text:
    Sigurd Revheim et al., Appellants and Respondents, v. Samuel B. Shankman et al., Respondents and Appellants.
    Argued October 16, 1944;
    decided November 22, 1944.

      Herbert D. Cohen and Alexander H. Carroad for plaintiffs-appellants and respondents.
    Z. Maurice Wormser and Joseph L. Giller for defendants-respondents and appellants.
   Judgment, insofar as appealed from by plaintiff, affirmed; and judgment, insofar as appealed from by defendants, reversed, and the supplemental complaint dismissed on the merits, with costs in all courts to the defendants, on the ground that the executory accord was invalid under section 33-a, subdivision 2, of the Personal Property Law, and that there was no breach of the agreement alleged in the original complaint. No opinion. (See 294 N. Y. 662.)

Concur: Lehman, Ch. J., Loughkan, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    Agnes Foley, Respondent, v. State of New York, Appellant. Harry A. Foley, Respondent, v. Same, Appellant. Eugene F. Foley, Respondent, v. Same, Appellant. Harry A. Foley, Respondent, v. Same, Appellant. Audrey C. Foley, Respondent, v. Same, Appellant. Janet Foley, Respondent, v. Same, Appellant. William E. Foley, Respondent, v. Same, Appellant.
    (Claim No. 25961.)
    (Claim No. 25962.)
    (Claim No. 25963.)
    (Claim No. 25964.)
    (Claim No. 25965.)
    (Claim No. 25966.)
    (Claim No. 25967.)
    Submitted October 9, 1944;
    decided November 22, 1944.

      Samuel Sapowitch and Alfred L. Hetselt for motion to dismiss appeals and in opposition to cross motion.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Henry S. Manley of counsel), for cross motion and in opposition to motion to dismiss appeals.
   Motion to dismiss appeals granted and appeals dismissed, with ten dollars costs of motion.

Motion for leave to appeal granted.


text:
    The People of the State of New York, Respondent, v. Frank X. Hasse, Appellant.
    Submitted November 13, 1944;
    decided November 22, 1944.

      Charles P. Sullivan, District Attorney (James F. T. Delaney of counsel), for motion.

      Frank X. Hasse, in person, opposed.
   Motion granted and appeal dismissed on the ground that no appeal can be taken to this Court.


text:
    In the Matter of the Claim of Joseph Glowney, Respondent, against Statler’s Restaurant et al., Appellants. State Industrial Board, Respondent.
    Submitted November 13, 1944;
    decided November 22, 1944.

      Clarence B. Tippett for motion.
    No one opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Stephen B. Vreeland, Appellant and Respondent, v. H. Raymond Aguais et al., Respondents and Appellants.
    Submitted November 13, 1944;
    decided November 22, 1944.

      George A. Ferris for motion.

      Sydney A. Syme opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    William G. Easton, Respondent, v. Glenn W. Simpson, Appellant.
    Submitted November 13, 1944;
    decided November 22, 1944.

      William L. Clay for motion.

      William G. Easton, in person, and Eugene J. Dwyer opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the matter within the meaning of the Constitution.


text:
    Shirley Honig, Appellant, v. William Honig, Respondent.
    Submitted November 13, 1944;
    decided November 22, 1944.

      Aaron Fleissig for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of M. E. Conran Co., Inc., Judgment Creditor, Respondent, and Isidore Weissberger & M. M. Leichter, Constituting the Firm of Weissberger & Leichter, Substituted Judgment Creditors, Respondents, against Melvin Pine, Judgment Debtor, Appellant, et al., Judgment Debtors.
    Submitted November 13, 1944;
    decided November 22, 1944.

      Irving Lemov for motion.

      M. M. Leichter, in person, and Henry Chant, opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Howard J. Conyne, Respondent, v. Thomas McGibbon et al., Appellants, et al., Defendants.
    Submitted November 13, 1944;
    decided November 22, 1944.

      Coleman Taylor and Chandler 8. Knight for motions.

      Russell G. Dunmore, Jr., opposed.
   Motions dismissed, with ten dollars costs and necessary printing disbursements on the ground that the orders do not finally determine the action within the meaning of the Constitution.


text:
    City Bank Farmers Trust Company et al., as Trustees, Respondents, v. Eugene T. Cannon et al., Defendants, and William B. Levet, as Successor Guardian ad Litem for Charles A. Cannon, Jr., et al., Infants, Defendants-Appellants.
    Submitted November 13, 1944;
    decided November 22, 1944.
   Motion by appellants for reargument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 125.)


text:
    Martin Debold, Respondent, v. Frank C. Kinscher, Individually and as Executor of Johannah McLean Debold, Deceased, et al., Appellants.
    Submitted November 13, 1944;
    decided November 22, 1944.

      Benjamin Cohn for motion.

      Morris A. Sidihman opposed.
   Motion, to dismiss appeal as to Frank 0. Kinscker granted and appeal dismissed, with costs and ten dollars costs of motion unless that appellant serves and files an undertaking on appeal and pays ten dollars costs within twenty days, in which event the motion is denied.


text:
    Norman Johnson, Suing on Behalf of Himself and All Other Stockholders of Gold and Stock Telegraph Company Similarly Situated, Appellant, v. Western Union Telegraph Company et al., Respondents.
    Submitted November 13, 1944;
    decided November 22, 1944.
   Motion by respondent Western Union Telegraph Company for reargument denied, with ten dollars costs and necessary printing disbursements. (See 293 N. Y. 379.)


text:
    Chelrob, Inc., et al., Suing on Their Own Behalf and on Behalf of All Other Stockholders of Queens Borough Gas & Electric Company, Similarly Situated, Appellants, v. Edward F. Barrett et al., Respondents, et al., Defendants. Margaret Espach et al., Appellants, et al., Suing on Their Own Behalf as Stockholders and for the Benefit of All Other Stockholders of the Nassau & Suffolk Lighting Company, Similarly Situated, Plaintiffs, v. Nassau & Suffolk Lighting Company et al., Respondents.
    Submitted November 13, 1944;
    decided November 22, 1944.
   Motions by respondents Nassau & Suffolk Lighting Company and Long Island Lighting Company in the first above-entitled action and by appellants in the second above-entitled action for reargument denied, with ten dollars costs and necessary printing disbursements. (See 298 N. Y. 442, 463.)


text:
    In the Matter of Henry K. Astwood, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents, and Patrolmen’s Benevolent Association of the City of New York et al., Interveners, Appellants.
    Submitted November 13, 1944;
    decided November 22, 1944.
   Motion by William J. Allsopp and others, interveners, appellants, to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 484.)


text:
    Maurice F. Simon, Appellant and Respondent, v. Noma Electric Corporation et al., Respondents and Appellants, et al., Defendants.
    Submitted November 13, 1944;
    decided November 22, 1944.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 293 N. Y. 171.)


text:
    Anna Dixon, Respondent, v. Ernest B. Morris et al., as Executors of William E. Woollard, Deceased, Appellants. Louis Dixon, Respondent, v. Ernest B. Morris et al., as Executors of William E. Woollard, Deceased, Appellants.
    Argued October 17, 1944;
    decided November 22, 1944.

      Michael D. Reilly and Ernest B. Morris for appellants.

      John J. Scully and James H. Ryer for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Charles J. Schwalenstocker, Respondent, against Department of Taxation and Finance of the State of New York et al., Appellants. State Industrial Board, Respondent.
    Argued October 18, 1944;
    decided November 22, 1944.

      George J. Hayes, Victor Fiddler and William F. O’Rourke for appellants.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Emmeline E. Ferris of counsel), for State Industrial Board, respondent.
   Order of the Appellate Division affirming the award of compensation reversed and claim dismissed, without costs, upon the ground that there was no evidence that the cold contracted by claimant was an accidental injury within the meaning of Workmen’s Compensation Law, section 2, subdivision 7, that is to say, within the common understanding of “ accidental injuries ” in common speech; nor was there any evidence of causal connection between the claimant’s, exposure to low temperature in the course of his employment on April 5, 1940, and his disability resulting from heart attacks on April 20th of the same year and on April 14th of the following year. The testimony given by a physician at the last hearing in answer to a hypothetical question was predicated upon the assumption of facts unsupported by evidence or by personal examination of the claimant. No opinion. j

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


text:
    In the Matter of William J. Daly, Appellant, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Respondents.
    Argued October 19, 1944;
    decided November 22, 1944.

      William B. Mahoney for appellant.

      Monroe I. Katcher, II, and Elvin N. Edwards for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    Julius Auerbach et al., as Stockholders of Ufland-Liftman, Inc., Suing on Their Own Behalf and on Behalf of Said Ufland-Liftman, Inc., as a Stockholder of Lacidem Realty Corp., and on Behalf of All Other Stockholders of Ufland-Liftman, Inc., and of Lacidem Realty Corp., Similarly Situated, Appellants, v. Lacidem Realty Corp. et al., Defendants, and Paul Liftman et al., Defendants-Respondents.
    Argued October 16, 1944;
    decided November 30, 1944.

      Charles S. Rosenschein, Robert Moers and Kerman Schner for appellants.

      Oliver T. Cowan and Monroe Goldwater for respondents.
   Appeal from judgment entered June 6, 1944, in favor of defendant Paul Liftman dismissed on the ground that the judgment entered after trial against him is a single judgment from which no direct appeal lies to this court.

Judgment entered May 24, 1944, in favor of defendants Paul Liftman, and others, affirmed, with costs. No opinion.

■ Concur: Lehman, Ch. J., Lottghban, Rippey, Lewis, Conway, Desmond and Thachbr, JJ.


author: Per Curiam.

text:
    In the Matter of Michael Sheriff, Respondent. Abraham K. Fleschner et al., as Officers and Directors of Albert A. Volk Company, Inc., Appellants.
    Argued October 19, 1944;
    decided November 30, 1944.

      Louis Salant and Eli S. Wolbarst for appellants.

      Herbert J. Jacobi and John K. Ciarle, Jr., for respondent.
   Per Curiam.

