text:
    Henry Ott, Appellant, v. Metropolitan Jockey Club, Respondent.
    Argued April 13, 1954;
    decided June 4, 1954.

      Myron D. Levy for appellant.

      David F. Cohen and Alvin 8. Bosenson for respondent.
   Order affirmed, with costs. First question certified answered in the negative; second question certified answered in the affirmative. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voorhis, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    Mae Gilligan et al., on Behalf of Themselves and All Tenants of 1070 Park Avenue, Similarly Situated, Respondents, v. Tishman Realty & Construction Co., Inc., et al., Defendants, and Sylvan Manheim et al., Appellants.
    Submitted Hay 17, 1954;
    decided June 4, 1954.
   Motion by appellants to amend the remittitur granted to the extent that the remittitur is recalled and amended to read as follows: Order affirmed and judgment absolute directed against appellants, with costs in this court and with a proportionate share of costs against appellants in the Appellate Division and at Special Term; motion otherwise denied.

Cross motion by respondents to amend the remittitur denied. [See 306 N. Y. 974.]


text:
    Vivian Martorelli, Appellant, v. Frank J. Prisco, Respondent.
    Submitted June 1, 1954;
    decided June 4, 1954.

      Martin A. Crean for motion.

      Santo W. Crupe opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days appellant serves and files an undertaking on appeal and pays $10 costs, in which events motion denied and case set down for argument during the October, 1954, session of the Court of Appeals.


text:
    City of New Rochelle, Respondent, v. Alice S. Stevens, as Administratrix with the Will Annexed of Charles G. Banks, Deceased, Appellant.
    Submitted June 1, 1954;
    decided June 4, 1954.

      Murray C. Fuerst, Corporation Counsel (Francis 8. Claps of counsel), for motion.

      Lyle Evans Mahan opposed.
   Motion granted and appeal dismissed, with $10 costs of motion.


text:
    In the Matter of Anthony D. Gigliotti, Doing Business under the Name of Hawaii Klub, Appellant, against John F. O’Connell et al., Constituting the New York State Liquor Authority, Respondents.
    Submitted June 1, 1954;
    decided June 4, 1954.

      Alvin McKinley Sylvester and Abraham Weinstein for motion.
    No one opposed.
   Motion granted and appeal dismissed upon the ground that the orders appealed from are not appealable to the Court of Appeals as of right (Civ. Prac. Act, § 589, subd. 2), and upon the further ground that the appeal from the order of the Appellate Division, entered December 15, 1953, is not timely (Civ. Prac. Act, § 592, subd. 1).


text:
    In the Matter of the Voluntary Dissolution of Radom & Neidorff, Inc. David Radom, Appellant; Anna Neidorff, Respondent.
    Submitted June 1, 1954;
    decided June 4, 1954.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 307 N. Y. 1.]


text:
    The People of the State of New York, Respondent, v. William Vanderwyde, Appellant.
    Submitted June 1, 1954;
    decided June 4, 1954.
   Motion for an order fixing a date for the execution of sentence pursuant to section 503 of the Code of Criminal Procedure. Defendant was convicted of the crime of murder in the first degree and his appeal to this court resulted in an affirmance (304 N. Y. 937). His application for certiorari to the United States Supreme Court was denied on May 18, 1953 (345 U. S. 959). He applied for a writ of habeas corpus to the United States District Court (113 P. Supp. 918) which Avas denied, and such denial was affirmed by the Court of Appeals (210 F. 2d 105) and certiorari was denied by the Supreme Court of the United States on April 12, 1954 (347 U. S. 949).

Motion granted and the week beginning Monday, July 19,1954, fixed for the execution of the death sentence.


text:
    Herman J. Single, Respondent, v. Edward S. Whitmore, Jr., Appellant.
    Submitted June 1, 1954;
    decided June 4, 1954.

      Ralph J. Balducci for motion.

      Lawrence M. Rulison opposed.
   Motion denied unless the return be filed, three printed copies of the case be served upon respondent’s attorney and appellant pays $10 costs within twenty days of the date of this order, in which events motion granted.


text:
    Gaetana Tomasetti, as Executrix of Pasquale Tomasetti, Jr., Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 30673.)
    Submitted May 17, 1954;
    decided June 4, 1954.

      J eróme Golenbock and Harvey Nachman for motion for leave to appeal.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Henry 8. Manley of counsel) for motion to dismiss appeal and in opposition to motion for leave to appeal.
   Motion for leave to appeal denied, with $10 costs and necessary printing disbursements.

Motion to dismiss appeal granted and appeal dismissed.


text:
    Arthur W. Davenport, Appellant, v. City of Buffalo et al., Respondents.
    Submitted June 28, 1954;
    decided June 28, 1954.

      William J. Driscoll for motion.

      William B. Lawless, Jr., Corporation Counsel, opposed.
   Pending decision of the motion for a stay sought by appellant, a temporary stay is granted until and including July 14, 1954.


text:
    In the Matter of Samuel Hurwitz, Respondent, against Joseph D. McGoldrick, as State Rent Administrator, Appellant, et al., Tenant.
    Argued May 17, 1954;
    decided July 14, 1954.

      Emory Gardiner and Robert EL. Schaffer for appellant.

      Isaac Anolic for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. X, Conway, Desmond, Dye, Fuld, Froessel and Van Voobhis, XT,


text:
    In the Matter of Harold Florance, Appellant, against Edward J. Donovan et al., as Commissioners of Correction of the State of New York, Respondents.
    Argued May 19, 1954;
    decided July 14, 1954.

      James D. Benson for appellant.

      Nathaniel L. Goldstein, Attorney-General (J. Bruce MacDonald, Wendell P. Brown and Raymond B. Madden of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Gerace & Castagna, Inc., Appellant, v. City of New York, Respondent.
    Argued May 24, 1954;
    decided July 14, 1954.

      Solomon A. Klein, Leonard Lazarus and Richard Klugherz for appellant.

      Adrian P. Burke, Corporation Counsel (Anthony Curreri and Seymour B. Quel of counsel), for respondent.
   Judgment afiirmed, with costs.

Concur: Lewis, Ch. J., Desmond, Dye, Fuld and Van Voorhis, JJ. Froessel, J., dissents in the following memorandum : I dissent and vote to modify. I agree that the Appellate Division’s reversal of the judgment was proper but disagree as to the dismissal of the complaint and as to the Appellate Division’s holding: ‘ ‘ it must be held as a matter of law that the acceptance of the final payment was a release to the city.” In my opinion this was clearly a question of fact for the jury, but they should have an opportunity of passing upon the reasonable value of the extra work, which the trial court took away from them. Taking no part: Conway, J.


text:
    Christopher E. Balestrero, Appellant, v. Prudential Insurance Company of America et al., Respondents.
    Argued May 25, 1954;
    decided July 14, 1954.

      Frank D. O’Connor and Raymond McKaba for appellant.

      Nahum A. Bernstein and Allen B. Haskel for respondents.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of the Claim of Truman Townsend, Respondent, against Union Bag and Paper Corp. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 2, 1954;
    decided July 14, 1954.

      JobAi E. Knauf for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Van Voorhis, J., dissents and votes to reverse upon the ground that there is no substantial evidence that claimant sustained an occupational disease arising out of and in the course of his employment by appellant employer.


text:
    The People of the State of New York, Respondent, v. Jack Cohen, Appellant, et al., Defendants.
    Argued June 3, 1954;
    decided July 14, 1954.

      Louis A. Breslerman for appellant.

      Edward S. Silver, District Attorney (Aaron Nussbaum of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York ex rel. Gerald Johnson, Respondent, against Walter B. Martin, as Warden of Attica State Prison, Appellant. The People of the State of New York, Appellant.
    Argued May 28, 1954;
    decided July 14, 1954.

      Nathaniel L. Goldstein, Attorney-General (J. Bruce MacDonald, Wendell P. Brown and Raymond B. Madden of counsel), for appellants.

      Hayden H. Dadd for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


author: Fuld, J.

text:
    In the Matter of the Construction of the Will of Abraham S. Rosenthal, Deceased. Jean L. Tanburn, Respondent; Rhea S. Hoffheimer et al., as Trustees under the Will of Abraham S. Rosenthal, Deceased, et al., Appellants.
    Argued May 20, 1954;
    decided July 14, 1954.

      Francis 8. Bens el, Albert B. Maginnes, Leonard A. Blue and Robert Ehrenbard for Rhea S. Hoffheimer and others, appellants.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley and Wendell P. Brown of counsel), appellant in person.

      Leo H. Hirsch, Jr., appellant in person, and for Samuel R. Feller, appellant.

      Joseph M. Proskauer, Jack M. Ginsberg, J. Alvin Van Bergh, Charles Looker, Norma Hack and Philip J. Hirsch for respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Concur: Lewis, Ch. J., Desmond, Dye and Van Voorhis, JJ. Fuld, J., dissents in the following opinion in which Conway and Froessel, JJ., concur.

Fuld, J.

(dissenting). I cannot agree with the court’s holding that the testator, Abraham S. Rosenthal, intended to except, from his prohibition against marriage with one not of the Jewish faith, a descendant of his who might be an appointee under the power of appointment given to his grandson, Stephen Tanburn.

We gather a testator’s intent, not by isolating or pinpointing a single word, or even several words, but by a sympathetic reading of his entire will, by taking words in context and by seeking to understand what he had in mind and what he hoped to accomplish. Examined in that spirit, the will reveals a man who held exceedingly strong views against intermarriage and who made it exceedingly plain that he did not want any “ child ” or “ descendant ” of his who married a person “ not born in the Jewish faith ” to share in, or benefit from, his estate in any way.

Thus, in Article Twelfth, Rosenthal declared that

all legacies and devises and all powers of appointment * * * [under his last will], given, devised and bequeathed to any child of mine or to any descendant of mine, are given, devised and bequeathed subject to the following express conditions ”.

Proceeding, then, to specify the condition,” he provided that, if any child or descendant ” marries a person * * * not born in the Jewish faith * * * and * * * not * * * of Jewish ” blood,

‘‘ all legacies and devises # * and all powers of appointment * * * to such child or descendant * * * shall be cancelled, annulled and revoked ’ ’.

