text:
    The People of the State of New York ex rel. Joseph Imbruglia, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Paul F. Donohue, Esq., 101 Columbia Street, Albany, New York, assigned as counsel to appellant on the appeal herein.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York ex rel. Jerry Robertson, Appellant, against Edward M. Fay, as Warden of Green Haven Prison, Respondent.
    Submitted October 5, 1959;
    decided November 19, 1959.

      Jerry Robertson, in person, for motion.

      Louis J. Lefkowitz, Attorney-General (Manuel T. Murcia of counsel), opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Dominick Palladino, Appellant, v. City of New York, Respondent.
    Argued October 8, 1959;
    decided November 25, 1959.

      Sidney S. Flaum for appellant.

      Charles R. Tenney, Corporation Counsel (Robert L. Ellis and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


author: Per Curiam.

text:
    Randy Knitwear, Inc., Appellant, v. American Cyanamid Company et al., Defendants, and Fairtex Mills, Inc., Respondent.
    Argued October 8, 1959;
    decided November 25, 1959.

      Daniel Levy and Jerrold M. Sonet for appellant.

      Sidney Fox for respondent.

      Donovan Leisure Newton & Irvine for American Cyanamid Company, amicus curiæ.

   Per Curiam.

Even assuming that the law of New York, rather than that of Pennsylvania, controls the construction of the contracts here involved — and we have neither considered nor passed upon the matter — it is our conclusion that issues of fact exist which require a trial for their determination. It is enough to note that amongst such issues are these: (1) What did the parties intend by use of the typewritten phrase ‘ ‘ Cyana Shrinkage Control”? (2) Did the defendant promise to treat the goods with “ Cyana” finish and, if it did make such a promise, were the goods in fact so treated? (3) Is paragraph 9 of the contract, insofar as it prescribes a limitation of time for the filing of claims by the buyer, reasonable ?

The judgment appealed from should be reversed and the defendant’s motion for summary judgment denied, with costs in this court and in the Appellate Division.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Judgment reversed, with costs in this court and in the Appellate Division, and ease remitted to Special Term for further proceedings in accordance with the opinion herein.


text:
    Gus Callins, Respondent, v. Rubin Ritter, Appellant.
    Argued October 13, 1959;
    decided November 25, 1959.

      William F. McNulty and Stanley D. Hicks for appellant.

      Julian Buchbinder and Saul S. Sharis on for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Feoessel, Van Voorhis and Burke.


text:
    In the Matter of James L. Dowsey et al., Respondents, against State Liquor Authority, Appellant.
    Argued October 13, 1959;
    decided November 25, 1959.

      Emanuel D. Black, Hyman Amsel and John J. Hyland for appellant.

      C. Walter Randall for petitioners-respondents.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Fuld, Froessel, Van Voorhis and Burke; Judge Dye dissents and votes to reverse upon the ground that the court may not substitute its judgment for that of the Authority (Matter of Glintenkamp v. O’Connell, 296 N. Y. 806).


text:
    The People of the State of New York, Appellant, v. Herman Christ, Respondent.
    Argued October 7, 1959;
    decided November 25, 1959.

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), for appellant.

      Milton E. Jacobowits for respondent.
   Order affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fxjld, Froessel, Van Voorhis and Burke.


text:
    Attoram Realty Corp., Respondent, v. Town of Greenburgh, Appellant.
    Submitted November 16, 1959;
    decided November 25, 1959.

      Paul H. Perreten for motion.

      David Gorfinkel and J. Robert Bleakley opposed.
   Motion denied upon the ground that an appeal lies as of right (Civ. Prac. Act, § 588, subd. 1, par. [a]).


text:
    George Bereswill, Respondent, v. Philip A. Yablon et al., Appellants, et al., Defendant.
    Submitted November 16, 1959;
    decided November 25, 1959.

      Martin Shulman for motion.

      Harry Zimmerman opposed.
   Motion to amend remittitur denied.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Van Voorhis and Burke. Judge Froessel dissents and votes to grant the motion.


text:
    Hope N. Gardner, Respondent, v. R. J. Le Boeuf, Jr., et al., Constituting the Board of Trustees of the Incorporated Village of Old Westbury, Appellants.
    Submitted November 16, 1959;
    decided November 25, 1959.

      Philip Huntington and J. Oakey McKnight for motion.

      Henry Root Stern, Jr., opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and is, therefore, not covered by subdivision 2 of section 589 of the Civil Practice Act.


text:
    In the Matter of the Arbitration between Compagnie Europeene De Participations Industrielles (C. E. P. I.) et al., Respondents, and Albert Flegenheimer, Appellant.
    Submitted November 16, 1959;
    decided November 25, 1959.

      Arnold Davis and Werner Galleski for motion.

      Saul L. Sherman opposed.
   Motion, insofar as it seeks leave to appeal from the order affirming the order granting a stay of arbitration, denied and, insofar as it seeks leave to appeal from the order affirming the order denying the motion to vacate the stay, dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of David R. Quirk, Respondent, against Joseph P. Kelly, as Commissioner of Motor Vehicles of the State of New York, Appellant.
    Submitted November 23, 1959;
    decided November 25, 1959.

      Louis J. Lefkowits, Attorney-General (Philip J. Fitzgerald of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of Twentieth Century-Fox Film Corporation, Appellant, against Lawrence E. Gerosa, as Comptroller of the City of New York, Respondent.
    Submitted October 5, 1959;
    decided November 25, 1959.

      William W. Owens for motion.

      Charles H. Tenney, Corporation Counsel (Stanley Buchsbaum and Bernard H. Sherris of counsel), opposed.
   Motion granted (Civ. Prac. Act, § 589, subd. 2).


text:
    The People of the State of New York, Respondent, v. Henry Flakes and Walter T. Green, Appellants.
    Submitted November 23, 1959;
    decided November 25, 1959.
   Motion for a further enlargement of time granted and cases set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Alvin Griffin, Appellant.
    Submitted November 23, 1959;
    decided November 25, 1959.
   Motion to have appeal heard upon the original record and typewritten briefs and for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Frederick Foss McElroy, Appellant.
    Submitted November 23, 1959;
    decided November 25, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Frank Mistretta, Appellant.
    Submitted November 23, 1959;
    decided November 25, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    Carol Smith, Appellant, v. Peter Kelly et al., Respondents.
    Argued November 16, 1959;
    decided November 25, 1959.

      Thomas Grimes and Louis J. Castellano, Jr., for motion and opposed to cross motion.

      Henry J. O’Hagan and Stanley D. Hicks opposed to motion and for cross motion.

      John D. Kelly opposed to motion.
   Motion for an order settling the record on appeal in this court by excluding therefrom the minutes of the original trial granted.

Motion to exclude from the record certain specified exhibits denied upon the ground that the motion has become academic by reason of the loss of the exhibits in the mails, without prejudice to a renewal thereof upon argument of the appeal in the event the exhibits be found prior thereto.

Cross motion to dismiss the appeal or, in the alternative, to include in the record on appeal the minutes of the original trial denied.

Cross motion to include in the record on appeal an affidavit of counsel as to the contents of certain specified exhibits denied upon the ground that it has become academic because of the agreement of the parties that the record contain the affidavit, without prejudice to respondents to move upon argument of the appeal to include said exhibits in the record in the event they be found prior thereto.


text:
    Zara Contracting Co., Inc., Respondent, v. County of Nassau, Appellant.
    Submitted November 16, 1959;
    decided November 25, 1959.
   Motion to dismiss appeal [for failure to prosecute] or, in the alternative, to preclude appellant from serving and filing a brief on the appeal herein denied. It is unnecessary to grant appellant an enlargement of time to serve and file its brief since appellant has now done so. The case is set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Maureen MacDonnell, Appellant.
    Argued October 8, 1959;
    decided December 30, 1959.

      Robert Kasnof and Florence M. Kelley for appellant.

      Frank S. Hogan, District Attorney (Peter Preiser and Richard G. Denzer of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Feoessel, Van Voorhis and Bubke.


text:
    The People of the State of New York, Respondent, v. Walter West, Appellant.
    Argued November 19, 1959;
    decided December 30, 1959.

      Edward H. Levine and Vernon C. Rossner for appellant.

      Edward S. Silver, District Attorney (William I. Siegel and David Diamond of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fbobssel and Burke. Judges Fuld and Van Voorhis dissent and vote to reverse and to dismiss the information upon the ground that the guilt of defendant was not established beyond a reasonable doubt.


text:
    The People of the State of New York, Respondent, v. George Perez and John Mangi, Appellants.
    Argued November 23, 1959;
    decided December 30, 1959.

      William N. Mairs, Jr., and Florence M. Kelley for appellants.

      Frank S. Hogan, District Attorney (Peter Preiser and Richard G. Denzer of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke. Taking no part: Chief Judge Conway.


text:
    The People of the State of New York ex rel. Charles J. Wilkinson, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Argued November 19, 1959;
    decided December 30, 1959.

      John I. O’Day for appellant.

      Louis J. Lefkowits, Attorney-General (Joseph J. Rose and Paxton Blair of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke.


text:
    Maida J. Weiser, an Infant, by Leonard Weiser, Her Guardian ad Litem, et al., Plaintiffs, v. City of New York, Appellant, and Othon Quinche et al., Respondents.
    Argued November 24, 1959;
    decided December 30, 1959.

      Charles E. Tenney, Corporation Counsel (Eugene J. Keefe and Seymour B. Quel of counsel), for appellant.

      Patrick E. Gibbons for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of Patrolmen’s Benevolent Association of the City of New York et al., Appellants, against Robert F. Wagner, Individually and as Mayor of the City of New York, et al., Respondents.
    Argued November 18, 1959;
    decided December 30, 1959.

      Mortimer B. Wolf, Charles Ballon, Harold Friedman and Hazel B. Mack for appellants.

