper, Deceased, Appellants.
    Submitted September 30, 1940;
    decided October 8, 1940.

      John J. Sweedler for motion.

      Reuben Golin opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    In the Matter of the Will of Frank Gorham, Sr., Deceased. Margaret G. Olena, Appellant and Respondent; Bertha S. Gorham, Individually and as Executrix of Frank Gorham, Jr., Deceased, Respondent and Appellant.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument and a stay denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 399.)


text:
    The People of the State of New York, Respondent, v. Celestian L. Strzep, Appellant.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied. (See 283 N. Y. 699.)


text:
    Theodora B. Frost, Individually and as Executrix of George S. Frost, Deceased, Respondent, v. A. Pierre Bachman, as Executor of Charles G. Hensley, Deceased, Appellant.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 744.)


text:
    William E. Woollard, Respondent, v. Schaffer Stores Company, Inc., Appellant.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 707.)


text:
    In the Matter of Valhalla Corporation et al., Appellants, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Respondents.
    (Appeal No. 1.)
    Submitted September 30, 1940;
    decided October 8, 1940.]

      Sidney S. Levine for motion.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the appellant has failed to comply with the provisions of section 591 of the Civil Practice Act.


text:
    In the Matter of Gould Realty Co., Inc., et al., Appellants, against Paul V. Reutershan, as Deputy County Treasurer of the County of Suffolk, et al., Respondents.
    Submitted September 30, 1940;
    decided October 8, 1940.

      William H. Robbins, F. Wells and Guy O. Walser for motion.

      Charles H. Stoll and Morris Rochman opposed.
   Motion denied with leave to renew upon the argument.


text:
    In the Matter of Silvio A. Lanza, Appellant, against George J. Ryan et al., as Members of the Board of Education of the City of New York, et al., Respondents.
    Submitted September 30, 1940;
    decided October 8, 1940.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer of counsel), for motion to dismiss and in opposition to motion for leave to appeal.

      Vito F. Lanza for motion for leave to appeal and in opposition to motion to dismiss.
   Motion to dismiss appeal granted and appeal dismissed, with costs and ten dollars costs of motion.

Motion for leave to appeal denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is interlocutory.


text:
    In the Matter of Rosario Chirillo et al., Appellants. Ruth Taylor, as Commissioner of Public Welfare of Westchester County, Respondent.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for a reargument denied. (See 283 N. Y. 417.)


text:
    In the Matter of Valhalla Corporation et al., Appellants, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Respondents.
    (Appeal No. 2.)
    Submitted September 30, 1940;
    decided October 8, 1940.

      Sidney S. Levine for motion.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that appellant has failed to .comply with the provisions of section 591 of the Civil Practice Act.


text:
    Mary F. Buchanan, Appellant, v. William H. Buchanan, Respondent.
    Submitted September 30, 1940;
    decided October 8, 1940.

      Robert S. Mullen and Henry K. Neidich for motion.

      Sidney S. Levine opposed.
   Motion granted and appeal dismissed.


text:
    Ruth de Santes, Respondent, v. Mural Transportation Corporation, Sol Kellerman and Brooklyn and Queens Transit Corporation, Appellants, Impleaded with Another.
    Submitted September 30, 1940;
    decided October 8, 1940.

      Gustave Schwartz for motion.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., of counsel), opposed.
   Motion denied. (Markiewicz v. Thompson, 246 N. Y. 235.) (See 284 N. Y. 577.)


text:
    Anthony Cambareri, Individually and as Administrator of the Estate of Anthony J. Cambareri, Deceased, Appellant, v. Board of Education of City of Albany, Respondent. (Action No. 1.) Anthony Cambareri, Appellant, v. Board of Education of City of Albany, Respondent. (Action No. 2.)
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied and remittitur in action No. 1 amended to read: “ Anthony Cambareri as administrator of the goods, chattels and credits of Anthony J. Cambareri, deceased, against The Board of Education of the City of Albany.” (See 283 N. Y. 741.)


text:
    Robert Martucci, an Infant, by Joseph Martucci, His Guardian ad Litem, et al., Appellants, v. Brooklyn Children’s Aid Society et al., Defendants. Desmond T. Barry, Respondent.
    Submitted September 30, 1940;
    decided October 8, 1940.

      Edward A. Shandell for motion to dismiss appeal and in opposition to motion by appellants for leave to prosecute appeal as poor persons.

      Charles A. Loreto for motion for leave to prosecute appeal as poor persons and in opposition to motion to dismiss.
   Motion to dismiss appeal denied, without costs.

Motion by appellants for leave to prosecute appeal as poor persons granted.


text:
    Donald F. Tripp, Respondent, v. Paul S. Van Baarn, Appellant.
    Submitted September 30, 1940;
    decided October 8, 1940.

      Edward A. Lipton for motion.

      Lyman Stansky opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the order is not a final determination and is one of reversal.


text:
    In the Matter of Emma E. Jones, Appellant, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Submitted September 30, 1940;
    decided October 8, 1940.

      Ruth Whitehead Whaley for motion.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), opposed.
   Motion for leave to appeal dismissed, with ten dollars costs and necessary printing disbursements, on the ground appellant had failed to comply with section 591 of the Civil Practice Act.


text:
    The People of the State of New York ex rel. Harley Stewart, Appellant, against William Hunt, as Warden of Attica Prison, Respondent.
    Submitted September 30, 1940;
    decided October 8, 1940.

      John J. Bennett, Jr., Attorney-General (James Noonan of counsel), for motion to dismiss appeal and in opposition to motion for leave to prosecute appeal as a poor person.