The testator then turned to (1) any husband or wife, not of the Jewish faith, who married a Rosenthal descendant, and (2) all Rosenthal descendants who themselves departed from the Jewish faith. Thus, he provided that any such spouse or descendant

“ shall not be entitled to take any share or interest * * * of my estate either as legatee, devisee, appointee, heir at law or next of kin, distributee or otherwise ”.

The testator gave his grandson, Stephen Tanburn, a power to appoint by will the principal of a trust, as well as its income. Stephen died in 1952 leaving a will in which he appointed his daughter Jean, petitioner herein, as a beneficiary of both the principal and income.

The question presented is, of course, whether the gift to petitioner is a “ legacy ” and “ devise ” within the meaning of Article Twelfth, and to me an affirmative answer seems compelled.

The testator’s manifest desire was that no descendant of his should share in his estate if he or she married out of the Jewish faith. That was his concern, and he did not think in terms of legacies or devises, of powers of appointment or appointees. He was intent only upon making certain that no descendant who married a non-Jew would take any property of his. According to Article Twelfth, “ all legacies and devises ” to descendants who married non-Jews were to be cancelled and revoked. Certainly, petitioner’s interest was encompassed by those terms.

In Article Eighth, section I, subdivision (5), for instance, in disposing of the very interest appointed to petitioner, the testator expressly declared that

“ I hereby give, devise and bequeath ”

the principal of the trust to such persons as his grandson Stephen ‘ may appoint. ’ ’ And, even if the words employed had not so plainly indicated the testator’s intention that appointed property be treated as a legacy or a devise, that would have been the conclusion dictated by settled principles. (See, e.g., Farmers’ Loan & Trust Co. v. Mortimer, 219 N. Y. 290, 295; Farmers’ Loan & Trust Co. v. Kip, 192 N. Y. 266; Matter of Harbeck, 161 N. Y. 211, 218; Fargo v. Squiers, 154 N. Y. 250; Maitland v. Baldwin, 70 Hun 267, 270; Matter of Walbridge, 178 Misc. 32.)

To support a contrary result, emphasis is placed upon the omission of the word “ appointee ” following the words “ all legacies and devises * * * and all powers of appointments ” in the clause quoted above. Respondents have built their argument almost entirely upon the circumstance that, in treating his descendants, the testator provided that£ ‘ all legacies and devises * * # and all powers of appointment ” made to those who marry out of the Jewish faith be cancelled and revoked, while, in dealing with a non-Jewish spouse of a descendant, or a non-Jewish Rosenthal descendant, he provided that such a spouse or descendant shall not be entitled to any share of his estate either as ££ legatee, devisee, appointee ” or ££ distributee ”. The absence of the word appointee ” from the first clause, its presence in the second, are stressed and are said to indicate that the testator intended to narrow the usual meaning of the words ££ all legacies and devises ”.

I cannot accept that analysis. The contention overlooks the reason for the use of the term ££ powers of appointment ” along with legacies and devises,” as well as for the absence of the word appointee ”. The draftsman of the will was just being precise. The first clause — describing the result if the inhibited act of intermarriage occurred — is framed in terms of grant, in terms of the interest to be enjoyed, namely, " legacy ”," devise “ power of appointment ” — and, by use of such verbiage, included every character of testamentary grant or interest. The second clause, on the other hand, is framed in terms of persons to take, namely, " legatee,” “devisee,” appointee,” " next of kin,” " distributee ”. It would have been imprecise and incorrect to add “ appointee ” to or after the words “ legacy ” and “ devise ”. In other words, a legacy ” or devise ” is an interest in property, an appointee ” is a person — • each a different classification which a careful draftsman would never couple together or treat alike. There is, therefore, no warrant for attaching any significance whatsoever to the absence of the term “ appointee ” in the first clause. In short, then, while petitioner is an “ appointee,” the gift which she received is a “ legacy ” or a “ devise ’ ’ under the testator’s will. Consequently, the words all legacies and devises ” include the interest appointed to petitioner by the donee of the power.

Nor is it reasonable to suppose that the testator could possibly have intended to exclude one single special category of descendants— an appointee under a power of appointment — from all who were to be subject to the inhibition against intermarriage and permit — from out of the many groups of descendants — one group, perhaps only one individual, to share in his estate. The sweeping strictures and prohibitions of the will are pointed up by this partial list of conceded exclusions:

1. No child or descendant who marries out of the Jewish faith could take any “ legacy ” or “ devise ” under the will.

2. No descendant who was not born in the Jewish faith could take anything under the will.

3. No one could take by appointment from his grandson, Stephen Tanburn, if he married out of the Jewish faith — for the testator cancelled the “ power of appointment ” given him on the happening of that condition.

4. No child or descendant, including petitioner, could take anything under the will in default of appointment if she married out of the Jewish faith.

5. Neither petitioner’s descendants nor her husband could take anything, either by appointment or by default of appointment, if she married out of the Jewish faith.

6. Petitioner could not take under Article Seventh (d) or Article Eighth II if she married out of the Jewish faith.

7. No husband or wife, not born in the Jewish faith, of any child or descendant could take anything under the will.

Under such circumstances, how may it be said in fairness to the testator that he intended that this petitioner could, by the device of an appointment, take a part of his estate if she married a person not a Jew. The creation of so narrow an exception does not fit in with the testator’s general overriding intent to prevent intermarriage among his descendants.

It is suggested that the testator had great confidence in his grandson Stephen, the donee of the power, and that it might for that reason be inferred that he did not intend to extend ‘ ‘ the ban of his displeasure to the appointees of his grandson” (283 App. Div. 316, 322). The argument seems to me less than persuasive. Apart from other considerations, it is to he noted that the testator explicitly provided, in Article Twelfth, that Stephen’s power of appointment was to come to an end if he married out of the Jewish faith. And, beyond that, he was disqualified from appointing to petitioner’s children, his own grandchildren, or his son-in-law if petitioner married out of the Jewish faith. Quite obviously, the supposed confidence in Stephen was something less than complete, but, whatever its quantum, it furnishes no basis for deducing that the testator was willing to permit his grandson, by exercising a power of appointment, to defeat his intention that no descendant of his who married out of the Jewish faith should enjoy any part of his property.

The order of the Appellate Division should be modified to the extent of construing Article Twelfth of the will as applicable to the interest appointed to petitioner under the power granted by testator, and, as so modified, affirmed.

Order affirmed, etc.


text:
    23 West Street Corporation, Appellant, v. Gibbs & Cox, Inc., Respondent.
    Argued May 17, 1954;
    decided July 14, 1954.

      Charles Pickett and Jule E. Stocker for appellant.

      Walter Gordon Merritt, H. George Carroll and Thomas P. Dwyer for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Emma C. Nih, Respondent, v. Frederick De W. Bolman, Jr., Appellant.
    Argued May 19, 1954;
    decided July 14, 1954.

      Samuel P. Price for appellant.

      Alton B. Erickson for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Friendly Wine and Liquor Store, Inc., Respondent, against New York State Liquor Authority, Appellant.
    Argued May 24, 1954;
    decided July 14, 1954.

      Alvin McKinley Sylvester and Emanuel D. Black for appellant.

      William I. Cohen and Jack Bernstein for respondent.
   Order of the Appellate Division reversed, with costs, and determination of the State Liquor Authority confirmed upon the ground that there was substantial evidence before the State Liquor Authority to sustain its determination. No opinion.

Concur: Lewis, Oh. J., Conway, Desmond, Dye, Fijld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of the Claim of John Luoma, Respondent, against Spearin, Preston & Burrows, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 2, 1954;
    decided July 14, 1954.

      John Nielsen and John P. Smith for appellants.

      Nathaniel L. Goldstein, Attorney-General (John J. Quinn, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs. Both questions certified answered in the negative. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voobhis, JJ.


text:
    In the Matter of Richard M. Buck, on Behalf of Himself and All Others Similarly Situated, Appellant, against T. Norman Hurd, as Director of the Budget of the State of New York, Respondent.
    Argued May 28, 1954;
    decided July 14, 1954.

      John T. De Graff and John J. Kelly, Jr., for appellant.

      Nathaniel L. Goldstein, Attorney-General (John G. Crary, Jr., and Wendell P. Brown of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Vooehis, JJ.


text:
    David Karp Company, Inc., Appellant, v. Saint Paul Fire and Marine Insurance Company, Respondent.
    Argued May 20, 1954;
    decided July 14, 1954.

      Alfred B. Nathan, A. J. Asche and Donald L. Freund for appellant.

      John M. Aherne and John J. Martin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Gh. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Conway, J., dissents and votes to modify and grant judgment for plaintiff for the sum of $81,266.74 with interest and costs upon the dissenting opinion of Mr. Justice Bergan in the Appellate Division.


text:
    Dog Owners Association of New York State, Inc., et al., Appellants, v. Herman E. Hilleboe, as Commissioner of Health of the State of New York, Respondent, and New York State Society for Medical Research, Inc., Intervener-Respondent.
    Argued June 4, 1954;
    decided July 14, 1954.

      Allen 8. Stim and Albert Felix for appellants.

      Nathaniel L. Goldstein, Attorney-General (Ruth Kessler Toeh, Wendell P. Brown and Samuel A. Hirshowits of counsel), for respondent.

      Bethuel M. Webster, Garolinda Waters and Bancroft G. Davis for intervener-respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Frank Paolillo, Appellant.
    Argued May 27, 1954;
    decided July 14, 1954.

      Harry A. Davidow for appellant.

      Harry G. Brenner, District Attorney (Charles R. Thom of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Froessel and Van Voorhis, JJ.


text:
    Edward J. Smyke, as Limited Administrator of the Estate of Kenneth R. Smyke, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 30738.)
    Argued June 1, 1954;
    decided July 14, 1954.

      Ralph E. Wickins and Daniel F. Fitzgerald, Jr., for appellant.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison and Wendell P. Brown of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


author: Van Voorhis, J.

text:
    In the Matter of the Claim of Elizabeth Maricle, Respondent, against A. E. Glazier et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 2, 1954;
    decided July 14, 1954.

      John F. Oates for appellants.

      Nathaniel L. Goldstein, Attorney-General {Harry Pastor, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fund and Fboessel, JJ. Van Voobhis, J., dissents in the following opinion.

Van Voorhis, J.