      Charles H. Tenney, Corporation Counsel (Edward A. Doberman and Seymour B. Quel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Feoessel, Van Vooehis and Burke.


text:
    In the Matter of Harold E. Walling, Respondent, against Joseph Schechter et al., Constituting the City Civil Service Commission of the City of New York, Appellants.
    Argued October 19, 1959;
    decided December 30, 1959.

      Charles H. Tenney, Corporation Counsel (Seymour B. Quel of counsel), for appellants.

      John R. Harold for respondent.
   Order affirmed, without costs.

Concur: Chief Judge Conway and Judges Dye, Fuld, Froessel, Van Voorhis and Bueke. Taking no part: Judge Desmond.


text:
    Robert Porterfield et al., Appellants, v. Samuel Saffan, Respondent.
    Argued November 17, 1959;
    decided December 30, 1959.

      Conrad J. Lynn for appellants.

      Louis J. Brecher for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of Clarence W. Chase et al., Appellants, against Alexander A. Falk et al., Constituting the Civil Service Commission of the State of New York, Respondents.
    Argued November 18, 1959;
    decided December 30, 1959.

      Charles P. O’Brien and Justin C. Flannigan for appellants.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair and William C. Robbins of counsel), for respondents.

      William Bean Embree for Civil Service Reform Association, amicus curias.

      Millard L. Midonick for Citizens’ Committee for Children of New York, Inc., amicus curiæ.

   Order affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    Eva M. Goggin, as Administratrix of the Estate of Walter P. Goggin, Deceased, Respondent, v. Central Hudson Gas and Electric Corporation, Appellant.
    Argued November 19, 1959;
    decided December 30, 1959.

      Henry Hirschberg for appellant.

      Irving A. Green for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Burke. Judge Van Voorhis dissents and votes to reverse and to dismiss the complaint upon the ground that there is no evidence of negligence on the part of appellant resulting in the accident.


text:
    In the Matter of Irving Trust Company, Appellant, against Tax Commission of the City of New York, Respondent.
    Argued November 23, 1959;
    decided December 30, 1959.

      Leffert Holz, George Cook, III, William M. Kufeld and Walter R. Gelles for appellant.

      Charles H. Tenney, Corporation Counsel (James J. McGowan and Morris Handel of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Cowway and Judges Desmowd, Dye, Fuld, Fboessel, Vaw Voobhis and Burke.


text:
    Joseph P. Collins, Respondent, v. City of New York, Appellant, et al., Defendant.
    Argued November 24, 1959;
    decided December 30, 1959.

      Charles H. Tenney, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for appellant.

      Benjamin H. Siff for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Van Voorhis. Taking no part: Judge Burke.


text:
    The People of the State of New York, Respondent, v. Carmen De Cabia, Appellant.
    Argued November 17, 1959;
    decided December 30, 1959.

      James G. Blake for appellant.

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke.


text:
    The People of the State of New York, Respondent, v. Ramon Lopez, Appellant.
    Argued October 20, 1959;
    decided December 30, 1959.

      Jack Strauss for appellant.

      Frank D. O’Connor, District Attorney (Morton Greenspan of counsel), for respondent.
   Judgment affirmed (see People v. Liebenthal, 5 N Y 2d 876).

No opinion.

Concur: Chief Judge Conway and Judges Desmond, Van Voorhis and Burke. Judges Dye, Fuld and Froessel dissent and vote to reverse and to dismiss the complaint upon the ground that defendant’s guilt has not been established beyond a reasonable doubt.


text:
    Pasquale Nuzzo et al., Appellants, v. Joe Lapan et al., Respondents.
    Argued November 18, 1959;
    decided December 30, 1959.

      David W. Corwin for appellants.

      F. Walter Bliss and Norman Kellar for respondents.

      Joseph Kooperman for Jewish Agricultural Society, Inc., and others, amici curiæ.

      Carl O. Olson for New York Farm Bureau, Inc., amicus curiæ.

   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    M. Mal Deitch, Respondent, v. Harry Kessler et al., Appellants.
    Argued November 24, 1959;
    decided December 30, 1959.

      George J. Malinshy for Harry Kessler, appellant.

      George J. Malinshy and 1. Richard Smith for Julius Bregman and Hyman Bregman, appellants.

      Henry A. Panoff, Hyman Grill and Fred B. Grill for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fund, Froessel, Van Voorhis and Burke.


text:
    In the Matter of Franciscan Missionaries of Mary, Respondent, against W. Reginald Herdman et al., Constituting the Zoning Board of Appeals of the Town of Clarkstown, Appellants.
    Argued October 22, 1959;
    decided December 30, 1959.

      David W. Silverman and Everett J. Johns for appellant.

      Charles B. McGroddy, Jr., for respondent.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fund, Froessel, Van Voorhis and Burke.


text:
    Max Kaufman, Appellant, et al., Plaintiffs, v. Bette Zash, Individually and as Executrix of Rose Volin, Deceased, Respondent. Bette Zash, Respondent, v. Max Kaufman, Appellant.
    Argued November 16, 1959;
    decided December 30, 1959.

      S. Frederick Placer and Henry Gallop for appellant.

      Furman Greene and Edward G. Wolff for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fitld, Fboessel, Van Voorhis and Burke.


text:
    Katherine R. Balmer, Appellant, v. Frederick J. Balmer, Respondent.
    Argued November 17, 1959;
    decided December 30, 1959.

      Joseph T. Keller and Robert W. Maloney, Jr., for appellant.

      John P. McGrath and Frederick R. Adler for respondent.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Conwat and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    Angela Zappala, Appellant-Respondent, v. Upwood Realty Corp. et al., Respondents-Appellants.
    Argued November 24, 1959;
    decided December 30, 1959.

      Thomas F. Cohalan and John J. Gallione for appellant-respondent.

      John C. Boyle for respondents-appellants.
   Judgment affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of the Claim of Gus Walker, Respondent, against John Narolewski, Doing Business as Rainbow Inn & Rainbow Drive-In, et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued October 15, 1959;
    decided December 30, 1959.

      Charles Ward Brown for appellants.

      Louis J. Lefkowitz, Attorney-General (Daniel Polansky, Paxton Blair and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs to the Workmen’s Compensation Board; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Feoessel and Bueke. Judge Van Voobhis dissents and votes to dismiss the claim for the reasons stated by Justice Heblihy in his dissenting memorandum in the Appellate Division.


text:
    The People of the State of New York, Respondent, v. Elliot Moroch, Appellant.
    Argued October 23, 1959;
    decided December 30, 1959.

      Richard D. Friedman and Martin S. Friedman for appellant.

      Joseph F. Gagliardi, District Attorney (Thomas A. Facelle, Jr., of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    Michigan Modes, Inc., Respondent, v. American Ball Bearing Co., Appellant.
    Argued November 19, 1959;
    decided December 30, 1959.

      Martin Kingsley and Otto Muller for appellant.

      Gilbert Rabin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke.


text:
    The People of the State of New York, Respondent, v. Donald Schwer, Appellant.
    Argued October 23, 1959;
    decided December 30, 1959.

      Irving J. Neimark for appellant.

      Joseph F. Gagliardi, District Attorney (Arthur V. Praete of counsel), for respondent.
   Judgment reversed and information dismissed upon the authority of People v. James (4 N Y 2d 482). No opinion.

Concur: Chief Judge Conway and Judges Dye, Fuld, Froessel, Van Voorhis and Burke. Judge Desmond dissents and votes to affirm upon the ground that this is a further, unnecessary and unwise extension of People v. James (4 N Y 2d 482).


text:
    The People of the State of New York, Respondent, v. Robert Burd, Appellant, et al., Defendant.
    Argued November 23, 1959;
    decided December 30, 1959.

      Richard F. Griffin for appellant.

      Carman F. Ball, District Attorney (Robert A. Burrell of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    James Holden et al., Appellants, v. City of New York, Respondent.
    Argued November 17, 1959;
    decided December 30, 1959.

      James Holden, appellant in person and for Stephen Holden and another, appellants.

      Charles H. Tenney, Corporation Counsel (William A. Marks, Seymour B. Quel, Samuel Mandell and John Suglia of counsel), for respondent.
   Judgment affirmed, with costs, in the following memorandum: The reservation of a mere “ right of way ” under the decisions included only the right of passage over the surface of the land (Thompson v. Orange & Rockland Elec. Co., 254 N. Y. 366; Osborne v. Auburn Tel. Co., 189 N. Y. 393; Eels v. American Tel. & Tel. Co., 143 N. Y. 133; Ferguson v. Producers Gas Co., 286 App. Div. 521; Matter of Bensel, 140 App. Div. 257). No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Van Voorhis. Taking no part: Judge Burke.


text:
    The People of the State of New York, Respondent, v. Vincent Apton, Appellant.
    Argued October 19, 1959;
    decided December 30, 1959.

      Edward P. Loeser for appellant.

      Earry L. Rosenthal, District Attorney (Kenneth J. Smith of counsel), for respondent.
   Judgment reversed, the complaint dismissed and the fine remitted upon the ground that the People failed to establish beyond a reasonable doubt that defendant violated the ordinance here involved. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Feoessel and Bubke. Taking no part: Judge Van Voobhis.


text:
    The People of the State of New York, Respondent, v. Frank Mistretta, Appellant.
    Argued November 24, 1959;
    decided December 30, 1959.

      John R. Davison for appellant.

      Edward S. Silver, District Attorney (Frank Di Lalla of counsel), for respondent.
   Judgment affirmed. Appeal from an order denying a new trial on the ground of newly discovered evidence dismissed, since such an order in a noncapital case is not reviewable by this court (People v. Luciano, 275 N. Y. 547). No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Fboessel, Van Vqoehis and Bubke,


text:
    In the Matter of Fina Homes, Inc., Appellant, against John O. Young et al., Constituting the Board of Zoning Appeals of the Town of Hempstead, Respondents.
    Argued October 7, 1959;
    decided December 30, 1959.