      Harley Stewart, in person, for motion for leave to prosecute appeal as a poor person and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal denied.

Motion for leave to prosecute appeal as a poor person granted.


text:
    Paul H. Wendel, Appellant, v. Harold G. Hoffman, Respondent, Impleaded with Others.
    Argued September 30, 1940;
    decided October 8, 1940.

      Ilo Orleans for motion.

      Thomas L. Zimmerman, Jr., and Nathan Goldman opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion, on the ground that no judgment has been entered finally determining the action.


text:
    Frances N. Sturman, Respondent, v. New York Central Railroad Company, Appellant.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 709.)


text:
    Blanche F. Van Ness, as Administratrix of the Estate of William C. Van Ness, Deceased, Appellant, v. Edward Jackson et al., Defendants, and Bedford Chevrolet Sales Corporation, Respondent.
    Submitted September 30, 1940;
    decided October 8, 1940.

      William P. Rafferty for motion.

      Samuel Binder opposed.
   Motion denied on the ground that the appeal has now been perfected.


text:
    Town of Putnam Valley, Respondent, v. Samuel L. Slutzky, Appellant.
    Submitted. September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 334.)


text:
    John J. O’Kane, Jr., et al., Copartners, Doing Business as John J. O’Kane, Jr., & Co., Appellants, v. State of New York, Respondent.
    (Claim No. 24798.)
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 439.)


text:
    Edward Furman, Appellant, v. Olive G. Furman et al., Respondents.
    Submitted September 30, 1940;
    decided October 8, 1940.

      Edward E. Hoenig for motion.

      Jerome A. Strauss and William G. H. Acheson opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground appellant has failed to comply with section 591 of the Civil Practice Act.


text:
    In the Matter of Philip Edwards, Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents. John H. Campbell, Jr., Intervener, Respondent.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 529.)

Motion by Corporation Counsel of the City of New York to amend the remittitur denied, with ten dollars costs and necessary printing disbursements.


text:
    In the Matter of the Probate of the Will of John Gibbons, Deceased. Norah O’Boyle, Appellant; Anne Gibbons et al., Respondents.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 663.)


text:
    In the Matter of William Conway, Respondent, against William F. Carey, as Commissioner of Sanitation of the City of New York, et al., Appellants.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 122.)


text:
    Sam Terner, Respondent, v. Glickstein & Terner, Inc., Appellant.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 299.)


text:
    Bankers Trust Company, Appellant, v. 1 East 88th Street Corporation, Respondent, Impleaded with Another.
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 369.)


text:
    Franciene Hofmann, Respondent, v. Max H. Hofmann et al., Defendants, and Sunwood Homes, Inc., et al., Appellants. (Eleven Other Actions.)
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 730.)


text:
    William H. Kniffin, as Trustee in Bankruptcy of C. H. Earle, Inc., Appellant, v. State of New York, Respondent.
    (Claim No. 21770.)
    Submitted September 30, 1940;
    decided October 8, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 317.)


text:
    In the Matter of the Liquidation of National Surety Company. William F. Laughlin, as Administrator de Bonis Non of the Estate of Wesley Cooper, Deceased, Appellant; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of National Surety Company, Respondent.
    Submitted September 30, 1940;
    decided October 9, 1940.
   Motion to amend remittitur granted. Return of remit-, titur requested and when returned it will be amended by adding thereto the following:

Two questions under the Federal Constitution were presented and necessarily passed upon in this proceeding by this Court:

“1. The appellant contended that the judgment recovered in the Courts of Mississippi was required to be accorded, by the Courts of the State of New York, full faith and credit pursuant to Article 4, Section 1 of the United States Constitution. This Court held that the proceedings in the State of Mississippi did not furnish an adequate basis for an in personam judgment and hence the Courts of New York were not required to accord such judgment full faith and credit pursuant to Article 4, Section 1 of the Constitution of the United States.

2. The appellant further contended that Article XI of the New York Insurance Law, to the extent that it operated to revoke the designation of the Commissioner of Insurance of Mississippi as statutory agent of National Surety Company, and to limit the time within which said company might, under Mississippi statutes, be sued in that State, impaired the contractual rights of the appellant and thereby violated Article 1, Section 10 of the United States Constitution. This Court held that the proceedings taken under Article XI of the Insurance Law did revoke such designation, but did not impair the Constitutional rights of appellant, or violate the provisions of Article 1, Section 10 of the Constitution of the United States.” (See 283 N. Y. 68.)


text:
    New York State Teachers’ Retirement System, Respondent, v. Frank H. Coyne, as Trustee, Appellant, Impleaded with Others.
    Submitted September 30, 1940;
    decided October 9, 1940.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by providing the order is affirmed without costs.” (See 283 N. Y. 615.)


text:
    Waneta W. Strout, Appellant, v. Cross, Austin & Ireland Lumber Company, Respondent.
    Submitted September 30, 1940;
    decided October 9, 1940.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by-providing that the judgments are reversed, with costs in all courts to the appellant. (See 283 N. Y. 406.)


text:
    The People of the State of New York ex rel. Joseph Ross, Appellant, against Joseph H. Wilson, as Warden of Great Meadow Prison, Respondent.
    Submitted September 30, 1940;
    decided October 9, 1940.

      Joseph Ross, in person, for motion.