(dissenting). The deceased employee recovered from the hernia, which he sustained in an industrial accident. Death benefits have been allowed although the cause of death was suicide a month later. The cause of his suicide was a depressive psychosis, which has been found, as it seems to me without evidence of any probative force to sustain the finding, to have been caused by worry consequent upon the hernia. It is, of course, unnecessary in workmen’s compensation cases, to establish fault on the part of the employer as a basis for liability, but it is necessary to prove that death or disability was caused by the industrial accident. The causes of mental illness are so complex and so deeply interwoven with heredity and environment as to defy exact medical analysis. It is implicit and usually explicit in the diagnoses of psychiatrists that, although there are instances where insanity may be ascribed to dominant factors in heredity or to crises in the life of a patient, even that can be done only with crucial reservations and conditions. When it comes to pinning responsibility for a manic depressive psychosis (which is at most a name invented to describe symptoms whose causes are not understood) upon worry produced by some mere episode in a man’s life, such as fear that an operation for hernia might produce cancer, it would be difficult to conceive of anything in the field of legal medicine which could be more completely speculative. Even if a manic depressive psychosis were caused by worry, instead of worry being but a symptom, it would be impossible with medical certainty to probe the mind in order to exclude the many other worries which people usually keep to themselves. Often the things that concern us the most we do not talk about. In arriving at an opinion that this unfortunate man took his own life due to a psychosis induced by worry over a hernia operation from which he recovered, how was it possible for a physician to assume that he did not worry more intensely about a host of other things which he did not mention or of which the doctor had not heard? To assume that he did not do so is pure speculation. Matter of Pushkarowitz v. Kramer (275 App. Div. 875, affd. without opinion 300 N. Y. 637) is cited as upholding this award. Perhaps that case is as far as the court has gone in a case of that nature. Nevertheless the facts there were materially different. There the employee had been struck upon the head by a garbage pail that had dropped a distance of five floors which resulted in the destruction of the 60% sight in one eye which was all of the vision that remained to him. After that he was completely blind. The causal connection between the subsequent suicide and his complete blindness was more tangible than the relationship of cause and effect in this case, which more nearly resembles Matter of Brown v. New York State Training School (285 N. Y. 37) where it was held as matter of law that an implication of mental derangement resulting in death could not be indulged (see, also, Matter of Robbins v. Frohlich, 303 N. Y. 987).

Even if there be some slight opinion evidence that claimant’s hernia operation had a bearing upon his insanity, expert opinion evidence lacks probative force unless there are facts in the record from which the court can ascertain that the opinion is not a mere guess or surmise but that there is some substantial basis of facts in the evidence upon which it can rest. In Matter of McCormack v. National City Bank (303 N. Y. 5, 9) this court said that " there can be no doubt whatsoever that the doctor’s surmise of what might have been, may not be regarded as substantial ”. Here there is no basis in the record for an opinion. In Strohm v. New York, Lake Erie & Western R. R. Co. (96 N. Y. 305, 306) it was said per Batallo, J., that apprehended consequences ‘ ‘ must be such as in the ordinary course of nature are reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible, are not proper to be considered in ascertaining the damages.” The speculative answer given by the physician in the Strohm case related to mental condition. To similar effect is Briggs v. New York Central & H. R. R. R. Co. (177 N. Y. 59).

If the door is opened to establishing causation by speculative testimony in mental illness, the quantity of litigation of this nature is likely to be almost unlimited not only in the field of workmen’s compensation but in that of negligence and insurance as well. (Cf. Balestrero v. Prudential Ins. Co. of America, 307 N. Y. 709, where it is held that causation was not established between mental derangement and arrest of the subject’s husband on a charge of crime.)

The order appealed from should be reversed and the claim should be dismissed.

Order affirmed.


text:
    In the Matter of Ludlow W. Stevens, Appellant. New York Trust Company, as Cotrustee under an Indenture of Trust Made by Ludlow W. Stevens, as Settlor, Respondent.
    Argued May 19, 1954;
    decided July 14, 1954.

      Arthur H. Beyer for appellant.

      Asbury Hayne de Yampert and Charles Sims Farr for respondent.
   Order affirmed, with costs to respondent payable out of the trust fund; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye and Froessel, JJ. FuiiD and Van Voorhis, JJ., dissent and vote to reverse and to reinstate the order of Special Term on the authority of Matter of Coyle (305 N. Y. 809), and Doctor v. Hughes (225 N. Y. 305).


text:
    In the Matter of the Arbitration between Local Union 516, Inspection Unit, UAW-CIO, by Colin E. Cattley, as President, Respondent, and Bell Aircraft Corporation, Appellant.
    Argued June 4, 1954;
    decided July 14, 1954.

      Thomas A. Campbell and Montgomery G. Pooley for appellant.

      Richard Lipsits for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ.


text:
    Industrial Manufacturers, Inc., Appellant, v. Bangor Mills, Inc., Respondent.
    Argued May 17, 1954;
    decided July 14, 1954.

      Irvin C. Butter for appellant.

      Isidor J. Eresel and Harold I. Meyerson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. Conwat, J., dissents and votes to reverse as to the second cause of action and to grant judgment for the plaintiff thereon for the reasons stated in the dissenting opinion by Pecic, P. J., in the Appellate Division.


text:
    In the Matter of Achille Cozzi et al., Appellants, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued June 4, 1954;
    decided July 14, 1954.

      Harry Cohen and Rose J. Cohen for appellants.

      Beatrice Shainswit and Robert H. Schaffer for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Dorothy W. Walker, Appellant, v. William J. Walker, Respondent.
    Argued May 26, 1954;
    decided July 14, 1954.

      Harrington Harlow and Benjamin Heller for appellant.

      Spencer Pinkham for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voobhis, JJ.


text:
    The People of the State of New York, Respondent, v. Peter Matarese, Appellant.
    Argued May 21, 1954;
    decided July 14, 1954.

      George M. Aromo aid and Michael I. Winter for appellant.

      Edward S. Silver, District Attorney (Aaron Nussbaum of counsel), for respondent.
   Judgment affirmed, pursuant to section 542 of the Code of Criminal Procedure. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Messmore Kendall et al., Suing on Their Own Behalf and on Behalf of All Other Similarly Situated Former Members of Oakland Golf Club Holding Certificates of Indebtedness of Said Club, Appellants, v. Oakland Golf Club et al., Respondents.
    Argued May 19, 1954;
    decided July 14, 1954.

      Lyon Boston for appellants.

      Peter Keber, Leo P. Dorsey and Harry A. Le Bien for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Desmond, Dye, Fuld, Feoessel and Van Voorhis, JJ. Taking no part: Conway, J.


text:
    The People of the State of New York ex rel. New York Central Railroad Company, Appellant and Respondent, against State Tax Commission, Respondent, and City of New York, Intervener-Respondent-Appellant.
    Argued June 1, 1954;
    decided July 14, 1954.

      Gerald E. Dwyer, Clyde Brown, Jr., and Lee P. Gagliardi for appellant-respondent.

      Nathaniel L. Goldstein, Attorney-General (Edward J. Grogan, Jr., Wendell P. Brown and George A. Rads of counsel), for respondent.

      Adrian P. Burlce, Corporation Counsel (Timothy F. Cohan of counsel), for intervener-respondent-appellant.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voobhis, JJ.


text:
    Anna M. Small, Appellant, v. Carl Ruhmshottel et al., Copartners Doing Business as Ruhmshottel Farms, et al., Respondents. Carl Ruhmshottel, Third-Party Plaintiff, v. August Roll, Third-Party Defendant.
    Argued May 24, 1954;
    decided July 14, 1954.

      Bernard Meyerson, Julius Schwarts and Louis M. Bornstein for appellant.

      Alexander Gang el and Jerome S char off for Carl Ruhmshottel, respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Desmond, Dye, Fuld, Fboessbl and Van Voobhis, JJ. Taking no part: Conway, J.


text:
    In the Matter of Mary S. Proche, Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Constituting the Temporary State Housing Rent Commission, Respondent, and Moses Leinwand et al., Interveners-Respondents.
    Argued June 4, 1954;
    decided July 14, 1954.

      Nathan Amchan and Charles Polcorny for appellants.

      Beatrice Shainswit and Robert II. Schaffer for Joseph D. McGoldrick, as State Rent Administrator, respondent.

      Edward Ingram for interveners-respondents.
   Order affirmed, without costs; no opinion.

.Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of United Air Lines, Inc., Petitioner-Respondent, against Lazarus Joseph, as Comptroller of the City of New York, Appellant.
    Argued May 25, 1954;
    decided July 14, 1954.

      Adrian P. Burlce, Corporation Counsel (Bernard H. Sherris and Stanley Buchsbaum of counsel), for appellant.

      Monroe Collenburg for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Feoessel, JJ. Taking no part: Van Voobhis, J.


text:
    New Deal Service Co., Inc., Appellant, v. Harry Reiss, Respondent, et al., Defendant.
    Argued May 24, 1954;
    decided July 14, 1954.

      Michael M. Platsman and Louis N. Forman for appellant.

      Morris Wagman and Irving Sheinfeld for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Desmond, Dye, Ftild, Feoessel and Van Voobhis, JJ. Taking no part: Conway, J.


text:
    Lewis H. Saper, as Trustee in Bankruptcy of the Estate of Tangredi Contracting Corp., Appellant, v. Depot Construction Corp., Respondent.
    Argued May 18, 1954;
    decided July 14, 1954.

      I. Arnold Ross for appellant.

      Eugene J. Morris and Robert I. Weissmann for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Erin Wine & Liquor Store, Inc., Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Argued May 24, 1954;
    decided July 14, 1954.

      Alvin McKinley Sylvester and Robert W. Corcoran for appellants.

      Louis Rivhin, Morris Rosen and Irwin Reicher for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voorhis, JJ.


text:
    In the Matter of Nathaniel A. Barber, Respondent, against William R. Lupton et al., as Members of the City Council of the City of Niagara Falls, et al., Appellants.
    Argued May 28, 1954;
    decided July 14, 1954.

      Clarence W. Greenwald, Corporation Counsel (Ralph A. Boniello of counsel), for appellants.

      Paul H. Reid, Jr., for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Emray Realty Corp., Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued June 3, 1954;
    decided July 14, 1954.

