text:
    Carl H. Flassig and Bertha Flassig, Appellants, v. Henry C. Newman and Martha Newman, Appellees.
    Gen. No. 42,316.
    Opinion filed March 2, 1943.
    Meyers & Meyers, of Chicago, for appellants; Ben Meyers and Hart E. Baker, both of Chicago, of counsel.

      Walter F. Briody, of Blue Island, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiffs appeal from a judgment of the superior court in favor of defendants on the merits of the cause, and also from several orders entered in the course of the proceeding which were adverse to plaintiffs, including a denial of their petition for a change of venue.

The cause was initiated by the filing of a complaint in forcible entry and detainer May 28, 1941, in which plaintiffs sought possession of a strip of land some 135 feet long and varying in width from 2 feet 7% inches to 3 feet 1 inch. Defendants’ answer denied making any entry on the premises, and they averred that the question in dispute was the proper location of the boundary line to the property, that it would be necessary to adjudicate the titles of the parties and to locate the proper boundary lines between their properties, that the court did not have jurisdiction to try questions of title or to determine boundaries in a suit in forcible entry and detainer, and asked dismissal of the complaint.

July 8, 1941, plaintiffs served notice on defendants to have the cause placed on the nonjury calendar assigned to Judge Francis Allegretto. When the case was reached on the regular trial call November 19, 1941, plaintiffs’ counsel made an opening statement, and thereupon the opposing attorney called the court’s attention to the fact that the question in issue was one of title and disputed boundary lines, which could not be tried in an action of forcible entry. Thereafter both sides submitted authorities to Judge Allegretti, who held that under the pleadings the proper remedy was an action in ejectment or a suit in chancery, and that if it appeared that questions of boundary and title were involved, the court would be obliged to hold against plaintiffs in the forcible entry action; and it was suggested by the court that plaintiffs amend their complaint to an action in ejectment. Plaintiffs’ counsel declined to follow the court’s suggestion and said that he wanted to proceed with his proof under the complaint in forcible entry. This request was granted, and plaintiffs thereupon introduced in evidence a written demand for possession and a certified copy of a plat showing the location of the respective properties. Certified copies of various conveyances in the chain of title of the two parcels were also offered in evidence, but the court sustained objections to their admissibility on the ground that those documents involved questions of title. One of the plaintiffs was then called to the stand, and in the course of his direct examination was asked several questions relating to adverse possession of the premises by plaintiffs and their predecessors in title. Objections to these questions, on the ground that they were designed to elicit testimony showing legal title by adverse possession and that the question of title could not be litigated in the forcible entry suit, were likewise sustained. Plaintiffs’ counsel then stated to the court that he could not proceed and asked leave to follow the court’s suggestion to file an amended complaint in ejectment. That request was granted, and the cause was removed from the trial calendar to be brought up on notice, and at the same time plaintiffs had leave to file an amended complaint, to which defendants were to plead or answer in due course. Subsequently November 24, 1941, pláintiffs filed their amended complaint and on November 26 moved for the entry of an order requiring defendants to plead thereto. Defendants’ counsel called the court’s attention to the fact that the amended complaint consisted of a count in ejectment and another count which was an exact repetition of the original complaint in forcible entry and detainer, and in his brief commented on the impropriety of repeating the allegations of the original complaint which had been withdrawn at the prior hearing on plaintiffs ’ request to file a complaint in ejectment. The court said that in view of what had occurred at the trial on November 19, he was of opinion that the forcible entry action was not properly in the case, and that if plaintiffs had included the same claim in forcible entry as a count in their amended complaint, he would be obliged to find against them on that count because he had already determined that question; and accordingly an order was entered requiring defendants to plead or answer to the amended complaint within 10 days.