      John J. Bennett, Jr., Attorney-General (Everett D. Mereness of counsel), opposed.
   Motion denied. The written opinions embody the determination of the court upon the only questions which were considered or decided by the court. No question concerning the relator’s right to compensation earned was presented by the record, raised by counsel or in any way involved in the appeal. We cannot pass upon it now.


text:
    In the Matter of Arthur S. Cowen et al., Respondents, against Grace A. Reavy et al., Constituting the Civil Service Commission of the State of New York, Appellants.
    Submitted October 7, 1940;
    decided October 15, 1940.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 232.)


text:
    The People of the State of New York ex rel. Vincent Mummiani, Respondent, against Lewis E. Lawes, as Warden of Sing Sing Prison, Appellant.
    Submitted October 7, 1940;
    decided October 15, 1940.

      Vincent Mummiani, in person, for motion.
    No one opposed.
   Motion denied on the ground no appeal is pending.


text:
    Cities Service Oil Company, Appellant, v. Saverio Soranno et al., Respondents.
    Submitted October 7, 1940:
    decided October 15, 1940.

      Charles E. Healy for motion.
    No one opposed.
   Motion denied without prejudice to the right of the respondents to move in this court that any brief filed after the time fixed by the rules should be disregarded.


text:
    In the Matter of the Claim of Lillian I. Heimroth, Appellant, against Elk Transportation Company, Inc., et al., Respondents.
    Submitted October 7, 1940;
    decided October 15, 1940.

      John J. Conners, Jr., for motion.
    No one opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    Sara Cordover, Respondent, v. Anna Cordover, Appellant, Impleaded with Others.
    Submitted October 7, 1940;
    decided October 15, 1940.
   Motion to prosecute appeal as a poor person and for assignment of counsel granted. Order dismissing appeal vacated. (See 283 N. Y. 774.)


text:
    The People of the State of New York ex rel. Harold S. Glendening, Appellant and Respondent, v. Alicia M. Glendening, Respondent and Appellant.
    Argued September 30, 1940;
    decided October 18, 1940.

      Paul W. Williams, Fred J. Knauer and Loftus Becker for relator, appellant and respondent.

      John W. Davis, Bernard Hershkopf and Frieda B. Hennock for defendant, respondent and appellant.
   Order affirmed, without costs; no opinion.

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


text:
    Teedor Co., Inc., Respondent, v. William Klein, Appellant.
    Argued September 30, 1940;
    decided October 18, 1940.

      Paul W. Williams, Fred J. Knauer, Adolph Lund and Milton R. Weinberger for appellant.

      Reuben Tally and Isaac M. Barnett for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Accounting of Paul Siegelack, as Executor of Sophie Siegelack, Respondent; Henry Wigand et al., Appellants.
    Argued September 30, 1940;
    decided October 18, 1940.

      Louis W. Vyner for appellants.

      George Foster, Jr., and Arthur H. Priest for respondent.
   Appeal dismissed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of Paul Siegelack, as Executor of Sophie Siegelack, Deceased, Respondent; Henry Wigand et al., Appellants.
    Argued September 30, 1940;
    decided October 18, 1940.

      Louis W. Vyner for appellants.

      George Foster, Jr., and Arthur H. Priest for respondent.
   Appeal dismissed, without costs; no opinion.

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


text:
    Walter Cavanagh et al., Appellants, v. Metropolitan Jockey Club et al., Respondents, Impleaded with Others.
    Submitted September 30, 1940;
    decided October 18, 1940.

      Sidney Kraut and Alex Kraut for appellants.

      Martin A. Schenck, Joseph S. Auerbach and William J. Carr for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lohghran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Will of Marilyn M. O’Brien, Deceased. Ado T. Miller, Respondent; Ada P. Reynolds, as Executrix, etc., of Edwin D. Reynolds, Deceased, et al., Appellants.
    Argued September 30, 1940;
    decided October 18, 1940.

      Joseph P. Brennan, Jr., for Ada P. Reynolds, appellant.

      Edwin C. Mulligan for Carrie Carter, appellant.

      Samuel W. Tannenbaum and Harry A. Tifford for respondent.
   Order affirmed, with costs to respondent payable out of the estate. No opinion.

Concur: Lehman, Ch. J., Lotighean, Finch, Rippey, Sears, Lewis and Conway, JJ:


text:
    Louise McN. Crawford, Appellant, v. Samuel McRoberts et al., Defendants, and Manufacturers Trust Company, Respondent.
    Argued September 30, 1940;
    decided October 18, 1940.

      Alfred B. Nathan, A. J. Asche and Louis P. Frank for appellant.

      Alonzo L. Tyler and Leonard G. Bisco for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Edward F. Tormey et al., Appellants, against Fiorello H. LaGuardia, as Mayor of the City of New York, et al., Respondents.
    Argued October 1, 1940;
    decided October 18, 1940.

      Irving Rivkin for appellants.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer and Paxton Blair of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Jesse Miles, Respondent, against Robert Colegrove, Appellant. State Industrial Board, Respondent.
    Argued October 1, 1940,
    decided October 18, 1940.

      John D. Sullivan for appellant.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.'
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Thomas J. Natoli, Appellant, against Bethlehem Steel Company, Respondent. State Industrial Board, Respondent.
    Argued October 1, 1940,
    decided October 18, 1940.

      James W. Coleman for appellant.

      Joseph F. Donovan for Bethlehem Steel Company, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Claim of Henry A. Schultz, Respondent, against E. W. & W. D. Allanson, Respondent, and Sun Indemnity Company of New York, Appellant. State Industrial Board, Respondent.
    Argued October 1, 1940;
    decided October 18, 1940.

      John T. Deegan for appellant.

      Jeremiah F. Connor and William R. Beahn for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Kenneth Hamilton, Respondent, against Village of Lynbrook. State Insurance Fund, Appellant; State Industrial Board, Respondent.
    Submitted October 1, 1940;
    decided October 18, 1940.