The pleadings and accompanying papers show sufficient denial of material jurisdictional facts to preclude the granting of a peremptory order of mandamus (Matter of Wong Wah Yew v. Mun Hey Pub. Co., 275 N. Y. 615).

The orders should be reversed and the motion denied, with costs to appellants in all courts.

Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacher, JJ., concur.

Orders reversed, etc.


text:
    The People of the State of New York, Respondent, v. Patrick Monaco, Appellant.
    Argued October 9, 1944;
    decided November 30, 1944.
   Per Curiam.

It was error for the trial court to charge, as a matter of law, that Katz was not an accomplice of the defendant. That was a question, on the record here presented, for the jury.

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Lohghean, Rippey, Lewis, Conway, Desmond and Thacher, JJ., concur.

Judgments reversed, etc.


text:
    In the Matter of Milton Apfel et al., Claimants. The Unity Life and Accident Insurance Association, Appellant; Frieda S. Miller, as Industrial Commissioner, Respondent.
    Submitted October 20, 1944;
    decided November 30, 1944.

      Lyle HornbeGh for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran and Wendell P. Brown of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lohghban, Rippey, Lewis, Conway, Desmond and Thachee, JJ.


text:
    The People of the State of New York, Respondent, v. Leo J. Alexander, Appellant.
    Argued October 11, 1944;
    decided November 30, 1944.

      Samuel J. Joseph and Irwin M. Levy for appellant.

      Frank Kogan, District Attorney (Whitman Knapp, Bichard G. Denver, Edward T. Perry and Irving Slonim of counsel), for respondent.
   Judgment affirmed; no opinion. (See 294 N. Y. 651.)

Concur: Lehman, Oh. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Harry R. Krause, Respondent, v. 1314 Avenue K Realty Co., Inc., Appellant, et al., Defendants.
    Submitted November 13, 1944;
    decided November 30, 1944.

      Julius 8. Christensen, James J. McLoughlin and Thomas F. Rarrigan for motions.

      Rarry E. Kreindler and Morton S. Waxman opposed.
   Motion for leave to appeal from judgment denied, with ten dollars costs and necessary printing disbursements.

Motion for leave to appeal from order dismissed on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Chris Pedersen, Individually and as Agent and Representative for and in Behalf of Himself and All Other Employees of the Defendant Similarly Situated, Respondent, v. J. F. Fitzgerald Construction Company, Appellant.
    Submitted November 20, 1944;
    decided November 30, 1944.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: “ Upon this appeal there was presented and necessarily passed upon a question of interpretation of a Federal statute, the Fair Labor Standards Act of 1938. The decision of this court that respondents have established their right to recover benefits under said Act is based upon the sole ground that the agreed statement of facts states a prima facie case in that it shows that the respondents were employed in doing work under the appellant’s contract for the repair of an instrumentality of commerce, and therefore that the appellant had the burden, which it failed to sustain, of going forward with evidence to show the contrary.” (See 293 N. Y. 126.)


text:
    Irving Steinfeld Plumbing Co., Inc., Appellant, v. Prudential Insurance Company of America, Respondent.
    Submitted November 27, 1944;
    decided November 30, 1944.

      Louis S. Weiner for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion, upon the ground that the order does not finally determine a special proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Madeline Webb, Appellant.
    Submitted November 27, 1944;
    decided November 30, 1944.

      Frank 8. Hogan, District Attorney (Whitman Knapp of counsel), for motion.

      Arnold Cohen opposed.
   Motion denied on condition that appellant perfect her appeal and be ready to argue her appeal in the second week of the January, 1945, session; otherwise motion granted and appeal dismissed. The appeal may be prosecuted on the printed record in People v. Cullen and Shonbrun.


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for Widening Southern Boulevard and Whitlock Avenue in the Borough of The Bronx; Service Diners, Inc., et al., Respondents.
    Argued November 14, 1944;
    decided December 30, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Leo Brown, Julius Isaacs and Benjamin Offner of counsel), for appellant.

      Bernard Cohen and Hyman W. Okin for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Gertrude V. Pincus, Appellant, v. Joseph Pincus, Respondent.
    Argued November 15, 1944;
    decided December 30, 1944.

      . Norman M. Behr and Robert Moers for appellant.

      Leopold Bleich and Julian T. Abeles for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    John Barna, as Administrator of the Estate of Pauline S. Barna, Deceased, Respondent, v. The State of New York, Appellant. Catherine G. Macken, as Administratrix of the Estate of Hugh A. Macken, Deceased, Respondent, v. The State of New York, Appellant.
    (Claim No. 24069.)
    (Claim No. 24070.)
    Argued November 17, 1944;
    decided December 30, 1944.

      Nathaniel L. Goldstein, Attorney-General (Arthur W. Matt-son, Orrin G. Judd, Adrian K. King and Marvin P. Lazarus of counsel), for appellant.

      John J. Conway for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Loughran, Lewis, Conway, Desmond and

Thacher, JJ. Lehman, Ch. J., and Rippey, J., dissent and vote to reverse the judgment of the Appellate Division and to reinstate the judgment of the Court of Claims.


text:
    Edna Benton Wake Wyman et al., as Executors under the Will of Edward E. Wyman, Deceased, Appellants, v. Pan American Airways, Inc., Respondent.
    Argued November 20, 1944;
    decided December 30, 1944.

      Benjamin H. Siff for appellants.

      Donald Havens, Edgar B. Kraetser and David L. Corbin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. City of Yonkers, Appellant.
    Argued November 22, 1944;
    decided December 30, 1944.

      John J. Broderick, Corporation Counsel (J. Raymond Hannon of counsel), for appellant.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Orrin G. Judd and Edivard L. Ryan of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael Kerner, Appellant, v. Surface Transportation Corporation of New York et al., Respondents, and Vincent Kelly, Defendant.
    Argued November 28, 1944;
    decided December 30, 1944.

      Robert E. Elder for appellant.

      Addison R. Scoville, Alfred T. Davison, James M. O’Neill and Oliver R. Brant for respondents.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    The People of the State of New York ex rel. Irmor Corporation, Appellant, v. Joseph Lilly et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued November 13, 1944;
    decided December 30, 1944.

      Louis 8. Lewis and Louis 8chack for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Oscar L. Tucker and Arthur E. Goldberg for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Ripfey, Lewis, Conway; Desmond and Thacher, JJ.


text:
    New York Trap Rock Corporation et al., on Behalf of Themselves and All Other Creditors of Borough Asphalt Company, et al., Respondents, v. National Bank of Far Rockaway, Appellant.
    Argued November 14, 1944;
    decided December 30, 1944.

      Carl E. Peterson and Joseph F. Finhelstein for appellant.

      Daniel Combs and James J. Vaughan for respondents.
   Judgments reversed and complaint dismissed, with costs in all courts, on the authority of Raymond Concrete Pile Co. v. Federation Bank, 288 N. Y. 452. No opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thachbr, JJ.


text:
    Charles H. E. Van Dyke, Appellant, v. Louis Cohen, Respondent, et al., Defendants.
    Argued November 15, 1944;
    decided December 30, 1944.

      Louis H. 0. Fischman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    The People of the State of New York, Respondent, v. C. Edward Scotti, Appellant.
    Argued November 20, 1944;
    decided December 30, 1944.

      1. Maurice Wormser, Edward J. Fontana and C. Joseph Banahy for appellant.

      Frank S. Hogan, District Attorney (Ferdinand J. Wolf and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J.*, Lottghean, Rippet, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    The People of the State of New York, Respondent, v. Leon Mailman, Doing Business as Staten Island Packing Co., Appellant. (132 Proceedings.)
    Argued November 27, 1944;
    decided December 30, 1944.

      Harry A. Gottlieb for appellant.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Wendell P. Brown and John B. Davison of counsel), in support of the constitutionality of the statute and resolutions brought into question by these appeals (see Executive Law, § 68).

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel, W. Bernard Richland and Aaron B. Coleman of counsel), for respondent.

      Samuel Mermin, Thomas Emerson, Fleming James, Jr., David London, Paul L. Boss and Albert 1. Schmalhols for Chester Bowles, as Administrator of the Office of Price Administration, amicus curiae.

   Judgment affirmed; no opinion.

Concur; Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    John F. Dailey, Jr., as Trustee in Reorganization of 263 West 38th Street Corporation, and Alfred J. Kennedy, Jr., as Receiver of Morris Kobrinetz, in Proceedings Supplementary to Judgment, Respondents, v. Harry Gidinsky, Appellant, Impleaded with Others, Defendants.
    Argued November 28, 1944;
    decided December 30, 1944.

      David Haar for appellant.

      Samuel Komoroff and Edward J. Gould for respondents.
   Per Curiam.

The final judgment should be modified by striking therefr'om the direction for payment to the plaintiff receiver of sums to be fixed by the court in which the receivership is pending. Whether such payment shall be made to the plaintiff receiver must be determined by the court which appointed him. (Civ. Prac. Act, §§ 804-a, 1547.) In all other respects, the judgments should be affirmed, with costs.

The judgments should be modified in accordance with this opinion and as so modified affirmed, with costs.

Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thachek, JJ., concur.

Judgment accordingly.


text:
    Emma S. Smith, Appellant, v. Marcella O’Neill, Respondent, and The Equitable Life Assurance Society of the United States, Defendant.
    Argued November 13, 1944;
    decided December 30, 1944.

      Edward A. Wolff for appellant.

      Alvin I. Perlmutter and Marie B. Passannante for respondent.
   Judgment affirmed, without costs; no opinion.

Concur; Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Ronald C. Scott, as Administrator of the Estate of Mary Scott, Deceased, Appellant, v. Alyce E. Miller, Defendant, and Kenmar Manufacturing Company et al., Respondents.
    Argued November 14, 1944;
    decided December 30, 1944.

      Michael Catalano and Harold Horowitz for appendant.

      Clayton M. Smith for respondents.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. Appeal from judgment dismissed; without costs. No opinion.