      Arnold Schildhaus for appellant.

      Beatrice Shainswit and Robert E. Schaffer for respondent.
   Appeal dismissed, with costs, for the reasons stated in the following memorandum: While a constitutional right to withdraw real property from the rental market exists in an appropriate case, this appeal must be dismissed upon the ground that the asserted constitutional questions are not directly and necessarily involved in the decision appealed from (Matter of Kaney v. New York State Civil Service Comm., 298 N. Y. 570; Matter of Haydorn v. Carroll, 225 N. Y. 84).

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York (Village of Larchmont), Respondent, v. Phil E. Gilbert, Jr., Appellant.
    Argued June 4, 1954;
    decided July 14, 1954.

      Robert E. Young for appellant.

      Samuel Faile, District Attorney (George P. Forbes, Jr., of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Coeway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Ruth Lipton, Individually and as Executrix of Conrad Lipton, Deceased, et al., Respondents, v. Lockheed Aircraft Corporation et al., Defendants, and Curtiss-Wright Corporation, Appellant.
    Argued May 27, 1954;
    decided July 14, 1954.

      Harold W. Hayman and William A. Hyman for respondents.

      Ralph L. McAfee, George M. Billings, Edward Q. Carr, Jr., and John G. Williams for appellant.
   Order affirmed, with costs. First question certified answered in the negative; second and third questions certified answered in the affirmative. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fudd, Feoessel and Van Voobhis, JJ.


text:
    Marie Sylvester, Individually and as Surviving Executrix of Margherita Sylvester, Deceased, Appellant, v. Walter Bernstein et al., Respondents.
    Submitted May 20, 1954;
    decided July 14, 1954.

      Millard E. Theodore for appellant.

      William L. Messing for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of United Piece Dye Works, Respondent, against Lazarus Joseph, as Comptroller of the City of New York, et al., Appellants.
    Argued May 25, 1954;
    decided July 14, 1954.

      Adrian P. Burke, Corporation Counsel (Leroy Mandle, Seymour B. Quel and Stanley B. Buchsbaum of counsel), for appellants.

      Phillip W. Háberman, Jr., Wilbur H. Friedman and Gerald Silbert for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Coxway, Desmoxd, Dye, Fuld and Froessel, JJ. Taking no part: Vax Voorhis, J.


text:
    The People of the State of New York, Respondent, v. Thomas Kancar, Appellant.
    Submitted May 24, 1954;
    decided July 14, 1954.

      Harry G. Anderson for appellant.

      Edward 8. Silver, District Attorney (Aaron Nussbaum of counsel), for respondent.
   Judgment affirmed; no opirnon.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Incorporated Village of Laurel Hollow, Respondent, v. Laverne Originals, Inc., et al., Appellants.
    Argued May 17, 1964;
    decided July 14, 1954.

      Emanuel Wexler and Charles A. Rathkopf for appellants.

      Chester Bordean and Robert F. Little for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of Carroll K. Davis, Appellant, against Board of Regents of the University of the State of New York, Respondent.
    Argued May 26, 1954;
    decided July 14, 1954.

      Isidore Levine, Emanuel Greenberg, Allen H. Suffern and George Shapiro for appellant.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conwat, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Jennie H. Hawk et al., Respondents, v. State of New York, Appellant.
    (Claim No. 31211.)
    Argued May 19, 1954;
    decided July 14, 1954.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for appellant.

      Samuel L. Greenberg and Erwin Greenberg for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Edwin R. La Vin, Appellant, and Louis Cohen, as Temporary Receiver of Assets of Sanford Hotel Corporation, Intervener-Appellant, v. Russell C. La Vin et al., Defendants, and Lebis Hotel Management Corp. et al., Respondents.
    Argued June 3, 1954;
    decided July 14, 1954.

      Meyer Kraushaar and Louis Cohen for appellants.

      George Trosk, Jesse Climenko and Alvin M. Stein for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conwat, Desmond, Dye, Ftjld and Yan Yoorhis, JJ. Taking no part: Froessel, J.


text:
    In the Matter of the Accounting of Edgar F. Luckenbach, as Trustee under the Will of Lewis Luckenbach, Deceased. Phillip Barnett et al., as Assignees and Trustees of Lewis Luckenbach, Appellants; Edgar F. Luckenbach, Jr., et al., Respondents.
    Argued March 4, 1954;
    decided July 14, 1954.

      Edward W. Bourne, Francis A. McGrath, James D. Ewing, J. Kenneth Campbell and Robert B. Donworth, Jr., for appellants.

      Robert W. Owens, Jr., Edward 8. Bentley and Robert T. Aller for Edgar F. Luckenbach, Jr., respondent.

      Harold M. Kennedy and James McKinley Rose for Roscoe H. Hupper, respondent.
   Orders affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of the Accounting of Edgar F. Luckenbach, as Trustee under the Will of Lewis Luckenbach, Deceased. Edgar F. Luckenbach, Jr., et al., Respondents; Lewis Luckenbach et al., Appellants.
    Argued March 4, 1954;
    decided July 14, 1954.

      Francis A. McGrath for appellants.

      Robert W. Owens, Jr., for Edgar F. Luckenbach, Jr., respondent.

      Harold M. Kennedy and James McKinley Rose for Roscoe H. Hupper, executor, respondent.

      Robert L. Glare, Jr., for Joseph W. Drake, respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


author: Per Curiam.

text:
    Herbert Tomoser, Respondent and Appellant, v. Daniel Kamphausen et al., Appellants and Respondents, et al., Defendants.
    Argued April 6, 1954;
    decided July 14, 1954.

      Louis N. JBlatt for respondent-appellant.

      Edward H. Kavinohy for appellants-respondents.
   Per Curiam.

This action was commenced to (1) rescind a transfer of stock to defendant Kamphausen in violation of the terms of a restrictive agreement entered into by the original individual shareholders of the Twentieth Century Valve Corporation, Inc., (2) rescind a stock issuance and a voting trust agreement and permit plaintiff to recover the shares involved in those agreements to which he had surrendered his preemptive rights, and (3) recover money damages caused by the allegedly fraudulent misrepresentations of the defendant Kamphausen. Originally there were two other causes of action, but they were dismissed by the Supreme Court and they are not involved on this appeal.

In the Supreme Court, plaintiff: was granted (1) the relief requested in the first cause of action and was permitted to purchase those shares which Kamphausen had obtained in violation of the restrictive agreement, (2) he was permitted to purchase his prorata share of the stock involved in the second cause of action dealing with the stock issuance and voting trust agreements, and (3) he was awarded $25,000 damages on the fifth cause of action which was based on the allegedly fraudulent statements of Kamphausen.

The Appellate Division modified the judgment of the Supreme Court by reversing so much of that judgment as found that Kamphausen had induced Tomoser to continue to render services to the Twentieth Century Valve Corporation, Inc., and by reversing the award of money damages, although it affirmed the findings of fraudulent misstatements. In all other respects the Appellate Division affirmed.

We agree with both courts below as to the rescission of the purchase of stock made by Kamphausen in violation of the restrictive agreement among Tomoser and two fellow stockholders. However section 176 of the Personal Property Law may be read, it does not affect the rule that one may not purchase and obtain good title to stock in a corporation when one knows of equities in another stockholder affecting such purchased stock. (2 Pomeroy on Equity Jurisprudence [5th ed.], § 688, pp. 950-953.)

We disagree with the conclusions of the courts below that Tomoser was misled by fraudulent misrepresentations of material facts, for the reason that in this case there was, as a matter of law, no evidence presented of false representations of material facts, and accordingly there was no basis for either rescission or for monetary damages (cf. Adams v. Clark, 239 N. Y. 403; Adams v. Gillig, 199 N. Y. 314). Moreover, even had there been misrepresentations of fact, there was such long delay by the plaintiff after learning of the alleged fraud, and thereafter acceptance by him of benefits from the Twentieth Century Valve Corporation, Inc., as a result of the agreements reached in the fall of 1948 that rescission should have been denied as a matter of law. (Cf. New York Tel. Co. v. Jamestown Tel. Corp., 282 N. Y. 365, 372-373; Brennan v. National Equitable Investment Co., 247 N. Y. 486, 489; Gravenhorst v. Zimmerman, 236 N. Y. 22, 38; Sy-Jo Luncheonette v. Marsav Distributors, 279 App. Div. 715, affd. 304 N. Y. 747.)

The judgment of the Appellate Division should be modified insofar as it grants relief to plaintiff on the second and fifth causes of action and those causes of action dismissed, and, as so modified, affirmed, with one bill of costs in this court in favor of defendants Twentieth Century Valve Corporation, Inc., Kamphausen and Stewart.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Judgment accordingly.


text:
    Lyman R. Bradley, Appellant, v. New York University, Respondent.
    Submitted July 14, 1954;
    decided July 14, 1954.
   Motion for reargument denied, with $10 costs. [See 307 N. Y. 620.]


text:
    County of Dutchess, Respondent, v. Mary F. Cary, Appellant.
    Submitted May 24,1954;
    decided July 14, 1954.

      Joseph G. White and John K. Clark, Jr., for motion.

      David G. McCullough, County Attorney (William V. Welch of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Arthur W. Davenport, Appellant, v. City of Buffalo et al., Respondents.
    Submitted June 28, 1954;
    decided July 14, 1954.

      John J. Bay and William J. Driscoll for motion.

      William B. Lawless, Jr., Corporation Counsel, opposed.
   Motion denied.


text:
    Mae Diamond, as a Director and Stockholder of Jarold Shops, Inc., Suing on Behalf of Herself and the Right of Said Corporation, Appellant, v. Evelyn Diamond et al., Respondents.
    Submitted July 14, 1954;
    decided July 14, 1954.
   Motion for reargument denied. [See 307 N. Y. 263.]


text:
    Lewis S. Flagg, Jr., Respondent, v. D. Ward Nichols, as Bishop of the First Episcopal District of the African Methodist Episcopal Church and as Presiding Officer of Each of the Conferences Comprised Thereunder, Appellant, et al., Defendants.
    Submitted May 26, 1954;
    decided July 14, 1954.
   Motion for reargument denied, with $10 costs. [See 307 N. Y. 96.]


text:
    Mae Gilligan et al., on Behalf of Themselves and All Tenants of 1070 Park Avenue, Similarly Situated, Respondents, v. Tishman Realty & Construction Co., Inc., et al., Defendants, and Sylvan Manheim et al., Appellants.
    Submitted July 14, 1954;
    decided July 14, 1954.
   Motion to amend remittitur denied. [See 306 N. Y. 974; 307 N. Y. 698.]


text:
    Emanuel Gordon, Suing on Behalf of Himself and All Other Similarly Situated Pawnbrokers in the City of Buffalo, Appellant, v. J. Raymond McGovern, as Comptroller of the State of New York, Respondent.
    Submitted July 14, 1954;
    decided July 14, 1954.