      George J. Hayes and William F. O’Rourke for appellant.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs. Advance payment, even after two years, constitutes a waiver of the bar of the statute. No opinion.

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


text:
    In the Matter of the Claim of Anna P. Penn, Respondent, against Florence N. Lewis et al., Appellants. State Industrial Board, Respondent.
    Argued October 1, 1940,
    decided October 18, 1940.

      Frank L. Ward for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Joseph A. McLaughlin of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Sam Torres, against Criterion Concessions, Inc., et al., Respondents. State Industrial Board, Appellant.
    Submitted October 1, 1940;
    decided October 18, 1940.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Joseph A. McLaughlin of counsel), for State Industrial Board, appellant.

      Irvin A. Snyder for respondents.
   Order affirmed, with costs against State Industrial Board. No opinion.

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


text:
    The People of the State of New York ex rel. New York Central Railroad Company, Appellant, against State Tax Commission, Respondent.
    Argued October 2, 1940;
    decided October 18, 1940.

      K. O. Mott-Smith, F. L. Wheeler and Clive C. Handy for appellant.

      John J. Bennett, Jr., Attorney-General (Edward J. Grogan, Jr., Timothy F. Cohan and Henry Epstein of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Marco D. Gnozzo, Individually and as a Stockholder of Commercial Trust Company of Buffalo, Appellant, against Marine Trust Company of Buffalo, Respondent.
    Argued October 2, 1940;
    decided October 18, 1940.

      Charles J. Margiotti, John E. Evans and Joseph A. Nevins for appellant.

      James McC. Mitchell, Daniel J. Kenefick and Laurence R. Goodyear for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ellen P. Clark, Appellant, v. Title Guarantee and Trust Company, Respondent.
    Argued October 2, 1940;
    decided October 18, 1940.

      Charles L. Crowley for appellant.

      Flynn L. Andrew and John M. Friedman for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Henry Steers, Inc., Appellant, against Bertha Rembaugh et al., Constituting the Zoning Board of Appeals of the Village of Northport, Respondents.
    Argued October 2, 1940;
    decided October 18, 1940.

      Joshua D. Jones and Alfred H. Sarno for appellant.

      William G. Bushell for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Harry G. Kesner et al., Appellants, v. Title Guarantee and Trust Company, Respondent.
    Argued October 2, 1940;
    decided October 18, 1940.

      Myron M. Behrman for appellants.

      Flynn L. Andrew and John M. Friedman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of John R. Carnell, Deceased. Hope Carnell, Individually and as Trustee, et al., Appellants; National Commercial Bank and Trust Company of Albany, as Trustee, Respondent.
    Argued October 3, 1940;
    decided October 18, 1940.

      Ralph E. Rogers for Hope Carnell et al., appellants.

      Martin Schenck, special guardian for Prentiss Carnell, 3d, et al., infants, appellants.

      Robert E. Whalen for respondent.
   Order affirmed,- with costs to each party appearing separately and filing a brief payable out of the estate. , No opinion.

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


text:
    In the Matter of Rochester Gas and Electric Corporation, Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued October 3, 1940;
    decided October 18, 1940.

      T. Carl Nixon for appellant.

      Gay H. Brown and Sherman C. Ward for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Adirondack National Bank and Trust Company, as Executor of Phelps Smith, Deceased, Respondent; Paul Smith’s College of Arts and Sciences, Appellant.
    Argued October 3, 1940;
    decided October 18, 1940.

      Frederick E. Crane, Harry P. Kehoe, Jeremiah W. Davern and William S. Crapser for appellant.

      John T. DeGraff and F. Ferris Hewitt for respondent.
   Order affirmed, with costs payable out of the estate. No opinion.

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


text:
    The People of the State of New York ex rel. Samuel M. Cowan, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued October 4, 1940;
    decided October 18, 1940.

      William F. Kennedy and Edwin S. Cohen for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
   Order affirmed, with costs. The distributions in question were dividends within the meaning of subdivision 8 of section 350 of the Tax Law. No opinion.

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


text:
    In the Matter of Samuel H. Kaufman et al., Copartners under the Firm Name of Kaufman & Weitzner, Respondents; Schatz A. Weicker, Appellant.
    Submitted October 4, 1940;
    decided October 18, 1940.

      William F. Purcell and Francis J. Purcell for appellant.

      Samuel H. Kaufman and Emil Weitzner, in person, respondents.
   Order affirmed, with costs; no opinion. (See 284 N. Y. 737.)

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


text:
    Alexander Weiler, Appellant, v. Dry Dock Savings Institution, Respondent.
    Submitted October 4, 1940;
    decided October 18, 1940.

      Julius Reinlieb for appellant.

      George W. Harrington and Clifford L. Tichenor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Luis De Hoyos, Respondent, v. Susie H. Thornton, Appellant. Philip Kaplan, Respondent, v. Susie H. Thornton, Appellant. Russell W. Allan, Respondent, v. Susie H. Thornton, Appellant. Nathan Rubin, Respondent, v. Susie H. Thornton, Appellant.
    Submitted October 14, 1940;
    decided October 18, 1940.

      Isaac Silberman for motion.

