text:
    In the Matter of Seymour Friend, Respondent, against Lewis J. Valentine, as Commissioner of the Department of Police of the City of New York, et al., Appellants.
    Argued March 4, 1941;
    decided April 24, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair and David DuVivier of counsel), for appellants.

      Samuel A. Spiegel and William L. Brody for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey and Desmond, JJ. Finch, J., dissents in the following opinion in which Lewis and Conway, JJ., concur:

Finch, J.

(dissenting). It is submitted that upon the facts disclosed in this case it was not an abuse of discretion for the Municipal Civil Service Commission to approve the employment of eligibles from the list of patrolman, P. D. to existing positions of telephone operator (police) in the Police Department upon the recommendation of the Police Commissioner of the City of New York.

The dispute arose in this manner. Prior to 1939, policemen of the rank of sergeant were used as telephone operators. In the interest of economy it was determined that this duty could be performed by civilians at lower wages. Pursuant to that determination thirty-eight appointments were made from an existing fist certified by the Municipal Civil Service Commission after an open competitive examination for the position of telephone operator (male) grade 1. These appointments exhausted that fist. Thereupon the Police Commissioner made a number of provisional appointments to the positions from the patrolman, P. D. list. Several of these provisional appointments have been rescinded because these persons have been reached in regular order for certification and appointment to serve a probationary period as patrolmen. At the time this proceeding was initiated, eighty-seven of the appointees from the patrolman, P. D. list remained temporarily employed as telephone operators in the Police Department.

In the meantime a new list for the position of telephone operator (male) was promulgated after an open competitive examination, the notice of which stated: Vacancies: 40 anticipated in the Police Department.” This new list was certified by the Municipal Civil Service Commission to the Commissioner of Police for appointments to the position of telephone operator in the Police Department. The Police Commissioner refused to make permanent appointments from the new list and instead referred the matter to the Budget Director with the explanation that for administrative reasons he preferred to make appointments from the patrolman list. Thereafter the Budget Director changed the. title of the position from telephone operator (male) to telephone operator (police) and the Municipal Civil Service Commission has acquiesced in the retention as telephone operators of persons appointed from the patrolman, P. D. list by certifying the payrolls.

Petitioner as one of the eligibles on the new list of telephone operator (male) grade 1 has brought this proceeding to restrain respondents from employing or continuing to employ in the Police Department any persons appointed to that position from the patrolman list or any other list, except from the telephone operator (male) list, and to require respondent to make such appointments only from that fist. Special Term denied the petition but the Appellate Division reversed and granted the relief requested.

It is well settled that this court will not ordinarily interfere with the determination of the Municipal Civil Service Commission as to whether a specific eligible list is appropriate for the filling of a position. It is only where the Commission’s determination is whimsical, capricious, arbitrary or made in bad faith that its determination will be denied finality. (Matter of Forman v. Kern, 101 N. Y. L. J. 2390; affd., 257 App. Div. 946; affd., 282 N. Y. 583; Matter of Ward v. Kern, 103 N. Y. L. J. 626; affd., 259 App. Div. 717; affd., 284 N. Y. 698.)

Upon the facts of this case, it cannot be said that the determination of the Commission was either arbitrary or made in bad faith. The opinion of Special Term states, There is no evidence to suggest that either the police commissioner or the commission acted otherwise than in good faith and in the exercise of their best judgment.” The facts as set forth in the affidavit of the Police Commissioner sustain the validity of the reasons for the request that appointments be made from the patrolman list. Thus the Commissioner states it is necessary in the operation of a telephone in the Police Department that the operator have a knowledge of the numerous rules and regulations of the department in order properly to discharge his duties. The acquisition of proficiency in knowledge of police work is, according to the Police Commissioner, immensely more difficult than that of operating a telephone switchboard. Then, too, the members of the patrolman’s fist had shown their interest in and their capacity to master the intricacies of police knowledge by virtue of having passed their patrolman examinations. Training in such work was already theirs. It was also found through the experience gained in having employed civilian operators that discipline and morale existed in greater degree among men aspiring to be patrolmen. In addition, the employment of the would-be patrolmen in telephone police service offers an unusual opportunity for the training of such men. In the light of these facts, it cannot be maintained that it was unreasonable for the Commission to determine that the position of telephone operator in the Police Department could better be filled by eligibles from the patrolman’s fist than from the telephone operator’s fist.

Respondent contends that the use of an existing list having a title identical with that of the position to be filled is mandatory. The court is not concluded, however, by the mere title, but in arriving at its decision, can look to ascertain what essential duties are required to be performed under the title. The positions to be filled differ in the concept of the duties to be performed. Thus the Commissioner of Police has determined after having had experience with civilian and patrolman employees, that the job of telephone operator in the Police Department requires a greater emphasis upon a knowledge of police work than upon a knowledge of switchboard operation. Although the mechanical tasks to be performed are the same, the knowledge necessary for the performance of those tasks in the Police Department differs sharply from the knowledge necessary for switchboard operation in the ordinary city department. For this reason the change in the designation of the position in question from telephone operator (male) to telephone operator (police) was not an indication of bad faith ” as alleged by the petitioner.

It is contended that because the Municipal Civil Service Commission at one time certified the telephone operator (male) list and appointments therefrom were made to the Police Department that the Commission may not now change its mind. An administrative body is not precluded from further action where good reasons and proper motive dictate such action. (People ex rel. Finnegan v. McBride, 226 N. Y. 252, 259.) The good reasons in the case at bar consisted of the determination by the Police Commissioner that the qualification for switchboard operators in the Police Department were better tested by' an examination in police work than in switchboard operation.

By participating in and passing an examination, the applicant does not acquire a vested right to the position for which the examination was advertised. Thus the administrative head of the department may choose any one of the three top ranking candidates at his discretion. (People ex rel. Balcom v. Mosher, 163 N. Y. 32.) It is only where the duties to be performed are the same as those for which the list was certified that the members of the list are entitled by law to constitute those eligible for appointment. (Spencer v. Ryan, 237 App. Div. 50; affd., 262 N. Y. 600: Matter of Mendelson v. Finegan, 253 App. Div. 709; affd., 278 N. Y. 568.) Whereas in the case at bar the mechanical duties to be performed under the. new title are the same, namely, switchboard operation, as pointed out by the Commissioner telephone operation in precinct station houses constitutes an entirely different mental duty than does telephone operation in an ordinary traffic precinct. Since it has been determined by the Civil Service Commission upon the recommendation of the Police Commissioner that the test for patrolman produces the eligible list most nearly appropriate for the group in which the position to be filled is classified ” (Civil Service Law § 14 [Cons. Laws, ch, 7]), we cannot say as a matter of law upon the facts of this case that such determination is arbitrary or made in bad faith. We should not, therefore, set aside the determination of the Municipal Civil Service Commission. (Matter of Forman v. Kern, supra, and Matter of Ward v. Kern, supra.)

It follows that the order of the Appellate Division should be reversed and the order of the Special Term reinstated and affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Anthony Siviglia, Respondent, v. Julius P. Kronowitz, Appellant.
    Argued April 7, 1941;
    decided April 24, 1941.

      Julius P. Kronowitz, appellant, in person.

      Irving I. Erdheim and Frank I. Tashker for respondent.
   Appeal dismissed, with costs, upon the ground that the order is not final. No opinion.

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


text:
    Helen Clapper, Respondent, v. Goldie Zubres et al., Appellants.
    Argued April 8, 1941;
    decided April 24, 1941.

      John J. Scully for appellants.

      Daniel H. Prior for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of George J. Gillespie et al., Constituting the Board of Water Supply of the City of New York, Respondents, Relative to Acquiring Real Property Required for the Purpose of Furnishing a Water Supply for the City of New York. Eleanor Iselin et al., Appellants.
    Argued April 9, 1941;
    decided April 24, 1941.

      Harrison T. Slosson and Edward P. Barrett for appellants.

      William C. Chanler, Corporation Counsel (Henry B. Bright and Theodore B. Lee of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of William J. Quigly, Deceased. Dorothy Quigly, Appellant; Carrie B. Quigly, Respondent.
    Argued April 10, 1941;
    decided April 24, 1941.

      Hamilton Hicks and Richard Steel for appellant.

      Richard Leo Fallon for respondent.
   Order affirmed, with costs to the respondent payable out of the estate. No opinion.

Concur: Lotjghran, Finch, Lewis and Desmond, JJ. Conway, J., dissents and votes to reverse upon the ground that a question of fact was presented which should have been submitted to the jury. (Matter of Limberg, 277 N. Y. 129.) Taking no part: Lehman, Ch. J., and Rippey, J.


text:
    Emma E. Futherer et al., Respondents, v. David C. Angelidis, Appellant, Impleaded with Another.
    Submitted April 14, 1941;
    decided April 24, 1941.

      Merle Lewis Sheffer for motion.

      Addis V. Adams opposed.
   Motion dismissed on ground the order is not final.


text:
    Ruth B. Viall, Respondent, v. Leland S. Viall, Appellant.
    Submitted April 14, 1941;
    decided April 24, 1941.

      Meyer Fix for motion.

      Charles E. Bostwick and Hugh J. O’Brien opposed.
   Motion denied on the ground that an appeal lies as of right.


text:
    The People of the State of New York, Respondent, v. C. Vincent Riccardi, Appellant.
    Submitted April 14, 1941;
    decided April 24, 1941.
   Motion for reargument denied. (See 285 N. Y. 21.)


text:
    Bankers Trust Company, Appellant, v. 1 East 88th Street Corporation, Respondent, Impleaded with Another.
    Submitted April 14, 1941;
    decided April 24, 1941.

      Joseph M. Hartfield and Ernest A. Fintel for motion.