      Herbert Shafer for motion.

      Nathaniel L. Goldstein, Attorney-General {Wendell P. Brown and Ruth Kessler Toch of counsel), opposed.
   Motion for a certificate that a constitutional question is involved granted.

Motion for a stay denied.


text:
    Hornblower & Weeks, Respondent, v. Eleanor B. Sherwood, Appellant; The Sheriff of the City of New York et al., Respondents, et al., Defendants.
    Submitted July 14, 1954;
    decided July 14, 1954.
   Motion for reargument denied, with $10 costs and necessary-printing disbursements. [See 307 N. Y. 204.]


text:
    In the Matter of Mary I. Daniman et al., Appellants, against Board of Education of the City of New York, Respondent. In the Matter of Vera Shlakman et al., Appellants, against Board of Higher Education of the City of New York, Respondent.
    Submitted June 1, 1954;
    decided July 14, 1954.
   Motion, insofar as it seeks reargument, denied. Motion, insofar as it seeks to amend remittitur, denied, except as to petitioner-appellant Slochower, on the ground that no question under the Federal Constitution was presented by them to the Court of Appeals.- Motion by petitioner-appellant Slochower granted to the extent indicated. Return of remittitur requested and when returned it will be amended by adding thereto the following: Questions under the Federal Constitution were presented and passed upon by the Court of Appeals, viz., whether the rights of petitioner-appellant Slochower to due process under the Fourteenth Amendment to the Federal Constitution were violated by the construction and application herein of New York City Charter (§ 903), in that petitioner-appellant Slochower claims: (1) that the automatic operation of section 903 deprives bim of tenure and of a trial to which he was entitled; (2) that the congressional subcommittee was not empowered to consider and specifically stated that its questions would not be directed to official conduct of city employees and that petitioner-appellant Slochower, therefore, could not have known at the time of the inquiry that the questions asked of him and which he refused to answer related to his official conduct, and (3) that at the time of the inquiry, there had been no determination under the Feinberg Law that the Communist party was a “ subversive ” organization, so that membership therein would affect a teacher’s eligibility and that the retroactive application of that determination is constitutionally prohibited. The Court of Appeals held that petitioner-appellant Slochower was not denied due process under the Fourteenth Amendment. [See 306 N. Y. 532.]


text:
    Ethel L. Jamison, as Administratrix of the Estate of Matthew Jamison, Deceased, Appellant, v. Henry F. Raab, Inc., Defendant, and General Electric Company, Respondent. Henry F. Raab, Inc., Third-Party Plaintiff, v. Augustus V. Riegel, Inc., Third-Party Defendant. John A. Harris, Appellant, v. Henry F. Raab, Inc., Defendant, and General Electric Company, Respondent. Henry F. Raab, Inc., Third-Party Plaintiff, v. Augustus V. Riegel, Inc., Third-Party Defendant. General Electric Company, Third-Party Plaintiff, v. Augustus V. Riegel, Inc., Third-Party Defendant.
    Submitted July 14,1954;
    decided July 14, 1954.

      Alfred Sobol for motion.

      Sidney Einhorn opposed.
   Motion denied.


text:
    In the Matter of Christopher R. Trimble, as Administrator with the Will Annexed of Mae Malone, Deceased, Respondent, against the Police Commissioner of the City of New York et al., Appellants.
    Submitted July 14, 1954;
    decided July 14, 1954.

      Arthur A. Beaudry for motion.

      Adrian P. Burhe, Corporation Counsel (Henry J. Shields of counsel), opposed.
   Motion denied.


text:
    In the Matter of the Construction of the Will of Walter L. McGuire, Deceased. Michael X. McGuire et al., Appellants; Paul Petrie et al., Respondents.
    Submitted May 24, 1954;
    decided July 14, 1954.

      Charles G. Coster and George Bosling for motions.

      Elmer L. Fingar, Charles P. Kramer and Herbert B. Kramer for Paul Petrie and others, respondents, in opposition to motion for leave to appeal.

      John, E. Connelly, Jr., John L. O’Donnell and William F. Sondericker for Agnes 0. Petrie and others, respondents, in opposition to motion for leave to appeal.

      Isidore Scheinberg, special guardian, for Thomas A. Petrie and others, infants, respondents, in opposition' to motion for leave to appeal.
   Motion for leave to appeal denied, with $10 costs and necessary printing disbursements.

Motion for order of substitution granted.


text:
    In the Matter of the Liquidation of Yokohama Specie Bank, Ltd. Superintendent of Banks of the State of New York et al., Appellants; Eugene T. Singer, Respondent.
    Submitted July 14, 1954;
    decided July 14, 1954.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows: Order of Appellate Division reversed, with costs in all courts to the Superintendent of Banks, and matter remitted to Special Term with directions to grant the petition of the Superintendent that the Superintendent be released and discharged from any further obligation to comply with the judgment of the Supreme Court of New York County upon his making payment hereunder. [See 305 N. Y. 908; 347 U. S. 403.]


text:
    Mary Platto et al., Appellants, v. Bertha Stier et al., Respondents.
    Submitted July 14, 1954;
    decided July 14, 1954.

      Samuel F. Swiggett for motion.

      Herbert L. Fine opposed.
   Motion denied.


text:
    The People of the State of New York, Respondent, v. John De Feo, Appellant.
    Submitted July 14, 1954;
    decided July 14, 1954.

      Harris B. Steinberg for motion.

      Frank S. Hogan, District Attorney (Leonard E. Reisman of counsel), for People of the State of New York, respondent.
   Motion granted.


text:
    The People of the State of New York, Respondent, v. Emile Hendricka Scott, Appellant.
    Submitted July 14, 1954;
    decided July 14, 1954.
   Motion for reargument denied. [See 307 N. Y. 663.]


text:
    The People of the State of New York, Respondent, v. William Vanderwyde, Appellant.
    Submitted July 14, 1954;
    decided July 14, 1954.
   Motion for reargument denied. [See 304 N. Y. 937; 307 N. Y. 701.]


text:
    The People of the State of New York ex rel. Arthur G. Marsh, Respondent, against Walter B. Martin, as Warden of Attica State Prison, Appellant.
    Submitted July 14, 1954;
    decided July 14, 1954.

      Arthur G. Marsh, relator in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (J. Bruce MacDonald of counsel), opposed.
   Motion denied.


text:
    Renee Pollard, by William C. Pollard, Her Guardian ad Litem, Appellant, v. Board of Education, Barker Central School District, Respondent.
    Submitted July 14, 1954;
    decided July 14, 1954.

      James P. Degnan for motion.

      Alpheus B. Phelps opposed.
   Motion granted.


text:
    Larnie Richardson et al., Respondents, v. Cannold Holding Corp., Appellant and Third-Party Plaintiff-Respondent. Manhattan & Bronx Electric Wire & Cable Corp., Third-Party Defendant-Appellant.
    Submitted July 14,1954;
    decided July 14, 1954.

      Benjamin H. Siff for motion.

      Leo M. Brimmer and Richard Formidoni for defendant, opposed.

      Bernard Katzen, Harry Schechter and William H. Stieglitz for third-party defendant, opposed.
   Motion to dismiss appeal by defendant denied.

Motion to dismiss appeal by third-party defendant denied.


text:
    Linda A. Schwartz, by Otto Schwartz, Her Guardian ad Litem, Respondent, v. George Petfield, Appellant. Otto Schwartz, Respondent, v. George Petfield, Appellant.
    Submitted July 14, 1954;
    decided July 14, 1954.

      Edward E. Kavinoky for motion.

      William E. Earl for cross motion.
   Motion to dismiss appeals granted unless defendant serves and files stipulation for judgment absolute as to each action within ten days, in which event motion denied. Cross motion by defendant for leave to file stipulation for judgment absolute as to each action granted provided that the stipulation be served and filed within ten days.


text:
    The People of the State of New York, Respondent, v. Joseph Corbo, Appellant.
    Submitted July 14, 1954;
    decided July 14, 1954.

      Joseph Corbo, appellant in person, for motion.

      George B. Be Luca, District Attorney (Walter E. Dillon of counsel), for People of the State of New York, respondent.
   Motion granted and Whitman Knapp, Esq., of New York City assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Barry Jacobs and John Dale Green, Appellants.
    Submitted July 14, 1954;
    decided July 14, 1954.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted. [See 306 N. Y. 717, 758.]


text:
    In the Matter of Horace M. Byrnes et al., Appellants and Respondents, against Board of Elections of the County of Nassau, Respondent, and Lillian Hovell, Respondent and Appellant.
    Argued September 10, 1954;
    decided September 10, 1954.

      Jacob N. Kliegman for appellants-respondents.

      G. Bur chard Smith, County Attorney (Francis J. Donovan of counsel), for respondent.

      George B. Brennan for respondent-appellant.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of William Brennan, Appellant, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued September 10, 1954;
    decided September 10, 1954.

      Daniel Weiss for appellant.

      Thomas R. Golfer for respondents.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voorhis, JJ.


text:
    In the Matter of James J. Crisona, Respondent, against James M. Power et al., as Commissioners of Elections of the City of New York, Respondents, and Eugene J. McMahon et al., Appellants.
    Argued September 10, 1954;
    decided September 10, 1954.

      Eugene J. McMahon, appellant in person, and for James McCourt and others, appellants.

      Abraham, L. Shapiro for J ames J. Crisona, respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of Victor Konow, Appellant, against James M. Power et al., as Commissioners of Elections of the City of New York, et al., Respondents.
    Argued September 10, 1954;
    decided September 10, 1954.

      Harold L. Fisher, Arthur M. Goldberg and Robert B. Brady for appellant.