      John D. Lyons opposed.
   Motions granted and appeal dismissed, without costs, on the ground the order appealed from is not a final order.


text:
    Thomas W. Lamont et al., Individually and as the International Committee of Bankers on Mexico, Plaintiffs, v. Travelers Insurance Company et al., Defendants, and Louis S. Ottenheimer, Appellant. The Government of the United States of Mexico, Appearing Specially, Respondent.
    Submitted October 28, 1940;
    decided October 28, 1940.
   Motion to amend the remittitur denied. The opinion of this court leaves no room for doubt that since the Government of the United States of Mexico asks no affirmative relief, it should be granted leave to intervene specially in this action and to serve and file such pleading or statement of its claim of sovereign immunity as it may be advised. Indeed, only by such leave can proof of its claim of immunity | be presented, for a general appearance would constitute a submission to the jurisdiction of the court and bar any challenge to such jurisdiction. The order granting leave, even though expressly consented to by all parties, should, however, be made at Special Term, and not by this court. (See 281 N. Y. 362.)


text:
    In the Matter of Gabriel L. Kaplan, Appellant, against S. Howard Cohen et al., Constituting the Board, of Elections of the City of New York, et al., Respondents. In the Matter of Luigi Antonini, Individually and as Chairman of the State Committee of the American Labor Party, et al., Respondents, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Gabriel L. Kaplan et al., Appellants.
    Argued October 28, 1940;
    decided October 29, 1940.

      C. Dickerman Williams and Irving Kaufman for Gabriel L. Kaplan, appellant.

      Hyman N. Glickstein and Samuel M. Blinken for Benjamin L. Greenberg, appellant.

      Terence J. McManus, Matthew M. Levy, Joseph E. Brill, Maxwell Julian Eile, Eli Kriger and James Lipsig for petitioners, respondents.
   Orders affirmed, without costs; no opinion.

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


text:
    William A. Brady, Appellant, v. Blackett-SampleHummert, Inc., et al., Respondents, Impleaded with Others.
    Argued June 3, 1940;
    decided November 13, 1940.

      Walter J. Loria and S. E. Martinson for appellant.

      Clifton Cooper, Edward S. Rogers, Leslie D. Taggart and Leon Lauterstein for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mercer Tube & Manufacturing Company, Appellant and Respondent, v. American Zinc Sales Company, Respondent and Appellant.
    Argued October 8, 1940;
    decided November 13, 1940.

      Henry H. Salzberg, Benjamin Beskin and Milton A. Horowitz for plaintiff, appellant and respondent.

      Burt D. Whedon for defendant, respondent and appellant.
   On appeal from judgment: Judgment affirmed, without costs. No opinion.

On appeal from order: Order affirmed, without costs. First question certified answered in the affirmative. Second question certified not answered. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Edward S. Moran, Jr., Appellant.
    Argued October 10, 1940;
    decided November 13, 1940.

      John C. McDermott, Harold H. Corbin and Edward J. Bennett for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Burr F. Coleman of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Equitable Life Assurance Society of the United States, Respondent, v. Herbert Cannon, Appellant, Impleaded with Others.
    Argued October 14, 1940;
    decided November 13, 1940.

      Jay Leo Rothschild, Louis Rivkin and Leonard Golluber for appellant.

      James D. Ewing and Donald M. Dunn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Ridgefield Refrigeration Service, Inc., Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued October 17, 1940;
    decided November 13, 1940.

      William C. Chanler, Corporation Counsel (Paxton Blair, Sol Charles Levine and Bernard H. Sherris of counsel), for appellant.

      Samuel Bader and Harry G. Anderson for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Laura A. Wolf et al., as Testamentary Trustees of Charles W. Wolf, Deceased, Respondents; Ferdinand Curth, Appellant.
    Argued October 7,1940;
    decided November 13, 1940.

      Murray M. Halwer, Leon Hershbaum and Louis Rothbard for appellant.

      Jacob J. Aronson for respondents.
   Order affirmed, with costs to all parties filing separate briefs payable out of the estate. No opinion.

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


text:
    Fred H. Krull, Respondent, v. Bennett Homes and Lumber Co., Inc., et al., Defendants; City of North Tonawanda, Appellant, and County of Niagara, Respondent.
    Argued October 8, 1940;
    decided November 13, 1940.

      Henry W. Schmidt and Charles F. McMahon for appellant.

      George M. Donohue for plaintiff-respondent.

      Robert L. Rice, Jr., for defendant-respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rena Shines, Respondent, v. W. & Y. Realty Corp., Appellant.
    Argued October 9, 1940;
    decided November 13, 1940.

      Joseph E. Weil, Charles Gold and Lawrence Isaacs for appellant.

      Roderick B. Travis and Warren W. Wells for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emily Hallock, Appellant, v. George T. Ballachey et al., as Executors of and Trustees under the Will of Evelyn R. Cary, Deceased, Respondents.
    Argued October 14, 1940;
    decided November 13, 1940.

      Willard M. Pottle for appellant.

      Thomas R. Wheeler and LeGrand F. Kirk for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Agnes L. Leonard, Doing Business under the Name of Riley’s Lake House, Respondent, against Henry E. Bruckman et al., Constituting the State Liquor Authority, Appellants.
    Argued October 15, 1940;
    decided November 13, 1940.

      Monroe I. Katcher, II, and Francis V. McHugh for appellants.

      John J. O’Malley for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    United States Fidelity and Guaranty Company, Respondent, v. National City Bank of New York, Appellant, Impleaded with Others.
    Argued October 17, 1940;
    decided November 13, 1940.

      Lester Kissel, Allan C. Rowe and A. Hayne de Yampert for appellant.

      David S. Konheim, Samuel Halpern, Anthony J. Wolf and William J. McArthur for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ruth H. Madara, as Administratrix of the Estate of Charles B. Madara, Deceased, Respondent, v. Town of Lima, Appellant.
    Argued October 1, 1940;
    decided November 13, 1940.