Concur: Lehman, -Oh. J., Loughran, Rippey, Lewis, Conway:, Desmond and Thacher, JJ.


text:
    Henry J. Simon, as Executor of the Estate of Abbie Stayfield, Deceased, Respondent, v. Wheel Chair Home for Incurables, Inc., Appellant.
    Argued November 14, 1944;
    decided December 30, 1944.

      J. C. Johnston, Harold V. Cook and Thomas R. Wheeler for appellant.

      Selby G. Smith and Samuel Sapotvitch for respondént.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    The People of the State of New York, Respondent, v. Martina Santiago, Appellant.
    Submitted November 20, 1944;
    decided December 30, 1944.

      Samuel Markowitz and Louis L. Moses for appellant.

      Frank S. Hogan, District Attorney (Whitman Knapp and Pauline B. Taylor of counsel), for respondent.
   Judgments reversed and information dismissed. There was an entire lack of evidence to sustain a conviction. No opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Louis E. Bauer, Respondent, v. City of Niagara Falls et al., Defendants, and Midland Land Development Company, Inc., et al., Appellants.
    Argued November 27, 1944;
    decided December 30, 1944.

      Milton H. Friedman and John E. O’Donnell for appellants.

      Salem G. Mansour and Alpheus B. Phelps for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Harvey Kye, Respondent, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company, Appellant.
    Argued November 28, 1944;
    decided December 30, 1944.

      Ignatius M. Wilkinson, Corporation Counsel {W. Bernard Biclilahd and Pauline K. Berger of counsel), for appellant.

      John F. X. Finn and Solomon J. Cohen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Hotel St. George Corporation, Appellant, v. Joseph Lilly et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued November 13, 1944;
    decided December 30, 1944.

      Martin Lippman, Henry Cohen and Stephen S. Bernstein for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Oscar L. Tucker, Arthur H. Goldberg and Harry S. Lucia of counsel), for respondents.
   Per Curiam.

Our examination of the record leads us to conclude that, as between the facts found by the Justice at Special Term, and the new findings made at the Appellate Division, the weight of evidence favors the findings made at Special Term..

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

Lehman, Ch. J., Loughban, Rippey, Lewis, Conway and • Desmond, J J., concur; Thaoheb, J., taking no part.

Ordered accordingly.


text:
    The People of the State of New York ex rel. Erie Railroad Company, Appellant, v. State Tax Commission, Respondent.
    Argued November 15, 1944;
    decided December 30, 1944.

      Pierre W. Evans for appellant.

      Nathaniel L. Goldstein, Attorney-General (Edivard J. Grogan, Jr., and Orrin G. Judd of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Mutual Benevolent Society of 1865, Inc., Formerly Registered under the Unemployment Insurance Law as The Hungarian Society of New York, Inc., Appellant. Edward Corsi, as Industrial Commissioner of the State of New York, Respondent.
    Submitted November 21, 1944;
    decided December 30, 1944.

      . Alexander Rosenbaum for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran and Orrin G. Judd of counsel), for respondent.
   Per Curiam.

We cannot say, as matter of law, that the finding by the Unemployment Insurance Appeal Board, that the appellant’s secretary and treasurer were not its employees, was unsupported by substantial evidence. (Labor Law, § 534, now § 623; Matter of Electrolux Corp., 288 N. Y. 440, 442-3; Matter of Carroll, 288 N. Y. 447, 451.)

The order of the Appellate Division should be reversed and the decision of the Unemployment Insurance Appeal Board confirmed, with costs.

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. David Lage and Louis Russo, Appellants.
    Argued November 28, 1944;

    decided December 30, 1944.

      Joseph Aronstein for appellants.

      Frank 8. Hogan, District Attorney (Whitman Knapp and' Alan J. Elliot of counsel), for respondent.
   Judgments affirmed; no opinion.

Concur: Lehmae, Ch. J., Lotjghrae, Rippey, Lewis, Coeway, Desmoed and Thacher, JJ.


text:
    Michel Tchlenoff, Appellant, v. Harry A. Jacobs et al., as Copartners doing Business under the Name of City Factors, Respondents.
    Argued ¡November 30, 1944;
    decided December 30, 1944.

      Borris M. Komar for appellant.

      George Natanson and Louis P. Rosenberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Emigrant Industrial Savings Bank, Respondent, v. Willow Builders, Inc., Appellant, Impleaded with Others, Defendants.
    Argued November 16, 1944;
    decided December 30, 1944.

      Meyer Levy for appellant.

      Joseph M. Proshauer, Edwin A. Berbery, J. Alvin Van Bergh and Harold H. Levin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thachee, JJ.


text:
    Dominick Orlando, Appellant, v. The Manhattan Fire and Marine Insurance Company, Respondent.
    Submitted November 14, 1944;
    decided December 30, 1944.

      Louis Braun for appellant.

      Arthur 0. Louis and Gregory 8. Rivhins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of John P. Kellas, Deceased. Jean M. Eldredge, Individually and as Administratrix with the Will Annexed of John P. Kellas, Deceased, et al., Appellants; Laura I. Bristow, as Executrix of Anna G. Kellas, Deceased, Respondent.
    Argued November 15, 1944;
    decided December 30, 1944.

      L. M. Kellas for appellants.

      William L. Allen and John W. Genaway for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Ripfey, Lewis, Conway, Desmond and Thachee, JJ.


text:
    Gerard A. Re, Individually and as Guardian ad Litem of Gerard Re, Jr., an Infant, et al., Appellants, v. Title Guarantee and Trust Company et al., Respondents, Impleaded with Others, Defendants.
    Argued November 16, 1944;
    decided December 30, 1944.

      James N. Vaughan and Dominic T. Aurichio for appellants.

      Joseph V. McKee, William T. Griffin and Gilbert Lazerus for Title Guarantee and Trust Company, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Oh. J., Loughean, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Margaret Leslie, as Administratrix of the Estate of Edward P. Brady, Deceased, Appellant, v. Carrie Robinson et al., Doing Business as Robinson and Plant, et al., Respondents.
    Argued November 20, 1944;
    decided December 30, 1944.

      Benjamin II. Siff and Paul I. Stern for appellant.

      William B. Shelton and William J. McArthur for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Lewis, Desmond and Thacheb, JJ. Dissenting: Rippey and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Elwood R. Rigby, Defendant, and Continental Casualty Company, Appellant.
    Argued November 30, 1944;
    decided December 30, 1944.

      Alfred A. Walter for appellant.

      Frank S. Hogan, District Attorney (Bernard L. Alderman of counsel), for respondent.
   Order affirmed, with costs; no opinion. [See 294 N. Y. 676.]

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


text:
    In the Matter of Marie Ramundo, Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    Argued November 14, 1944;
    decided December 30, 1944.

      Max A. Gulack for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Murray Sendler of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Matter of Matthew J. Maloney et al., Respondents, against Utility Roofing Co., Inc., et al., Appellants. State Industrial Board, Respondent.
    Submitted November 15, 1944;
    decided December 30, 1944.

      Jeremiah F. Connor for appellants..

      George J. Hayes and William F. O’Rourke for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Oh. J., Loughban, Rippey, Lewis, Conway, Desmond and Thachbb, JJ.


text:
    Emdee Management Corporation, Respondent, v. Adolph Kaufman et al., as Trustees under a Declaration of Trust and Plan of Reorganization of New York Title and Mortgage Company Series B-1 Mortgage Investments, Appellants.
    Argued November 16, 1944;
    decided December 30, 1944.

      Arthur Bheinberg and Milton G. Weisman for appellants.

      Henry Epstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rosalie Alfino et al., Appellants, v. Manufacturers Trust Company and Manufacturers Trust Company, as Trustee etc., Respondents.
    Argued November 20, 1944;
    decided December 30, 1944.

      Benjamin H. Biff and Lewis A. Rosen for appellants.

      Joseph F. Murray and Edward L. Johnson for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway Desmond and Thachee, JJ.


text:
    In the Matter of Ellis T. Terry, Public Administrator of Suffolk County, as Administrator of the Estate of John S. Wood, Deceased, Respondent, against Kings Park State Hospital et al., Appellants.
    Argued November 22, 1944;
    decided December 30, 1944.

      George J. Hayes and William F. O’Rourke for appellants. Nathaniel L. Goldstein, Attorney-General (Roy Weidersum and Orrin G. Judd of counsel), for State Industrial Board, respondent.

      Samuel Brill for claimant-respondent.
   Order affirmed, with costs; no opinion. •

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


text:
    Joseph E. Bright, Respondent, v. Charles A. Hinkley, Appellant.
    Argued November 27, 1944;
    decided December 30, 1944.

      /. Clement Johnston and Thomas R. Wheeler for appellant.

      Walter A. Kendall for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Park S. Hedley et al., Doing Business under the Name of Park S. Hedley Company, Plaintiff, v. Central Trust Co., Appellant-Respondent, and New Amsterdam Casualty Company of New York, Respondent-Appellant, Impleaded with Others, Defendants.
    Argued November 29, 1944;
    decided December 30, 1944.

      Howard M. Woods and Nelson Warner for Central Trust Company, appellant-respondent.

      Leo P. Dorsey and Samuel H. Levinkind on behalf of The New York State Bankers Association as amicus curiae in support of Central Trust Company.

      Carroll M. Roberts and Leon Kirschenbaum for New Amsterdam Casualty Company, respondent-appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of Vincent J. Kane et al., On Behalf of Themselves and All Others Similarly Situated, Appellants, against Patrick Walsh, Fire Commissioner and Chief of the Fire Department of the City of New York, Respondent.
    Argued November 30, 1944;
    decided December 30, 1944.

      David A. Savage and Frank A. Rossini for appellants.

      Ignatius M. Wilkinson, Corporation Counsel (Martin V. Callagy, Francis A. Fullam, Jr., and Seymour B. Quel of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehmax, Ch. J., Lotjghbax, Rippey, Lewis, Coxway, Desmoxd and Thacheb, JJ.


text:
    Nora Sobel, Respondent, v. Maurice O’Connor, Appellant.
    Argued November 13, 1944;
    decided December 30, 1944.