      Walter H. Liebman opposed.
   Motion dismissed upon the ground that the order is not final.


text:
    City Construction Corporation, Appellant, v. Saul M. Dubov, Respondent.
    Submitted April 14, 1941;
    decided April 24, 1941.

      Mitchell J. Sherwin for motion;

      Jacob Raphael opposed.
   Motion dismissed upon the ground that the order is not final.


text:
    Feed Lapp, Appellant, v. Cora Lapp, Respondent.
    Submitted April 21, 1941;
    decided April 24, 1941.

      Victor D. Borst, Jr., and Christian S. Lorentzen for motion.

      Frederick W. Ritter and Charles H. Wald opposed.
   Motion denied upon the ground that an appeal lies as of right.


text:
    In the Matter of Fred H. Cornehl, Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued February 26, 1941;
    decided April 25, 1941.

      William C. Chanler, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), for appellants.

      Gabriel L. Kaplan and Sidney A. Fine for respondent.
   Ordered affirmed, with costs; no opinion.

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


text:
    In the Matter of Albert J. Chiaravalle, Appellant and Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents and Appellants.
    Argued November 18, 1940;
    decided April 25, 1941.

      Charles Hochberg for petitioner, appellant and respondent.

      William C. Chanter, Corporation Counsel (David DuVivier and Paxton Blair of counsel), for defendants, respondents and appellants.
   Orders reversed and petition granted, with costs to the petitioner in all courts. No opinion. (See Matter of Cornehl v. Kern, 285 N. Y. 777.)

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


text:
    Wolcott Cook et al., Respondents, v. Laura M. Gill et al., Individually and as Executors of Frank B. Gill, Deceased, Appellants.
    Argued April 22, 1941;
    decided April 25, 1941.

      J. R. Marshall and Ward N. Truesdell for appellants.

      Oliver D. Burden for respondents.
   Appeal dismissed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippet, Lewis, Conway and Desmond, JJ.


text:
    Jambs L. Cambas, an Infant, by Ida Cambas, His Guardian ad Litem, Appellant, Impleaded with Another, v. City of New York, Respondent.
    Argued April 16, 1941;
    decided May 22, 1941.

      Bernard Meyerson, Robert McGowan Smith and Stephen S. Scopas for appellant.

      William C. Chanler, Corporation Counsel (Wm. Mason Smith, Jr., and Paxton Blair of counsel), for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court,.and in the Appellate Division. Questions of fact were presented both in regard to defendant’s negligence and plaintiff’s freedom from contributory negligence. We find no reversible error in the charge.

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


text:
    Nicola Maniscalco, an Infant, by John Maniscalco, His Guardian ad Litem, et al., Appellants, v. Union Dime Savings Bank, Respondent.
    Argued April 17, 1941;
    decided May 22, 1941.

      John C. McCarthy for appellants.

      Raymond D. O’Connell for respondent.
   Judgment affirmed, with costs; no opirnon.

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


text:
    Muhlenberg Hospital et al., Appellants, v. Lawyers Title and Trust Company et al., Respondents.
    Argued April 21, 1941;
    decided May 22, 1941.

      Robert McC. Marsh, Hobart S. Bird, Wilmurt B. Linker, Robert B. Block and Abraham N. Getter for appellants.

      Nathan L. Miller and Daniel J. Mooney for respondents.
   Order affirmed, with costs. First question certified answered in the negative, and second question certified answered in the affirmative. No opinion.

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


text:
    Johanna Hines, Appellant, v. Mary Cielo, Respondent.
    Submitted April 22, 1941;
    decided May 22, 1941.

      Andrew M. Lawler and George M. Mulligan for appellant.

      Patrick E. Gibbons and James E. Turner for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    County of Oneida, Respondent, v. City of Utica, Appellant.
    Argued April 23, 1941;
    decided May 22, 1941.

      Bartle Gordon, Corporation Counsel, for appellant.

      Francisco Penberthy, County Attorney, for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lotighran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Herman Ripstoss, Respondent, v. New York Central Railroad Company, Appellant.
    Argued April 8, 1941;
    decided May 22, 1941.

      Clyde Brown, Jr., C. Austin White and Clive C. Handy for appellant.

      Herbert Zelenko and Jacob Zelenko for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    In the Matter of Jerome J. S. Higgins, Appellant, against Lewis J. Valentine, as Police Commissioner of the Police Department of the City of New York, Respondent.
    Argued April 9, 1941;
    decided May 22, 1941.

      Julian V. Carabba for appellant.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for respondent.
   Order affirmed; without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Realty Associates, Inc., Appellant and Respondent, against William S. Miller et al., Constituting the Board of Taxes and Assessments, Respondents and Appellants. (Taxes for 1934, 1935 and 1936.)
    Argued April 15, 1941;
    decided May 22, 1941.

      Denis M. Hurley, Albert Hutton and James J. Manogue for relator, appellant and respondent.

      William C. Chanler, Corporation Counsel (Arthur H. Goldberg and Arthur A. Segall of counsel), for defendants, respondents and appellants.
   Orders affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Jack Osher, Appellant.
    Argued April 17, 1941;
    decided May 22, 1941.

      Jacob W. Friedman and Harry A. Lieb for appellant.

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

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


text:
    Lawrence W. Baff et al., Trading as Dog Food Products Company, Appellants, v. Dog and Cat Food Products, Inc., Respondent.
    Argued April 22, 1941;
    decided May 22, 1941.

      Samuel D. Pressman for appellants.

      Julius Silver for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Addis E. Spurge, Appellant, v. Long Island Railroad Company, Respondent.
    Argued April 24, 1941;
    decided May 22, 1941.

      William J. Beglin for appellant.

      Ralph E. Hemstreet and Louis J. Carruthers for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division on the ground that the jury’s finding that plaintiff had exercised due care is not without support in the evidence. No opinion.

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


text:
    In the Matter of the Claim of Anna Joseph, Respondent, against Sterilek Company, Inc., Appellant, Impleaded with Another. State Industrial Board, Respondent.
    Submitted April 25, 1941;
    decided May 22, 1941.

      Jacob Krisel for appellant.

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

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


text:
    City of New York, Appellant, v. Charles A. Buckley et al., Respondents.
    Argued March 10, 1941;
    decided May 22, 1941.

      William C. Chanter, Corporation Counsel (Seymour B. Quel, Bernard Newman and Arthur H. Kahn of counsel), for appellant.

      Copal Mints for Charles A. Buckley, respondent.

      Murray D. Welch, Harland B. Tibbetts and George A. Dickinson for Ætna Casualty & Surety Company et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Westchester Title and Trust Company, et al., Respondents, v. Percy S. Alden et al., Appellants.
    Argued March 13, 1941;
    decided May 22, 1941.

      William Dean Embree, William J. O’Connell and John M. Friedman for Frank Bailey et al., appellants.

      William Porter Chapman, Jr., and Allan H. Treman for Cornell University et al., appellants.

      Albert Ritchie for Minna B. Bull et al., as executors,, et al., appellants.

      Frank W. Chambers and Walter E. Warner, Jr., for Westchester Fire Insurance Company, appellant.

      Richard Kelly (in person) and George E. Ferguson for Richard Kelly, appellant.

      George L. Kobbé for Archibald M. Brown et al., as executors of Charles S. Brown, deceased, appellants.

      Herbert Barry for Marian R. Kennedy et al., appellants.

      William D. Cunningham, Frank M. Gagliardi, William T. Gallagher and James M. Page for Chauncey B. Griff en et al., respondents.

      John E. Mack for Beacon Savings Bank et al., respondents.

      Samuel Boksenbom, Joseph W. Bryan and Joseph Lapidus for Louis H. Pink, Superintendent of Insurance, as liquidator of Westchester Title and Trust Company, respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Carder Realty Corporation, Respondent, v. State of New York, Appellant.
    (Claim No. 23994.)
    Argued April 14, 1941;
    decided May 22, 1941.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, James H. Glavin, Jr., Harold Greenstein and John A. Lynch of counsel), for appellant.

      Charles B. Sullivan and Warner M. Bouck for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Louis Boord, Appellant.
    Submitted April 15, 1941;
    decided May 22, 1941.

      Harold Mortimer Brown for appellant.

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

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


text:
    In the Matter of the Estate of Rose M. Roeben, Deceased. Johanna S. Schimmel, as Ancillary Executor of Rose M. Roeben, Deceased, Appellant; S. William Freedman, as Ancillary Executor of Rose M. Roeben, Deceased, Respondent.
    Argued April 16, 1941;
    decided May 22, 1941.

      Daniel Steingart and Archie Borrok for appellant.

      Max Bergman and Jacob Meadow for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Belle Bajan, Appellant.
    Argued April 17, 1941;
    decided May 22, 1941.

      Benjamin Neuman, George N. Levine and Isidore Englar for appellant.

      Thomas E. Dewey, District Attorney (Harris B. Steinberg and George G. Hunter, Jr., of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Finch, Rippey, Lewis, Conway and Desmond, JJ. Lehman, Ch. J., and Lotxghran, J., dissent on the ground that the evidence was not sufficient to establish the finding of guilt beyond a reasonable doubt.


text:
    Stanley Skidmore, Respondent, v. Sol A. Rosenblatt et al., Appellants.
    Argued April 25, 1941;
    decided May 22, 1941.

      William B. Shelton and William J. McArthur for appellants.

      Joseph Haskell and Hyman J. Fliegel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Dewey Garrett, Appellant.
    Argued April 14, 1941;
    decided May 22, 1941.

      S. Samuel DiFalco, Thomas B. Dyett and LeRoy Campbell for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Richard G. Denzer of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Artie Berger, Appellant.
    Argued April 15, 1941;
    decided May 22, 1941.