      William S. Cohn for appellant.

      John A. Morhaus, Town Attorney (Robert M. Stein of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Burke. Judge Van Voorhis dissents and votes to reverse the order, to annul the determination and to direct the issuance of the permit upon the dissenting memorandum of Beldock and Kleineeld, JJ., in the Appellate Division.


text:
    Roger Siddall, Appellant, v. Cletus Keating et al., Respondents.
    Argued October 21, 1959;
    decided December 30, 1959.

      Roger Siddall, in person, and O. John Rogge for Roger Siddall, appellant.

      Albert R. Connelly and David L. Foster for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of the Claim of James Pignataro, Respondent, against Westchester Parkway Police Department et al., Appellants, and Special Funds Conservation Committee, Respondent. Workmen’s Compensation Board, Respondent.
    Argued October 13, 1959;
    decided December 30, 1959.

      George J. Hayes, Morris N. Lissauer and Charles G. Tierney for appellants.

      John M. Cullen for Special Fund for Reopened Cases, respondent.
   Order affirmed, with costs to the Special Funds Conservation Committee; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    George Bockman et al., Individually and as Members of the American Institute of Decorators, Suing on Behalf of Themselves and All Other Members Similarly Situated, Appellants, v. American Institute of Decorators, Respondent.
    Argued October 15, 1959;
    decided December 30, 1959.

      Jerrold M. Sonet and Daniel Levy for appellants.

      Joseph J. Corn, Jr., for respondent.
   Per Curiam.

It is our view, as it was the Appellate Division’s, that the action was prematurely brought. We pass on no other question.

In reaching the conclusion we do, we place reliance upon the acknowledgment made by counsel for the defendant American Institute of Decorators, both in his brief and in open court, that the resolution here under attack was not intended, and does not purport, to determine the issue of duality of membership, hostility or disloyalty and that, if charges are brought to expel any member because of dual membership in said American Institute of Decorators and the National Society of Interior Decorators, the American Institute will be under the necessity of proving first, that such member belongs to the National Society and, second, that that organization is hostile in its aims and purposes to the American Institute. In view of the ambiguous wording of the resolution in question and the plaintiffs’ not unreasonable claim that it reflects a prejudgment of the issues, we are sure that, if expulsion proceedings are instituted, the American Institute and its officials will conduct such proceedings with scrupulous objectivity and impartiality.

The judgment appealed from should be affirmed, with costs.

Chief Judge Conwat and Judges Desmond, Dye, Field, Froessel, Van Voorhis and Burke concur.

Judgment affirmed.


text:
    In the Matter of Jacob Blumberg et al., Respondents, against Ralph Feriola et al., Constituting the Zoning Board of Appeals of the City of Yonkers, Appellants, and Silver Distributing Co. of N. Y., Inc., Intervenor-Appellant.
    Argued October 14, 1959;
    decided December 30, 1959.

      J. Raymond Hannon, Corporation Counsel (Samuel Lawrence Brennglass and John F. Trainor of counsel), for appellants.

      Samuel Lawrence Brennglass, John F. Trainor and Samuel S. Weiner for intervenor-appellant.

      Morton N. Wekstein for respondents.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    The People of the State of New York, Respondent, v. Abe Linzer, Defendant, and Aaron Linzer, Appellant.
    Argued November 16, 1959;
    decided December 30, 1959.

      Paul A. Stone for appellant.

      Frank S. Hogan, District Attorney (Harold Roland Shapiro of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


author: Desmond, J.

text:
    The People of the State of New York, Respondent, v. James Winningham, Also Known as Jose B. Perez, Appellant.
    Argued November 25, 1959;
    decided December 30, 1959.

      Howard A. Levine for appellant.

      Frank S. Hogan, District Attorney (Peter R. Rosenblatt of counsel), for respondent.
   Order affirmed.

Concur: Chief Judge Conway and Judges Dye, Froessel, Van Voorhis and Burke. Judge Desmond dissents and votes to reverse in the following opinion, in which Judge Fuld concurs.

Desmond, J.

(dissenting). As I see it, there was a triable

issue here and serious error in refusing to try it. The question was not whether defendant was informed of his right to counsel. Defendant’s assertion was that he had not “ intelligently and understandingly waived” that right. He was never asked by the court whether he was aware of the legal effect of his guilty plea or of the implications of such a plea, including possible punishments, etc., or as to whether he knew of his right to consult with counsel before pleading or knew of his right to plead not guilty and put the State to its proof. The court should have inquired fully into the measure and quality of defendant’s understanding, since the court before the sentencing had warning from a psychiatrist’s report that defendant was a “ psychopathic personality ”, of “ borderline intelligence ” and that he was ‘ ‘ dull and unstable ’ ’. I certainly cannot agree with the People’s brief .here that “ Implicit in this designation of the petitioner was the finding that he was competent to plead to the charge and to stand trial thereupon.”

In People v. Boehm (309 N. Y. 362), where there was a similar psychiatric report, we held that if the “ defendant * * * does claim that * * * he lacked sufficient intelligence or mental capacity to understand the trial court’s monition that he was entitled to an attorney, he is free to file a further petition based upon such a claim ” (p. 369). Defendants Boehm later filed such a petition (containing allegations like those in the petition filed by this defendant) and were given a trial thereon which resulted in setting aside their conviction. The fact that this defendant was reported by the physician to be “without psychosis ” is not determinative if he lacked full understanding of his position and his rights (see Massey v. Moore, 348 U. S. 105, 108, 109; Von Moltke v. Gillies, 332 U. S. 708, 724).

The order should be reversed and the matter remitted to the Court of General Sessions for trial.

Order affirmed.


text:
    In the Matter of Eva C. Jaslow, Respondent, against New York City Employees’ Retirement System et al., Appellants.
    Argued October 22, 1959;
    decided December 30, 1959.

      Charles H. Tenney, Corporation Counsel (Edward A. Doberman and Seymour B. Quel of counsel), for appellants.

      Joseph M. Lonergan for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of 5 East 71st Street, Inc., Appellant, against William E. Boyland, et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued October 19, 1959;
    decided December 30, 1959.

      Stephen W. Hanley and Aaron H. Shaffer for appellant.

      Charles H. Tenney, Corporation Counsel (Morris Einhorn and Morris Handel of counsel), for respondents.
   Order affirmed, without costs. In so deciding, we do not find that the Official Referee erred in refusing to give weight to the 1948 sale to the co-operative corporation or to the separate sales to its tenant purchasers. It is sufficient to say that evidence of the original cost of the land and building in 1946 plus evidence of the sharp increase in values since that time are enough to sustain the assessed valuations. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    Hyman Badner, Appellant, v. Fonda Container Co., Inc., et al., Respondents, et al., Defendant.
    Submitted October 15, 1959;
    decided December 30, 1959.

      Samuel Lawrence Brennglass for appellant.

      Alan Palwick and Charles E. McGuinness for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Van Voorhis and Burke. Taking no part: Judge Froessel.


text:
    In the Matter of the Accounting of First National Bank and Trust Company of Corning, as Trustee under the Will of John Maloney, Deceased, Respondent. Winifred Richar, as Executrix of Marietta M. Watson, Deceased, Respondent-Appellant ; John H. Maloney, Respondent; Joseph W. Kelly et al., Appellants.
    Argued November 20, 1959;
    decided December 30, 1959.

      Harold J. Van Opdorp for Joseph W. Kelly and others, appellants.

      Robert W. Martin for Margaret M. Rubery, appellant.

      Harry Treinin for Winifred Richar, as executrix of Marietta M. Watson, deceased, respondent-appellant.

      Robert Wightman for John H. Maloney, respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the trust; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, JFtjld, Froessel, Van Voorhis arid Burke,


author: Dye, J.

text:
    Ossining Associates, Inc., Respondent, v. City of New York, Appellant.
    Argued November 16, 1959;
    decided December 30, 1959.

      Charles H. Tenney, Corporation Counsel (Irving Genn, Seymour B. Quel and Benjamin Offner of counsel), for appellant.

      Arnold R. Krakower and Jerome L. Abrams for respondent.
   Judgment affirmed, with costs.

Concur: Chief Judge Conway and Judges Desmond, Froessel, Van Voorhis and Burke. Judge Dye dissents in the following opinion, in which Judge Fuld concurs.

Dye, J.

(dissenting). I dissent and vote to reverse and to reinstate the judgment of Trial Term. The alleged encroachments under the circumstances were not at all substantial. If we may assume that the objections now raised were valid when the encroachments were first discovered, such defects were curable and were waived by the agreement extending the closing to June 23, 1950 in consideration of the vendee’s additional payment of $25,000, as well as subsequent extensions made with full knowledge of the existing encroachments (cf. Fryer v. Rockefeller, 63 N. Y. 268; Riggs v. Pursell, 66 N. Y. 193; Randolph Props, v. Crane, 263 App. Div. 95).

Judgment affirmed.


text:
    The People of the State of New York, Appellant, v. John O’Neill, Respondent.
    Argued October 19, 1959;
    decided December 30, 1959.

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for appellant.

      Louis E. Schwartz for respondent.
   Order affirmed; no opinion.

Concnr: Chief Judge Conway and Judges Desmond, Dye, Fuld, Frobssel, Van Voorhis and Burke.


author: Van Voorhxs, J.

text:
    In the Matter of William A. Dougherty, an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Argued October 16, 1959;
    decided December 30, 1959.

      John T. Cahill, James B. Henry, Jr., William A. Jansen and William Jannen, Jr., for appellant.

      Frank H. Gordon for respondent.
   Order affirmed.

Concur: Chief Judge C'onway and Judges Desmond, Dye, Fuld, Froessel and Burke. Judge Van Voorhxs dissents in the following opinion.