      Willard M. Pottle for appellant.

      Harold Horowitz and Alfred P. Cohen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lottghban, Rippey, Lewis, Conway, Desmond and Thaoheb, JJ.


text:
    In the Matter of Celia Rothspan, Respondent. Walter C. Noyes, Appellant.
    Argued November 14, 1944;
    decided December 30, 1944.

      Jerome Golenboch for appellant.

      Harvey I. Harris for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewie, Conway, Desmond and Thacher, JJ.


text:
    In the Matter of the Claim of Hyman Goldstein, Appellant. Michael J. Murphy, as Acting Industrial Commissioner, Respondent.
    Argued November 15, 1944;
    decided December 30, 1944.

      David M. Schlossberg and John J. AM for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran and Orrin G. Judd of-counsel), for .respondent.
   Order of Appellate Division reversed, with costs in this court, and decision of the Unemployment Insurance Appeal Board affirmed upon the sole ground, and as a matter of law, that Monday, January 11, 1943, the date on which appellant concededly reported, was a proper date for such reporting, under Rule jU.I' 18 — 41, as contended in his behalf by his counsel and as conceded by the Attorney-General in behalf of the Commis - sioneir, who consents to this disposition of the case. We pass on nd other question. Those which were considered below were in fact not presented by the record and cannot be considered here. No opinion.

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


text:
    Frank Govel, an infant, by Nellie Govel, His Guardian ad Litem, Respondent, v. Board of Education of the City of Albany et al., Appellants, et al., Defendants. Joseph Govel, Respondent, v. Board of Education of the City of Albany et al., Appellants, et al., Defendants.
    Argued November 17, 1944;
    decided December 30, 1944.

      Kenneth J. Dugan for appellants.

      Daniel H. Prior and Anthony Pitkiewica for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Lehman, Oh. J., Rippey, Lewis, Conway, Desmond and Thaoheb, JJ. Loughban, J., dissents from affirmance of judgment against the Board of Education of the City of Albany.


text:
    Franz F. Lyon, Appellant, v. Socony-Vacuum Oil Company, Inc., Respondent.
    Argued November 20, 1944;

      decided December 30, 1944.

      Benjamin E. Siff and Chester E. Barrett for appellant.

      John W. Knox for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loitghban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    William J. Oliver, an Infant, by Mary A. Edwards, His Guardian ad Litem, et al., Respondents, v. Leon P. Bereano et al., Defendants, and Socony-Vacuum Oil Company, Incorporated, Appellant.
    Argued November 29, 1944;
    decided December 30, 1944.

      Archie 0. Dawson, Herbert C. Smyth, Jr., and John J. Manning for appellant.

      Edmond B. Butler, Verne B. Foley, John W. Simpson, 2nd. and Raymond D. O’Connell for respondents.
   Judgment affirmed,with costs; no opinion.

Concur: Lotjghran, Rippey, Conway .and Desmond, JJ. Dis- ■ senting: Lehman, Ch. J., Lewis and Thacher, JJ.


author: Conway, J.

text:
    In the Matter of the Claim of Gertrude Manville, Appellant, against New York State Department of Labor, et al., Respondents. State Industrial Board, Respondent.
    Submitted October 22, 1944;
    decided December 30, 1944.

      Fred J. Murray for appellant.
    I. The premises upon which this accident occurred are owned in fee simple by the employer, the State of New York. IT. The accident arose out of and in the course of employment. (Matter of Lynch v. City of New York, 242 N. Y. 115; Matter of Swanson v. Campbell, 279 N. Y. 588; Matter of Donehue v. Hebbard, 246 App. Div. 662; Matter of Bishoff v. Storks’ Nest, Inc., 245 App. Div. 884; Matter of Sheehan v. Board of Trustees of Schuylerville, 256 App. Div. 148.)

      George J. Hayes, Victor Fiddler and William F. O’Rourke for State Insurance Fund, respondent.
    I. Upon the evidence and the law, the Appellate Division properly affirmed the finding of the Industrial Board that the accidental injuries did not arise out of and in the course of employment. (Matter of White v. Consolidated Aircraft Corp., 266 N. Y. 554; Matter of Kowalek v. N. Y. Cons. R. R. Co., 229 N. Y. 489; Matter of Lampert v. Siemons, 235 N. Y. 311; Matter of De Voe v. N. Y. State Railways, 218 N. Y. 318; Matter of Clark v. Voorhees, 231 N. Y. 14; Matter of Schultz v. Champion W. & Mfg. Co., 230 N. Y. 309; Matter of McInerney v. B. & S. R. R. Corp., 225 N. Y. 130; Matter of Parisi v. Whitmope, Rauber & Vicinus, 230 App. Div. 140; Matter of Funarie v. Mohawk Club, 257 App. Div. 887; Matter of Wischman v. Berrick, 259 App. Div. 766.) II. The evidence shows that Swan Street was accepted and used as such by the public as a public street. The creation of Swan Street in front, of this building is clear evidence of intention to dedicate to public use. (Scarborough Prop. Corp. v. Briarcliff Manor, 278 N. Y. 370; People v. Brooklyn & Queens Transit Corp,, 273 N. Y. 394; Matter of City of New York [East 177 St.], 239 N. Y. 119; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459; Cook v. Harris et al., 61 N. Y. 448; Flack et al. v. Vil. of Green Island, 122 N. Y. 107; City of Cohoes v. D. & H. C. Co., 134 N. Y. 397; Vastola v. City of New York, 289 N. Y. 310.)
   Conway, J.

This is a claim for workmen’s compensation by a State employee whose place of employment is the State Office Building at Albany, N. Y, In order to reach the building, it is necessary for her to use a sidewalk on a piece of property owned and controlled by the State and denominated Swan Street. While so doing, in March of 1939, she fell upon the ice which was there located and sustained the injuries for which she seeks compensation.

Under chapter 5 of the Laws of 1926, the Legislature set up a commission to select a site for the erection of a State Office Building in Albany. The commission was to cause a survey and map of the lands chosen to be made (§ 2), and after the service of copies of the map with certificates of accuracy on the owners of the lands in question, the entry and appropriation was to be deemed complete, and thereupon such property was to become the property of the People of the State (§ 4).

In accordance with that Act, a street which had been known as Swan Street and which connected State Street and Washington Avenue, was discontinued as a public street by the Common Council of Albany, and conveyed to the State by the City of Albany for a nominal consideration, actual payment of which was waived. After the erection of the building, a new Swan Street was laid out, which does not follow the line of the old street. In most places, it is located entirely east of the east line of the old street. The point at which claimant fell, however, is located upon the land conveyed by the city.

At the time of the hearing, it was stated that there were parking signs placed in the new street by the Albany City Police Department, but it was not known whether the city or the State cleaned it. There is no evidence in the record as to the maintenance of the street. There is a suggestion that there was an understanding between the city and the State that there would be a public street put .through for the convenience of the public, and also because of fire protection ” since without a street the fire engines would have greater difficulty in getting from one part of the city to another. On this record, it is quite evident that the question of responsibility for keeping this so-called street in a reasonably safe condition may not be determined by some vague understanding.” The State took a formal conveyance of the land and must accept the responsibilities flowing therefrom, unless by some appropriate and valid action it shifts those responsibilities to another.

The general rule, in compensation cases, applicable to the New York State Department of Labor as well as to an individual, is well stated in Matter of Kowalek v. N. Y. Cons. R. R. Co. (229 N. Y. 489, 492, Collin, J.), as follows: “It is a general rule that if an employee is injured on the premises of the employer in going, with reasonable dispatch and method, to or from actual performance of the specific duties of the employment by a way provided by the employer or reasonably used by the employee, compensation must be awarded. The going to and from the actual work and the risk involved in it are reasonably incidental to the employment.” (Italics supplied.) That language was later quoted in Matter of Lynch v. City of New York (242 N. Y. 115, 118), and is supported by the great weight of authority. (See note in 49 A. L. R. 424, supplemented by 82 A. L. R. 1043.) Claimant here was clearly going to her work, on land over which it' was necessary for her to pass, “ with reasonable dispatch,” so that, since the portion of Swan Street where she fell was part of the premises of her employer, her injury is compensable. Those premises are still owned by the State. Employees of the State and those members of the public having business with State departments are permitted to use it, but there is nothing in this record to indicate that the State could not close it off if it so desired. The respondent department and the insurance carrier urge that there has been a dedication and acceptance of a new Swan Street as a public street by reason of the facts surrounding the conveyance, and that the question of whether or not the facts establish such dedication and acceptance is a question of fact. We find no validity in the argument that the Industrial Board may make a finding that the sovereign State has dedicated a part of its property for public use. The State, in such a matter, acts through the Governor and the Legislature formally and not through the Department of Public Works.

There was no contention here that claimant’s injuries would have been compensable if while on her way to work she had fallen upon a street or highway owned by the State of New York, no matter how far from her place of employment. Here, the injury occurred “ within that reasonable distance ” of the point of commencement of her actual work within the meaning of the quoted words from the case of Matter of McInerney v. B. & S. R. R. Corp. (225 N. Y. 130, 134), and she was thus protected. In the Lynch case (supra), claimant was a nurse employed in a city hospital on Welfare Island. She was off duty and was walking on one of the walks on the island in order to take the boat to leave the island, when she slipped and fell and suffered the injuries for which she sought compensation. This court held her injuries compensable, saying (p. 118): “Employment did not cease when she left the hospital. It was continuous and continued while she was on the island leaving and returning thereto over the route provided by the employer for such purposes, the customary and practical way of ingress and egress. Her employment exposed her to the hazards of the way in and out.” So it was here. (See, also, Matter of Swanson v. Campbell, 279 N. Y. 588; Matter of Leatham v. Thurston & Braidich, 264 App. Div. 449, affd. 289 N. Y. 804; Ross v. Howieson, 232 N. Y. 604, revg. 198 App. Div. 674 on dissenting opinion of Kellogg, P. J.; Matter of Gillette v. Rochester Vulcanite Paving Co., 224 App. Div. 319, affd. 249 N. Y. 608.)