      Thomas R. Colfer for Thomas J. Mackell, respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of William J. McGraw et al., Appellants and Respondents, against James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents, and Thomas V. La Fauci et al., Respondents and Appellants. In the Matter of Henry J. Latham et al., Appellants and Respondents, against James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents, and Robert Rose et al., Respondents and Appellants. In the Matter of Walter G. McGahan et al., Appellants and Respondents, against James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents, and Leon A. Beerman et al., Respondents and Appellants.
    Argued September 10, 1954;
    decided September 10, 1954.

      George W. Herz and Arthur G. Warner for appellants-respondents.

      Benjamin Gassman, Isidore Levine, Benjamin S. Rosenthal, John F. X. Browne, Joseph Danahy and Thomas A. Duffy for respondents-appellants.

      Adrian P. Burke, Corporation Counsel (Robert E. Hugh, Seymour B. Quel and Thomas W. A. Crowe of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conwat, Desmond, Dte, Fitld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Virginia M. Dent, Respondent, against James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents, and Robert N. Rose et al., Appellants.
    Argued September 10, 1954;
    decided September 10, 1954.

      John F. X. Browne and Godfrey P. Schmidt for appellants.

      Maurice Bosenberg, Thomas A. Dent and A. Paul Goldblum for Virginia M. Dent, respondent.
   Memorandum: Appellant was not “ enrolled as a member” of the Democratic party “ at the time of the filing of the petition” for his designation as the Democratic nominee for Congress in the Fourth Congressional District in Queens County. Subdivision 1 of section 137 of the Election Law (known as the Wilson-Pakula Act) requires that candidates for party nominations at primary elections (with certain exceptions) be enrolled as party members when their designating petitions are filed. In order to come within any applicable exception, appellant’s designation must have been authorized by “ a meeting of the members of the party committee representing the political subdivision of the office for which a designation or nomination is to be made, or of such other committee as the rules of the party may provide ” (Election Law, § 137, subd. 4). The rules of the Democratic County Committee of the County of Queens delegate broad powers to the county executive committee, but do not render the executive committee a substitute for the meeting of the members of the party committee in the Fourth Congressional District, which is required by subdivision 4 of section 137 to give the authorization where the candidate is not enrolled. The fact must appear from the certificate of authorization filed that the authorization was granted by or in behalf of the members of the county committee or, at least, of the executive committee, elected within the Fourth Congressional District. The certificate here merely shows that appellant’s designation was authorized by the executive committee of the county, which includes several Congressional districts, and says nothing about any meeting of executive committeemen or county committeemen representing this Congressional district. The meeting was not called or held to pass upon the subject of appellant’s enrollment.

The order should be. affirmed.

Dissenting Memorandum: Upon this record, which conclusively establishes that all elements of the Democratic party, not only of the Congressional district involved, but of the entire County of Queens as well, have authorized and acquiesced in the designation of the appellant Rose as candidate for Congressional office, we think that the certificate filed constitutes a sufficient compliance with the spirit and purpose of subdivision 4 of section 137 of the Election Law. To hold otherwise would be contrary to the spirit and policy of our Government and the Election Law.” (See Matter of Gresser v. Cohen, 275 N. Y. 440, 445.) The orders of the Appellate Division and Special Term should be reversed, and the petition dismissed.

Lewis, Ch. J., Desmond, Fuld and Van Voorhis, JJ., concur; Conway, Dye and Frobssel, JJ., dissent in memorandum and vote to reverse.

Order affirmed.


text:
    Atlantic Beach Property Owners’ Association, Inc., et al., Suing on Behalf of Themselves and All Other Property Owners in Atlantic Beach, Nassau County, Similarly Situated, Respondents, v. Town of Hempstead, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.

      John A. Morhous for motion.

      Charles E. Lapp, Jr., opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution and is not encompassed within subdivision 2 of section 589 of the Civil Practice Act.


text:
    Clifford L. De Fisher, Appellant, v. Dominick Cordello et al., Respondents.
    Submitted October 4, 1954}
    decided October 7, 1954.

      Philip L. Zermer for motion.

      James M. Ryan opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Jacob Keur, Individually and Doing Business under the Name of C. Keur & Sons, Appellant, v. Prominent Bulb Company et al., Respondents, et al., Defendants.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Albert Shestack for motion to dismiss appeal.

      George A. Burrell opposed.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days appellant serves and files an undertaking on appeal and pays $10 costs, in which events motion denied. Motion to dismiss appeal for failure to serve and file the record on appeal denied (see Rules of Court of Appeals, rules I, VI).

Motion to have appeal heard upon three copies of the record before the Appellate Division granted. Motion to dispense with the filing of an undertaking denied (Siegelbaum v. Dowling, 279 N. Y. 22).


text:
    Harry D. Koster, Respondent, v. Banco Minero de Bolivia, Appearing Specially, Appellant. Republic of Bolivia, Appearing Specially, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Frank M. Rashap for motion.

      Milton S. Gould and Alvin M. Stein opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine an action or special proceeding within the meaning of the Constitution.


text:
    City of New Rochelle, Respondent, v. Alice S. Stevens, as Administratrix with the Will Annexed of Charles G. Banks, Deceased, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Lyle Evans Mahan for motion.

      Murray G. Fuerst, Corporation Counsel (Francis 8. Claps of counsel), opposed.
   Motion dismissed upon the ground that it is not timely made (see Civ. Prac. Act, § 592, subd. 5, par. [b], cl. [ii]).


text:
    In the Matter of Carroll K. Davis, Appellant, against Board of Regents of the University of the State of New York, Respondent.
    Submitted October 4, 1954;
    decided October 7, 1954.
   Motion for reargument, to amend the remittitur and for a stay denied, with $10 costs and necessary printing disbursements. [See 307 N. Y. 786.]


text:
    In the Matter of Harvey L. Every, Appellant, against County of Ulster, Respondent.
    Submitted October 4, 1954;
    decided October 7, 1954.

      John A. Bonomi for motion.

      Arthur A. Davis, Jr., County Attorney, opposed.
   Motion dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Probate of the Will of Ivo F. Hoechle, Jr., Deceased. Kenneth W. Haslam et al., as Executors of Ivo F. Hoechle, Jr., Deceased, Respondents; Veterans of Foreign Wars National Home, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Joseph Carl Thomson and John J. McGinty for motion.

      Maurice J. Giaimo and Frank M. Nicolosi opposed.
   Motion dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Sidney F. Kruger et al., Respondents. Town of Hempstead, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.

      John A. Morhous for motion.

      Jach Korshin opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of William Schwartz, Appellant, against Board of Estimate of the City of New York, as Head of the New York City Employees’ Retirement System, et al., Respondents.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Adrian P. Burke, Corporation Counsel (Seymour B. Quel of counsel), for motion.
    No one opposed.
   Motion denied, without prejudice to renewal thereof, upon proof that service has been made by registered mail as directed by the order of the Court of Appeals dated January 22, 1954.


text:
    In the Matter of United Piece Dye Works, Respondent, against Lazarus Joseph, as Comptroller of the City of New York, et al., Appellants.
    Submitted October 4, 1954;
    decided October 7, 1954.
   Motion to amend the remittitur of this court dated July 14, 1954, granted by inserting after the words ‘ ‘ be and the same hereby is affirmed, with costs ”, the words “ upon the sole ground that the General Business and Financial Tax Law of the City of New York as here applied violates the commerce clause (art. I, § 8, cl. 3) of the Constitution of the United States ”. [See 307 N. Y. 780.]


text:
    National Steel Corporation, Respondent, v. City of New York et al., Appellants.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Lester Samuels for motion to dismiss appeal.

      Adrian P. Burke, Corporation Counsel (Stanley Buchsbaum of counsel), in opposition.
   Motion to dismiss appeal denied.

Motion for an extension of time to serve and file record on appeal granted to the extent that defendants are allowed until sixty days from the date hereof or until the determination by the Supreme Court of the United States of the city’s petition for certiorari in Matter of United Piece Dye Works v. Joseph (307 N. Y. 780), whichever is sooner, to serve and file such record.


text:
    The People of the State of New York, Respondent, v. Henry Coger, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.
   Motion for reargument denied. [See 305 N. Y. 906.]


text:
    The People of the State of New York, Respondent, v. David Flaherty, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Edward 8. Silver, District Attorney (William I. Siegel of counsel), for motion.

      David Flaherty, defendant in person, opposed.
   Motion granted and appeal dismissed upon the ground that the order is not a final determination within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Thomas R. Law, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Thomas R. Law, in person, for motion.
    No one opposed.
   Motion granted and Myron J. Greene, Esq., of 259 Broadway, New York City, assigned as counsel to defendant on the appeal herein, and case set down for argument during the November, 1954, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Charles Von Glahn, Appellant.
    Submitted Oatober 4, 1954;
    decided October 7, 1954.

      Samuel L. Hays for motion.
    No one opposed.
   Motion granted and Messrs. Griffing, Smith and Lundberg, 137 West Main Street, Riverhead, New York, assigned as counsel to defendant on the appeal herein.


text:
    John Robbins, an Infant, by John F. Robbins, His Guardian ad Litem, Respondent, v. William A. Boyer et al., Individually and as Copartners Doing Business under the Name of Boyer & Lyons, Appellants. (Action No. 1.) John F. Robbins, Respondent, v. William A. Boyer et al., Individually and Doing Business as Boyer & Lyons, Appellants. (Action No. 2.)
    Submitted October 4, 1954;
    decided October 7, 1954.

      Esmond D. Murphy for motion.
    No one opposed.
   Motion in each action dismissed for lack of jurisdiction in this court (see Civ. Prac. Act, § 589, subd. 3, par. [b]).


text:
    United Security Corporation, Respondent, v. Isadore Suchman, Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 307 N. Y. 48.]


text:
    Arthur F. Williams, Respondent, v. Aircooled Motors, Inc., Appellant.
    Submitted October 4, 1954;
    decided October 7, 1954.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, viz., whether section 226 of the Election Law, as here construed and applied, violated clause 2 of article VI of said Constitution or deprived defendant of its property without due process in violation of the Fourteenth Amendment to said Constitution. The Court of Appeals held that the Election Law provision, as here construed and applied, was not violative of any of the above provisions of the Constitution of the United States. [See 307 N. Y. 332.]


text:
    John O. Young, as a Stockholder Individually and on Behalf of All Other Stockholders of Farmers and Traders Life Insurance Company Similarly Situated and on Behalf of the Holders of Voting Trust Certificates of Stock in Said Company Similarly Situated, and in the Right of Said Company, Appellant, v. Louis J. Taber et al., Respondents.
    Submitted October 4, 1954;
    decided October 7, 1954.

