text:
    Edward C. M. Kemp et al., as Trustees under a Trust Made by Margaret K. Buchanan et al., Appellants, v. Margaret R. J. Paterson et al., Infants, by Milton Pollack, Their Guardian ad Litem, Respondents; Margaret J. E. J. Paterson, Appellant, et al., Defendants.
    Submitted January 5, 1959;
    decided January 8, 1959.
   Motion to have appeals heard upon seven printed copies of the record on appeal and seven printed copies each of the briefs of appellants, together with the required number of printed copies of the additional papers, granted.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Theodore C. Woodard, Appellant, against James R. Macduff, as Commissioner of Motor Vehicles of the State of New York, Respondent.
    Submitted January 5, 1959;
    decided January 8, 1959.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellant serves and files the required undertaking on appeal and pays $10 costs, in which events motion denied.


text:
    The People of the State of New York, Appellant, v. Henry Cipolla, Respondent.
    Submitted January 5, 1959;
    decided January 8, 1959.
   Motion for assignment of counsel granted and Hayden H. Dadd, Esq., Main Street, Attica, New York, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Daniel J. Mancini, Appellant.
    Submitted January 5, 1959;
    decided January 8, 1959.
   Motion to have appeal heard upon the original record and printed briefs granted.


text:
    The People of the State of New York, Respondent, v. Roland Chester Pitts, Appellant.
    Submitted January 5, 1959;
    decided January 8, 1959.

      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for motion.

      Howard V, Burke opposed.
   Motion denied with leave to renew upon the argument.


text:
    The People of the State of New York, Respondent, v. Robert Ralph Romano, Appellant.
    Submitted January 5, 1959;
    decided January 8, 1959.
   Application to have appeal heard upon the original record and for assignment of counsel granted and Joseph Lonardo, Esq., 29-27 41st Avenue, Long Island City, New York, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Ferdinand Williams, Appellant.
    Submitted January 5, 1959;
    decided January 8, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Miss Nancy Carley of Jackson Heights, New York, assigned as counsel to defendant on the appeal herein.


text:
    Rayex Corporation et al., Appellants, v. Max Sanchez, Individually and as President of Local 1614, I. B. E. W., AFL-CIO, et al., Respondents.
    Submitted January 5, 1959;
    decided January 8, 1959.

      Jacob J. Rosenblum and Samuel P. Shapiro for motion.

      Harry J. Halperin, Samuel L. Scholer, Martin H. Schneider and Theodore P. Halperin opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    David Zuckerman, Appellant, v. Town Board of Town of Hempstead et al., Respondents.
    Argued October .9, 1958;
    decided January 15, 1959.

      Paul E. Fusco and David Holman for appellant.

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

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


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.
    Argued May 9, 1958;
    decided January 15, 1959.

      Vito J. Cassan for appellant.

      Louis J. Lefkowitz, Attorney-General (J. Bruce MacDonald and Paocton Blair of counsel), for respondent.
   Appeal dismissed, without costs, upon the ground that there is involved a question other than the validity of a statutory provision under the Constitution of the State or of the United States, i.e., a question of statutory construction (N. Y. Const., art. VI, § 7, subd. [2]; Civ. Prac. Act, § 588, subd. 4). No opinion.

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


text:
    John Calabria, Appellant, v. City and Suburban Homes Co., Defendant, and Edward Wukowitz, Respondent.
    Argued November 11, 1958;
    decided January 15, 1959.

      Benjamin E, Siff for appellant.

      Milton Pfeffer, Samuel Schub and Edwin J. Reis for respondent.
   Judgment affirmed, without costs; no opinion.

Concur; Chief Judge Conway and Judges Desmond, Dye, Fold, Froessel, Van Voorhis and Burke.


author: Burke, J. (dissenting).

text:
    In the Matter of the Intermediate Accounting of United States Trust Company of New York, as Trustee of the Trust Created by Wesley B. Phillipson, Deceased, Respondent. Maria E. Phillipson, Appellant-Respondent; Brainerd F. Phillipson et al., Infants, by Marie C. Connolly, Their Guardian ad Litem, Respondents-Appellants; Elizabeth B. Nash et al., Respondents.
    Argued October 14, 1958;
    decided January 15, 1959.