Six days thereafter plaintiffs presented their petition for change of venue, alleging that they believed and feared they would not receive a fair trial before Judge Allegretti and 13 other judges named in the petition, on ground of prejudice. When the petition was presented on December 2, an order was entered allowing defendants 10 days to answer the petition, which was thereupon set for hearing January 9, 1942. In the interim defendants filed their answer to the petition, wherein they related the proceedings had "in the cause, and averred that it had been partially tried on the issue of forcible entry, that the question of the propriety of the forcible entry suit had been argued before the court, that the judge had indicated by his statements and rulings on evidence that legal title and boundary lines were involved, and that forcible entry was not the proper remedy; also that after the court had indicated its rulings, plaintiffs asked for and had leave to withdraw their,complaint in forcible entry and to file an amended complaint in ejectment; and that the amended complaint subsequently filed by plaintiffs contained a count in ejectment and another count which was identical with the original complaint in.forcible entry, following which the petition for change of venue was presented. Upon presentation of the answer, the court found that plaintiffs were not entitled to a change of venue and denied their petition.

About a month before the entry of that order defendants had filed a motion to strike the amended complaint on the ground that the original complaint in forcible entry had been partially tried, that the plaintiffs during that trial had been granted leave to withdraw their complaint and to file an amended one in ejectment, and that count 2 of the amended complaint was identical with the original complaint in forcible entry, and also contrary to the conditions under which plaintiffs were granted leave to file their amendment. The motion to strike was heard January 13, 1942, pursuant to due notice, and an order was accordingly entered dismissing the complaint as to count 2 and granting defendants leave to answer count 1 within 10 days. Defendants complied with the order by answering count 1, and they filed a notice to place the cause on the nonjury calendar. The case was set for trial March 9, 1942, and when it was reached on that day defendants introduced evidence which resulted in the judgment in their favor, from which plaintiffs appeal. Plaintiffs’ counsel said on oral argument that they knew the cause was on hearing but stayed away from court and did not participate in the proceeding because they did not wish to try the cause before Judge Allegretti and were of opinion that if they did not appear, the court had no alternative except to dismiss the case for want of prosecution; and that if they proceeded to trial, it would have constituted a waiver of their right to have the cause removed under their petition for change of venue on ground of prejudice.

After the suit had been determined, plaintiffs on March 18, 1942, presented their motion to vacate and set aside the judgment against them and all proceedings subsequent to December 2, 1941, on the ground that it was error for the court to proceed further after the filing of the petition for change of venue. Defendants filed an affidavit in opposition to that motion and March 20,1942, plaintiffs ’ motion was denied.

The following day plaintiffs moved to vacate the order of March 20, and were granted leave to file an affidavit in support of their motion. On March 24 the matter was heard and the motion was. denied. On March 21 they also moved to amend the judgment of March 9 so as to make the order recite that the case was dismissed for want of prosecution, and in support of the motion they presented their affidavits and that of one of their attorneys, in each of which it was alleged that neither of the plaintiffs nor their attorneys were in the courtroom on March 9, 1942, that no evidence was offered in their behalf and no effort was made by them, or anyone in their behalf, to prove or sustain the allegations of the amended complaint. On March 24 that motion was also heard and denied.

It is first urged as ground for reversal that the court erred in denying plaintiffs’ petition for a change of venue, and that all proceedings had subsequent thereto were therefore void. The form and verification of the petition for change of venue were not questioned in the trial court, and the only question presented is whether the motion was made in apt time. The rule is well settled that “where a court has already commenced a hearing and has by his rulings indicated his views, it is too' late for the party against whom such rulings have been made to move for a change of venue. It would be improper for counsel to try out the attitude of a trial judge by questions and discussion and argument, and if the court was not in harmony with counsel’s views to then assert that the court was prejudiced and that a change of venue must be allowed. This practice will not be countenanced. It is the established rule that after a trial of a cause has commenced or is about to be commenced, it is too late to grant a petition for a change of venue.” In re Wheeling Drainage Dist. No. 1, 282 Ill. App. 565, and numerous cases cited therein.