      Elliott A. Horton for appellant.

      Austin W. Erwin and Edwards P. Ward for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Francis Huber, Deceased. Lillian M. Burke, as Executrix of Gustave Lange, Jr., Deceased, Appellant; Francis Huber, Jr., et al., Respondents.
    Argued October 8, 1940;
    decided November 13, 1940.

      Benjamin E. Messler and Robert C. Bryan for appellant.

      Kenneth R. Strickland, Joshua D. Jones and Alexander R. Kellegrew for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    Katie C. Brown, Appellant, v. Village of Owego, Respondent.
    Argued October 11, 1940;
    decided November 13, 1940.

      George L. Andrews for appellant.

      Nathan Turk and Benjamin W. Loring for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mildred Hill, Respondent, v. Morris White Properties Corporation, Appellant.
    Argued October 14, 1940;
    decided November 13, 1940.

      George J. Stacy and James J. Mahoney for appellant.

      Joseph B. Kenny, Harry B. Chambers, Harry H. Chambers, Robert H. Kilroe and M. Mal Deitch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Lillia M. Bearns, Deceased. City Bank Farmers Trust Company, as Trustee under the Will of Lillia M. Bearns, Deceased, Appellant; Joseph H. Bearns et al., Respondents.
    Argued October 16, 1940;
    decided November 13, 1940.

      Charles Angulo and Benjamin Nassau for appellant.

      Benjamin T. Cooke and John H. Hazelton for Joseph H. Bearns, respondent.
   Order affirmed, with costs to all parties appearing and filing separate briefs payable out of the estate. No opinion.

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


text:
    In the Matter of Adolph C. Rohl, Appellant, against Thomas W. H. Jeacock, as Commissioner of the Department of Social Welfare of Erie County, et al., Respondents.
    Submitted October 17, 1940;
    decided November 13, 1940.

      Charles J. McDonough for appellant.

      Elmer R. Weil and Paul J. Batt for Thomas W. H. Jeacock, as Commissioner, respondent.

      John J. Bennett, Jr., Attorney-General (James P. Cotter of counsel), for State Civil Service Commission, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of George E. Rice, Deceased. William A. Hines, as Executor of George E. Rice, Deceased, et al., Appellants; Helen S. Elliott, Respondent.
    Argued October 7, 1940;
    decided November 13, 1940.

      George H. Carleton, John R. Vunk, Harold Ashare and Alfred E. Frieman for Marguerite R. Childs et al., appellants.

      Richard Lincoln for William A. Hines, appellant.

      Thomas B. Gilchrist, Edward A. Niles and Arthur H. Barker for respondent.
   Order affirmed, with costs payable out of the estate. No opinion.

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


text:
    Phyllis Makris, an Infant, by Laura Makris, Her Guardian ad Litem, et al., Respondents, v. Sheffield Farms Company, Inc., et al., Appellants.
    Argued October 9, 1940;
    decided November 13, 1940.

      Harold R. Medina, Arthur J. Peck and William F. Mc Nulty for appellants.
    I. Maurice Wormser, Desmond T. Barry, Edward A. Shandell and Louis D. Schwartz for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mildred E. Powley, as Trustee, Appellant, v. Equitable Life Assurance Society of the United States, Respondent.
    Submitted October IQ, 1940;
    decided November 13, 1940.

      Theodore J. Miller for appellant.

      James D. Ewing for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Weisgerber, Respondent, v. Charles Ancona, Defendant, and J. Kane Grocery Co., Inc., Appellant.
    Argued October 14, 1940;
    decided November 13, 1940.

      George J. Stacy, James J. Mahoney and Joseph Kane for appellant.

      Paul Koch and Marcus J. Friedman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Meado-Lawn Homes, Inc., Appellant, v. Westchester Lighting Company et al., Respondents.
    Submitted October 16, 1940;
    decided November 13, 1940.

      Alexander Pfeiffer and Clarence S. Barasch for appellant. Martin Ginzler and H. S. Tunick for Bi-State Development Corporation, respondent.

      Tracy Costigan for Westchester Lighting Company, respondent.
   Judgment affirmed, wdth costs to Bi-State Development Corporation against the appellant. No opinion.

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


text:
    In the Matter of the Estate of Sophie Piel, Deceased. Walter Piel, as Executor of Sophie Piel, Deceased, and Elmer E. Wigg, Individually and as Executor, Appellants; Sophie P. Pinkney et al., Respondents.
    Argued October 17,1940;
    decided November 13, 1940.

      Frederick E. Crane, Brent W. Blythe and Edward J. Hogarty for appellants.

      H. H. Nordlinger, A. Paul Loshen, William J. Navin and Leonard Lazarus for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Bank of Richmondville et al., as Executors of William E. Lewis, Deceased, Appellants, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued October 3, 1940;
    decided November 13, 1940.

      Francis D. Higson for appellants.

      I. Herman Sher for Satterlee & Green, amici curiæ.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Erie Railroad Company et al., Appellants, against State Tax Commission, Respondent.
    Argued October 7, 1940;
    decided November 13, 1940.

      Robert E. Whalen for appellants.

      John J. Bennett, Jr., Attorney-General (Edward J. Gretchen and Henry Epstein of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Jean B. Tompkins, Respondent, v. Hugh E. Hale et al., as Directors of 1165 Fifth Avenue Corporation et al., Appellants.
    Argued October 11, 1940;
    decided November 13, 1940.

      Richard S. Holmes for appellants.