Van Voorhxs, J.

(dissenting). Disbarment is more severe discipline than I think would have been imposed by the Appellate Division, except for a lurking suspicion that Mr. Dougherty delivered $5,000 to the former Auditor of Public Accounts of Illinois for some evil purpose. More than a year later, this Illinois State official came into bad odor when he was widely publicized as having embezzled a great deal of public money, for which he was sent to prison. This was a Nation-wide scandal. It is not likely that Mr. Dougherty would have been disbarred except for the magnitude of this scandal and the resulting discredit of the recipient of this money who, at the time when the loan was made, was a powerful political figure in Illinois. There is no evidence in this record that Dougherty made this loan for any wrongful purpose.

The object in making the loan is a factor of much more importance than Mr. Dougherty’s attempt to conceal the transaction after the scandal had broken. He avers that his motive for concealment was the realization that anyone having had anything to do with Hodge would have been condemned in the minds of the public, however innocent the transaction might have been. As the pending disciplinary proceeding stands, the existence of any illicit relationship between appellant and Mr. Hodge is wholly conjectural. The disbarment of Mr. Dougherty leads me to believe that the Appellate Division acted on this conjecture. Some disciplinary action was doubtless in order, nor do 1 question the jurisdiction of the Appellate Division, nevertheless, disciplinary proceedings against attorneys must be conducted on the basis of facts established by evidence and not assumed on suspicion or surmise.

The order of disbarment should be reversed, and the proceeding remanded to the Appellate Division for reconsideration of the penalty to be imposed.

Order affirmed.


text:
    Margaret A. Berg, an Infant by Robert Berg, Her Guardian ad Litem, Plaintiff, and Robert Berg, Respondent, v. Town of Huntington, Appellant, et al., Defendant. Town of Huntington, Third-Party Plaintiff-Appellant, v. Margaret Berg, Third-Party Defendant-Respondent.
    Argued October 5, 1959;
    decided December 30, 1959.

      Richard C. Cahn, Charles T. Matthews and Irving Cahn for appellant and third-party plaintiff-appellant,

      Sidney J. Loeb and M. MacDonald Robison for respondent and third-party defendant-respondent.
   Judgment affirmed, with costs. Since the town may here be held liable in damages to plaintiff only on evidence that it was guilty solely of active negligence, the town is not privileged to proceed against other alleged tort-feasors. Consequently, its cross claim and third-party complaint were properly dismissed. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of the Estate of William Isensee, Deceased. Frieda Braunig, as Executrix of William Isensee, Deceased, et al., Respondents; Joseph H. Cohen et al., Appellants.
    Argued November 23, 1959;
    decided December 30, 1959.

      Joseph Henry Cohen, appellant in person and for Gerald Donovan and others, appellants.

      Meyer Kraushaar for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    Illinois McGraw Electric Co., Respondent, v. John J. Walters, Inc., Appellant.
    Argued November 16, 1959;
    decided December 31, 1959.

      George J. Malinsky for appellant.

      Joseph Miller and Henry Uttal for respondent.
   Per Curiam.

We agree with the courts below that defendant’s claim that plaintiff has assumed and breached general distributorship obligations to the defendant raises no triable issue, and that that part of the first defense and counterclaim set forth in defendant’s answer was properly struck with leave to defendant to replead claims arising out of alleged “ service and repairing” obligations (Rules Civ. Prae., rule 113, subd. 5). Moreover, the Special Term correctly dismissed the first defense and counterclaim as being defectively pleaded since no facts are set forth specifying the extent and nature of the alleged service and repairing ’ ’ obligations, and how they were breached.

However, the Appellate Division allowed counterclaims to remain or to be repleaded for at least $50,000 while the complaint demanded judgment for only $7,507.65 and awarded summary judgment to the plaintiff in the sum of $6,783,19. This violates the well-established rule that it is improper to award summary judgment while there exists a meritorious counterclaim for an amount equal to or greater than that demanded in the complaint (Treacy v. Melrose Paper Stock Co., 269 N. Y. 155; Hellmuth v. Brandin, 3 A D 2d 997; Dietz v. Glynne, 221 App. Div. 329; see, also, Spruce Hill Homes v. Brieant, 288 N. Y. 309). This rule applies to this case even though defendant has not disputed the sale, delivery and price of the goods as alleged in the complaint. “ The counterclaims pleaded not only tend to diminish but to defeat the plaintiff’s recovery (Civ. Prac. Act, § 266), because if allowed they exceed the plaintiff’s demand. ’ ’ (Dietz v. Glynne, supra, p. 330.)

The judgment appealed from, insofar as it awards summary judgment for $6,783.19, should be reversed, without costs, and the motion denied to that extent. The order, insofar as it affirms the order of Special Term dismissing the first defense and counterclaim with leave to replead but limiting it to any “service and repairing” claim, should be affirmed, and the question certified answered in the affirmative.

Chief .Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Judgment insofar as it awards summary judgment reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the opinion herein. Order, insofar as it affirms the order of Special Term dismissing the first defense and counterclaim with leave to replead but limiting it to any “ service and repairing ” claim, affirmed, without costs. Question certified answered in the affirmative.


text:
    In the Matter of Frank J. Centner et al., Appellants, against George P. Monaghan, as Police Commissioner of the City of New York, Respondent.
    Argued November 20, 1958;
    decided December 30, 1959.

      Alfred Giardino, Joseph Lorenz and John F. X. Finn, Jr., for Walter D. Barbuck, Francis W. Barron, Frank J. Centner, Edward T. Cugell, James W. Flynn, John A. Gilgan, John F. Harris, John W. Herlihy, Max Lieberman, Walter J. Malone, Edward F. Morton, Francis P. Moynihan, Lucino P. Nacciaroni, Boceo J. Pancaldo, Daniel A. Began, Thomas F. Booney, Jr., Isadore Schwal, Herman Schwartzberg and Edward Scro, appellants.

      Harris B. Steinberg and Herbert L. Scharf for Morris J. Coon, appellant.

      Philip V. Manning for Edward J. Kapple, appellant.

      Charles H. Tenney, Corporation Counsel (Victor J. Herwitz and Seymour B. Quel of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Judges Desmond, Dye, Froessel and Van Voorhis. Chief Judge Conway and Judge Fuld dissent and vote to reverse the order insofar as it affects appellants Centner, Coon, Flynn, Herlihy, Malone, Pancaldo and Schwartzberg, upon the ground that the evidence against them does not meet the standard prescribed and demanded by our decision in Matter of Evans v. Monaghan (306 N. Y. 312). Taking no part: Burke, J.


text:
    Thomas P. Dinnean et al., Appellants, v. David C. Liebler et al., Respondents.
    Submitted November 16, 1959;
    decided December 30, 1959.

      William W. Bullis and Walter A. Fullerton for motion.

      George J. Malinsky opposed.
   Motion granted upon condition that plaintiffs file their notice of appeal as required by section 562 of the Civil Practice Act within 20 days.


text:
    Julio Gonzalez, as Administrator of the Estate of Amalio Gonzalez, Deceased, Appellant, v. Mildred P. Van Nostrand, as Administratrix of the Estate of William Van Nostrand, Deceased, Respondent.
    Decided December 30, 1959.
   Appeal withdrawn.


text:
    The People of the State of New York, Plaintiff, v. Norman Brabson, Defendant.
    Submitted October 5, 1959;
    decided December 30, 1959.

      Bella V. Dodd for motion.

      Frank S. Hogan, District Attorney (Charles W. Manning of counsel), opposed.
   Motion dismissed upon the ground that the Court of Appeals lacks jurisdiction to entertain it.


text:
    In the Matter of New York Compensation Insurance Rating Board, Its Members, Individually and as an Association, and Its Subscribers, Appellants, against Superintendent of Insurance of the State of New York, Respondent.
    Submitted November 23, 1959;
    decided December 30, 1959.

      John P. McGrath and Denis B. Sullivan for motion.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair, Samuel A. Hirshowits and George K. Bernstein of counsel), opposed.
   Motion granted [see 7 N Y 2d 708, 746],


text:
    The People of the State of New York, Respondent, v. Irving Zelkowitz, Appellant. (Five Cases.)
    Submitted November 16, 1959;
    decided December 30, 1959.
   Motion to have appeals heard upon the original records and for enlargement of time granted and cases set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York ex rel. Frank Vischi, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Submitted November 23, 1959;
    decided December 30, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Charles F. Crimi, Esq., M & T Building, Buffalo, New York, assigned as counsel to appellant on the appeal herein.


text:
    Edmund A. Schillawski et al., Appellants, v. State of New York, Respondent. S. E. B. Holding Corporation, Appellant, v. State of New York, Respondent.
    (Claim No. 32769.) (Claim No. 32760.)
    Submitted October 19, 1959;
    decided December 30, 1959.
   Motion to have appeal heard upon the original record together with printed additional papers and briefs granted.


text:
    Albert Stockman, Appellant, v. White Motor Company of Canada Limited, Respondent.
    Submitted November 16, 1959;
    decided December 30, 1959.

      Dean E. Higgins for motion.

      William D. Hassett and Ogden R. Brown opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Amedeo Vastola et al., Appellants, v. Sal Canariato et al., Respondents.
    Submitted November 23, 1959;
    decided December 30, 1959.

      Samuel B. Weingrad for motion.

      Thomas J. Flood and William J. Regan opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Chester Zdolinski, Appellant, v. Kreuger Trucking Company, Inc., et al., Respondents.
    Submitted November 23, 1959;
    decided December 30, 1959.
   Motion to dismiss appeal dismissed as academic. Appeal withdrawn.


text:
    In the Matter of Moe Kaplan et al., Respondents, against Thomas B. Rohan et al., Constituting the State Liquor Authority of the State of New York, Appellants.
    Argued November 24, 1959;
    decided December 30, 1959.