      Theodore E. Wolcott for appellant.

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

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


text:
    In the Matter of S. Samuel Weinberger, an Attorney, Appellant; Association of the Bar of the City of New York, Respondent.
    Argued April 17, 1941;
    decided May 22, 1941.

      Robert Daru and Maurice Hellman for appellant.

      Chester B. McLaughlin, Samuel C. Lewis and Einar Chrystie for respondent.
   Order affirmed; no opinion.

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


text:
    Bank of New York, as Trustee, Appellant, v. Sarah J. Marsh et al., Respondents.
    Argued April 23, 1941;
    decided May 22, 1941.

      Thomas B. Fenlon for appellant.

      Francis R. Appleton, Jr., and C. C. Turner, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotjghban, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Charles Peterson, Appellant, v. Ruth Dunn, Respondent.
    Argued April 24, 1941;
    decided May 22, 1941.

      McKinley L. Phillips for appellant.

      Clarence G. Pickard for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Columbus Industrial Bank, Respondent, v. Grazia Verrilli et al., Defendants, and Anthony Verrilli, Appellant.
    Argued April 25, 1941;
    decided May 22, 1941.

      Albert A. Verrilli and Basil Filardi, Jr., for appellant.

      Robert R. Rosan and Herbert Rogowsky for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anthony Galvano, Appellant, v. City of New York, Respondent.
    Argued April 25, 1941;
    decided May 22, 1941.

      Frank Serri for appellant.

      William G. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for respondent.
   Judgments reversed and new trial granted, with costs to abide the event, on the ground a question of fact is presented which should be submitted to the jury. No opinion.

Concur: Lotjghran, Rippey, Lewis, Conway and Desmond, JJ. Dissenting: Lehman, Ch. J., and Finch, J.


text:
    Mary Dobbins, as Administratrix of the Estate of John Dobbins, Deceased, Respondent, v. Moses E. Mumblow et al., Appellants, Impleaded with Another. Ida Reddick, as Administratrix of the Estate of Martha Gray, Deceased, Respondent, v. Moses E. Mumblow et al., Appellants, Impleaded with Another. Helen Blythe, as Administratrix of the Estate of John C. Blythe, Deceased, Respondent, v. Moses E. Mumblow et al., Appellants, Impleaded with Another.
    Argued April 14, 1941;
    decided May 22, 1941.

      Patrick J. Tierney, Martin N. Whyman and Louis L. Besnick for appellants.

      F. Claude O’Connell for Mary Dobbins, as administratrix, et al., respondents.

      Harry P. Kehoe for Helen Blythe, as administratrix, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bertha Wahl et al., Respondents, v. Mary Seyfried et al., Individually and as Executors of Magdalene Seyfried, Deceased, et al., Appellants.
    Argued April 15, 1941;
    decided May 22, 1941.

      Peter A. Schultz for appellants.

      Michael A. Crage and Albert F. Geyer for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    Howard Phelps, Respondent, v. Day Service Station, Inc., Appellant, Impleaded with Another.
    Argued April 22, 1941;
    decided May 22, 1941.

      H. H. Brown and James E. Turner for appellant.

      Abraham N. Levy, K. Carl Harienstein and Edward Z. Jacobson for respondent.
   Judgment affirmed, with costs; no opiMon.

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


text:
    Stephen Vincinere, an Infant, by Ignazio Vincinere, His Guardian ad Litem, et al., Appellants, v. James A. Ward, Respondent, Impleaded with Another.
    Argued April 23, 1941;
    decided May 22, 1941.

      Alexander Del Giorno and Michael S. Meyerowitz for appellants.

      William J. Magee and James E. Turner for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Sophie Nilson, as Executrix of Victor Nilson, Deceased, Respondent, v. Harry C. Oppenheimer, Appellant.
    Submitted April 25, 1941;
    decided May 22, 1941.

      John W. Trapp for appellant.

      John A. Gleason for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey Lewis, Conway and Desmond, JJ.


author: Per Curiam.

text:
    New York Trap Rock Corporation et al., Appellants, v. National Bank of Far Rockaway, Respondent.
    Argued April 7, 1941;
    decided May 22, 1941.

      Daniel Combs for appellants.

      Carl E. Peterson for respondent.

      F. W. H. Adams and John C. Morrissey for New York State Bankers Association, amicus curise.

   Per Curiam.

We agree that regardless of the construction of the scope and the effect of section 25-a of the Lien Law. no action at law can be brought by a single creditor. The determination of the construction and effect of section 25-a must await a case in which such question is necessarily presented.

Judgment affirmed, with costs.

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


text:
    Janice H. Devore et al., Appellants, v. Carrol Blake, as Superintendent of Buildings of the Borough of Brooklyn, City of New York, et al., Respondents.
    Argued April 14, 1941;
    decided May 22, 1941.

      Nathan Frankel for appellants.

      William C. Chanler, Corporation Counsel (Paxton Blair and Francis J. Bloustein of counsel), for respondents.
   Judgment of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division, on the authority of Arverne Bay Construction Co. v. Thatcher (278 N. Y. 222).

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


text:
    Harold Maas et al., as Trustees for Lake Huntington Volunteer Fire Department, Appellants, v. Edward Dermody, as Supervisor of the Town of Cochecton, Respondent.
    Argued April 17, 1941;
    decided May 22, 1941.

      Ellsworth Baker for appellants.

      Lazarus I. Levine for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Marta Norman, Appellant, v. Long Island Rail Road Company, Respondent.
    Argued April 22, 1941;
    decided May 22, 1941.

      Benedict Ginsberg and Michael M. Platzman for appellant.

      Ralph E. Hemstreet and Louis J. Carruthers for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of Ethel S. Katz, Appellant, against Sigismund S. Goldwater, as Commissioner of the Department of Hospitals of the City of New York, Respondent.
    Argued April 24, 1941;
    decided May 22, 1941.

      William V. Hagendorn and Sidney Eisen for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair and Charles F. Murphy of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Frank Hafner et al., Appellants, v. Carrie E. Freeman et al., Respondents, and Gustave Maikisch et al., Appellants.
    Argued January 15, 1941;
    decided May 22, 1941.

      Leo J. Stewart and Fred Francis Weiss for appellants.

      R. Leslie Smith and Edward D. Sternal for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert Mayer, as President of Local Union No. 2090 of the United Brotherhood of Carpenters and Joiners of America, et al., Respondents, v. Charles W. Hansen, as President of the District Council of New York City of the United Brotherhood of Carpenters and Joiners of America, Appellants, Impleaded with Others,
    Argued March 3, 1941;
    decided May 22, 1941.

      Charles H. Tuttle and Thomas E. Kerwin for appellant.

      George Z. Medalie, Louis Haimoff and Harry Sacher for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Albert De W. Mason et al., Appellants, v. William S. Miller et al., Constituting the Board of Tax Commissioners of the City of New York, Respondents.
    Argued April 14, 1941;
    decided May 22, 1941.

      Robert L. Callahan and Frank V. Smith for appellants.

      William C. Chanler, Corporation Counsel (Arthur H. Goldberg and Arthur A. Segall of counsel), for respondents.
   Order of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division, upon the ground that the weight of evidence lies with the decision of the Special Term. No opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Kate F. Cutner, Respondent, v. Amalgamated Bank of New York et al., Appellants.
    Argued April 15, 1941;
    decided May 22, 1941.

      Merwin D. Maier for Amalgamated Bank of New York, appellant.

      Jess G. Schiffmann for Paramount Holding Corporation, appellant.

      Arthur B. Hyman and Sanford D. Levy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Daniel K. Weiskopf, Appellant. Lewis S. Rosenstiel, Respondent.
    Argued April 22, 1941;
    decided May 22, 1941.

      Samson Selig, Abraham J. Mutter and William F. Roche for appellant.

      Leonard P. Moore and Charles Pickett for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Walter S. Cady, Respondent, v. Bank of Manlius et al., Appellants.
    Argued April 23, 1941;
    decided May 22, 1941.

      Clifford H. Searl for appellants.

      Frederick W. Fuess, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Stanley Cole, Appellant.
    Argued April 24, 1941;
    decided May 22, 1941.

      Ira Levitas, Hyman J. Reit and Miles O’Brien for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Richard G. Denzer of counsel), for respondent.
   Per Curiam.

Under section 1045-a of the Penal Law, the trial judge in a felony murder case, may or may not follow the recommendation of a jury that the defendant be sentenced to life imprisonment. When requested so to do the trial judge should charge the "jury that he is not bound by law to follow such a recommendation, if one should be made.

Judgment of conviction affirmed.

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


text:
    The People of the State of New York ex rel. Harvey Bistany, Appellant, v. Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted April 25, 1941;
    decided May 22, 1941.

      Harvey Bistany, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Edward T. Boyle and Patrick H. Clune of counsel), for respondent. ¡
   Order affirmed; no opinion.

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


text:
    In the Matter of the Will of Alfred Johnson, Deceased. May J. Schultz, as Executrix, et al., Appellants; Alfred Johnson, Jr., et al., Respondents.
    Submitted April 21, 1941;
    decided May 22, 1941.

      Franklin F. Russell for motion.

      Thomas Gagan opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that it was not made in time.


text:
    Mae Q. Probst, Respondent, v. Frederick S. Probst, Appellant.
    (Appeal No. 1.)
    Argued April 21, 1941;
    decided May 22, 1941.

      Joseph M. Qiambalvo and Robert J. Bell for motion.

      S. Stanley Kreutzer opposed.
   Motion granted and appeal dismissed on the ground the order is not final. (Scott v. Scott, 247 N. Y. 527.)


text:
    Mae Q. Probst, Respondent, v. Frederick S. Probst, Appellant.
    (Appeal No. 2.)
    Argued April 21, 1941;
    decided May 22, 1941.