      Benjamin E. Shove for motion.

      Laurence Sovik opposed.
   Motion granted, with costs and $10 costs of motion, unless within ten days from the date of this order appellant serves and files the required undertaking on appeal and pays $10 costs, in which events motion denied. Motion to dismiss appeal upon ground that it- has become academic denied with leave to renew upon the argument. Motion to dismiss appeal upon ground that appellant has not served or filed record on appeal denied (see Rules of Court of Appeals, rules I, VI). In all other respects, motion denied.


text:
    In the Matter of the Probate of the Will of Samuel J. Reckford, Deceased. In the Matter of the Application for a Compulsory Accounting in the Estate of Florence L. Reckendorfer, Deceased. Janet Reckford et al., as Executors of Joseph S. Reckford, Deceased, et al., Appellants; Richard P. Limburg, as Executor of Samuel J. Reckford, Deceased, et al., Respondents.
    Submitted October 4, 1954;
    decided October 7, 1954.
   Motion for reargument denied; with $10 costs and necessary printing disbursements. [See 307 N. Y. 165.]


text:
    Vincent Smith, Respondent, v. City of New York, Appellant, et al., Defendants.
    Argued October 5, 1954;
    decided October 14, 1954.

      Adrian P. Burhe, Corporation Counsel (Seymour B. Quel and Alfred Weinstein of counsel), for appellant.

      Arthur N. Seiff, Louis Greenfield and William Cohen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ,


text:
    In the Matter of Vincent J. Colucci et al., Appellants, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Respondents.
    Argued October 4, 1954;
    decided October 14, 1954.

      Monroe I. Katcher, II, for appellants.

      Alvin McKinley Sylvester and Emanuel D. Black for respondents.
   Appeal dismissed, with costs, upon the ground that there is no substantial constitutional question involved. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Maflo Holding Corp., Appellant, v. S. J. Blume, Inc., Respondent.
    Submitted October 4, 1954;
    decided October 14, 1954.

      Samuel Lesser and Harry Lesser for motion.

      Jacob W. Friedman opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, without prejudice to a renewal thereof if and when a judgment has been entered upon the order of the Appellate Division.


text:
    Benjamin Marshall, Appellant, v. City of New York et al., Respondents.
    Submitted October 11, 1954;
    decided October 14, 1954.

      Eugene J. Morris and Gustave G. Rosenberg for motion.

      Hobart R. Marvin opposed.
   Motion granted.


text:
    Herman Nash, Appellant, v. City of New York, Respondent.
    Submitted October 11, 1954;
    decided October 14, 1954.

      Herman Nash, in person, for motion.

      Adrian P. Burke, Corporation Counsel (Seymour B. Quel and Fred Iscol of counsel), opposed.
   Motion dismissed upon the ground that the orders are not final determinations within the meaning of the Constitution.


text:
    In the Matter of Wanda H. Rotkiewicz, Respondent, against Department of Mental Hygiene of the State of New York et al., Appellants.
    Argued October 7,1954;
    decided October 21, 1954.

      Nathaniel L. Goldstein, Attorney-General (J. Bruce MacDonald, Wendell P. Brown and Raymond B. Madden of counsel), for appellants.

      Salvador J. Capecelatro, Jr., for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fboessel and Van Vooehis, JJ. Taking no part: Ftjld, J.


text:
    In the Matter of the Estate of Amelia H. Abrams, Deceased. Charles Deickler et al., Individually and as Executors of Amelia H. Abrams, Deceased, Respondents; Oscar Abrams, Appellant.
    Argued October 5, 1954;
    decided October 21, 1954.

      Thomas F. Groake and Robert P. Smith for appellant.

      Alphonse V. Brisson and Robert Pierre Brisson for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessbl and Van Voorhis, JJ.


text:
    Philip Berkowitz, Appellant, v. Lewis A. Wilson, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted October 7, 1954;
    decided October 21, 1954.

      Gerald H. Chambers for appellant.

      Nathaniel L. Goldstein, Attorney-General (Samuel A. Hirshowits and Wendell P. Brown of counsel), for respondents.

      Mathias F. Correa and Alice B. Gilbert for New York State Society of Certified Public Accountants, amicus curiae, in support of respondents’ position.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Froessel and Van Voorhis, JJ. Taking no part: Fuld, J.


text:
    John Servino, Respondent, v. Jean Servino, Appellant.
    Argued October 5, 1954;
    decided October 21, 1954.

      John F. Loonam and William A. Hergenrother for appellant.

      Menahem Stim and Marie K. Leeds for respondent.
   Order and judgment affirmed, with costs, and, as to the first cause of action, judgment absolute directed against appellant on the stipulation. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Archibald B. Kirkwood, Jr., Respondent, v. Frank Campbell et al., Defendants, and Jay S. Potter et al., Doing Business as “Potter Bros.”, Appellants.
    Argued October 6, 1954;
    decided October 21, 1954.

      Esmond D. Murphy for appellants.

      Charles J. McDonough for respondent.
   Judgment affirmed, with costs, upon the authority of Switzer v. Aldrich (307 N. Y. 56). We pass upon no other question. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Timothy J. Mara, Respondent, against Joseph D. McGoldrick, as State Rent Administrator, et al., Appellants.
    Argued October 6, 1954;
    decided October 21, 1954.

      Emory Gardiner and Walter 8. Fried for Joseph D. McG-oldrick, State Rent Administrator, appellant.

      Robert 8. Fougner for Edgar Ellinger, Inc., appellant.

      Lawrence Weston Krieger and William P. Murray for respondent.
   Per Curiam.

The order of Special Term and that of the Appellate Division should be reversed, and the determination of the State Rent Administrator reinstated, with costs. Subdivision 4 (par. [b]) of section 4 of the State Residential Rent Law (L. 1946, ch. 274, as amd. by L. 1953, ch. 321), expressly provides that the total of all adjustments ordered by the commission ” pursuant to subdivision 4 (par. [a], cl. [1]) of said section (where property yields a net annual return of less than 6%) “ shall not exceed fifteen per centum for any twelve month period ”. This 15% ceiling is limited to subdivision 4 (par. [a], els. [1], [3]) when adjustments are ordered by the commission, and has no effect upon the provisions of subdivision 3-a of said section, by virtue of which the Legislature has granted an automatic equalization ” increase of 15% over the maximum rent in effect on March 1, 1943, for housing accommodations.

The order of the Appellate Division and that of Special Term should be reversed, and the determination of the State Rent Administrator reinstated, with costs in all courts.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Orders reversed, etc.


text:
    In the Matter of Inez Yancey, Respondent. New Chapel Baptist Church, Appellant.
    Argued October 5, 1954;
    decided October 21, 1954.

      Melvel W. Snitow and Sydney Snitow for appellant.

      Stephen Holden, Jr., for respondent.
   Per Curiam.

The order of the Appellate Division and that of the Special Term of the Supreme Court should be reversed, and the petition dismissed, without costs. Aside from the facts that the petition is fatally defective, that there is no proof in the record that the corporate appellant is the true successor of the unincorporated association, and that the unappealed judgment of the Supreme Court in the previous foreclosure action is conclusive upon the parties (Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14, 17; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Reich v. Cochran, 151 N. Y. 122, 127-128; Pray v. Hegeman, 98 N. Y. 351, 358), the Supreme Court was without power, either under subdivision 9 of section 12 of the Religious Corporations Law, or under section 113 of the Real Property Law, to grant the order appealed from. Said order is invalid, since, by statutory exception, subdivision 9 of section 12 of the Religious Corporations Law permits nunc pro tune validation of mortgages executed by incorporated religious associations only; in other cases, the general principles governing nunc pro tune orders apply (Mohrmann v. Kob, 291 N. Y. 181, 186; Merrick v. Merrick, 266 N. Y. 120; Stock v. Mann, 255 N. Y. 100; Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & New England R. R. Co., 160 N. Y. 1, 7; Mishkind-Feinberg Realty Co. v. Sidorsky, 111 App. Div. 578, 583).

The order of the Appellate Division and that of the Supreme Court should be reversed, and the petition dismissed, without costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Orders reversed, etc.


text:
    Edith M. Aucock, Appellant, v. Neisner Brothers, Inc., Respondent.
    Argued October 7, 1954;
    reargument ordered October 21, 1954.
   Reargument ordered during the November, 1954, session of the Court of Appeals.


text:
    Humbert de Sayve, Respondent, v. Jean de G. de la Valdene, Appellant.
    Submitted October 4, 1954;
    decided October 21, 1954.

      Granville Whittlesey, Jr., and Robert F. Morten for motion for leave to appeal and in opposition to motion to dismiss appeal.

      Montrose E. Massler in opposition to motion for leave to appeal and for motion to dismiss appeal taken on alleged constitutional grounds.
   Motion for leave to appeal granted. Cross motion to dismiss appeal granted and appeal dismissed upon the ground that no constitutional question is directly involved. (Civ. Prac. Act, § 588, subd. 1, par. [a].)


text:
    Pearl S. Marks, Respondent, v. Gustav Marks, Appellant.
    Submitted October 4, 1954;
    decided October 21, 1954.

      Walter W. Davis for motion.

      James Holden opposed.
   Motion dismissed upon the ground that the order does not finally determine an action or a special proceeding within the meaning of the Constitution.


text:
    In the Matter of Canada Dry Bottling Company of Endicott, Inc., Respondent, against John F. O’Connell et al., Constituting the New York State Liquor Authority, Appellants.
    Submitted October 4, 1954;
    decided October 21, 1954.

      Robert W. Corcoran and Alvin McKinley Sylvester for motion.

      Bernard 11. Chernin opposed.
   Motion granted.


text:
    Albert Bradick, Respondent, v. Rudolph H. Deetjen et al., Appellants.
    Argued October 13, 1954;
    decided October 22, 1954.