The order of the Appellate Division and the determination of the State Industrial Board should be reversed, with costs, and the matter remitted to the State Industrial Board for action thereon not inconsistent with this opinion. [See 294 N. Y. 697.]

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Irving Spitzer, Appellant.
    Argued November 21, 1944;
    decided December 30, 1944.

      Jacob W. Friedman for appellant.
    The trial court improperly expressed an opinion as to defendant’s guilt. (People v. Kelley, 253 App. Div. 430; People v. Intersimone, 266 App. Div. 280.)

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.
    Appellant was not deprived of a fair trial by any alleged indication of the court’s belief in his guilt. (People v. Cooke, 292 N. Y. 185.)
   Per Curiam.

Defendant was indicted for and convicted of the crimes of burglary in the third degree, committed as a second offense, and petit larceny. The court clearly and forcibly indicated in his main charge and also in a charge made in response to a request that he believed the defendant guilty of the crimes for which he was indicted and that he should be convicted. This left for the jury no fair opportunity for consideration of the question of criminal intent which was an essential element of the crimes charged and the main point in issue in the case.

For the errors thus committed, and preserved for consideration by exceptions, the judgment should be reversed and a new trial ordered.

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

Judgment reversed, etc.


text:
    John Weil Plumbing Corporation, Respondent, v. State of New York, Appellant.
    (Claim No. 24612.)
    Argued October 13, 1944;
    decided December 30, 1944.

      Nathaniel L. Goldstein, Attorney-General (Burns F. Barford, Orrin G. Judd and Arthur W. Mattson of counsel), for appellant.
    The Court of Claims properly dismissed the item of the claim seeking damages for extra work. (People ex rel. McCabe v. Snedeker, 106 App. Div. 89, 182 N. Y. 558; Borough Const. Co. v. City of New York, 200 N. Y. 149.)

      George M. Simon for respondent.
    Claimant-respondent is entitled to the increased cost of performing the work as directed by the State in breach of contract. (Gearty v. Mayor, etc., of New York, 171 N. Y. 61; Borough Const. Co. v. City of New York, 200 N. Y. 149; Collins v. State of New York, 259 N. Y. 200; Faber v. City of New York, 222 N. Y. 255.)
   Per Curiam.

The State required that the claimant cut back portions of concrete walls in connection with the furnishing of labor and materials necessary for the doing of certain sanitary work in a State building. The finding of the trial court, undisturbed by the Appellate Division, is that the claimant was aware that the extra work thus required was “ not part of the work called for by the contract ” with the State. Under those circumstances, the first item of the claim for the sum of $641 should not have been allowed, since that which was required was clearly beyond the limits of the contract and the contractor may [might] not even under protest do it and subsequently recover damages. ” (Borough Const. Co. v. City of New York, 200 N. Y. 149, 157.)

The judgment of the Appellate Division should be modified by dismissing item #1 of the claim and, as so modified, affirmed, without costs to either party.

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

Judgment accordingly.


author:
Lehman, Ch. J.
      Thacher, J.

text:
    The Equity Corporation, Appellant, v. Wallace Groves, Respondent.
    Argued November 13, 1944;
    decided January 16, 1945.

      William C. Scott and Donald W. Smith for appellant.
    I. The ten-year statute applies, since the action is peculiarly cognizable in equity and any legal remedy, if such exists at all, is wholly inadequate. (Potter v. Walker, 276 N. Y. 15; Falk v. Hoffman, 233 N. Y. 199; McKenzie v. Wappler Electric Co., Inc., 215 App. Div. 336.) II. An accounting is necessary, since the profits exceed the correlated losses. (Dunlop’s Sons, Inc. v. Spurr, 259 App. Div. 233, 285 N. Y. 333; Potter v. Walker, 276 N. Y. 15; Goldstein v. Tri-Continental Corp., 282 N. Y. 21.) III. In equity plaintiff may trace the additional profits made by defendant through the various corporate transactions alleged. (Frier v. J. W. Sales Corp., 261 App. Div. 388; Fur & Wool Trading Co., Ltd. v. Fox, Inc., 245 N. Y. 215; Coffin v. Shour, 246 App. Div. 263; Vorlander v. Keyes, 1 F. 2d 67; Goodhue Farmers’ Warehouse Co. v. Davis, 81 Minn. 210; Flannery v. Flannery Bolt Co., 108 F. 2d 531, 309 U. S. 671; Asphalt Construction Co. v. Bouker, 150 App. Div. 691, 210 N. Y. 643; Newton v. Porter et al., 69 N. Y. 133; Bosworth v. Allen, 168 N. Y. 157; Buttles v. Smith, 281 N. Y. 226.) IV. Where profits must be traced, no adequate remedy at law exists, and resort must be had to equity. (Goldstein v. Tri-Continental Corp., 282 N. Y. 21; Falk v. Hoffman, 233 N. Y. 199; Fur & Wool Trading Co., Ltd. v. Fox, Inc., 245 N. Y. 215; A. S. R. Co. v. Fancher, 145 N. Y. 552; Frier v. J. W. Sales Corp., 261 App. Div. 388; Kerber Straw Hat Corp. v. Lincoln, 239 App. Div. 727, 266 N. Y. 410; Brown v. Father Divine, 173 Misc. 1029, 260 App. Div. 443; Howland v. Grote, 193 N. Y. 262; McKenzie v. Wappler Electric Co., Inc., 215 App. Div. 336.) V. The cause of action asserted in the amended complaint may not be split up piecemeal. (Dodds v. McColgan, 229 App. Div. 273; Lightfoot v. Davis, 198 N. Y. 261.)

      F. W. H. Adams, Abraham N. Geller and Bernard A. Saslow for respondent.
    I. So far as the amended complaint repeats the allegations of the original complaint it is clearly barred by the six-year Statute of Limitations. (Dunlop’s Sons, Inc. v. Spurr, 259 App. Div. 233, 285 N. Y. 333; Frank v. Carlisle, 261 App. Div. 13, 286 N. Y. 586 ; Goldstein v. Tri-Continental Corp.,
      282 N. Y. 21; Singer v. Carlisle, 26 N. Y. S. 2d 172, 261 App. Div. 897, 285 N. Y. 862.) II. Even if the plaintiff were entitled to attempt to “ trace a fund ” for the recovery of which it had a complete remedy at law for money had and received, it would seem axiomatic that the right to trace the fund would be lost when the Statute of Limitations had barred the right to recover the original fund sought to be traced and out of which the right to trace stemmed. (Kalmanash v. Smith, 291 N. Y. 142; Frank v. Carlisle, 261 App. Div. 13, 286 N. Y. 586; Corash v. Texas Co., 264 App. Div. 292; Hann v. Culver, 73 Hun 109; Hart v. Goadby, 72 Misc. 232; Kellogg v. Kellogg, 169 App. Div. 395, 224 N. Y. 597; Mills v. Mills, 115 N. Y. 80; Harriss v. Tams, 258 N. Y. 229; Hifler v. Calmac Oil & Gas Corp., 258 App. Div. 78; Potter v. Walker, 276 N. Y. 15; Druckerman v. Harbord, 31 N. Y. S. 2d 867; Teich v. Lawrence, 291 N. Y. 245; Hastings v. Byllesby & Co. [Haystone], 293 N. Y. 404.)
   Lehman, Ch. J.

In the first seventeen paragraphs of the amended complaint, plaintiff sets forth a series of alleged acts by the defendant which “ constituted part of a plan and scheme on his part to defraud Chain and General and to make large, illegal and secret profits by the improper and illegal Use of the money of said corporation and at the expense of said corporation, all in violation of his fiduciary duty to said corporation and its stockholders and in oppression of said corporation.” These acts, it is said, were carried out by domination and control of a majority of the directors of “ Chain and General ” and of “ Interstate,” two corporations later merged in the plaintiff, which the defendant could exert through his ownership of the corporate stock. The successful culmination of these alleged wrongful acts ,was the sale to Chain and General, on November 4,1931, of stock of Interstate, “ resulting in a profit to defendant of $361,258.50 ” at the expense of Chain and General.

The defendant does not challenge the sufficiency of these allegations to constitute a cause of action for an accounting of the profits thus made by him, but since the profit to the defendant does not exceed the correlated loss suffered by the corporation and the plaintiff knows the amount of the profits even in advance of an accounting and has stated their amount in the complaint, the six-year Statute of Limitations must be applied to an action to recover such profits (Dunlop’s Sons, Inc., v. Spurr, 285 N. Y. 333) and would bar recovery in this action more than six years thereafter. The plaintiff does not contend otherwise, but in succeeding paragraphs contained in the amended complaint the plaintiff has alleged that thereafter the defendant “ used the funds representing the profits accruing to him by reason of said sale, or a large part thereof, to purchase a large block of the Common Stock of Yosemite Holding Corporation that the stock so purchased was thereafter exchanged for stock of the plaintiff, and that “ in or about May of 1933 the defendant caused his said stock of the plaintiff, or a large portion of it, to be sold, by reason of which defendant realized large profits.” It is to be noted that the complaint does not allege that the transaction in Yosemite Holding Corporation stock was wrongful or had any connection with the earlier transaction consummated in November, 1933, except that the profits resulting from the later transaction were made by the defendant upon the resale to a third party of stock bought by the defendant from a third party by the use of “ funds representing the profits ” accruing from the earlier wrongful transaction or a “ large part thereof.” If upon equitable principles the defendant must account to the plaintiff for profits he derived through the later transaction as well as the profits derived by him “ at the expense ” of Chain and General through sale of Interstate stock obtained with intent to sell to Chain and General, then resort to equity would be necessary to obtain adequate relief and the ten-year limitation provided by section 53 of the Civil Practice Act, would apply. Chapter 851 of the Laws of 1942 adding a new subdivision to section 48 of the Civil Practice Act, of course does not affect this action, previously commenced.