      Leslie J. Tompkins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Real Property on Jamaica Bay in the Borough of Brooklyn. Gerritsen Basin Development Corporation et al., Appellants. (Jamaica Bay Proceeding No. 1.) In the Matter of The City of New York Respondent, Relative to Acquiring Title to Real Property Forming Part of Oraboss Meadows and Bushes Meadows in the Borough of Brooklyn. Gerritsen Basin Development Corporation et al., Appellants. (Jamaica Bay Proceeding No. 2.) In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Real Property Bounded by Marine 15th Street, etc., in Connection with the Development of Marine Park in the Borough of Brooklyn. Gerritsen Basin Development Corporation et al., Appellants. (Marine Park Proceeding.)
    Argued May 23, 1940;
    decided November 13, 1940.

      Thomas L. Zimmerman, Jr., for Gerritsen Basin Development Corporation, appellant.

      Frederick Evan Crane, Robert Miller Cowen and Bernard Cowen for Helena K. Wyeth et al., appellants.

      William C. Chanler, Corporation Counsel (Paxton Blair, Joseph F. Mulqueen, Jr., Philip L. Wellens and Herman Meltzer of counsel), for respondent.
   In each proceeding: Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Liquidation of New York Title and Mortgage Company. William P. Clark et al., Appellants; Louis H. Pink, Superintendent of Insurance, as Liquidator of New York Title and Mortgage Company, et al., Respondents.
    Argued October 14,1940;
    decided November 13, 1940.

      William A. Barber for William P. Clark et al., appellants. Raphael H. Weissman for Golden Hill Building Corporation, appellant.

      Samuel Boksenbom and William A. Shea for Louis H. Pink, as Superintendent of Insurance, respondent.

      Barnet Kaprow, Sidney R. Nussenfeld and Sherman S. Rogers for Trustees of Series B-K, F-l and C-2, respondents.

      Frank W. Chambers and Walter E. Warner, Jr., for Trustees of Series N-20, respondents.
   Order affirmed, without costs. (Matter of New York Title & Mortgage Co., 277 N. Y. 66.) No opinion.

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


text:
    In the Matter of the Probate of the Will of Laura Guidi, Deceased. Margaret T. Mountain et al., Appellants; Alexander F. Whelan, Respondent.
    Argued October 4, 1940;
    decided November 13, 1940.

      Colley E. Williams and William G. Chambers for appellants.

      Laurence L. Cassidy and Mortimer M. Cassidy for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Horace L. Bartindale, Appellant.
    Submitted October 9, 1940;
    decided November 13, 1940.

      Irving I. Erdheim and Frank I. Tashker for appellant.

      George V. Dorsey, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Paul Sperling, Appellant, and Another, Defendant.
    Submitted October 10, 1940;
    decided November 13, 1940.

      Samuel L. Teitler and Samuel B. Newman for appellant.

      William O’Dwyer, District Attorney (Edward H. Levine of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Charles Feldman, Respondent, v. Thomas E. Murray, as Receiver of Interborough Rapid Transit Company, Appellant.
    Submitted September 30, 1940;
    decided November 14, 1940.

      Charles Glatzer for motion.

      James L. Quackenbush opposed.
   Motion denied without prejudice to the right of the respondent to move in this court that any brief filed after the time fixed by the rules should be disregarded. Appeal to be argued following order calendar of January, 1941, session.


text:
    Title Guaranty and Trust Company, as Trustee, Appellant, v. 2846 Briggs Avenue, Inc., Respondent, Impleaded with Others.
    Submitted October 14, 1940;
    decided November 14, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements, (See 283 N. Y. 512.)


text:
    City Bank Farmers Trust Co., as Trustee, Respondent, v. Bernard C. McConnell, Defendant, and Realty Associates Securities Corporation, Appellant.
    Submitted October 10, 1940;
    decided November 19, 1940.

      Lynn G. Goodnough for appellant.

      Gerard I. Walters and Charles M. McCarty for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Francis W. Sutton, Appellant, against James T. Cross, a Justice of the Supreme Court, et al., Respondents.
    Submitted October 18, 1940;
    decided November 19, 1940.

      Francis W. Sutton, appellant in person.

      Dwight N. Dudo, District Attorney, for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Ebling Company, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued October 18, 1940;
    decided November 19, 1940.

      David Vorhaus for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of 339 Central Park West, Inc., Respondent, against Mark Graves et al., Constituting the State Tax Commission, Appellants.
    Argued October 18, 1940;
    decided November 19, 1940.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for appellants.

      Morway Picket for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    United States Trust Company of New York, as Trustee, etc., Respondent, v. Zillah T. Wenzell et al., Appellants, and Ambrose Day, Respondent, Impleaded with Others.
    Argued October 1, 1940;
    decided November 19, 1940.

      Alexander S. Andrews for appellants.

      T. Sherman Class for defendant, respondent.

      Robert L. Redfield for plaintiff, respondent.
   Judgment affirmed, with costs to defendant-respondent; no opinion.

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


text:
    Henriette Adlerblum et al., as Executors of David Adlerblum, Deceased, et al., Appellants and Respondents, v. Metropolitan Life Insurance Company, Respondent and Appellant.
    Argued October 8, 1940;
    decided November 19, 1940.

      Frederick E. Weinberg for plaintiffs, appellants and respondents.

      William B. Moose for defendant, respondent and appellant.

      Herbert S. Ogden and James D. Ewing for Equitable Life Assurance Society of the United States, amicus curiæ.

      Charles J. Nehrbas and Henry C. Moses for Commercial Travelers Mutual Accident Association of America, amicus curiæ.

   On appeal by plaintiffs: Appeal dismissed, with costs. On appeal by defendant: Judgment affirmed, with costs. No opinion.