      Joseph M. Giambalvo and Robert J. Bell for motion.
    S. Stanley Kreutzer opposed.
   Motion denied. (See 286 N. Y. —.)


text:
    In the Matter of the Accounting of Frank J. Maguire, as Executor and Trustee under the Will of Josephine V. Blodgett, Deceased, Appellant. Nathan E. Blodgett et al., Respondents.
    Argued May 19, 1941;
    decided May 22, 1941.

      Benjamin E. Shove for motion.

      E. N. Mills opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Hyman Wohl et al., Respondents, v. Bakery and Pastry Drivers and Helpers Local 802 of the International Brotherhood of Teamsters et al., Appellants.
    Submitted May 26, 1941;
    decided May 27, 1941.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following:

Upon this appeal there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: The defendants argued that the injunction granted herein violated the rights of freedom of speech and assembly guaranteed by the First and Fourteenth Amendments to the Constitution of the United States. This court held the injunction aforesaid did not violate the rights of freedom of speech and assembly guaranteed by the First and Fourteenth Amendments of the Constitution of the United States.” (See 284 N. Y. 788.)


text:
    Standard Improvement Corporation of Westchester County, Respondent, v. Village of Ardsley, Appellant.
    Argued April 24, 1941;
    decided May 29, 1941.

      Chester A. Slocum, James D. Hopkins and John J. Ryan for appellant.

      John B. Gilleran and William D. Cunningham for respondent.
   Judgments modified by dismissing the complaint as to the second cause of action, and as so modified affirmed, without costs, upon the ground that the changes in plans made under the requirements of the defendant’s engineer and for which the plaintiff has been awarded damages did not alter or destroy the essential identity or purpose of the work, for the performance of which the. contract was executed, and were within changes reasonably to be anticipated under the fifth paragraph of the contract between the parties and that paragraph of the specifications captioned Change of Plans.” (Del Balso Construction Corp. v. City of New York, 278 N. Y. 154, 160-162; Kinser Construction Co. v. State of New York, 204 N. Y. 381, 391, 394.) No opinion.

Concur: Lough#an, Finch, Lewis, Conwat and Desmond, JJ.; Lehman, Ch. J., dissents from so much of the decision as affirms the recovery upon the first cause of action on the ground that the delay under the first cause of action is not actionable under the terms of the contract. Rippey, J., dissents from so much of the decision as dismisses the second cause of action, and votes to affirm the judgment of the court below.


text:
    Irene J. Roberts, Respondent, v. Arthur Hardoncourt, Appellant.
    Submitted May 19, 1941;
    decided May 29, 1941.

      William H. Daly for motion.

      Irene R. Hardoncourt opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order of the Appellate Division is not final.


text:
    In the Matter of Jule L. Maisel et al., Appellants. Jacob J. Schwartzwald et al., Respondents.
    Submitted May 19, 1941;
    decided May 29, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), and Louis B. Heller for motions.

      Jule L. Maisel opposed.
   Motions denied.


text:
    In the Matter of Edna W. Stern, Respondent; Walter T. Stern, Appellant.
    Submitted May 19, 1941;
    decided May 29, 1941.
   Motion for reargument denied. We did not pass upon the question of whether the submission and the award could be made the basis of an action at law. (See 285 N. Y. 239.)


text:
    Bernard A. Stock et al., as Trustees, Respondents, v. Kenny-Newell Company, Inc., Appellant, Impleaded with Another.
    Submitted May 19, 1941;
    decided May 29, 1941.

      Arthur F. Gaynor for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant serves and files undertaking on appeal and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    The People of the State of New York ex rel. Ralph Mark, Appellant, against Warden of Attica State Prison, Respondent.
    Submitted May 19, 1941;
    decided May 29, 1941.

      Ralph Mark, in person, for motion.

      John J. Bennett, Jr., Attorney-General (James A. Noonan of counsel), opposed.
   Motion denied on the ground it does not appear that any substantial constitutional question is involved.


text:
    In the Matter of Clarence Scott et al., Appellants; Frieda S. Miller, as Industrial Commissioner, Respondent.
    Submitted May 19, 1941;
    decided May 29, 1941.
   Motion to amend the remittitur denied. (See 285 N. Y. 760.)


text:
    In the Matter of Philip Edwards, Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents. John H. Campbell, Jr., Intervener, Respondent.
    Submitted May 19, 1941;
    decided May 29, 1941.
   Motions for reargument of motions to amend remittitur denied. (See 284 N. Y. 592.)


text:
    Philomena Biancaniello, Appellant, v. Town of Colonie, Respondent.
    Argued May 19, 1941;
    decided May 29, 1941.

      Frank L. Wiswall for motion.

      Henry H. Koblintz opposed.
   Motion granted and appeal dismissed, with ten dollars costs of motion, unless a new undertaking is filed on or before June 13, 1941, and said ten dollars costs paid, in which event the motion is denied.


text:
    Sam Roberts, Appellant, v. Ransom Pratt et al., Respondents.
    Submitted May 19, 1941;
    decided May 29, 1941.

      Sam Roberts, in person, for motion.

      W. Earle Costello opposed.
   Motion denied on the ground the orders appealed from are not appealable to this court.


text:
    The People of the State of New York, Appellant, v. Clark French, Respondent.
    Argued May 19, 1941;
    decided May 29, 1941.

      Elihu Chase for motion.

      John J. Livingston, District Attorney, opposed.
   Motion granted and appeal dismissed.


text:
    Sadie Goldman, Appellant, v. Anna Sontag et al., Respondents.
    Submitted May 19, 1941;
    decided May 29, 1941.
   Motion for reargument of motion to dismiss appeal denied. (See 285 N. Y. 745.)


text:
    Barnet Weinstein et al., Copartners under the Firm Name of B. Weinstein, Respondents, v. Rose Gold, Appellant.
    „ Submitted May 19, 1941;
    decided May 29, 1941.

      Paul Milstein for motion.

      Lottie L. Stillerman opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground the order is not appealable.


text:
    Francis Dean, Appellant, v. John P. O’Flaherty, Respondent.
    Submitted May 19, 1941;
    decided May 29, 1941.

      George H. Fox for motion.

      Joseph A. Butler opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that an appeal lies as matter of right.


text:
    In the Matter of Linwood J. Putnam et al., Respondents, against James Marshall et al., Constituting the Board of Education of the City of New York, Appellants.
    Submitted May 26, 1941;
    decided May 29, 1941.

      William F. Cassin for motion.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., of counsel), opposed.
   Motion denied.


text:
    The People of the State of New York, Respondent, v. Christ Pappas, Appellant.
    Submitted May 19, 1941';
    decided May 29, 1941.

      Thomas E. Dewey, District Attorney (Whitman Knapp of counsel), for motion.

      Max Epstein opposed.
   Motion denied on condition that appellant file return within thirty days from the date of this decision, and is ready for argument at the October, 1941, session of this court.


text:
    In the Matter of Seymour Friend, Respondent, against Lewis J. Valentine, as Commissioner of the Department of Police of the City of New York, et al., Appellants.
    Submitted May 19, 1941;
    decided May 29, 1941.
   Motion for reargument denied. The order as entered does not require the Commissioner to fill the vacancies. (See 285 N. Y. 764.)


author: Conway, J. Lewis, J.

text:
    In the Matter of the Estate of Alfred C. Ueck, Deceased. Elizabeth Staebell, Appellant; County of Erie et al., Respondents.

      Argued February 26, 1941;
    decided June 5, 1941.

      Louis W. Manchester and Francis L. Tauriello for appellant.
    The purchase of the taxpayer’s real property by the city of Buffalo or the county of Erie at a tax sale, pursuant to the statute, collected and discharged the tax. (Armstrong v. County of Nassau, 101 App. Div. 116; United States v. Lawton, 110 U. S. 146; Town of Amherst v. County of Erie, 260 N. Y. 361; County of Oswego v. Foster, 262 N. Y. 439; People ex rel. McColgan v. Palmer, 10 App. Div. 395; Pereles v. Meyer, 213 Wis. 232; Armstrong Products Corp. v. Martin, 192 S. E. Rep. 125; Carrier Lumber & Mfg. Co. v. Quitman County, 156 Miss. 396; County Securities, Inc., v. Seacord, 278 N. Y. 34; City of New Rochelle v. Seacord, 281 N. Y. 621; Cary v. Koerner, 200 N. Y. 253; Getman v. Niferopulos, 276 N. Y. 161; City of Johnstown v. Wells, 242 App. Div. 103; 275 N. Y. 623.) Section 212 of the Surrogate’s Court Act imposes no obligation on the administrator to redeem decedent’s real property from any tax sale thereof to the city of Buffalo or the county of Erie. (Getman v. Niferopulos, 276 N. Y. 161; People ex rel. McColgan v. Palmer, 10 App. Div. 395; People ex rel. Quaranto v. Moynahan, 148 App. Div. 744; 205 N. Y. 590; Mongaup Valley Co. v. Orange Rod & Gun Club, 253 App. Div. 465 ; 280 N. Y. 582; Lindsay v. Fay, 28 Wis. 177; City of Johnstown v. Wells, 242 App. Div. 103; 275 N. Y. 623.)

      Wortley B. Paul and John G. Lesswing for John G. Less-wing et al., as executors of Frederick A. Mendlein, deceased, amici curise.