The petition for change of venue in the case at bar was filed too late in the proceeding; the cause had been partially heard, and the court had stated his opinion upon proof sought to be adduced, and indicated what his decision would be. It is argued by plaintiffs, however, that when the petition was filed the cause was not at issue because their amended complaint was on file and defendant had not pleaded thereto. Technically this is a correct statement, but the case had been at issue and on trial when plaintiffs asked leave to withdraw their forcible detainer action, and after such leave was granted they filed the amended complaint in which they retained the count on forcible detainer, upon which the court had already ruled, and then applied for a change of venue while the amended complaint containing that count was still before the court. Under the circumstances we think the court properly ruled that the cause had been partially heard, and that the petition was not made in apt time. Plaintiffs’ counsel cite numerous cases holding in effect that a petition for a change of venue, in proper form and made in apt time, is a substantive right and admits of the exercise of no discretion. The authorities cited hold that the trial judge has no right to pass judgment upon the truth of the facts stated in the petition or upon the allegation of prejudice. These are undoubtedly correct statements of the law, but they have no application to the case at bar. Defendants’ answer raised no issue as to the form and verification of the petition, but merely set out the prior proceedings to show that the application was made too late. The court’s ruling sustained this contention, and the order denying the petition for change of venue was amply justified by the record of the proceedings before the petition was presented.

The other question presented is whether plaintiffs can insist upon a nonsuit or a voluntary dismissal without compliance with section 52 of the Civil Practice Act, Ill. Rev. Stat. 1941, ch. 110, par. 176 [Jones Ill. Stats. Ann. 104.052]. Because of their reluctance to have the cause' tried by Judge Allegbetti, evidently in view of his adverse ruling on the numerous motions presented, plaintiffs absented themselves from the courtroom and refused to participate in the hearing of the cause when it was reached for trial on March 9. They admit that they relied on their present contention that the court had no alternative except to dismiss the suit for want of prosecution, if they failed to present any evidence in support of their amended complaint; and they also say that it would have prejudiced their right to argue that the court erred in denying their motion for a petition for change of venue, if they had proceeded to trial. This is but another way of asserting that they were entitled to insist upon a nonsuit, which would have enabled them to file a new proceeding, and thus avoid the necessity of standing trial before Judge Allegbetti. The contention made overlooks several important considerations. First of all, plaintiffs made no motion to. dismiss their action without prejudice; they gave defendants no notice nor indication that they desired a dismissal; and they did not pay the costs. Section 52 of the Civil Practice Act provides: “The plaintiff may, at any rtime before trial or hearing begins, upon notice to the defendant or his attorney, and on the payment of costs, dismiss his action or any part thereof as to such defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, on the same terms, only (1) upon filing a stipulation to that effect signed by such defendant, or (2) on the order of the court or judge made on special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit. After a counterclaim has been pleaded by a defendant no dismissal may be had as to him except by consent of the defendant.” Plaintiffs evidently sohght to avoid the requirements of notice and payment of costs by refusing to participate in the trial, and it is their contention that under those circumstances the court had no power to do anything except to dismiss the case for want of prosecution. It is fair to assume that if they prevail upon this appeal, they intend to file another suit, and the question is whether they should be permitted to employ such means to avoid trial before a judge by whom the proceedings have already been partially tried.

Under section 70 of the old Practice Act, plaintiff was permitted to take a nonsuit after the case had been heard by the court before it was submitted for final decision, and this often made the administration of justice a mere travesty. Evidence was frequently taken in cases over a period of time by both sides, following which counsel would argue the cause at length, and if during the argument, from what the court had intimated, it appeared that he was inclined to decide in favor of defendants, plaintiff had the absolute right to take a nonsuit. As indicated by the court in Chicago Title & Trust Co. v. Cook County, 279 Ill. App. 462, “It was to remove this obvious defect in the law that the legislature enacted section 52 of the Civil Practice Act.” Since that opinion was filed this section has been construed as requiring compliance with the terms of the act, at least to the extent of paying costs, to entitle the plaintiff to a voluntary dismissal. Gunderson v. First Nat. Bank of Chicago, 296 Ill. App. 111; Galeener v. Hessel, 292 Ill. App. 523. Even under the old Practice Act a distinction was made between situations where plaintiff did not appear when a cause was regularly called upon the docket, and cases in which he appeared and was present when the trial commenced but refused to participate in it. In the former class of cases the court said that judgment ought to be rendered as in case of nonsuit; but where ' the plaintiff appears, if he desires a nonsuit, he must make known his desire by asking for it. Delano v. Bennett, 61 Ill. 83. We see no difference in principle between cases where plaintiff is present in court and refuses to proceed, and situations where he purposely absents himself from court, so that he will not have to go to trial. Section 52 of the Practice Act clearly restricted the right to voluntary dismissals and established certain prerequisites to plaintiff’s right to a nonsuit. One of these is notice and another is the payment of costs. Plaintiffs neither gave notice nor paid costs, and they cannot now insist upon a nonsuit or a voluntary dismissal.