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


text:
    In the Matter of John P. Ward et al., Appellants, against Paul J. Kern et al., as Commissioners of the Municipal Civil Service Commission of the City of New York et al., Respondents.
    Submitted October 17, 1940;
    decided November 19, 1940.

      Irving H. Saypol and Leo Kotler for appellants.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer, Paxton Blair and M. Camper O’ Neal of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Watson E. Pelton, Appellant, v. City of Geneva, Respondent.
    Submitted November 12, 1940;
    decided November 19, 1940.

      Earl W. Murray for motion.

      Albert G. Kirby, City Attorney, opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that if there is a substantial question of constitutional law the appeal lies as of right.


text:
    In the Matter of the Estate of Irving I. Bloomingdale, Deceased. Richmond J. Reese, as Executor of Irving I. Bloomingdale, Deceased, Appellant; Donald Bloomingdale, et al., Respondents.
    Submitted November 12, 1940;
    decided November 19, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 755.)


text:
    In the Matter of the City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property Required for the Bronx River Parkway, Southerly Extension and Two Public Parks in the Borough of The Bronx. A. F. & G. Realty Corporation et al., Respondents and Appellants.
    Submitted November 12, 1940;
    decided November 19, 1940.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: “ The following several questions under the Federal Constitution were presented and necessarily passed upon by this court. The claimants-appellants respondents contended that chapter 594 of the Laws of 1939 of the State of New York, effective July 1, 1939, (1) impairs the obligation of contracts and thus violates article 1, section 10, of the Constitution of the United States; (2) that said statute impairs the vested property rights of each of the claimants and deprives each of them of ■ just compensation both in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution; (3) that said statute deprives the claimants of the equal protection of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. “ This court held that said chapter 594 of the Laws of 1939 in so far as it has been held applicable to this proceeding does not violate either (1) the provisions of article 1, section 10, of the Constitution of the United States; (2) that clause of the Fourteenth Amendment of the Constitution of the United States which provides that no State shall deprive any person of life, liberty or property without due process of law, or (3) that clause of the Fourteenth Amendment of the Constitution of the United States which provides that no State shall deprive any person of the Equal Protection of the laws.” (See 284 N. Y. 48.)


text:
    The People of the State of New York ex rel. William Wood, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted November 12, 1940;
    decided November 19, 1940.

      William Wood, in person, for motion.
    No one opposed.
   Motion denied on the ground that it does not appear that there has been any determination by the Appellate Division.


text:
    Greyhound Corporation et al., Appellants, v. Commercial Casualty Ins. Co. et al., Defendants, and First Reinsurance Company of Hartford, Respondent.
    Argued November 12, 1940;
    decided November 26, 1940.

      Milton B. Ignatius and Joseph S. Catalano for appellants.

      Charles H. Tuttle for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John H. Weidner, Appellant, v. Edward F. Ronan et al., Respondents.
    Argued November 12, 1940;
    decided November 26, 1940.

      A. E. Gold for appellant.

      Harold S. Taylor for Edward F. Ronan, respondent.

      Herman F. Nehlsen, Corporation Counsel (Samuel W. Bernstein of counsel), for Arthur J. Ogden et al., respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    Pearl Warner, Respondent, v. New York Telephone Company, Appellant.
    Argued November 12, 1940;
    decided November 26, 1940.

      Charles J. Herrick for appellant.

      James A. Leary, Walter A. Fullerton and John J. Lynch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the General Assignment for the Benefit of Creditors of Powell & Salzman, Inc. Manufacturers Trust Co., Appellant; Samson Merriam, Respondent.
    Argued November 12, 1940;
    decided November 26, 1940.

      Leonard G. Bisco, George B. Balamut and Herbert B. Gitlin for appellant.

      Hyman Gold for respondent.
   Order affirmed, with costs, on the ground there is evidence to sustain the findings of the referee. No opinion.

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


text:
    Axel Lofgren et al., Appellants, v. Protane Corporation, Respondent.
    Argued October 2, 1940;
    decided November 26, 1940.

      Clarence G. Pickard for appellants.

      Harold J. Adams and Edmund S. Brown for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Majoe Greenfield, Appellant.
    Argued October 10, 1940;
    decided November 26, 1940.

      Francis I. Howley, Joseph A. Martinis and Alan Daniels for appellant.

      Samuel J. Foley, District Attorney (Sol Boneparth, Herman J. Fliederblum and Edward F. Breslin of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Mary Derlicka et al., Appellants, v. Samuel Leo, Respondent, Impleaded with Others.
    Argued November 12, 1940;
    decided November 26, 1940.

      William Logan, Jr., and Helen F. Tuohy for appellants.

      Thomas H. Clearwater and Lorenz J. Brosnan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Edward Larkman, Appellant.
    Submitted October 11, 1940;
    decided November 26, 1940.

      Edward Larkman, appellant, in person.

      Leo J. Hagerty, District Attorney (Winifred Stanley of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the General Assignment for the Benefit of Creditors of Long Island Sash & Door Corporation. City of New York, Appellant; United States of America, Respondent.
    Argued November 12, 1940;
    decided November 26, 1940.

      William C. Chanler, Corporation Counsel (Paxton Blair, Sol Charles Levine and Charles H. Birdsall of counsel), for appellant.

      Harold M. Kennedy, United States Attorney (Mario Pittoni and Vine H. Smith of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Lewis, JJ. Conway, J., dissents on the authority of United States v. Guaranty Trust Co. (280 U. S. 478) and United States v. Marxen (307 U. S. 200).