Directors of a corporation and in some cases stockholders who dominate and control a corporation, occupy a “ position of partial trust ” (4 Pomeroy’s Equity Jurisdiction [5th ed.], § 1090). Their relation to the corporation is fiduciary in character and they may be held accountable in equity for detriment to the corporation caused by their breach of the fiduciary obligation arising from that relationship and for profits resulting to them from such breach. Allegation and proof that the loss of the corporation, or the profit of the unfaithful fiduciary, resulted from his wrongful use of a fund subject to a trust, either express or constructive, which may be followed in spite of changes of form, is not an element of a cause of action for such an accounting. That cause of action exists even where the delinquent fiduciary has never received any corporate property or moneys which by the use of a legal fiction might be treated as a trust fund.

This court speaking through Cardozo, J., has -said: “ A constructive trust is the formula through which the conscience of equity finds expression.” (Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 386.) “ A constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. * * * An express trust arises because the parties intended to create it. A constructive trust is not based upon the intention of the parties but is imposed in order to prevent one of them from being unjustly enriched at the expense of another.” (3 Scott on Trusts, § 462.1.) It is analogous to a quasi contractual obligation ” and indeed the subject is treated by the American Law Institute “ in a separate restatement ” in connection with the subject of Quasi Contracts rather than in connection with the Restatement of the Law of Trusts. (See Scott, op cit., § 461, Restatement of the Law of Restitution, § 205, et seq.) Multifarious are the circumstances which may call for the imposition of a constructive trust. Some of the cases in which it has been imposed by the courts of this State are cited in the opinion of Judge Thacheb and it may readily be conceded, if the complaint had alleged, that the defendant did not pay back money which the defendant wrongfully constrained Interstate to loan to him, or that he sold to a third party the stock which it is alleged the defendant purchased with intent to resell to Chain and General at a profit, the power of a court of equity to impress a trust upon the money or stock and the proceeds of such money or stock might, in proper case, be invoked in order to obtain adequate relief. (Harrison v. Egan, 270 N. Y. 387.)

It is, however, undisputed that the moneys borrowed have been returned by the defendant to the corporate treasury and the stock purchased with intent to sell it to Chain and General has been transferred to that corporation at a profit. Where a trustee in breach of trust transfers a trust fund to a third party the wronged beneficiary may reach “ the product of the property in the hands of the trustee. This right to follow property into its product * * * is not limited to cases of express trusts. The principle is a broad one. It is applicable not only where the wrongdoer is an express trustee, not only where he is a fiduciary, but whenever a person wrongfully transfers property in which another has the beneficial interest, whether legal or equitable, and receives other property in exchange therefor.” (3 Scott, op. cit., § 507.)

The problem here presented is whether in accordance with that principle equity will impose a trust not only on money wrongfully borrowed by the defendant and upon stock purchased ■ with intent: to resell to Chain and General, but upon profits derived thereafter by the defendant from a sale to a third party of stock purchased from a third party by the use of profits made upon the earlier sale to Chain and General.

There seems to be no difference of opinion in this court that the profits derived from the later transaction are not proceeds of the moneys borrowed wrongfully by this defendant. As Judge Thacher in his opinion points out that loan is important in this case, if at all, only as it shows the unconscionable means by which the defendant was enabled to make a profit by the purchase of stock with intent to resell to a corporation which he dominated and controlled. If the defendant bought the stock, as alleged, then the corporation to which he intended to resell the stock might insist that the title so acquired was held by the defendant for its benefit. “ He was under duty, on request of the corporation, to transfer the property to the corporation at cost.” The stock would be held by him under a constructive trust to carry out that duty and “ he could not rid himself of this trust ” by transfer of the stock to another. (N. Y. Trust Co. v. American Realty Co., 244 N. Y. 209, 219.) Nor could he rid himself of that duty by transfer at a profit to the corporation to which he was under a duty to transfer it at cost. For the profit thus wrongfully exacted he was bound to account, as any other fiduciary would be compelled to account for profits gained by breach of his obligation, though obviously after the transfer of the stock to the corporation for whose benefit the stock had been held in trust, the trust itself was otherwise at an end. The defendant does not challenge the right of the plaintiff to recover the profit obtained by a sale of the stock at more than cost, but no resort to equity is necessary for such recovery. The ten-year statute applies only if the corporation is entitled to recover not only the profits derived by the delinquent fiduciary from his breach of trust, but also the profits derived by the delinquent trustee from subsequent transactions in which the fiduciary used the ill-gained profits.

In every case which has been cited as authority to sustain such recovery the defendant has in breach of his trust — express or constructive — disposed of property belonging to another, or in which that other had a beneficial interest and consequently he could no longer convey that property to the beneficial owner. Only in such case has equity permitted the beneficiary to follow the trust property into other property for which it has been exchanged and if the property received in exchange thereafter increases in value the beneficiary in such case is entitled to the benefit. Here the beneficiary must concededly return profits which he made by breach of his fiduciary obligation. In no cited case has the beneficiary of a trust, express or constructive, been permitted to recover also the profits made by the fiduciary through use of such profits in other transactions and the principle upon which it has been held that a wronged beneficiary may reach the product of a trust fund does not justify such recovery. Accountability of the fiduciary has always been limited to the “ direct product which he receives from the property.” (See Restatement of the Law of Restitution, § 205.) (Italics are new.)

If the court should now decide that the defendant is accountable for the profits derived from the sale of securities purchased out of the profits the defendant derived from dealings with the corporation in which the defendant had breached his fiduciary obligation, then we must in effect discard the rule recently formulated in Dunlop’s Sons, Inc., v. Spurr (285 N. Y. 333, supra) and must hold that in every case the ten-year statute applies. True, in the cited case the complaint did not contain the allegations, which are contained in the complaint we are now considering, that the profits obtained by the defendant at the expense of the corporation in the transaction in which the defendant violated his fiduciary obligation were thereafter invested in other securities, and that additional profits were made by the subsequent sale of such securities. No valid distinction can, we think, be based on that difference. In each case the corporate plaintiff seeks and is entitled to recover from the defendant all the profits derived by the defendant in violation of his duty to the corporation and in each case the question presented is whether an accounting in equity is necessary in order that the plaintiff may recover all such profits. In each case, too, the complaint shows that the gains derived by the defendant from the transaction in which he violated his duty “ do not exceed the correlated losses suffered by the corporation.” (Dunlop’s Sons, Inc., v. Spurr, 285 N. Y. 333, 336.) An accounting in equity is necessary for complete relief in cases in which the amount of the gains which the corporation may recover may exceed the " correlated losses suffered by the corporation ” in an amount which can be determined only upon an accounting. If, as now contended, those gains may include not only the profits derived by the fiduciary in violation of his duty, but also the gains which the fiduciary may derive from subsequent sale of securities purchased by the use of the funds representing the profits ’ ’ accruing to him as the result of his earlier wrong, then it is difficult to conceive of a case where it can be said that the six-year statute would apply because no accounting in equity is necessary to enable the plaintiff to recover all the profits to which it may be entitled. The possibility always exists that the original profits may have been used to purchase securities which have increased in value or have been sold at a profit. Without an accounting the corporation might not be able to find out whether the original profits have been reinvested profitably. That might occur even after the action is brought, and if the plaintiff is entitled to the benefit of a profitable reinvestment, it seems to us that it cannot lose its rights by failure to plead that the defendant has or may have made such reinvestment. Thus, no valid distinction can be based upon the fact that in this case the profitable reinvestment has been pleaded. See, also, Hastings v. Byllesby & Co. (Haystone) (293 N. Y. 404) in which this court rejected the claim that the corporation was entitled to recover profits made upon a resale of securities purchased from the corporation, though in that case, as in the instant case, such profitable resale was pleaded.

The judgment should be affirmed, with costs.

Thacher, J.

(dissenting). This is an appeal by the plaintiff from a nonunanimous judgment of the Appellate Division affirming an order at Special Term dismissing the complaint on motion on the ground that the action was barred by the six-year Statute of Limitations. If under the allegations of the amended complaint plaintiff is not entitled to recover any amount in excess of losses recoverable in an action at law, then the decision below is correct and must be affirmed (Dunlop’s Sons, Inc., v. Spurr, 285 N. Y. 333), but if in equity the plaintiff is entitled to recover gains in excess of the correlated losses recoverable at law, then the ten-year Statute of Limitations applies. (Goldstein v. Tri-Continental Corp., 282 N. Y. 21; Potter v. Walker, 276 N. Y. 15; Hastings v. Byllesby & Co. [Haystone], 293 N. Y. 404, 412.)

According to the allegations, the plaintiff corporation (hereinafter sometimes called “ Equity ”) succeeded by merger to all the rights, privileges, powers and franchises and all property, real, personal and mixed, of Interstate Equities Corporation (hereinafter called Interstate ”) and Chain & General Equities (hereinafter called Chain & General ”). Before the merger the defendant, Groves, entered into a contract with Chain & General to underwrite 500,000 shares of its common stock at a price of $2 per share, provided he could obtain 51% of the total number of such shares outstanding and entitled to vote. He then made arrangements and executed a contract with an investment banking corporation to purchase from said corporation 542,517 shares of the common stock of Interstate at a price of $1.50 per share, or a total of $813,775.50, agreeing to pay the purchase price in installments, and also entered into a contract to purchase from an individual 100,000 shares of said common stock at the same price, on which he made a down payment of $5,000 and paid the balance of $145,000 thereafter. ■ By virtue of these agreements he obtained voting control of Interstate and control of its board of directors, intending, at the time he purchased or agreed to purchase the 642,517 shares of Interstate, to resell the same to Chain & General at a profit to himself immediately upon obtaining complete control of the board of directors of Chain & General through the election of his nominees and agents by its board of directors. He was elected to the board of directors of Chain & General on October 16,1931, and continued to act as such director until the year 1933, with the exception of a brief interval of a few moments, hereafter referred to, and between September 23, 1931, and November 4, 1931, by reason of his underwriting contract with Chain & General, was able to and did elect his nominees and agents as a majority of the board of Chain & General, thus acquiring complete control and domination of said board. On or about November 4, 1931, the defendant, through his ownership of a majority of the voting stock of Interstate and his domination and control of a majority of its directors, fraudulently caused Interstate to make him a loan of $1,000,000, with which money he fulfilled his underwriting agreement with Chain & General and took down and purchased 467,938 shares of its common stock, which amounted to more than a majority of the voting stock of that corporation issued and outstanding, thereby obtaining complete domination and control of the board of directors of Chain & General by causing his nominees and agents to be elected to its board, who together with his nominees and agents previously elected constituted a large majority of the board. Thereupon he fraudulently caused Chain & General to purchase from him his 642,517 shares of the common stock of Interstate for the sum of $1,325,034, having purchased these shares within the preceding month for the sum of $963,775.50, thus realizing a profit to himself of $361,258.50.