For the reasons indicated we are of opinion that the judgment and all orders appealed from should be affirmed, and it is so ordered.

Judgment and orders affirmed.

Sullivan, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Harry Herendeen, Appellee, v. William Hamilton, Appellant.
    Gen. No. 42,466.

      Opinion filed March 2, 1943.
    Sabath & Sabath, of Chicago, for appellant; William S. Schwab, of Chicago, of counsel.
    Barre Blumenthal, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff’s horse, “Mr. Mile,” was injured while starting in a race at the Hawthorne Race Track on September 21, 1939. The owner brought suit against defendant, the official starter, an employee of the track, charging negligence in placing the animal on the outside of the mechanical starting gate without applying safety guards for the horse’s protection. Trial by jury resulted in a verdict and judgment for plaintiff in the sum of $1,000, from which defendant has taken an appeal.

The starting gate is a mechanical appliance with 12 padded stalls, into which the horses are placed and from which they are released at a signal given by the starter. The gate is devised to afford protection to horses and to secure an even start. It is a movable device drawn by horses from place to place on the track, depending on the distance of the race, and is set in position at right angle to the track.

Plaintiff’s horse had drawn position No. 2 in the race in which he was entered, but because of his unruly conduct defendant ordered him placed on the outside of the starting gate. While one of defendant’s assistants was swinging him into position for the start of the race, the horse was caught on an eight inch bolt projecting from the gate, and severely torn. He had to be removed to the stables in a van, where after considerable delay he was attended by a veterinarian, and ultimately removed to plaintiff’s farm at Crystal Lake. He died from infection resulting from the injuries sustained. It is conceded that a special pad, described as being some five or six inches thick, two or three feet Wide, and six feet long, is provided and was available for the protection of horses placed at the outside of the starting gate. The complaint specifically charged, and plaintiff proved, that defendant failed to attach the safety pad with which the mechanism was supplied, and the jury was evidently of opinion that such failure constituted negligence and was the proximate cause of the injury.

The gist of the action is that defendant, as starter, had exclusive charge and control of the starting gate and of plaintiff’s horse at the time and place of the injury, and therefore was alone liable for his negligence. The racing regulations, which were introduced in evidence, support this conclusion. Section 168 provides that “Horses are in the hands of the Starter from the moment they leave the Paddock until the start is made. When the horses are in the hands of the Starter they are entitled to no further care from their attendants, except that if an accident happens to a Jockey or his equipment, the Starter may permit the Jockey to dismount and the horse to be cared for during the delay; otherwise, no Jockey shall dismount.” Section 169 reads: ‘1 Starter. — All orders necessary in securing a fair start shall be given by the Starter. ’ ’ Section 172 contains the provision: “Starting Gate.— Except in cases of emergency, the Stewards consenting, a starting gate, approved by the Stewards, shall be used in starting all races on the flat.”