      Emanuel D. Black and Hyman Amsel for appellants.

      Lazarus I. Levine and Monroe I. Katcher, II, for respondents.
   Appeal dismissed, with costs, upon the ground that appellants are not parties aggrieved.


text:
    In the Matter of Rene Lang, Respondent, against Marion Lang, Also Known as Marion Rothstein, Appellant.
    Submitted January 4, 1960;
    decided January 5, 1960.

      Bernard Friedman and James J. Regan for motion.

      Leonard Hemley opposed.
   Motion granted provided that appellant furnish, on or before January 6,1960, an undertaking to respondent in the amount of $3,000 conditioned upon her compliance with any final order that may be entered in the proceedings below based upon the order of the Court of Appeals. Case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Stanley Skinner Corwin, Appellant.
    Submitted January 4, 1960;
    decided January 5, 1960.
   Motion for enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Lawrence Denmark, Appellant.
    Submitted January 4, 1960;
    decided January 5, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Carmine Di Biase, Appellant.
    Submitted January 4, 1960;
    decided January 5, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. John Dioguardi and John J. McNamara, Respondents.
    Submitted January 4, 1960;
    decided January 5, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Charles Glinton, Appellant.
    Submitted January 4, 1960;
    decided January 5, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Alvin Griffin, Appellant.
    Submitted January 4, 1960;
    decided January 5, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Gerald Olson, Appellant.
    Submitted January 4, 1960;
    decided January 5, 1960.
   Motion for enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    Anna Lorenzo, as Executrix of Antonio Lorenzo, Deceased, Appellant, v. Antonio Bussin, Respondent.
    Submitted January 4, 1960;
    decided January 7, 1960.
   Motion for an extension of time denied.

Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellant serves and files an undertaking on appeal and pays $10 costs and, within 20 days, files the return on appeal, in which events motion denied.


text:
    F. Sutherland Macklem, Appellant, v. Marine Park Homes, Inc., et al., Respondents.
    Submitted January 4, 1960;
    decided January 7, 1960.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion unless, within 20 days, appellant files the return on appeal and pays $10 costs, in which events motion denied.


text:
    Ralph E. Marson, Appellant, v. William L. Darrow, Defendant, and Massachusetts Bonding and Insurance Company, Individually, Severally and Jointly, Respondent.
    Submitted January 4, 1960;
    decided January 7, 1960.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellant serves and files an undertaking on appeal and pays $10 costs and, within 20 days, files the return on appeal, in which events motion denied.


text:
    In the Matter of Robert Battipaglia, Appellant, against Executive Committee of the Democratic County Committee of the County of Queens, by Warren J. O’Brien, Its Treasurer, et al., Respondents.
    Submitted January 4, 1960;
    decided January 7, 1960.

      Henry W. Schober for motion.

      Benjamin S. Rosenthal opposed.
   Motion for stay dismissed upon the ground that it has become moot.

Motion to have appeal heard upon the original record granted.


text:
    In the Matter of the Accounting of Kings County Trust Company, as Temporary Administrator of the Estate of Hyman Meerbaum, Deceased. In the Matter of the Intermediate Accounting of Tillie R. Meerbaum et al., as Administrators of the Estate of Hyman Meerbaum, Deceased. Josef Meerbaum, Appellant; Rothstein & Korzenik, Respondent.
    Submitted January 4, 1960;
    decided January 7, 1960.

      Milton L. Fleiss and Samuel P. Shapiro for motion.

      Samuel Rothstein opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution,


text:
    In the Matter of the Claim of Andrew Pjatak, Appellant, against City of New York, Respondent. Workmen’s Compensation Board, Respondent.
    Submitted January 4, 1960;
    decided January 7, 1960.
   Motion to dismiss appeal withdrawn.


text:
    Celia D. Peare, as Administratrix of the Estate of Samuel G. Peare, Deceased, Appellant, v. Jerry C. Griggs et al., Doing Business as Griggs Trucking Company, Respondents.
    Submitted January 4, 1960;
    decided January 7, 1960.
   Cross motion to have appeal heard upon all available copies of the record before the Appellate Division and upon typewritten additional papers and briefs granted.


text:
    The People of the State of New York, Respondent, v. Irving Engel, Appellant.
    Submitted January 4, 1960;
    decided January 7, 1960.
   Motion to dismiss appeal denied.

Application for enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals. Appeal to be heard upon the original record and printed briefs..


text:
    The People of the State of New York, Respondent, v. Ivory Mason, Appellant.
    Submitted January 4, 1960;
    decided January 7, 1960.
   Application to amend remittitur to state that a Federal question was involved on the appeal herein denied [see 7 N Y 2d 768].


text:
    The People of the State of New York, Respondent, v. Joseph L. Mathews, Appellant.
    Submitted January 4, 1960;
    decided January 7, 1960.
   Motion for enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    In the Matter of the Arbitration between Rapid-American Corporation, Respondent, and Matthew B. J. Quinn, Appellant.
    Argued January 4, 1960;
    decided January 14, 1960.

      Paul A. Crouch and George S. Pickwick for appellant.

      Benjamin Spiegel and Raymond S. Harris for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Zara Contracting Co., Inc., Respondent, v. County of Nassau, Appellant.
    Argued January 4, 1960;
    decided January 14, 1960.

      G. Burchard Smith, County Attorney (Harold E. Collins of counsel), for appellant.

      Emanuel Harris and Max E. Greenberg for respondent.
   Judgment affirmed, with costs. The Official Beferee correctly found that defendant county had not abandoned the contract as a whole. His findings in respect to damages, as affirmed by the Appellate Division, were not based on the difference between the amount paid by the county and the quantum meruit value of the work as a whole nor upon quantities of work estimated but not performed, but were based on the separate quantum meruit value of the additional work performed in connection with the uncontemplated changes, delays and interruptions ordered and occasioned by defendant’s breach of the contract conditions and specifications. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Civic Association at Roslyn Country Club, Inc., Plaintiff, and Mildred Brownstein et al., Individually and on Behalf of All Other Property Owners in the Development Area Known as “ Roslyn Country Club ”, in the Town of North Hempstead, Similarly Situated, Appellants-Respondents, v. Levitt and Sons Incorporated et al., Respondents-Appellants.
    Argued January 4, 1960;
    decided January 14, 1960.

      Joseph Calderon, Irwin Karp, Elias Messing and Irving B. Stewart for appellants-respondents.

      Benjamin Heller and Nathaniel Taylor for respondents-appellants.
   Judgment affirmed, without costs. The sales brochure, subdivision maps and commencement of performance by defendants of these representations are sufficient to estop them from denying the existence of easements for the use of this property for the recreational purposes on the terms described in the report of the Official Referee as modified by the Appellate Division (White v. La Due & Fitch, 303 N. Y. 122, 127-128; Phillips v. West Rockaway Land Co., 226 N. Y. 507; Hofmann v. Hofmann, 172 Misc. 378, affd. 259 App. Div. 820, mod. 283 N. Y. 730). The circumstance that the enjoyment of these privileges is conditioned upon payment of a sum of money to cover taxes, maintenance and operating expenses and a fair profit to the owner and operator of the club premises is not inconsistent with this result (Wilkinson v. Nassau Shores, 1 Misc 2d 917, affd. 278 App. Div. 970, mod. 304 N. Y. 614). No issue is raised concerning defendants ’ obligation to continue to operate this facility for any particular period of time, nor the extent of plaintiffs’ rights in event that operation is discontinued. We hold, without deciding those questions, that for so long as this facility is operated by defendants it must be operated on the terms above mentioned. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Van Voorhis and Foster. Judges Fuld, Froessel and Burke dissent and vote to reverse the judgment appealed from insofar as it modifies the decree made by the Official Referee, dated May 16, 1958, and to reinstate said decree.


text:
    Sondra Sands et al., Plaintiffs, v. Madeline V. Klein, as Executrix of Samuel M. Klein, Deceased, Doing Business as Kew Gardens General Hospital, Appellant, and Sanford Kaminester, Respondent.
    Argued January 5, 1960;
    decided January 14, 1960.

      Howard E. Levitt and Sidney N. Zipser for appellant.

      Sol I. Kroll and Arnold Davis for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. Walter Raymond Smart, Appellant.
    Argued January 5, 1960;
    decided January 14, 1960.

      Max Weisler and Florence M. Kelley for appellant.

      Darnel V. Sullivan, District Attorney (Walter E. Dillon of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Ftjld, Froessel, Van Voorhis, Burke and Foster.


text:
    Chili Trading Post, Inc., Appellant, v. Frank W. Moffett, Respondent.
    Submitted January 4, 1960;
    decided January 14, 1960.

      Mitchell T. Williams for motion.

      George J. Shinnick opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    William Diemer, Appellant, v. Gilberte Diemer, Respondent.
    Submitted January 11, 1960;
    decided January 14, 1960.
   Motion for leave to submit legible typewritten briefs on the appeal herein granted.


text:
    Margaret P. Duffy, as Administratrix of the Estate of Thomas J. Duffy, Deceased, Respondent-Appellant, v. City of New York et al., Appellants-Respondents.
    Submitted January 4, 1960;
    decided January 14, 1960.
   Motion to have three appeals heard upon a single record with printed additional papers on condition that each party contribute one third of the cost of printing the additional papers denied.


text:
    Kiamesha Concord, Inc., Respondent, v. Michael J. Halpern, Appellant.
    Submitted January 11, 1960;
    decided January 14, 1960.

      Stephen L. Oppenheim for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that an appeal does not lie as of right.


text:
    Edward L. Kinne, Appellant, v. State of New York, Respondent.
    (Claim No. 33178.)
    Submitted January 11, 1960;
    decided January 14, 1960.
   Motion for an extension of time to file the return on appeal herein withdrawn.


text:
    Michael Le Glaire, as Administrator of the Estate of Shushanna Le Glaire, Deceased, Appellant, v. New York Life Insurance Company, Respondent.
    Argued January 7, 1960;
    decided January 14, 1960.