At the meeting of the board of directors of Chain & General at which this purchase from the defendant was authorized and approved, and immediately prior to said authorization and approval, defendant by means of his domination and control of said board of directors caused said board to accept his resignation as a director of Chain & General, and immediately after the board, acting under his domination, had authorized and approved the purchase from himself of his Interstate stock, the defendant, at the same meeting, by means of his control and domination caused the board to re-elect him a director of Chain & General, whereupon he took his seat as before and participated in the meeting.

The plaintiff Equity brings this suit in the right of Chain & General, its constituent company, and alleges that all of these acts of the defendant constituted a plan and scheme on his part to defraud Chain & General and to make large, illegal and secret profits by the improper and illegal use of the money of said corporation and at the expense of said corporation, all in violation of his fiduciary duty to said corporation and its stockholders and in oppression of said corporation.

If the complaint stopped there, the action would be barred by the rule in the Dunlop case (supra), no basis for recovery in excess of the secret profit of $361,258.50 obtained by the defendant from Chain & General being affirmatively shown. But according to additional allegations of the complaint the defendant used this illicit profit, acquired in breach of his fiduciary duties to Chain & General, to acquire a large block of the common , stock of Yosemite Holding Corporation (hereinafter called “ Yosemite ”), another investment company, and in or about December, 1932, together with certain other persons, caused Equity to be organized and certain of its stock to be exchanged for all or substantially all of the common stock of Yosemite which he had theretofore purchased with the funds procured, in violation of his fiduciary obligations, from Chain & General. He has, it is alleged, since sold the stock in the plaintiff corporation thus acquired at a profit.

Upon these allegations Equity contends that the defendant is accountable not merely for the profit of $361,258.50 realized upon the sale of his Interstate stock to Chain & General, but, as a constructive trustee of this money, title to which was received by him in violation of his fiduciary duties to Chain & General, that these funds thus impressed with a constructive trust may be traced into the stock of Equity acquired in exchange for the Yosemite stock purchased by him with trust funds, and, further, that the Equity shares having been sold at a profit, the plaintiff is entitled to an accounting for whatever was received by the defendant upon the sale of these shares.

The briefs for the appellant concede that the Interstate loan to the defendant was repaid with interest, but the fraudulent character of this loan, subsequently repaid, is in no sense essential to the plaintiff’s right to an accounting in equity and is unimportant in this lawsuit except insofar as it shows the unconscionable means by which the defendant contrived to procure control and domination of Chain & General and thus, in violation of fiduciary obligations, to sell to it the common stock of Interstate which he had purchased to resell to it at a profit. The right to follow the funds thus acquired springs from the fiduciary nature of the defendant’s relation to these moneys acquired in breach of his fiduciary duties. (Holmes v. Gilman, 138 N. Y. 369, 377; In re Hallett’s Estate, L. R., 13 Ch. D. 696.) Equitable rights and remedies arise whenever a fiduciary relationship is abused, and if by such abuse the legal title to property is acquired equity intervenes to declare the wrongdoers trustees. The trust with its incidents is the foundation of the equitable remedy. (Falk v. Hoffman, 233 N. Y. 199, 201; Light-foot v. Davis, 198 N. Y. 261; Newton v. Porter et al., 69 N. Y. 133.)

Although a director is not a trustee in a strict sense, his relation to his corporation is fiduciary and he is accountable as a constructive trustee for property obtained from the corporation in derogation of his duties as a director. (Bosworth v. Allen, 168 N. Y. 157; Lightfoot v. Davis, supra, at p. 274; Asphalt Construction Co. v. Bouker, 150 App. Div. 691, affd. 210 N. Y. 643; Parker v. McKenna, 10 Ch. 96.) The complaint plainly states that Groves bought the stock with intention to resell to the corporation. Having so bought, he held the stock in trust for Chain & General. He could not rid himself of this trust by negotiating a sale, at a profit to himself of $361,258.50, to the corporation which he dominated and to which he is accountable as a constructive trustee. (N. Y. Trust Co. v. American Realty Co., 244 N. Y. 209, 219.) He has not made distribution or accounted for anything.

In equity the device of a constructive trust is not confined in its use to strictly trust relationships. It is applied, with all its incidents, where by virtue of a fiduciary relationship one has obtained property in derogation of his duties as partner (Holmes v. Gilman, supra), joint adventurer (Meinhard v. Salmon, 249 N. Y. 458), agent (Beatty v. Guggenheim Exploration Co., 225 N. Y. 380), bailee (In re Hallett’s Estate, supra), attorney (Matter of Will of O’Hara, 95 N. Y. 403), parent (Wood v. Rabe et al., 96 N. Y. 414), child (Harrington v. Schiller, 231 N. Y. 278), or wife (Ahrens v. Jones, 169 N. Y. 555). As Chief Judge Cardozo so well said in Meinhard v. Salmon (supra, p. 467), “ Equity refuses to confine within the bounds of classified transactions its precept of a loyalty that is undivided and unselfish. * * * A constructive trust is then the remedial device through which preference of self is made subordinate to loyalty to others. * * * Many and varied are its phases and occasions.”

In a leading English case (In re Hallett’s Estate, supra), decided in 1879, Sir George Jessel said: “ * * * it must now be considered settled that there is no distinction, and never was a distinction, between a person occupying one fiduciary position or another fiduciary position as to the right of the beneficial owner to follow the trust fund, and that those cases which have been cited at Law so far from establishing a distinction, establish the contrary; * * *.”

In Holmes v. Gilman (supra), we held that, although partners do not in the strict sense of the term occupy the position of trustees towards each other and towards the firm funds, yet the position is one of a fiduciary nature, calling for the maintenance and exercise of the greatest good faith between them, and that such a relationship authorizes the same remedy on behalf of the wronged partner as would exist against a trustee, so called, on behalf of a cestui que trust, citing Jessel, M. R., In re Hallett’s Estate (supra). In that case it was stated the partner could not embezzle partnership funds, but we held that the right to follow the funds sprang from the fiduciary nature of his relation to them. There is neither reason nor authority to support the contention that the same remedy of tracing trust funds applicable to trusts in the strict sense does not apply to property the title to which has been obtained through the breach of fiduciary obligations by a corporation officer, director and controlling stockholder.

Upon the allegations of the amended complaint the funds received from the treasury of Chain & General in excess of the price paid for the stock by Groves are clearly traceable into the shares of Yosemite for the purchase of which the funds were used and into the Equity shares for which the Yosemite shares were exchanged. It appearing that the defendant has disposed of the Equity shares, the question arises whether the plaintiff is now entitled upon an accounting in equity to the proceeds of the sale of such shares. We need not pause to examine the question of rescission. (N. Y. Trust Co. v. American Realty Co., supra; Harrison v. Egan, 270 N. Y. 387.) That, the plaintiff has an election to recover upon such an accounting the amount so received by the defendant, or to claim its actual loss, whichever is the greater, is clear. (Harrison v. Egan, supra; see, also, 3 Scott on Trusts, § 508, p. 2433.)

Plaintiff having the right to recover the amount for which defendant sold the Equity- shares, and it being alleged that the defendant made profits upon the sale of these shares, the plaintiff, if it supports its allegations by proof, will be entitled to recover upon the accounting an amount in excess of the amount recoverable at law. Accordingly, the ten-year Statute of Limitations applies.

The judgments should be reversed and the motion to dismiss the coriiplaint denied, with costs in all courts.

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

Judgment affirmed.


text:
    Rosa Bruszacynaska, Appellant, v. Selma Ruby, Respondent.
    Submitted November 27, 1944;
    decided January 16, 1945.

      Max Tachna and Myron Goldman for appellant.
    Defendant lessor retained sufficient possession and control of the premises at the time of the accident to render her liable for plaintiff’s injuries. (Kilmer v. White, 254 N. Y. 64; Pharm v. Lituchy, 283 N. Y. 130; Beauchamp v. Excelsior Brick Co., 143 App. Div. 48; Antonsen v. Bay Ridge Savings Bank, 292 N. Y. 143; Relihan v. Felson, 48 N. Y. S. 2d 736.)

      H. H. Brown, Arthur N. Blair and E. C. Sherwood for respondent.
    Defendant was not in control of the premises at the time of the accident. (Cullings v. Goetz, 256 N. Y. 287; Schick v. Fleischhauer, 26 App. Div. 210; Kushes v. Ginsberg, 99 App. Div. 417, 188 N. Y. 630; Werter v. Samsky, 268 App. Div. 913.)
   Per Curiam.

Whether or not control of the premises had passed from the lessor to the lessee was a question of fact which was determined adversely to the defendant by the trial court. It was a fair inference from the evidence that such control had not passed. We do not decide the question whether if there had been technical abandonment of control by the lessor, there would still be liability on her part. (See Restatement of the Law of Torts, § 353; Kilmer v. White, 254 N. Y. 64.)