Defendant admits that he had charge of and exclusive control over the horses at the post, but he disclaims liability because, as his counsel say, “Negligence is a breach of duty, and, where there is no duty or breach of duty, there can be no negligence. ’ ’ They argue that he was required to use this particular starting gate which had been approved by the stewards, that it was not of his own choosing, that the gate was in the same condition at the time of the accident as when it was delivered to him, and therefore he should not be liable. This argument does not meet the issue presented. Plaintiff neither alleged nor offered any evidence that the gate itself was defective, but charged that defendant failed to use the safety mat with which the gate was provided. That allegation was not denied. Although defendant made no mention of the pad while testifying, two other witnesses said that it had been used before and after this particular race. Obviously, if the stewards had failed to provide him with a safety device, defendant would have relied on that circumstance as a defense. A photograph of the safety pad, adjusted to its proper position, was introduced in evidence, and two witnesses testified that the projecting bolt which caused the injury was amply covered by the pad when properly applied to the gate. Defendant characterized “Mr. Mile” as “a bad actor,” and told his assistant that he had “better watch him.” This knowledge of the horse’s conduct should have dictated the use of every reasonable precaution. Since the safety pad was available it was defendant’s duty to use it, and his failure to do so, especially in view of his admitted familiarity with the physical obstacles outside the gate, constituted negligence. The court instructed the jury that in order to recover plaintiff had to prove by a preponderance of the evidence (1) that defendant was negligent as charged in the complaint, and (2) that such negligence was the proximate and direct cause of the injury to plaintiff’s chattel. We think the verdict is amply sustained by the record under both these charges.

There is an implication all through defendant’s argument that inasmuch as he was an employee, and therefore someone’s agent, he was not personally liable to plaintiff. However, the law is well settled that where a principal engages an agent to do certain work and take entire control of it, and the principal does not interfere but leaves it entirely with the agent, the agent and not the principal will be liable to third persons for injuries and damages sustained through negligence or unskillful workmanship. Smith v. Rutledge, 332 Ill. 150; Baird v. Shipman, 132 Ill. 16. This principle of law is applicable to the circumstances of the case at bar.

It is further urged that plaintiff assumed the risk involved. That doctriné is not applicable to the facts presented. The doctrine of assumed risk is generally limited to cases where one voluntarily encounters a known danger or exposes himself to conditions susceptible of possible injury. In the case at bar the plaintiff did not have control of the property nor of the danger to which his horse was exposed. Both of these instrumentalities were entirely under the control of defendant and it was his negligence, as the jury found, which resulted in the injuries sustained.

Lastly it is urged that plaintiff waived his right to bring any action for injuries to his chattel by reason of the following provision on the entry blank of the race track: “No entry will be received except upon the condition that all disputes, claims and objections arising out of the racing or with respect to the interpretation of the conditions, of any race shall be decided by the officers of this Club, or those whom they may appoint, and their decision upon all points shall be final.” This provision clearly applies to rules and regulations of racing and cannot fairly be invoked to relieve any employee of the track from his own negligence.

We find no convincing ground for reversal, and therefore the judgment of the circuit court is affirmed.

Judgment affirmed.

Sullivan, P. J., and Scahlan, J., concur.


author: Justice Kiley.

text:
    Elizabeth McManimen, Appellee, v. Public Service Company of Northern Illinois, Appellant, and Sears, Roebuck and Company, Appellee.
    Gen. No. 40,482.
    opinion filed December 9, 1942;
    rehearing opinion filed March 10, 1943.
    Gardner, Morrow, Fowler & Merrick and K. J. Owens, for appellant; Walter M. Fowler, of counsel; Frankel & Frankel, for appellee; Barnie E. Frankel, of counsel.
   Opinion by

Justice Kiley.

“Not to be published in full.”


author: Justice Hebel.

text:
    Bernice Paul, Appellee, v. Charles Shukes et al., Defendants. Appeal of Joseph D. Stewart, Appellant.
    Gen. No. 41,779.
    opinion filed January 18, 1943;
    rehearing opinion filed March 10, 1943.
    Olis, Vasalle & Lapinskas, for appellant; V. I. Ohrenstein and Walter C. Wellman, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


author: Justice Friend.

text:
    John Werner, Appellee, v. A. E. Flosdorf, Appellant.
    Gen. No. 41,940.

      opinion filed February 8, 1943.
    Harry A. Biossat, for appellant; Gordon, Buckley & Edmonds, for appellee; Chapin Bitten and George W. Gordon, of counsel.
   Opinion by

Justice Friend.