      Arnold B. Elkind and Irwin R. Karassik for motion.

      Harry F. X. Hammer and Lee M. Gammill opposed.
   Application granted and appeal dismissed, with $20 costs and necessary printing disbursements.


text:
    Delbert Lyndsley et al., Appellants, v. Loyal Order of the Moose No. 1382, Respondent.
    Argued January 8, 1960;
    decided January 14, 1960.

      Lee Towne Adams and Charles C. Kysor for motion.

      John Y. Gallup opposed.
   Application granted and appeal dismissed, without costs.


text:
    In the Matter of the Dissolution of Cedar Grove Homes, Inc., a Corporation. Nick De Martini, Appellant; John Cappo et al., Respondents.
    Submitted January 4, 1960;
    decided January 14, 1960.

      George K. Weldon for motion.

      James E. Doherty, Jr., opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of an Application for the Certification of Doris Coates, an Alleged Mentally Ill Person. Doris Coates, Appellant; Guy M. Waters, as Medical Officer of Rochester State Hospital, Respondent.
    Submitted January 11, 1960;
    decided January 14, 1960.
   Motion for leave to prosecute appeal as a poor person granted.


text:
    In the Matter of the Claim of Margaret Gorsky, Appellant, against City of New York, et al., Respondents, and Special Funds Conservation Committee, Respondent. Workmen’s Compensation Board, Respondent.
    Submitted January 4, 1960;
    decided January 14, 1960.
   Motion for substitution of attorneys granted and Stanley Sher, Esq., and Herbert L. Levy, Esq., of 320 Broadway, New York City, assigned as counsel to appellant on the appeal herein.


text:
    In the Matter of Max Gross, Respondent, against New York City Alcoholic Beverage Control Board et al., Appellants.
    Submitted January 11, 1960;
    decided January 14, 1960.

      Monroe I. Katcher, II, for motion.

      Hyman Amsel and John J. Hyland opposed.
   Motion denied. Case set down for argument on February 23, 1960,


text:
    Anna McCormick et al., Appellants, v. West Tremont Estates, Inc., Respondent.
    Argued January 5, 1960;
    decided January 14, 1960.

      John T. DeGraff, Richard T. Graham, Raymond E. Stefferson and Patrick J. Hughes for motion.

      Solomon Boneparth and William J. Tropp opposed.
   Application granted and appeal dismissed, with $20 costs and necessary printing disbursements.


text:
    The People of the New York, Respondent-Appellant, v. Gerard J. Brinkman, Appellant-Respondent. The People of the State of New York, Respondent, v. Dominic Clemente, Appellant.
    Submitted January 11, 1960;
    decided January 14, 1960.
   Motion for a further enlargement of time granted and cases set down for argument during the first week of the February, 1960 session of the Court of Appeals. Any further briefs to be served and filed not later thap February 15, I960.


text:
    The People of the State of New York, Respondent, v. Frederick Foss McElroy, Appellant.
    Submitted January 11, 1960;
    decided January 14, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Luther Montgomery, Appellant.
    Submitted January 11, 1960;
    decided January 14, 1960.
   Motion for assignment of counsel granted and Anthony F. Marra, Esq., of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.

Motion to have appeal heard upon the original record granted.


text:
    In the Matter of the Estate of Minerva Berrios, Deceased. Dario Berrios, Respondent; Carmen R. Alequin, Appellant. In the Matter of the Estate of Anibal Berrios, Deceased. Dario Berrios, Respondent; Carmen R. Alequin, Appellant. The People of the State of New York ex rel. Carmen Rita Alequin, Appellant, against Dario Berrios, Respondent.
    Submitted January 4, 1960;
    decided January 14, 1960.
   Motion for leave to prosecute appeals as a poor person granted.


text:
    Mervyn Robitzek, Appellant, v. Reliance Intercontinental Corp., Respondent.
    Submitted January 4, 1960;
    decided January 14, 1960.
   Motion to preclude appellant from filing a brief on the appeal herein denied. Case set down for argument during the February, 1960 session of the Court of Appeals. Appellant’s brief, if any, to be served and filed on or before February 10, 1960.


text:
    In the Matter of Jeremiah Hickey, Appellant, against Joseph P. Kelly, as Commissioner of Motor Vehicles, Respondent.
    Submitted January 18, 1960;
    decided January 19, 1960.
   Motion for stay granted pending the hearing and determination of the appeal and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Henry Flakes and Walter T. Green, Appellants.
    Submitted January 18, 1960;
    decided January 19, 1960.
   Motion by respondent for a further enlargement of time denied.


text:
    Burdette R. Tompkins et al., Appellants, v. State of New York, Respondent.
    (Claim No. 34193.)
    Argued January 5, 1960;
    decided January 21, 1960.

      Carroll J. Mealey for appellants.

      Louis J. Lefkowits, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for respondent.
   Judgment reversed, with costs to appellants in this court and in the Appellate Division, and the order of the Court of Claims denying the motion to dismiss the claim reinstated. The first cause of action is sufficient since it alleges a continuing wrong by the State in maintaining an improperly constructed highway. As to the State’s further ground for dismissal — that the notice of intention and claim were not timely filed — the claim does not on its face show that it is barred by any Statute of Limitations, The State, of course, will not be barred at the trial from proving such untimeliness if it be the fact. We do not rule on the State’s challenge to the sufficiency of the second, third and fourth causes of action. Since, as above stated, the first cause of action alleges ground for relief, the claim “ is immune from attack for insufficiency, even though it may contain additional allegations that are inadequate to charge any further cause of action ’ ’ (Rager v. McCloskey, 305 N. Y. 75, 80). No opinion.

Concur: Chief Judge Desmond and Judges Die, Fuld, Froessel, Van Voorhis and Burke, Taking no part; Judge Foster.


text:
    Miriam Robinson et al., Appellants, v. New York City Housing Authority, Respondent.
    Submitted January 6, 1960;
    decided January 21, 1960.

      Max Schlissel, Harry Zeitlan and Bennett E. Aron for appellants.

      Jacob L. Rothstein and Bernard Helfenstein for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    In the Matter of the Arbitration between Walter B. Kessler, Appellant, and National Casualty Company, Respondent.
    Submitted January 6, 1960;
    decided January 21, 1960.

      F. Richard, Sussman for appellant.

      Robert F. Bowling for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    United Equities, Inc., Appellant, v. Mardordic Realty Co., Inc., Respondent.
    Argued January 11, 1960;
    decided January 21, 1960.

      Harold H. Levin for appellant.

      Joseph M. Callahan, Joseph B. Shaughnessy and Lawrence S. Pratt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    In the Matter of George Barone, Appellant. Waterfront Commission of New York Harbor, Respondent. In the Matter of Douglas Rago, Appellant. Waterfront Commission of New York Harbor, Respondent.
    Argued January 12, 1960;
    decided January 21, 1960.

      Gilbert S. Rosenthal for appellants.

      Irving Malchman, William P. Sirignano and Jerome J. Klied for respondent.
   In each proceeding: Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    William J. Bernat et al., Appellants, v. Echo Society of Niagara Falls, N. Y., Incorporated, Respondent.
    Argued January 6, 1960;
    decided January 21, 1960.

      Ira M. J. Hovey and Abraham R. Kushner for appellants.

      Sigismund M. Lopacki for respondent.
   Judgment reversed and new trial granted, with costs to abide the event. The court erred in dismissing the complaint at the close of plaintiffs’ case since questions of fact were presented (1) as to whether plaintiffs had adverse possession of the land in dispute under a claim of title, and (2) as to whether they were entitled to “tack” their possession onto that of their predecessors in order to establish an adverse holding for the requisite statutory period. (Civ. Prac. Act, § 40; see, also, Belotti v. Bickhardt, 228 N. Y. 296, 302, 306; Barnes v. Light, 116 N. Y. 34, 37, 39.) No opinion. Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    James Carolan et al., Appellants, v. Sol Fieber et al., Respondents, et al., Defendant. City of New York, Respondent, v. James Carolan et al., Appellants.
    Argued January 8, 1960;
    decided January 21, 1960.

      John Windsor for appellants.

      Charles H. Tenney, Corporation Counsel (Benjamin Offner, Seymour B. Quel and Joseph Brandwen of counsel), for City of New York, respondent.

      Abraham Apat and Gerrard S. Johnson for Louis Einsidler & Sons, Inc., respondent.

      Murray H. Greenspan for Sol Fieber, respondent.
   Judgment and order affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fund, Fboessel, Van Voobhis and Fosteb. Taking no part: Judge Btjbke. .


text:
    Attoram Realty Corp., Respondent, v. Town of Greenburgh, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.

      David Gorfinkel for motion.

      Paul H. Perreten opposed.
   Motion denied.


text:
    Robert W. Ando, Appellant, v. Essie M. Woodberry et al., Respondents.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Motion to have appeal heard upon at least five available copies of the record before the Appellate Division together with printed additional papers and printed briefs granted.


text:
    I. William Garfield, Appellant, v. Bernard J. Gillroy, Respondent.
    Submitted January 4, 1960;
    decided January 21, 1960.

      Milton gelman, Abraham J. Asche and Alvin L. Arnold for motion.

      Charles H. Tenney, Corporation Counsel (Seymour B. Quel and Fred Iscol of counsel), opposed.
   Motion denied upon the ground that an appeal lies as of right.


text:
    Morris Lorberblatt, Appellant, v. D. A. Gerst, Inc., Respondent.
    Submitted January 4, 1960;
    decided January 21, 1960.

      Jacob L. Rothstein and Bernard Helfenstein for motion and opposed to cross motion.