    The allowance of the claims for taxes as provided for in the decree was erroneous. (Town of Amherst
      v. County of Erie, 260 N. Y. 361; Getman v. Niferopulos, 276 N. Y. 161; Matter of Hunter v. Seery, 206 App. Div. 19; Wise v. Wedlake, 217 App. Div. 210; Village of Massapequa Park v. M. P. V. Sites, 278 N. Y. 28; Matter of Adler & Co., 76 App. Div. 571; 174 N. Y. 287; Bassett v. Wheeler, 84 N. Y. 466; Matter of Preston, 108 Misc. Rep. 535; Matter of Terry, 218 N. Y. 218; County Securities, Inc., v. Seacord, 278 N. Y. 34; City of Rochester v. Bloss, 185 N. Y. 42; Mongaup Valley Co. v. Orange Rod & Gun Club, 253 App. Div. 465; 280 N. Y. 582; People ex rel. Quaranto v. Moynahan, 148 App. Div. 744; 205 N. Y. 590; Mabie v. Fuller, 255 N. Y. 194; Hennepin Improvement Co. v. Schuster, 66 Misc. Rep. 634.)

      Paul J. Batt, County Attorney (Genevieve Goergen of counsel), for County of Erie, respondent.
    The Erie county taxes directed tó be paid by the Surrogate are “ taxes ” within the meaning of subdivision 2 of section 212 of the Surrogate’s Court Act. (Town of Amherst v. County of Erie, 260 N. Y. 361; Matter of Gill, 199 N. Y. 155; Smith v. Cornell, 111 N. Y. 554; Matter of McClatchey, 170 Misc. Rep. 696; Wise v. Wedlake, 217 App. Div. 210; Matter of Babcock, 52 Hun, 142; 115 N. Y. 450.)

      Edward J. Sullivan, Corporation Counsel (Howard H. Holmberg of counsel), for City of Buffalo, respondent.
    The items described in respondent’s claim decreed to be paid, are for taxes entitled to a preference under subdivision 2 of section 212 of the Surrogate’s Court Act. (Rubin v. Cottle, 248 App. Div. 671; 273 N. Y. 544; Matter of Clementi v. Jackson, 92 N. Y. 591; People ex rel. Oakley v. Bleckwenn, 126 N. Y. 310; City of Buffalo v. Cottle, 252 App. Div. 920; 254 App. Div. 809; 278 N. Y. 536.) The taxes constitute a statutory liability of the deceased, expressly directed by section 212 of the Surrogate’s Court Act to be paid from the estate. (Rundell v. Lakey, 40 N. Y. 513; Matter of Gill, 199 N. Y. 155.) Taxes assessed upon the property of the deceased previous to his death are entitled to a preference in order of their payment. (Smith v. Cornell, 111 N. Y. 554; Matter of Babcock, 115 N. Y. 450.)
   Conway, J.

One Alfred C. Ueck had been the owner of a number of parcels of real property in the city of Buffalo, county of Erie. Taxes assessed thereon were not paid by him and from time to time, over a period extending from 1926 to 1937, the properties were sold for non-payment of taxes at tax sales conducted both by the city of, Buffalo and the county of Erie. Upon those sales, which occurred as to the same parcels year after year, the city of Buffalo and the county of Erie each obtained certificates of sale for some of the properties.

Ueck died, a resident of the city of Buffalo, county of Erie, on September 30, 1936. At that time, both in the city and the county, taxes for the year 1936 had become liens. Subsequent to his death his properties were again sold for the non-payment of taxes for the year 1936.

Section 212 of the Surrogate’s Court Act provides:

§ 212. Payment of debts. Every executor and administrator must proceed with diligence to pay the debts of the deceased according to the following order:
“1. Debts entitled to a preference under the laws of the United States and the State of New York.
2. Taxes assessed on property of the deceased previous
to his death.
(( * * *
“4. All recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and accounts.”

The authorities clearly indicate that taxes, properly assessed on property of the deceased prior to his death in a tax district of which he was a resident, were his personal debts. (Smith v. Cornell, 111 N. Y. 554, 557; Matter of Gill, 199 N. Y. 155; Village of Lynbrook v. Otto, 266 N. Y. 308; Village of Massapequa Park v. Massapequa Park Villa Sites, Inc., 278 N. Y. 28, 31. Cf. Village Law [Cons. Laws, ch. 64], §§ 126, 133.)

This proceeding was commenced by the administrator de bonis non of the goods, chattels and credits of Alfred C. Ueck, deceased, to obtain a decree which would determine the amount of unpaid taxes, penalties and interest which were liens upon decedent’s property at the time of his death, and the right to priority of payment of them over claims against the estate theretofore adjudicated or allowed under subdivision 4 of section 212, supra.

A determination of those questions depends upon whether the real estate taxes upon decedent’s properties were paid or discharged, as far as decedent was concerned, when the properties were sold for non-payment of taxes and purchased at the tax sales by the city of Buffalo and the county of Erie.

The learned Surrogate decided that, despite ’the sale of the properties for non-payment of taxes and the delivery of tax sale certificates therefor, there had been no payment or discharge of the taxes when the sales were to the city of Buffalo or the county of Erie, although there was such payment and discharge when the sales were to individuals or private corporations, since then the municipalities had been “ paid in full.” In other words, the Surrogate held that the taxes were still assessed ” on decedent’s properties although such properties had been sold to pay the taxes, if the purchaser were the taxing municipality.

The administrator was thereupon directed to pay to the city of Buffalo and the county of Erie the amounts paid by them, and each of them,'” for specified certificates of sale, together with interest on the certificates at the rate of twelve per centum per annum and all additional expenses. The decree of the Surrogate was affirmed by the Appellate Division.

From this holding, curious results may ensue. For instance, there is added to real estate taxes, by reason of the enactment of subdivision 2 of section 212 of the Surrogate’s Court Act, a substantial penalty in the event of the death of an owner, where, upon a prior sale of the property affected, for non-payment of" taxes, a purchase thereof has been made by the taxing municipality, but not if made by any other person. Again, the taxing municipality may purchase real estate at tax sales year after year, await the owner’s death, without taking any step to terminate his equity of redemption or to foreclose the tax sale certificate, and then collect from his estate all the taxes assessed, with twelve per centum annual penalty, for an indefinite number of years. We find no Statute of Limitations restricting such procedure.' The duty imposed upon the executor or administrator is to pay “ taxes assessed on property of the deceased previous to his death.” In other words, whether a decedent leaves an estate for relatives or creditors beyond the first two classes mentioned in section 212 of the Surrogate’s Court Act, supra, may depend on the identity of the purchaser at a sale or sales of his realty for non-payment of taxes. Such a startling result requires a careful consideration of the policy of the State as evidenced by applicable statutes and an examination of the Buffalo City Charter (Local Law No. 4 of 1927, published in Local Laws of 1932, p. 21) and the Erie County Tax Law (L. 1884, ch. 135, as amd. L. 1909, ch. 383; L. 1933, ch. 664; L. 1934, chs. 299, 340).

The general policy of the State is to collect unpaid real estate taxes by levy upon the personalty of the owner, when that is permitted by section 71 of the Tax Law (Cons. Laws, ch. 60), or by a sale of the property. (Tax Law, arts. 6 and 7.)

We are not here concerned with the sale of tax liens upon the property of the owner. Such a sale is permitted only when the Legislature grants such power in express terms. That was pointed out in County Securities, Inc., v. Seacord (278 N. Y. 34, 39), where it was said: “ The general Tax Law of the State provides for the sale of the property in the enforcement of tax liens. (Tax Law, art. 7.) That law applies in all cases except where the Legislature by express language has provided a different method to be employed in certain subdivisions of the State.” No such grant of power has been made to the city of Buffalo or the county of Erie.

As further evidencing the general policy of the State, we find that section 50, subdivision 2, of the Tax Law provides as follows: “ The board of supervisors in any county of the state shall when examining the assessment-rolls of the several tax districts of the county, as above provided, exclude from the tax rolls of said districts, to be prepared by said board, such parcels of real property as have been struck down to the county at a tax sale and not redeemed as provided in section one hundred and fifty-two of this chapter. The county treasurer shall annually between the date of the tax sale and the first day of December next succeeding, prepare and submit to the board of supervisors a list of all such lands so struck down to the county in any year and still remaining unredeemed. No such properties shall be so excluded from said tax rolls except by a resolution of said board adopted at .an annual meeting by a vote of a majority of the members thereof. Whenever such real property is so excluded from the tax rolls by the board, the total of the assessed valuations of the real estate of the several tax districts, as the same appear on the completed tax rolls, shall be the aggregate valuation of the taxable real estate in the county.”

A tax district means, “ unless otherwise herein provided, a city or town of this state.” (Tax Law, § 2, subd. 4.)

Section 153 of the Tax Law provides:

“ § 153. Redemption of real property stricken from tax-rolls. The real property struck down to a county at said tax sale and omitted from the tax-rolls as -provided in section fifty of the chapter shall not be subject to further sale after having been once so sold for taxes. The real property so omitted from the tax-rolls may be redeemed by the owner, occupant or any other person, provided the county has not acquired a title in fee to such real property, upon the payment to the county treasurer for the use and benefit of the county of a sum equal to the gross amount of the taxes, expenses of such sale, penalty and interest thereon, together with the tax and interest thereon which would ' have been due on said real property had it been taxed during each of the years it was so omitted from the tax-rolls. The said taxes for each of the years during which said real estate is so omitted from the tax-rolls shall be computed on the basis of the assessed valuations returned on said real property by the assessors of the several tax districts and at the rate fixed by the board of supervisors as the tax rate for the tax district within which said real estate is situated. The county treasurer shall apportion the sum, including interest, so collected between the county and said tax district in the same manner as though said property had not been omitted. The amount of . taxes and interest so collected and apportioned to said tax district, including special district taxes and interest thereon, shall be forthwith paid to the said tax district.”