“Hot to be published in full.”


author: Presiding Justice Sullivan.

text:
    Paul Koepke, Administrator of Estate of Joseph T. Baldwin, Deceased, Appellant, v. Matthews Brothers Construction Company, Appellee.
    Gen. No. 41,549.
    opinion filed March 2, 1943.
    H. H. Patterson, for appellant; Edmund C. Maurer, of counsel; Rawlins & Wright, for appellee.
   Opinion by

Presiding Justice Sullivan.

“Hot to be published, in full.”


text:
    Loop Discount Corporation, Appellee, v. Holleb and Company, Appellant.
    Gen. No. 41,618.
    opinion filed March 2, 1943.

      A. Paul Holleb for appellant; William T. Chism and Derald H. Ruttenberg, of counsel; Philip J. Slotnikoff, for appellee.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in fuU.’’


text:
    Edward J. Lusk, Appellee, v. Joseph Ziarko et al., Appellants.
    Gen. No. 42,513.
    opinion filed March 2, 1943;
    rehearing denied March 23, 1943.
    J. J. Klepak and Michael M. Obartuch, for appellants; Maurice Alsehuler, for appellee.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full.’’


text:
    Albert C. Ostroff, Appellee, v. A. J. Canfield Company, Appellant.
    Gen. No. 42,289.
    opinion filed March 2, 1943;
    rehearing denied March 23, 1943.
    William T. Pridmore, for appellant; Marion G. McClelland and Poppenhusen, Johnston, Thompson & Raymond, of counsel; Musgrave, Oppenheim, Price & Ewins, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full’’


text:
    William M. Zipperman, Appellee, v. Charles Wiltse and Myrtle Wiltse, Appellants.
    Gen. No. 42,307.
    opinion filed March 2, 1943.
    David A. Canel, W. J. Parish and V. A. Parish, for appellants; Harvey L. Cavender and H. H. Whittemore, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. John J. Kronenbitter, Appellee, v. Board of Trustees of Firemen’s Pension Fund of Village of Maywood, Illinois, et al., Appellants.
    Gen. No. 42,340.

      opinion filed March 2, 1943.
    Louis Ancel, for appellants; Norman A. Beck and Frank P. Mies, for appellee.
   Opinion by

Justice Friend.

“Not to be published, in full.’’


text:
    Raymond B. Glaum, Appellant, v. Walter J. Cummings and Daniel C. Green, Receivers, et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 42,454.
    opinion filed March 2, 1943.
    Marion J. Hannigan, Jack L. Sachs and Harold G. Blake, for appellant; Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for appellees; William J. Flaherty, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Mary Smith, Appellant, v. Fred Solger, Appellee.
    Gen. No. 42,516.
    opinion filed March 2, 1943;
    rehearing denied March 23, 1943.
    Royal W. Irwin, for appellant; Hinshaw & Culbertson, for appellee; Oswell G. Treadway, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.’’ .


text:
    People of the State of Illinois, Defendant in Error, v. John Boryszewski, Plaintiff in Error.
    Gen. No. 42,531.
    opinion filed March 2, 1943.
    Francis J. Callahan, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Lithuania Building Loan and Homestead Association et al., Appellees and Cross Appellants, v. Margaret Ewald, Individually and as Administratrix of Estate of John P. Ewald, Deceased, et al., Defendants. Keistuto Loan and Building Association No. 1, Appellant and Cross Appellee. Peter Kasky et al., Cross Appellees.
    Gen. No. 41,539.
    opinion filed March 2, 1943.
    Irene Kuchinskas, for appellant and cross appellee; Earl J. Walker, for appellees and cross appellants; Maurice L. Davis, for cross appellees.
   Opinion by

Justice Scanlan.

‘ ‘Not to be published in full.”


text:
    George Ortseifen and Walter A. Wade, Surviving Executors of Estate of Michael Espert, Deceased, and Trustees Under the Last Will and Testament of Michael Espert, Deceased, Appellants, v. City of Chicago, Appellee.
    Gen. No. 41,584.
    opinion filed March 2, 1943.
    Urion, Bishop & Sladkey, for appellants; Howard F. Bishop and Robert F. Dewey, of counsel; Barnet Hodes, Corporation Counsel, for appellee; James A. Velde, William J. Lancaster and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”