      Dora Aberlin opposed to motion and for cross motion.
   Motion to dismiss appeal taken by plaintiff’s notice of appeal dated December 11, 1959 granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the appeal does not lie as of right (Civ. Prac. Act, § 588, subd. 1; N. Y. Const., art. VI, § 7, subd. [1]; see, also, Topp v. Casco Prods. Corp., 7 N Y 2d 742). Appeal taken by plaintiff’s notice of appeal dated December 24,1959 dismissed upon the ground that the order sought to be appealed from does not finally determine the matter within the meaning of the Constitution.

Cross motion to dispense with the service and filing of an undertaking dismissed,


text:
    Bernard C. Madden et al., Respondents, v. Charles T. Atkins, Individually and as President of New York Association No. 88 of Masters and Mates of the National Organization Masters, Mates and Pilots of America, Inc., et al., Appellants.
    Submitted January 4, 1960;
    decided January 21, 1960.

      John R. Harold for motion.

      Marvin Schwarts, Betty Olchin and Herbert Semel opposed.
   Motion granted and appeals dismissed, with costs and $10 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Metropolitan Funeral Directors Association, Inc., et al., Respondents, v. E. Joseph Zebrowski et al., Appellants.
    Submitted January 4, 1960;
    decided January 21, 1960.

      Bernard H. Fitzpatrick for motion.

      George Goodstein and Leonard Rovins opposed.
   Motion dismissed, with $10 costs, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Arthur Benjamin, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Motion by Elliot L. Hoffman, Esq., to be relieved of his assignment as counsel for appellant granted and Harold A. Meriam, Jr., Esq., of 177 Montague Street, Brooklyn, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Edward C. Davis, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Cross motion to dismiss appeal granted and appeal dismissed upon the ground that defendant’s application for a certificate was not made within the time specified in section 521 of the Code of Criminal Procedure.


text:
    The People of the State of New York, Appellant, v. John Evans, Respondent.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Motion for enlargement of time granted and case set down, for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Salvatore Giordano, Alias “ Joseph Pappa ”, Alias “ James Russo”, Alias “James Costello”, Alias “Salvatore Giordana”, Alias “ James Giordano”, Alias “Joseph Cosenza ’ ’, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Motion to have appeal heard upon the usual number of printed copies of the record plus seven printed copies of the record on the motion for a new trial granted.


text:
    The People of the State of New York, Respondent, v. Frank Kolakowski, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Motion for assignment of counsel granted and Nathan A. Bork, Esq., of 17 Court Street, Buffalo, New York, assigned as counsel to appellant on the appeal herein. The appeal may he heard upon the original record and printed briefs.


text:
    The People of the State of New York, Respondent, v. Thomas McCollum, Amended to Thomas Michael McCollum, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Application to have appeal heard upon the original record and for assignment of counsel granted and John A. Murray, Esq., of 74 Chapel Street, Albany, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. John O’Rourke, Appellant, et al., Defendants.
    Argued January 11, 1960;
    decided January 21, 1960.

      Arthur Karger for motion.

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), opposed.
   Motion dismissed upon the ground that the order sought to be appealed from is not a final order in a civil special proceeding but an interlocutory order in a criminal cause and not appeal-able to the Appellate Division.


text:
    The People of the State of New York, Respondent, v. Lawrence Denmark, Appellant. The People of the State of New York, Respondent, v. Walter Raymond Smart, Appellant. The People of the State of New York, Respondent, v. Bobby Lee Sams, Appellant. The People of the State of New York ex rel. Bobby Lee Sams, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent. The People of the State of New York, Respondent. The People of the State of New York, Respondent, v. Thomas P. Hannigan, Appellant. The People of the State of New York, Respondent, v. Alvin Griffin, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.
   In each of the above-entitled actions, motion for an order substituting counsel for appellant on the appeal granted and Anthony F. Marra, Esq., of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal in the place and stead of Florence M. Kelley.


text:
    The People of the State of New York, Respondent, v. Myron E. Wilson, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Motion for enlargement of time granted and case set down for argument during the February, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Irving Zelkowitz, Appellant. (Five Cases.)
    Submitted January 18, 1960;
    decided January 21, 1960.
   Motion for enlargement of time granted and case set down for argument during the March, 1960 session of the Court of Appeals.


text:
    Dorothy W. Temple, Respondent, v. Philip Liebmann, Appellant.
    Submitted January 18, 1960;
    decided January 21, 1960.

      Robert A. Chuck for motion.

      Ephraim London opposed.
   Motion granted upon the condition that appellant, within 10 days, file the return on appeal and pay $10 costs; otherwise, motion denied. We do not consider at this time whether or no a substantial constitutional question is directly involved.


text:
    Cleophas Thomas, Appellant, v. New York City Housing Authority, Respondent.
    Submitted January 18, 1960;
    decided January 21, 1960.
   Motion for leave to prosecute appeal as a poor person granted.


text:
    John Wattawa, Appellant, v. Federico Stallforth, Defendant, and Woodstock-Webster Corporation, Respondent.
    Submitted January 11, 1960;
    decided January 21, 1960.

      John E. Egan for motion.

      Howard C. St. John opposed.
   Motion granted upon the ground that the motion was not made within the time prescribed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    In the Matter of Lion Brewery of New York City, Appellant, against Robert C. Weaver, as State Rent Administrator, Respondent, and Lawrence Berenson, Intervenor-Respondent.
    Argued January 13, 1960;
    decided January 22, 1960.

      Maurice R. Whitebook for appellant.

      Jacob B. Ward and Harold Zucker for respondent.

      Lawrence Berenson, intervenor-respondent in person.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Anne Leff, as Administratrix of the Estate of Jacob M. Leff, Deceased, Appellant, v. Seymour Goldstein, Defendant, and Norda Essential Oil & Chemical Company, Inc., Respondent.
    Argued January 18, 1960;
    decided January 22, 1960.

      Joseph Kelner and Benjamin H. Siff for appellant.

      Herman J. McCarthy and William S. O’Connor for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burice and Foster,


text:
    Andrew Golia, Appellant, et al., Plaintiffs, v. Health Insurance Plan of Greater New York et al., Defendants, and Astoria Medical Group et al., Respondents.
    Argued January 14, I960;
    decided January 22, 1960.

      Donald S. Sherwood and Jerome Golenbock for appellant.

      John H. Tovey, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Fboessel, Van Voobhis, Bubble and Fosteb.


text:
    United States Fidelity and Guaranty Company, Respondent, v. Herman von Bargen et al., Appellants.
    Argued January 13, 1960;
    decided January 22, 1960.

      Hyman Herman and Sidney R. Siben for Herman von Bargen and Edgar von Bargen, appellants.

      Morris H. Schneider for Charles Towse and Robert A. E. Towse, appellants.

      Nathaniel A. Kahn and Charles H. Stoll for Karen Kosky, Dorothy Kosky, Edward Kosky and Marie Alleyrat, appellants.

      James M. Gilleran and John J. O’Connor for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Alex Michaud, Respondent, v. Leon J. Lussier et al., Appellants.
    Submitted January 15, 1960;
    decided January 22, 1960.

      Thomas A. Robinson for appellant.

      John R. Cummins for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis and Burke. Taking no part: Judge Foster,


author: Foster, J.

text:
    Harry Montfort, Respondent, v. New York Central Railroad Company, Appellant.
    Argued January 11, 1960;
    decided January 22, 1960.

      Ogden R. Brown and Thomas E. Hagmeir for appellant.

      Donald C. Brandt for respondent.
   Judgment affirmed, with costs.

Concur: Chief Judge Desmond arid Judges Dye, Fuld and Burke. Judge Foster dissents in the following opinion in which Judges Froessel and Van Voorhis concur.

Foster, J.

(dissenting). At the crossing where plaintiff’s truck was demolished when struck by a train there are four sets of tracks. The jury could find that the inner tracks over which trains run are a foot higher than the outside tracks, but there is no proof that the crossing was not planked, in fact the proof is to the contrary. The front wheels of plaintiff’s truck became caught in a deep rut of snow, at the most southerly center track, that was formed by the passage of trains. The rear wheels were on an incline and hence the truck became stalled.

The defendant railroad company had no duty to remove snow and ice from the crossing (Silberstein v. Houston, West St. & Pavonia Ferry R. R. Co., 117 N. Y. 293; Baltimore & Ohio R. R. Co. v. Howard Sober, Inc., 276 App. Div. 818). The testimony in this record does not show the angle of elevation between the outer and center tracks, or that the crossing was constructed in an unusual or dangerous manner, or not in accord with approved railroad practice.

The judgment should be reversed and a new trial granted.

Judgment affirmed.


text:
    Salvatore V. Colonna, Respondent, v. Aero Mayflower Transit Co., Inc., et al., Appellants.
    Argued January 14, 1960;
    decided January 22, 1960.

      John P. Carson for appellants.

      Irving D. Josefsberg, Samuel M. Raiskin and Seymour Metnick for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    In the Matter of Juana Lugo, a Person of Unsound Mind. Emilio Ciena, Respondent; State of New York, Appellant.
    Argued January 13, 1960;
    decided January 22, 1960.

      Louis J. Lefkowits, Attorney-General (Jerome Lefkowitz and Paxton Blair of counsel), for appellant.

      Nathan L. Levine for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis and Burke. Taking no part: Judge Foster.


text:
    Mohegan International Corporation, Appellant, v. City of New York et al., Respondents.
    Argued January 19, 1960;
    decided January 22, 1960.

      Gerald H. Ullman for appellant.