In addition, section 95 of the Tax Law provides: “ This article shall apply to all the cities or towns of the state, in so far as the matters herein provided for do not conflict with the special and local laws of such cities or towns.”

The article referred to is article 4, entitled Collection of Taxes.”

These are applicable statutes, therefore, unless they conflict with provisions of the Buffalo City Charter.

On the other hand, Tax Law, section 160, provides:

“ § 160. Article not to relate to certain cities. This or the preceding article shall not affect any law relating to the sale of real estate for taxes in any city.”

The articles of the Tax Law referred to are articles 6 and 7, which relate to the sale of lands for unpaid taxes by the State and by County Treasurers. Those articles, therefore, do not affect any provision of the Buffalo City Charter.

We turn now to the applicable statutes affecting, first, the city of Buffalo and_then the county of Erie.

Section 349' of the Charter of the City of Buffalo, prior to its amendment in 1935, read as follows:

“ § 349. Tax sale bonds. The city shall have power to issue bonds, payable in not exceeding five years, to raise money sufficient to pay for its purchase at the annual sale of unpaid city taxes and assessments, which money shall be apportioned to the credit of each tax and assessment for which sales were made. All moneys received on the redemption of lands struck off to the city at such sales or for assignments of certificates of sale shall constitute a fund for the payment of such bonds which fund shall be known as the tax loan fund. If said fund is insufficient for the payment of such bonds as they mature, refunding bonds may be issued for the deficiency or the amount of the deficiency may be provided in the budget as the council may determine.”

The section was amended by Laws of 1935, chapter 350, effective April 8, 1935, to read as follows:

“ § 349. Tax revenue bonds and certificates of indebtedness. The city shall have power to borrow sums of money, from time to time, on its credit by the issuance of certificates of indebtedness or revenue bonds in anticipation of the collection of taxes for amounts actually contained, or to be contained in the taxes for the year when such certificates of indebtedness or revenue bonds are issued, but not to exceed in amount the amount of such revenues. Such amount may be obtained by the issue and sale of such certificates of indebtedness or revenue bonds payable in not more than five years from the date of issue thereof, which certificates of indebtedness or revenue bonds shall be payable out of the proceeds of the tax levy in anticipation of the collection of which such certificates of indebtedness or revenue bonds were issued. All moneys received or collected from the tax levy in anticipation of the collection of which such certificates of indebtedness or revenue bonds were issued shall constitute a fund for the payment of such certificates or revenue bonds, which fund shall be known as the tax loan fund. Such certificates of indebtedness or revenue bonds may be renewed in whole or injpart from time to time, whenever the revenues applicable thereto are insufficient to pay the same, provided that the last maturity of any such renewal shall not be more than five years from the date of the original loan, and provided further that at the time of such renewal or renewals the aggregate amount of such certificates of indebtedness.<or revenue bonds then outstanding shall not exceed the amount of such uncollected taxes. Any of such certificates of indebtedness or revenue bonds or renewals thereof, not paid, may be refunded within five years by the issuance of bonds, or included in the budget as the council may determine.”

An examination of the Common Council Proceedings of the City of Buffalo for December 11, 1934, December 26, 1934, February 19, 1935, and March 5, 1935, reveals that the Corporation Counsel of the City of Buffalo was directed to prepare proposed legislation to be submitted to the Legislature of the State for the purpose of ehminating annual tax sales and that he transmitted to the Council' under date of January 29, 1935, such proposed legislation amending the Charter of the City of Buffalo “so as to eliminate annual tax sales.” That proposed act affected sections 349, 596, 611, 613, 614, 616, 617, 618, 619, 621, 622, 623, 624, 625, 626, 627, 628, 640, 641, 643, 643-a, 644, 645, 646, 648, 649, 651, 652, 653, and proposed to repeal sections 610, 612 and 615. It will be found printed in full in Minutes No. 4, Item 49, Common Council Proceedings of the City of Buffalo, February 19, 1935.

On March 5, 1935, the Council, after consideration of the proposed legislation embodied in Item No. 49 of the Proceedings of February 19, 1935, supra, adopted the following resolution:

“ That the proposed act, in so far as it eliminates annual tax sales be, and the same is hereby received and filed."'.-!
“ That the proposed act, in so far as it relates to the change in the form of tax revenue bonds to be issued in anticipation of the collection of taxes levied be, and the same is hereby approved, and that the Corporation Counsel be authorized and directed to prepare an act and submit it to the Legislature, amending Section 349 of the charter of the city of Buffalo and related sections, so as to provide for a form of tax revenue bonds and certificates of indebtedness payable out of the proceeds of the tax levy in anticipation of the collection of which such certificates of indebted-' ness or revenue bonds are issued.”

After April 8, 1935, the city no longer paid for its purchases by a charge to the “ tax loan fund.” It received a certificate of sale for its purchase and the certificate was retained in the department of the treasury as an asset. (See Buffalo City Charter, § 614, as amended, infra.) The payment of the tax was from tax revenue bonds and certificates of indebtedness. The owners of such bonds and certificates were, of course, entitled to be subrogated to the rights of the city under the tax sale certificates.

Section 610 provided as follows:

“ § 610. Collection enforced by sale. The collection of every assessment and of every tax upon real estate with the interest and additions remaining unpaid may be enforced by a sale of the real estate by the board of assessors, * * (Amended April 11, 1935, by changing “ board of assessors ” to “ city treasurer,” by L. 1935, ch. 370.)

Section 611 provided as follows:

§ 611. Assessors’ notice of sale. The board of assessors shall cause to be published * * * a notice that said real estate will at the office of the board of assessors on a date specified therein and on the succeeding days, be sold at public auction to the highest bidder, to pay the taxes, additions, interest, fees and expenses which may remain unpaid at the time of such sale.” (Amended April 11, 1935, by changing board of assessors ” to treasurer,” by L. 1935, ch. 370.)

Section 612 provided as follows:

§; 612. Method of sale. At the time and place specified in said published notice, one of the board of assessors designated by the board shall commence the sale of said real estate at auction to the highest bidder and shall continue such sale from day to day until the whole of said real estate is sold. Said assessor shall bid in for the city all parcels of real estate which shall not be purchased by any other person for an amount sufficient to pay the taxes and assessments and all accrued additions, interest, fees and expenses of sale for which the land is to be sold.
“ No parcel of land shall be sold for less than the aggregate amount of such taxes, assessments, additions, interest, fees and expenses.” (Amended April 11, 1935, by substituting “ treasurer ” or “ deputy treasurer ” for assessors ” or “ one of the board of assessors designated by the board,” by L. 1935, ch. 370.)

Section 614 required purchasers at tax sales to pay the amount of their bids to the city treasurer within ten days after the sale and provided that a purchaser should receive a certificate in writing, which shall contain a description of the real estate purchased, the amount paid therefor, the date of the sale and that the same was sold for unpaid taxes and assessments * * *.” This section further provided in the last paragraph: “ The city shall pay for its purchases by a charge of the amount of its bids to the tax loan fund referred to in section three hundred forty-nine of this act and like certificates of sale shall be executed to the city for its purchases, which certificates shall be retained in the department of assessment, and the city shall, for all the purposes of this act, be deemed to be the owner and holder of such certificates of sale.”

This section was amended by the Laws of 1935, chapter 350, effective April 8, 1935, by changing “ any one of the assessors ” to treasurer ” and by changing the last paragraph of the section to read as follows: Certificates of sale shall be executed to the city for its purchases, which certificates shall be retained in the department of the treasury, and the city shall, for all the purposes of this act, be deemed to be the owner and holder of such certificate of sale.”

The purchaser, whether the city or other person, was still required to pay its respective bid to the City Treasurer within ten days after the sale, and the certificates of sale of the city, executed to it for its purchases, were to be retained in the treasury as city assets. The payment was a matter of bookkeeping, within the terms and contemplation of section 349 of the Charter both before and after its amendment. (Cf. United, States v. Lawton, 110 U. S. 146, 150.)

Section 616 provided as follows:

“ § 616. Effect of certificate of sale. The purchaser, including the city, his legal representatives or his or its assigns, upon receiving such certificate of sale by virtue thereof and of this act, may lawfully hold and enjoy for his, its and their own proper use and benefit, the real' estate described in such certificate, unless the same is redeemed as hereinafter provided.”

Section 625 provided as follows:

§ 625. Recording certificates and conveyances. Every certificate of sale and every such conveyance so executed in pursuance of this act may be recorded in the same manner and with like effect as a deed acknowledged or proved before any officer authorized by law to take proof and acknowledgment of deeds.”

Section 619 of the City Charter provides that after the expiration of one year from the date of sale, the holder of a tax certificate of sale may serve a notice upon the owner requiring him to redeem the property. Such notice * * * shall state briefly * * * the amount for which the property was sold * * * the last day of redemption, which shall be not less than three months from the day of service of the notice and not prior to two years from the date of such sale * * *.” This is one method of determining the right of redemption, although the holder of a tax certificate may instead maintain a foreclosure action to sell the property under section 640 of the Charter.

Section 640 provided as follows:

“ § 640. Foreclosure action authorized. Instead of taking a conveyance, pursuant to this act, the holder, including the city, of a certificate of sale heretofore executed by the comptroller or one of the assessors of the city,- or hereafter executed by an assessor, pursuant to this act, may recover the amount paid therefor as in said certificate mentioned, with all interest, additions and expenses allowed by law, and for that purpose may maintain an action in the supreme court or in the county court of Erie county to sell such real property, jurisdiction of said courts in such action being hereby conferred.” (Amended April 11, 1935, substituting treasurer ” for “ assessor,”Lby L. 1935, ch, 370.)