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

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

Judgment accordingly.


author: Lehman, Ch. J.

text:
    In the Matter of the Accounting of Leona Schaefer et al., as Administratrices of the Estate of George Schaefer, Deceased. George Schaefer, Jr., Appellant; Katie S. Hall, as Coadministratrix of the Estate of George Schaefer, Deceased, et al., Respondents.
    Argued November 29, 1944;
    decided February 21, 1945.

      Durkes Clark for appellant.
    I. The Surrogate, having disallowed the claim against the estate, had no jurisdiction by this proceeding to allow an affirmative judgment in favor of the estate against the claimant upon an alleged separate and distinct common debt. (Matter of Underhill, 117 N. Y. 471; Matter of Wilson, 252 N. Y. 155.) II. There is insufficient evidence as a matter of law from which the Surrogate could properly find that the sum of $16,750 was owing to the estate by George Schaefer, Jr., and the decree or judgment against the appellant should be dismissed and the claim of the appellant reheard. If the law gives the Surrogate in an accounting proceeding extra jurisdiction to decide the claim of the estate against a common debtor, it is in violation of the State Constitution. As a matter of law the entire evidence by all parties to these proceedings allows of only one conclusion — that at least some moneys were owed to the claimant by the estate. (Nay et al. v. Curley, 113 N. Y. 575; City Bank Farmers Trust Co. v. Roosen, 251 App. Div. 437.)

      Anthony J. Wolf, David S. Konheim and Samuel Halpern for Katie S. Hall, as administratrix, respondent; Joseph S. Moore, special guardian and David S. Konheim, Samuel Halpern and Anthony J. Wolf for Katherine M. Winn, an infant, respondent.
    I. The Surrogate had jurisdiction to determine the liabilities of the claimant to the estate. (Matter of Underhill, 117 N. Y. 471; Matter of Gureviteh, 166 Misc. 439; Matter of Watson, 215 N. Y. 209; Matter of Raymond v. Davis, 248 N. Y. 67; Matter of Adele E. Flint, 120 Misc. 230.) II. Claimant, by his own letters, confirms that he owes $16,750 to the estate. Other cumulative evidence confirms that claimant owes $16,750 to the estate. A mathematical computation of George Schaefer’s alleged claim shows that he has not paid even the monthly guaranty in full.
   Lehman, Ch. J.

The appellant, George Schaefer, Jr., is the son of the decedent. In July, 1938, he verified and filed a claim against the estate alleging that it is indebted to him in the sum of $19,962.20 for moneys paid to the decedent or upon his order. In January, 1940, Katie Schaefer Hall filed a petition for the settlement of the account of her proceedings as administratrix from the date of her appointment to December 31, 1939. She states that she and other children of the decedent claim that George Schaefer is indebted to the estate and she asks that the amount of his indebtedness be determined upon the settlement of her account. Leona Schaefer, a coadministratrix, filed a separate petition for the settlement of the account of her proceedings for the same period, but she does not join in the claim that George Schaefer, Jr., is indebted to the estate.

At a hearing before the Surrogate, checks of the claimant to the order of the decedent, or which were used for the payment of the decedent’s personal or household expenses or in connection with his business enterprises and investments, were produced and received in evidence as proof of the claim of George Schaefer, Jr., against the estate. Evidence was then produced and admitted, intended to prove that the claimant was indebted to the decedent. The decree of the Surrogate adjudges that the claim of George Schaefer, Jr., against the estate is “ disallowed on the merits ” and that the claim of the estate 11 against the said George Schaefer, Jr., is hereby allowed in the amount of $16,750.”

It appears undisputed that the relations of the appellant, George Schaefer, Jr., to his parents and his sister, Leona Schaefer, were intimate and affectionate. His business dealings with his father were continuous. Obligations of the decedent were frequently paid by the claimant’s checks and the decedent undoubtedly at times loaned money or securities to the claimant. Apparently no record was kept of such transactions by either party. Until his marriage in 1931 the claimant lived with his parents and his sister in the family home. A family conclave was held in August, 1931, in anticipation of his marriage. The claimant admitted at that time that he was indebted to both parents and to his sister Leona and it was agreed that before his marriage his obligations to them should be fixed in manner which would be fair to them, but without imposing upon the debtor a financial burden which might be too heavy for a married man to bear.

Accordingly the claimant agreed that all the stock of White-stone Realty Co., Inc., a corporation which the claimant had formed to hold title to some waterfront property on Long Island Sound, owned and managed by him, should be assigned by him and divided between his father, mother and sister in proportion to the amount which claimant owed to each. The stock was in fact assigned by the claimant and the estate of George Schaefer now holds sixty shares out of a total issue of 100 shares. The remaining forty shares are divided between the estate of Katie Schaefer, the claimant’s mother, and Leona Schaefer, his sister. After the claimant agreed to assign the stock of the corporation, the minute hook of the corporation purports to show that a meeting of the stockholders was immediately held at which the “ following proposition was presented by the treasurer: That George Schaefer, Jr., residing at 137-27 Geranium ave., Flushing, N, Y., be appointed agent for the property owned by this corporation. To collect all rents and to generally supervise the management of the property. To pay to George Schaefer, Sr., $75.00 monthly; to Mrs. George Schaefer, Sr., $60.00 monthly; and to Leona Schaefer $15.00 monthly whether or not this net amount is derived from the property, and in lieu of such consideration to grant to said George Schaefer an irrevocable option to purchase all the assets of this corporation for $26,000.00 payable in cash or satisfactory purchase money mortgage given on the same property or other mortgage satisfactory to the White-stone Realty dorp.’ ”

The “ proposition ” set forth in the minute book is in general accord with the understanding of the parties to the arrangement. It is a fair inference from the testimony that the sum of $26,000 payable under the option represents approximately the amount of the claimant’s acknowledged indebtedness to his parents and sister. The serious dispute is whether they intended that the stock assigned by the claimant should be accepted in satisfaction of his indebtedness or whether it was received only as security for such indebtedness. The testimony on that point is vague and unsatisfactory. Undoubtedly they did understand that so long as George Schaefer made the monthly payments of $150 as agreed upon (later reduced to $110) he would have complete control of the property and that he would be entitled to the return of the stock if he paid the sum of $26,000, the approximate amount of his indebtedness. Perhaps, in these circumstances, they were not much concerned with the juristic classification of such an arrangement or other legal consequences which might follow from the classification.

There is no direct evidence that thereafter the claimant became indebted in any further amount to the decedent; but in a memorandum book, in which the decedent was accustomed to write notes on his business transactions, on his relations to his children and his views on ethics and even to copy verses which he liked, the decedent stated his conclusion that his son, George Schaefer, Jr., owed the sum of $16,750; and in letters and conversations with his brother and sisters, George Schaefer, Jr. also referred to an indebtedness of approximately that amount and stated that he had paid “ interest ” to the decedent. The finding that the appellant owed $16,750 to the estate is without support in the evidence other than such statements or admissions. They are insufficient for that purpose. The notation of the decedent in his book that George Schaefer, Jr., owed $16,750, and the alleged admissions of George Schaefer, Jr., that such indebtedness exists are plainly open to the construction that they refer to the amount still unpaid upon the original indebtedness of George Schaefer, Jr., which must be paid before he would be entitled to the return of the stock regardless of whether the stock is held as security for that indebtedness or whether it is held subject to an option of George Schaefer, Jr. to demand the return of the stock upon payment of that amount. It would serve no purpose to point out now parts of the record which seem to indicate that neither the decedent nor the appellant used words like owing ” indebted ” and interest ” in accordance with their exact meaning and which indicate, too, that they understood and intended that the so-called indebtedness ” of $16,750 is the amount which the appellant would be required to pay under the so-called option ” in the agreement for the transfer of stock as thereafter modified. Indeed, it is difficult to escape the conclusion that the decedent intended that other adjustments should be made in favor of the appellant. Such words in their setting here are not to be accepted as unequivocal admissions that the claimant George Schaefer, Jr., owes the estate that amount, especially since the stock is included in the account, as settled by the Surrogate, as an asset of the estate and not as security held for the alleged indebtedness. The evidence supports the finding of the Surrogate that the decedent was not indebted to the appellant and that finding must be affirmed. The evidence is insufficient to support the finding that the appellant owes $16,750 to the estate and that finding must be reversed.

The appellant has challenged that finding not only on the ground that it is not supported by the evidence, but also upon the ground that the Surrogate is without power to enforce a purely contractual obligation. We have held that the Surrogate’s Court Act does not confer upon the Surrogate’s Court jurisdiction to direct a person, who is not entitled to a share in the distribution of a decedent’s estate, to, pay a contractual obligation to the estate. (Matter of Forrest, 234 App. Div. 890, affd. 259 N. Y. 553; Matter of Hammer, 237 App. Div. 497, affd. 261 N. Y. 677.) The Surrogate’s Court has not, however, given such direction here. The court has merely found that the debt exists and is an asset of the estate. We may assume that the court has jurisdiction to ascertain the assets of the estate so far may be necessary in order to enable the court to settle the account of the administratrix. (See Matter of Underhill, 117 N. Y. 471.) That is not necessary here for her account shows that the alleged debt never came into the possession of the administratrix and she is not chargeable with that asset. We may assume, too, that before the estate is distributed the court may have jurisdiction to ascertain whether the debt exists and may be set off against the appellant’s distributive share in the estate. (See Matter of Raymond v. Davis, 248 N. Y. 67.) The determination of such questions may, however, be postponed until it appears that the claim of the estate against the appellant can be supported by evidence of greater probative force than the evidence in this record..

The order of the Appellate Division and the decree of the Surrogate’s Court should be modified by striking out the provisions allowing the claim of the estate against George Schaefer, Jr., in the sum of $16,750, and as so modified affirmed, with costs to appellant and a single bill of costs to the respondents payable out of the estate, and without prejudice to such appropriate proceedings as the administratrix of the estate, Katie Schaefer Hall, may deem advisable for the ascertainment or collection of such indebtedness.

Loughran, Lewis, Conway, Desmond and Thacher, JJ., concur.

Ordered accordingly.