      Wm. Francis Corson, Daniel F. Cohalan and George F. Roberts for appellants.

      William J. Cogan and Simon Klein for respondent.
   Per Curiam.

The Justice at Special Term ruled, in the exercise of discretion (Rules Civ. Prac., rule 102), that decision on the merits of the question raised by defendants’ motion should be deferred until the trial. The Appellate Division, in affirming the order of Special Term and in granting leave to appeal to this court, failed to state that its decision was based solely on questions of law and was not in the exercise of the discretion conferred by rule 102. In such circumstances, section 603 of the Civil Practice Act requires us to presume that the Appellate Division did in fact deny the defendants ’ motion in the exercise of a permissible discretion (Mencher v. Chesley, 297 N. Y. 94, 102-103). It follows that the questions of law certified are not decisive of the correctness of the decision of the Appellate Division and, therefore, that the appeal must be dismissed, with costs (see Cohen and Karger, Powers of the New York Court of Appeals, pp. 382-383).

The appeal should be dismissed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fkoessel and Van Voorhis, JJ., concur.

Appeal dismissed.


text:
    Tuxedo Park Association, Inc., Respondent, v. Paul E. Jackson et al., Appellants, et al., Defendants.
    Argued October 14, 1954;
    decided October 22, 1954.

      Elbert N. Oakes for appellants.

      Clare J. Hoyt for respondent.
   Judgment affirmed, with costs; no opinion.

■ Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Cecil Landes, Appellant, v. Vincent Barone, Respondent.
    Argued October 7, 1954;
    decided October 22, 1954.

      Salem G. Mansour and Robert F. Hille for appellant.
    J. Carl Fogle for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Froessel and Van Voorhis, JJ. Tailing no part: Fuld, J.


text:
    Ivan H. Towne, as Administrator of the Estate of Kenneth L. Towne, Deceased, Appellant, v. Alton R. Bunce, as Administrator of the Estate of George E. Cone, Deceased, Respondent.
    Argued October 8, 1954;
    decided October 22, 1954.

      Wallace J. StaJcel for appellant.

      Percy R. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fkoessel and Van Vookhis, JJ.


text:
    Vivian Martorelli, Appellant, v. Frank F. Prisco, Respondent.
    Submitted October 8, 1954;
    decided October 22, 1954.

      Harry M. Alfert and Santo W. Crupe for appellant.

      Robert J. Sykes and Martin A. Cream, for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Fred Burmann, Appellant.
    Argued October 13, 1954;
    decided October 22, 1954.

      John J. Lynch and Alfred J. Loeio for appellant.

      Frank A. Gulotta, District Attorney (Henry P. De Vine of counsel), for respondent.

      George L. Hubbell, Jr., Village Attorney (Edward J. Walsh, Jr., of counsel), for Incorporated Village of Garden City, amicus curice, in support of respondent’s position.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Samuel L. Norman et al., Doing Business under the Name of Norman-Hogarty Co., Plaintiffs, v. Oakland Golf Club, Appellant, and Laurence B. Halleran, Doing Business as Halleran Agency, et al., Respondents.
    Argued October 13, 1954;
    decided October 22, 1954.

      Peter Keber, Leo P. Dorsey and Harry Le Bien for appellant.

      Charles P. Kramer, Theodore N. Tarlau and Herbert B. Kramer for respondents.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Lewis, Oh. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    William T. Kennedy, Plaintiff, v. Bethlehem Steel Company, Defendant and Third-Party Plaintiff-Appellant, et al., Defendant. Hudson-Rumsey Co., Inc., Third-Party Defendant-Respondent.
    Argued October 14, 1954;
    decided October 22, 1954.

      Robert E. Daley and Grover R. James, Jr., for appellant.

      William B. E. Sawyer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Froessel and Van Voorhis, JJ.


text:
    Lawrence C. Schnitzer, Respondent, v. Fruehauf Trailer Company, Appellant.
    Argued October 13, 1954;
    decided October 22, 1954.

      Charles H. Tuttle and Gerald J. Graugh for appellant.

      Isidor Unger and Everett Frooks for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Hartford Accident and Indemnity Company, Respondent, v. First National Bank & Trust Company of Paterson, New Jersey, Defendant, and The People of the State of New York, Appellant.
    Submitted October 18, 1954;
    decided October 22, 1954.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 307 N. Y. 634.]


text:
    In the Matter of William Schwartz, Appellant, against Board of Estimate of the City of New York, as Head of the New York City Employees’ Retirement System, et al., Respondents.
    Submitted October 18, 1954;
    decided October 22, 1954.

      Adrian P. Burhe, Corporation Counsel (Seymour B. Quel of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed pursuant to section 578 of the Civil Practice Act.


text:
    In the Matter of 75 Maiden Lane Corp., Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued October 6, 1954;
    decided November 18, 1954.

      Lawrence Weston Krieger, Philip 8. McNally and William P. Murray for appellant.

      Adrian P. Burke, Corporation Counsel (Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Vooehis, JJ.


text:
    Gertrude Neilitz, Appellant, v. August Neilitz, Respondent.
    Argued October 7, 1954;
    decided November 18, 1954.

      Robert L. Andrew for appellant.

      Boyd McDowell, II, for respondent.
   Judgment of Appellate Division and that of Special Term modified, with costs, by directing judgment in favor of plaintiff solely insofar as she seeks an accounting of the rents and/or profits realized from the rental of the dwelling house and the sale of standing timber and matter remitted to Special Term for an accounting as to these items and, as so modified, affirmed. Plaintiff, as tenant by the entirety, is entitled to an accounting of income realized from the communal property (Hiles v. Fisher, 144 N. Y. 306, 315-316). No opinion.

Concur: Lewis, Ch. J., Conway, Dye, Fbobssel and Van Voobhis, JJ. Desmond, J., dissents and votes to affirm. Taking no part: Fuld, J.


text:
    In the Matter of the Accounting of Bankers Trust Company, as Executor of Blanche Barclay, Deceased Trustee under the Will of George C. Barclay, Deceased, Respondent. Elizabeth B. Pennink et al., Appellants; William S. Overend, Special Guardian for Junius S. Morgan, II, and Another, Infants, and for Unborn Persons, Respondent.
    Argued October 11, 1954;
    decided November 18, 1954.

      C. Alexander Capron, in person, special guardian for Margaret M. Barclay, infant, appellant, and Nathaniel T. Winthrop for Elizabeth B. Pennink and another, appellants.

      William K. Allison and Robert B. Lisle for Sylvia B. Bibby, appellant.

      Edward B. Twombly and Stephen J. Lucey for Joan R. Burchenal and another, appellants.

      William S. Overend, special guardian for Junius S. Morgan, II, and another, infants, and others, respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    North Country Community Hospital, Appellant, v. North Shore Hospital, Inc., Respondent.
    Argued October 14, 1954;
    decided November 18, 1954.

      Francis T. Garmody, Patrick H. Sullivan and John V. Thornton for appellant.

      Henry Root Stern, Jr., and Joseph L. Tobin, Jr., for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Stephania A. Jendrasik, as Administratrix of the Estate of Harry S. Jendrasik, Deceased, Appellant, v. South Buffalo Railway Company, Respondent.
    Argued October 7, 1954;
    decided November 18, 1954.

      George E. Phillies and Michael Catalano for appellant.

      Paul PL. Reid, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Froessel and Van Voorhis, JJ. Taking no part: Ftjld, J.


text:
    The People of the State of New York, Respondent, v. Clinton Harrell, Appellant.
    Argued October 14, 1954;
    decided November 18, 1954.

      Morton Friedman and Moe L. Tandler for appellant.

      Edward S. Silver, District Attorney (David Diamond of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Dorothy L. Mackinnon, Individually and as Executrix of Bergan A. Mackinnon, Deceased, Respondent, v. Advance Pattern Company, Incorporated, et al., Defendants, and Kathleen Pfender et al., Appellants.
    Argued October 12, 1954;
    decided November 18, 1954. .

      Thomas A Sully for appellants.

      Arthur J. Brothers and Leo J. Friedman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ.


text:
    Grace Kaye et al., Respondents, v. Peka, Inc., Appellant.
    Argued October 12, 1954;
    decided November 18, 1954.

      George W. Clark and Kenneth R. Thompson for appellant.

      Alfred S. Julien for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    George L. Armour, as Trustee under a Deed of Trust Made by Bernard R. Armour for the Benefit of Rachel Armour and Others, Respondent, v. Rachel Armour et al., Respondents, and A. Chauncey Newlin, as General Guardian of Toby Armour, an Infant, et al., Appellants. George L. Armour, as Trustee under a Deed of Trust Made by Bernard R. Armour for the Benefit of Ruth Armour and Others, Respondent, v. Ruth Armour et al., Respondents, and A. Chauncey Newlin, as General Guardian of Toby Armour, an Infant, et al., Appellants. George L. Armour, as Trustee under a Deed of Trust Made by Bernard R. Armour for the Benefit of Geraldine R. Theil and Others, Respondent, v. Joseph Broadman, as Ancillary Executor of Geraldine R. Theil, Deceased, et al., Respondents, and A. Chauncey Newlin, as General Guardian of Toby Armour, an Infant, et al., Appellants.
    Argued October 4, 1954;
    decided November 18, 1954.

      A. Chauncey Newlin, in person, and Asbury Hayne de Yam-pert, Harold A. Westcott and John A. Garvey, Jr., for A. Chauncey Newlin, as general guardian for Toby Armour, an infant, appellant.

      J. Robert Bleahley, William F. Bledkley, appellant in person, and Charles L. Brieant, Jr., for Ruth Armour, appellant.

      Stephen P. Duggan, Jr., and Burton M. Abrams for George F. Lewis, Jr., and others, as executors of Bernard R. Armour, deceased, respondents.

      James J. Crisona, in person, Herman B. Goodstein, in person, and Earl J. Wofsey for James J. Crisona, as guardian ad litem for Rachel Armour and another, infants, and for Herman B. Goodstein, guardian ad litem for Ruth Armour, an infant, respondents.

      Murray I. Gurfein, Christopher J. Taylor and James F. Cahill for George L. Armour, respondent.
   Judgment affirmed, with one bill of costs to all respondents appearing separately and filing separate briefs payable out of the trust fund; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froesset. and Van Voorhis, JJ.