The italicized portions of this section establish conclusively that payment for the tax sale certificates was made by the city at the time of purchase or within ten days thereafter under Charter section 614. It will be noted that the only amount recoverable in the foreclosure action is the amount paid therefor as in said certificate mentioned.” It would have been idle for the Legislature to give this right of action to the holder, including the city,” unless the city had paid the amount mentioned in the tax sale certificate. Moreover, the tax sale certificates, which are exhibits before us, recite the exact amount paid by the city of Buffalo upon each purchase.

A sample of the tax sale certificate, excluding the description of the particular piece of property, is as follows:

“ Tax Sale Certificate ^
“ I hereby certify, That pursuant to provisions of the Charter of the City of Buffalo, I have this day sold at Public Auction to City of Buffalo for the sum of NINETY SEVEN AND 25/100 Dollars, the above-described parcel of land, such sale having been made for Taxes and Assessments upon such parcel of land contained in the general tax rolls of the city for the year 1932-1933 unpaid.
“ I further certify, That such parcel of land was sold for the non-payment of the following taxes and assessments, viz.:
Amount Paid
“ General City Tax, 1932-1933, and local assessments, if any, added thereto, plus expense of publication $97.25 ”

The form of tax sale certificate was the same before and after the Charter amendments of 1935.

We now examine the applicable provisions of the Erie County Tax Law. The original special tax law for Erie county is found in the Laws of 1884, chapter 135. That act was amended by the Laws of 1909, chapter 383, Laws of 1933, chapter 664, and Laws of 1934, chapters 299 and 340. These are the only amendments applicable here.

Section 13 of the Erie County Tax Law provided that when the tax remained unpaid for six months from the first day of May, the County Treasurer should “ proceed to advertise and sell such real estate * * * for the payment of such tax, fees and interest and the expenses of such sale.”

Section 14 of the Erie County Tax Law, prior to the amendment by chapter 299, Laws of 1934, effective April 25, 1934, read as follows: “ The said county treasurer shall immediately after the first day of November in each year cause to be published * * * a notice that the said real estate will * * * be sold at public auction * * * to discharge the tax, fees, interest and charges aforesaid, which may be due thereon at the time of such sale. * * * ” (L. 1909, ch. 383.)

After the amendment by chapter 299, Laws of 1934, section 14 read in part as follows: “ The said county treasurer shall immediately after the first day of November in each year cause to be published * * * a notice to the public * * * stating that * * * the real estate upon which taxes are unpaid for the current year will be sold at public auction * * * to discharge the tax, fees, interest and charges which may be due thereon at the time of such sale, * * *.” Section 15 was amended by chapter 383 of the Laws of 1909, and was not later amended until April 17, 1937. (L. 1937, ch. 239.)

The amendment of 1909 provided:

“ § 15. On the day of sale specified in said notice, the said county treasurer shall commence the sale of said real estate and he shall continue the same from day to day until so much of each parcel shall be sold as will be sufficient to pay all the taxes, fees, interest and charges which may be due thereon at the time of such sale. In ah cases where no bid shall be made on a lot or parcel of land so offered for sale, for an amount or sums sufficient to pay the said tax, fees, interest and charges of sale, or if any purchaser of any land sold pursuant to the provisions of this act shall neglect or refuse to pay the amount of his bid or bids within the time prescribed, said premises shall be deemed to have been sold to and purchased by the county of Erie. The treasurer may make certificates of sale of all lands so bid in by or sold to the county describing the lands purchased and such certificates shall be subject to the same right of redemption as those purchased by individuals, and if the land so sold shall not be redeemed the county treasurer’s deed thereof shall have the same effect and become absolute in the same time on the performance of all conditions as in the case of sales and conveyances to individuals. The treasurer may sell and assign any certificate of sale of land bid in by or sold to the county at any time before the expiration of the period of redemption if deemed for the best interest of the county upon receiving payment of the amount necessary to reimburse the county, the purchaser or assignee thereof to have all the rights and assume all the liabilities of the original purchaser. * * * the certificate of the county treasurer affixed to any assessment roll filed in his office by the tax collector of any tax district that any taxes thereon remain unpaid shall be presumptive evidence of that fact, * *

The tax sale certificates for property purchased by the county of Erie were considered by it as assets and the record discloses that they were used as collateral in borrowing money. The evidence is undisputed that it was the custom of the County Treasurer to borrow in anticipation of the collection of taxes up to the date when the tax sale was to be held but that after the sale he borrowed on the pledge of the tax sale certificates owned by the county. Not only the words of the statutes but the conduct of the county officials indicate that the latter considered a tax as paid when the property affected was sold for non-payment of taxes.

The policy of the State and of the political subdivisions affected indicates clearly that when the decedent’s real estate was sold and bid in by the cityof Buffalo or the county of Erie for non-payment of taxes, there was payment and discharge of such taxes and that the purchaser, whether city or county, became the inchoate titleholder of the land, evidenced by the tax sale certificate.

Entirely apart from the statutes, which lead inevitably to this conclusion, we have the decision of this court recently in Town of Amherst v. County of Erie (260 N. Y. 361, 374, 375), where it was said:

“ An examination of the statute discloses that the whole plan outlined in the act vests the entire matter of the collection of delinquent taxes in the county and in the Treasurer thereof. The statute provides the machinery, prescribes the practice and vests the proceeds in the county. In the event of failure to sell, the title, by operation of law, is vested in the county. Nowhere in the statute can be found any provision for turning over to the towns, the money collected by the County Treasurer or any other consideration for the vesting of the title of the property taxed in the county in the event of failure to sell, unless it is required to reimburse the towns as plaintiff contends. As the county is entitled to twelve per cent per annum on the amount of each tax and a five per cent fee in addition, it receives a consideration and has a financial interest in addition to the amount of the tax. The amount of a particular tax is determined by multiplying the assessed valuation of the property by the tax rate. The assessed valuation is supposed to be the real value of the property assessed. We know, of course, that in actual practice it is less. However, it is fair to assume that the value of the property assessed is much more than the tax assessed thereon for any one year. The Legislature might well have had in mind when it provided that the county should collect all returned taxes and that the ‘ premises shall be deemed to have been sold to and purchased by the county of Erie ’ when not sold to a purchaser at the tax sale, that the property would ultimately be sold for at least the tax assessed against it and the interest, fees and expense of collection; that in placing that burden on the county, the Legislature had expected it would ordinarily receive in the end the amount of the returned taxes, the twelve per cent per annum interest and the five per cent fee in addition.
A tax sale was held in November, 1931, and the parcels of land were sold for delinquent taxes. Thereafter the County Treasurer wrote the words 1 tax sold by treasurer ’ against each parcel so sold to the county and the county thereafter carried those parcels as assets ’ upon its books. The county had done everything that it could do prior to the commencement of this action to perfect its title to the parcels of land in question under the provisions of the special statute. The title which it had was inchoate as the statute requires further proceedings to perfect such title and make it absolute.”

The respondents rely in part upon four cases in this court and urge upon us certain language found in the opinions in those cases. An examination of them, however, discloses that the decisions were based upon applicable statutes which do not contain the language used in the Charter of the city of Buffalo or the Tax Law of the county of Erie and it must be borne in mind that “ the rights of all parties connected with the purchase and sale of property to raise the taxes imposed upon it, are created and defined by statute.” (McFarlane v. City of Brooklyn, 122 N. Y. 585, 590.)

Thus, in Williams v. Townsend (31 N. Y. 411, 416) the mortgagee, by the terms of the bond and mortgage, had the right to pay and discharge unpaid taxes and thereupon to collect the amount so paid, by suit upon the bond, or by foreclosure of the mortgage. Instead, he purchased the premises at a tax sale and took the certificate of purchase in the name of an agent. The court said: “ * * * the purchase at the tax sale did not operate to discharge the assessment and deprive the plaintiff [mortgagor] of his right of redemption under the statute.” (Insertion supplied.) Moreover, the sale was made under the provisions of the Charter of the city of Buffalo as revised by chapter 99 of the Laws of 1856, which did not have in it the provisions of the present charter. Under that act sales were made “ for the shortest term of years for which any person will take the premises,” and in the event that no bid was made were required to be “ struck off to the city for the term of one hundred years.” The change to the language of the present charter militates against the position of the respondents.

In Matter of Clementi v. Jackson (92 N. Y. 591) an act (L. 1882, ch. 363) had been passed validating certain taxes in the city of Brooklyn which were invalid because of the omission of the assessors to verify the assessment rolls as required. It was there held that the statute validated only the taxes and not tax sales made, because of nonpayment of the invalid tax, prior to the passage of the validating act. As the court said: “ * * * the purchaser acquired no right or title to respondent’s property by virtue of those sales or of the leases subsequently granted.” By the act the void taxes were made valid only on condition that property owners might discharge them by paying the reduced amount specified in the act. It could not have been the intention of the act that if the city had attempted to enforce payment of these void taxes, by sales and leases, the validation should stand and the land owners be deprived of the provision for their benefit, which was one of the terms upon which the Legislature cured the defect in the assessment of the taxes ” (p. 594).

In McFarlane v. City of Brooklyn (supra) the plaintiff purchased at sales for the non-payment of taxes and received certificates therefor, each of which recited that at the expiration of two years he would be entitled to a lease of the lot sold for the term of one hundred years, unless within the two-year period the premises should be redeemed or irregularity be discovered in the proceedings prior to the sale. The taxes for which the properties were sold were void. The plaintiff sought the amount paid by him with interest. Under the terms of the act it was decided that he was not entitled to interest.