      Charles H. Tenney, Corporation Counsel (Morris L. Heath, Stanley Buchsbaum and Cornelius F. Roche of counsel), for respondents.
   Appeal dismissed, without costs, upon the ground that a direct appeal to this court does not lie as the case is not one ‘ ‘ where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States ”. (N. Y. Const., art. VI, § 7, subd. [2]; Civ. Prac. Act, § 588, subd. 4; Lapchak v. Baker, 298 N. Y. 89, 94; Liverpool £ London & Globe Ins. Co. v. Federal Commerce & Nav. Co., 298 N. Y. 924.)


text:
    The People of the State of New York, Respondent, v. Gerald Gordon, Appellant.
    Argued January 21, I960;
    decided February 25, 1960.

      Nathan Kestnbaum for appellant.

      Edward S. Silver, District Attorney (Frank Di Lalla of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessbl, Van Voorhis, Burke and Foster.


text:
    George Zarillo, Individually and as Guardian ad Litem of Margaret Zarillo, an Infant, Appellant, v. State of New York, Respondent.
    (Claim No. 33339.)
    Argued January 19, 1960;
    decided February 25, 1960.

      Irving A. Scheinberg for appellant.

      Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Feoessel, Van Voorhis and Burke. Taking no part: Judge Foster.


text:
    Maurice J. Dunn, Appellant, v. White Plains Housing Authority, Respondent, et al., Defendant.
    Argued January 20, 1960;
    decided February 25, 1960.

      James D. Maher and Warren W. Wells for appellant.

      Solomon Boneparth and William J. Tropp for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    William Wager, Respondent-Appellant, v. State of New York, Appellant-Respondent.
    (Claim No. 31236.)
    Argued January 13, 1960;
    decided February 25, 1960.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair of counsel), for appellant-respondent.

      Charles H. Gaffney and N. LeVan Haver for respondent-appellant.
   Judgment affirmed, with costs to claimant; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis and Burke. Taking no part: Judge Foster.


text:
    The People of the State of New York ex rel. Charles Stephen St. Andrews, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Argued January 20, 1960;
    decided February 25, 1960.

      William H. Emerson for appellant.

      Louis J. Lefhowits, Attorney-General (Joseph J. Rose and Paxton Blair of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Agnes M. C. Alfaro, Appellant, v. Carl E. Alfaro, Respondent.
    Argued January 12, 1960;
    decided February 25, 1960.

      Louis R. Patur and Simon Schechter for appellant.

      Richard E. Bauman for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Ernest Seaver, Appellant, v. Massachusetts Bonding and Insurance Company of Boston, Massachusetts, Respondent, et al., Defendant.
    Argued January 20, 1960;
    decided February 25, 1960.

      Philip D. O’Donnell for appellant.

      Carl J. Cochi and Frank J. Ryan for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judg’e Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. James Daniel, Also Known as James Daniell, True Name James E. Daniell, Appellant.
    Argued January 21, 1960;
    decided February 25, 1960.

      George E. Mulry for appellant.

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    John L. Keogh, Individually and as a Stockholder of Buffalo Turbine Agricultural Equipment Company, Inc., Suing on Behalf of Himself and All Other Stockholders Similarly Situated, Appellant, v. Buffalo Turbine Corporation et al., Respondents.
    Argued January 15, 1960;
    decided February 25, 1960.

      Edward H. Kavinoky and Arnold B. Gardner for appellant.

      Hugh McM. Russ, Glenn W. Woodin and Victor T. Fuzak for Buffalo Turbine Corporation, Buffalo Turbine Agricultural Equipment Company, Inc., Harry H. Whiting, Coyle E. Knowles, J. Bay Johnson, Eugene L. Fisher, Carl Harder and William E. Nauman, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Ftjld, Froessel, Van Voorhis, Burke and Foster.


text:
    Ronson Art Metal Works, Inc., Appellant-Respondent, v. Gibson Lighter Mfg. Co. et al., Defendants, and George J. Manne, Doing Business as Gibson Lighter Mfg. Co., et al., Respondents-Appellants.
    Argued January 12, 1960;
    decided February 25, 1960.

      Alfred Giardino, C. J. Pernicone and Joseph A. Byrne for appellant-respondent.

      Bernard A. Saslow and Harold A. Axel for George J. Manne, doing business as Gibson Lighter Mfg. Co., Gibson Lighter Manufacturing Corp., and Continental Merchandise Co., Inc., respondents-appellants.

      Hyman Frank for William Schimel, doing business under the name of Millgate Co., and Charles H. Fischberg & Co., Ltd., respondents-appellants.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    William Kriger et al., Respondents, v. Industrial Rehabilitation Corporation et al., Defendants, and Joseph P. Day, Inc., et al., Appellants.
    Argued January 19, 1960;
    decided February 25, 1960.

      Edward Abbe Niles for Joseph P. Day, Inc., appellant.

      Harold R. Tyler, Jr., and Daniel Mandel for General Electric Company, appellant.

      Joseph Delman and Victor Whitehorn for respondents.
   Order affirmed, with costs. All questions certified answered in the affirmative. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld. Froessel, Van Voorhis, Burke and Foster.


text:
    Big City Realty Co., Inc., Appellant, v. 896 Realty Inc., Respondent.
    Argued January 21, 1960;
    decided February 25, 1960.

      Isadore B. Hurwite for appellant.

      George Langberg and Nathan Ringel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Ritchie Construction Co., Inc., Respondent-Appellant, v. Max E. Hoffman, Appellant-Respondent, and Wood Sanitation Co., Inc., et al., Respondents, et al., Defendants.
    Argued January 6, 1960;
    decided February 25, 1960.

      Paul Wolfe for appellant-respondent.

      Leo E. Sherman for respondent-appellant.

      Leo E. Sherman for Nuroco Woodwork, Inc., respondent.

      William D. Sporborg, Jr., for Interstate Lumber & Mill Corporation, respondent.

      Nathan Norman Shuman for Wood Sanitation Co., Inc., respondent.

      Arthur A. Kaye and Eugene L. Weisbein for Welding Engineering Company, respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Fboessel, Van Voobhis, Bubke and Fosteb.


text:
    Roseann Basil, Plaintiff, v. City of New York, Defendant and Third-Party Plaintiff-Respondent. Russ Realty Corporation, Third-Party Defendant-Appellant.
    Submitted February 23, 1960;
    decided February 25, 1960.

      Emanuel Morgenbesser, Lester Samuels and Abraham Shapiro for motion.

      Charles H. Tenney, Corporation Counsel (Seymour B. Quel and Robert L. Ellis of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the Court of Appeals lacks jurisdiction to entertain it (Civ. Prac. Act, § 589, subd. 1, par. [b]).


text:
    Bessie Hellem, Appellant, v. Motor Vehicle Accident Indemnification Corporation, Respondent.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion to dismiss appeal withdrawn.


text:
    In the Matter of William A. Dougherty, an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Appellant contended that use of his testimony in the disbarment proceeding which was exacted under a grant of immunity pursuant to subdivision (e) of section 18 of the Public Utility Holding Company Act (49 U. S. Stat. 832; U. S. Code, tit. 15, § 79r, subd. [e]) violated appellant’s rights under the statute and the Fifth Amendment. The Court of Appeals held that a disciplinary proceeding was not a penalty or forfeiture within the meaning of the statute and that such testimony was properly considered in imposing disbarment on appellant. [See 7 N Y 2d 869.]


text:
    In the Matter of the Intermediate Accounting of Amanda F. Kadel, as Executrix of John Kadel, Deceased, Appellant. Joseph F. Gillis, Respondent.
    Submitted February 23, 1960;
    decided February 25, 1960.

      David M. Potts and Abraham Wilson for motion.

      Joseph F. Gillis, in person, opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Commission of Investigation of the State of New York, Appellant, against Carmine Lombardozzi, Respondent.
    Submitted February 23, 1960;
    decided February 25, 1960.

      Myron J. Greene for motion.

      Nathan SholniJc, Elliot L. Hoffman and Peter J. McQuillan opposed.
   Motion denied.


text:
    In the Matter of Patrolmen’s Benevolent Association of the City of New York et al., Appellants, against Robert F. Wagner, Individually and as Mayor of the City of New York, et al., Respondents.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will he amended hy adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Appellants contended that the exclusion of policemen from the grievance procedure provisions of Executive Order 49 violated the rights of appellants to the equal protection of the laws under the Fourteenth Amendment of the Constitution of the United States. The Court of Appeals held that the exclusion of policemen from the grievance procedure provisions of Executive Order 49 did not violate those rights under the Fourteenth Amendment. [See 7 N Y 2d 813.]


text:
    Carl E. Moore, Respondent, v. Plaza Commercial Corp., Appellant.
    Submitted February 23, 1960;
    decided February 25, 1960.

      Stanley C. Lesser for motion.

      Cecil A. Citron opposed.
   Motion denied. Appellant’s brief, if any, to be served and filed within 20 days.


text:
    Marvin Odell et al., Appellants, v. Town of Carmel et al., Respondents.
    Submitted February 23, I960;
    decided February 25, 1960.
   Motion to dismiss appeal withdrawn.


text:
    The People of the State of New York, Respondent, v. Arthur Benjamin, Appellant.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion for enlargement of time granted and case set down for argument during the April, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. Briddie Costello, Also Known as Bridget Costello, Respondent.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion for leave to file a typewritten brief on the appeal herein granted.


text:
    The People of the State of New York, Appellant, v. John Dioguardi and John J. McNamara, Respondents.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion for enlargement of time granted and case set down for argument during the April, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Ralph Downs, Appellant.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion for enlargement of time granted and case set down for argument during the March, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. William Drislane, True Name William James Drislane, Appellant.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division together with typewritten additional papers granted.


text:
    The People of the State of New York, Respondent, v. Bernard Malone, Appellant.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion for enlargement of time granted and case set down for argument during the present session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Julius Fuller, Appellant.
    Submitted February 23, 1960;
    decided February 25, 1960.
   Motion to prosecute appeal upon the original record and upon typewritten additional papers and typewritten briefs granted.