In People ex rel. Oakley v. Bleckwenn (126 N. Y. 316) there was involved a sale for unpaid assessments. The statute there involved, chapter 656 of the Laws of 1886, provided that after the conveyance had been executed to the grantee, upon the failure to redeem, the hen or liens for which the same shall have been so sold shall thereupon be cancelled.” The court properly said that the sale is merely a mode of enforcement of the payment of the assessment. The purchaser at a tax sale has only acquired the hen of the municipality” (p. 316). In other words, the hens continued by the terms of the statute until the expiration of the redemption period.

The administrator, in the instant case, effected a sale of one parcel of land of decedent after the first and second mortgagees discharged their mortgages in order that a clear title might be conveyed to a purchaser. Thereafter, on October 6, 1937, the learned Surrogate directed that these mortgagees be subrogated, as their interests might appear, to all rights of priority which the city of Buffalo and the county of Erie and the purchasers of tax sale certificates might have with reference to taxes which became liens on the premises prior to decedent’s death and that, for any balance after collection by reason of such subrogation, the mortgagees should come in as general creditors. The decree from which this appeal is taken recites that the administrator paid from the purchase price received on said sale to the purchasers and holders of several tax sale certificates of said premises on the tax sales of the city of Buffalo the sum of $1,674.83 and to the holders of tax sale certificates of county tax sales the sum of $505.71, and that thereupon all of the city and county tax sale certificates were canceled. In view of the recited facts there is nothing to which the mortgagees could be subrogated.

The orders should be reversed, with costs to the appellant, and the matter remitted to the Surrogate’s Court with directions to proceed in accordance with this opinion.

Lewis, J.

(dissenting). The procedure by which the

county of Erie and the city of Buffalo may collect delinquent taxes is prescribed respectively by chapter 135 of the Laws of 1884, as amended, and by the provisions of the Buffalo City Charter. If a taxpayer’s delinquency persists there comes a time when, in aid of the collection of the tax, the county or city — as the case may be — is authorized by the Legislature to conduct a tax sale of the premises involved. The procedure prescribed to bring about such a sale is definite and employs language which includes the words sale ” “ purchase ” and kindred terms which, when given their literal meaning, import a grant or transfer of title. According to the view of a majority of the court the problem presented by this appeal is to be resolved by giving a literal interpretation to such words and thus to make a tax sale conducted under the statutes here involved legally effective as a present grant or transfer of title from the delinquent taxpayer to the municipality to which the tax is due.

I do not believe the Legislature, by the language employed in either statute, contemplated that whenever a tax sale results in a municipality becoming the purchaser,” all rights of the delinquent taxpayer in the premises involved are thereby cut off. A tax sale conducted under either statute does not endow the county or city, immediately after it has become such a purchaser, with the right in turn to convey the premises involved free of the lien. Each statute accords to the delinquent taxpayer the right within a prescribed period to redeem the property free from the lien of the tax by payment of an amount which includes the original tax debt.

Thus it is made clear that a tax sale is provided by the Legislature as a form of governmental action to be set in motion only as a means by which the collection of a delinquent tax may be enforced. This statement accords with the view expressed in People ex rel. Oakley v. Bleckwenn (126 N. Y. 310), where it was said (p. 317): “ This court, in the case of In re Clementi v. Jackson (92 N. Y. 591), and recently in its second division, in the case of McFarlane v. City of Brooklyn (122 N. Y. 589), has regarded a sale for unpaid taxes as a mode of enforcement of the city lien for taxes.” The tax, as a debt of the owner of the property subject to its lien, is not extinguished until after the statutory period of the taxpayer’s right of redemption has passed. That period of redemption commences when the statutory notice thereof has been given, or on the date of the sale. (Buffalo City Charter, §§ 618, 619, 621, L. 1909, ch. 383, §§ 20, 21; see, also, Mabie v. Fuller, 255 N. Y. 194.)

The view which I have attempted to express is more clearly stated in the ruling by this court in People ex rel. Oakley v. Bleckwenn (supra). There, upon the determination of a decisive issue in the case, Gray, J., writing for the court, posed the question: What is the effect of the sale for unpaid assessments * * * ? ” In answering that query it was said (p. 316): “ The purchaser at a tax sale has only acquired the hen of the municipality. He is the assignee, in effect, of the assessment hen, and is thus protected as to his payment, until his inchoate rights are consummated by the execution of his deed or lease. As to the owner of the land, it is a step taken to enforce the collection of the assessment and a proceeding which would result in divesting him of his ownership, unless he avails himself of the privilege of redemption.”

At an earher date this court had given what impresses me as a definite answer to the question which is now before us. In Williams v. Townsend (31 N. Y. 411) the question was whether, under the Buffalo City Charter, a purchase at a tax sale and the taking of a certificate showing such purchase, amounted to a discharge of the tax involved. It was there said (p. 413): In all cases of sales for taxes the owner of the land is clothed by law with this right of redemption; and the tax together with the expenses of the sale remain a hen on the premises assessed, * * *

until the redemption or payment to the Treasurer is made. The effect of the sale is therefore merely an assignment of the hen of the tax and the expenses then incurred, enhanced by the additional percentage; and this hen continues till the owner of the land makes the redemption, or the holder of the certificate takes title to the property in the prescribed form. It is therefore clear that the tax or assessment is not discharged by the sale and certificate.” (Emphasis supplied.)

With equal definiteness the same answer was made for the court by Rapallo, J., in Matter of Clementi v. Jackson (92 N. Y. 591, 595): “ We do not think that the payments made by the purchaser were payments of the taxes. He did not make the payments for the benefit of the relator, or in her behalf, nor for the purpose of discharging the property from the lien of the taxes, but made them in his own behalf, for the purpose of acquiring an interest in the property by virtue of the sales made by the city to enforce that lien, in consequence of the nonpayment of the taxes and penalties. The payments made by him were no more a payment. of the taxes than would a payment made by an assignee to an assignor of a bond, in consideration of the assignment thereof, be a payment of the bond.”

Accordingly, I dissent, and vote to affirm.

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Charles R. Crumble, Appellant.
    Argued April 22, 1941;
    decided June 10, 1941.

      Francis L. Valente, Gerald P. Culkin and Pauline O. Field for appellant.
    The trial court committed reversible error in its charge to the jury. (People v. Koerber, 244 N. Y. 147; People v. Leonardi, 143 N. Y. 360; People v. Mills, 98 N. Y. 176; People v. Sangamino, 258 N. Y. 85; People v. Ohanian, 245 N. Y. 227.)

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Harris B. Steinberg of counsel), for respondent.
    The court’s instructions were proper. (People v. Gerdvine, 210 N. Y. 184; People v. Koerber, 244 N. Y. 147; People v. Pekarz, 185 N. Y. 470; People v. Leonardi, 143 N. Y. 360; People v. Kemmler, 119 N. Y. 580; People v. Mills, 98 N. Y. 176; People v. Johnson, 185 N. Y. 219; People v. Flanigan, 174 N. Y. 356; People v. Radcliffe, 232 N. Y. 249; People v. Katz, 209 N. Y. 311.)
   Per Curiam.

The defendant has been convicted of murder in the first degree. The deceased had been his mistress. He admitted he had inflicted the stab wounds that resulted in her death. His only claim was that when this occurred his intelligence was suspended by drunkenness. Accordingly, the trial judge in his charge said to the jury, In fact, there is not much dispute here as to what really happened, except as to the mental condition of the defendant at the time that he cut this girl.”

In People v. Leonardi (143 N. Y. 360) we said: By our statute deliberation and premeditation are necessary constituents of the crime of murder in the first degree, and if by reason of intoxication the jury should be of opinion that the deliberation or premeditation necessary to constitute murder in the first degree did not exist, the crime is reduced to a lower grade of murder, or in the absence of any intent to kill, then to manslaughter in some of its grades. The intoxication need not be to the extent of depriving the accused of all power of volition or of all ability to form an intent ” (p. 366). The defendant’s request that the jury be charged conformably to that statement of the law was not complied with. Instead, the trial judge gave this instruction, which is certainly not consistent with the rule accurately stated in the Leonardi case: The question in this case is not whether the defendant had drunk some liquor or whether he had smoked some cigarettes, but whether the doing of those acts, if you find that he did do them voluntarily, produced a state of mind in him of such a character as to destroy the power to form the particular intent, deliberation and premeditation, which are necessary elements to the crime of murder in the first degree.”

On the other hand, the degrees of homicide were submitted to the jury; the statute in respect of intoxication as a defense was read to them (Penal Law, § 1220); and they were instructed that any intoxication of the defendant was to be considered by them on the issue as to the degree of the offense. At the same time, however, the court refused to announce the following text of section 390 of the Code of Criminal Procedure: When it appears, that a defendant has committed a crime, and there is reasonable ground of doubt, in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only.”

Though we agree that the defendant’s criticism of the charge in these respects is not without substance, yet a majority of the court are of the opinion that the conviction should be affirmed on the ground that there was no error which affected any substantial right of the defendant. (See Code Crim. Proc. § 542.) In reaching that conclusion we read the charge as a whole and view its effect against the background of the evidence produced at the trial and the manner in which the case was tried. So viewed we conclude that the charge as a whole constitutes a submission to the jury, in language which the jurors could understand,' of the questions of fact upon which a finding of guilt must rest and that the errors or inaccuracies to which we have referred could hardly have misled them.

The judgment of conviction should be affirmed.

" Loughran and Rippey, JJ., dissent in the following memorandum: We agree that the errors must be examined in the light of the record as a whole. Looking at the case that way, we are not satisfied that there was a sufficient submission to the jury of the one question upon which the life of the defendant depended.

Lehman, Ch. J., Finch, Lewis, Conway and Desmond, JJ., concur in per curiam opinion; Loughran and Rippey, JJ., dissent in separate memorandum.

Judgment of conviction affirmed.