      Sydney S. Levine and Herbert Gordon for appellant-respondent.

      John Henry Mottola for United States Trust Company of New York, trustee, respondent.

      Townsend L. Cannon for Elizabeth B. Nash and others, executors, respondents,

      Marie C. Connolly, guardian ad litem for Brainerd F. Phillipson and others, infants, respondents-appellants.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the trust estate. Certified questions Nos. 1 and 4 answered in the negative; certified questions Nos. 2 and 3 not answered,

Concur: Judges Desmond, Dye, Fuld and Yah Voorhis. Judge Burke dissents in the following opinion in which Chief Judge C'ohway and Judge Froessel concur.

Burke, J. (dissenting).

The suspension, of the power of alienation for more than two lives in being is prohibited, with certain exceptions not here pertinent, by statute (Personal Property Law, § 11). Although the Legislature has ameliorated the harshness of this rule under certain circumstances, since the amendment is prospective in nature, it is inapplicable to the trust under consideration (L. 1958, ch, 152). Consequently, it would appear that the trust is invalid, since it is measured by three lives in being at the time of its creation: the life of settlor’s first wife, and the lives of the twin children.

The phraseology of the indenture precludes our measuring the trust by the life of the settlor and considering the sums payable to the wife and children as annuities. The sums allocated for the maintenance and support of the children are to be applied to their use and benefit by the trustee in the event of the death of the mother. There is no absolute and outright gift of the money to the children. (Cf. Buchanan v. Little, 154 N. Y. 147.) Further, the indenture provides that the trust was to continue, until its purposes were accomplished, unaffected by the demise of the settlor.

So, too, must we reject the argument that the joint minority of the twins or the survivor of them is to be regarded as only one measuring life. Indeed, a problem might be presented in this regard if the twins were en ventre leur mere, and the possibility of a multiple birth could not be anticipated at the time of the creation of the trust. But here, when the trust was created, the twins were two years of age. They are two individuals and, hence, to count their joint minority as one Efe is to ignore reaEty. Bach had, and was known by aU to have, a separate individual existence. Hence, the joint minority or survivor provisions entail measuring the trust by two Eves in being.

It is urged, however, that this court penetrate the formal language of the instrument, ascertain the intent of the settlor, and, by the process of judicial excision, maintain the vitaEty of a major portion of the trust.

The rule for excising invaEd trust provisions, so clearly enunciated in Matter of Horner (237 N. Y. 489), depends on the principle of severabiEty. If the dominant purpose of the settlor is the creation of a single trust for more than two Eves in being, absolute ownership is iEegaEy suspended and the trust is void in its entirety. (Matter of Horner, supra; Central Trust Co. v. Egleston, 185 N. Y. 23; Leach v. Godwin, 198 N. Y. 35.) On the other hand, if the trust is séverable, we may preserve that which is good; and eliminate that part which is invaEd (1 Scott, Trusts, § 65.1, pp. 405-406).

It does not appear here that the trust is separable into distinct trusts for each of the children. There is no direction to pay over to each child his share of the principal when his interest under the trust comes to an end. (Matter of Horner, supra.)

The dominant purpose of the trust was simply to provide for the maintenance of the wife and three children. Considering this trust, then, as a family trust, it nevertheless is not exempt from the operation of the rule against suspension of alienation. The cases (e.g., Matter of Horner, supra; Matter of Gorham, 283 N. Y. 399; Matter of Eveland, 284 N. Y. 64; Carrier v. Carrier, 226 N. Y. 114; Matter of Durand, 250 N. Y. 45; Bishop v. Bishop, 257 N. Y. 40), which have developed the doctrine of judicial excision, have sustained the dominant intent of the testator only where such intent was expressed within the limitations of the statutes. They have excised a secondary, subservient, and separable intent, which carried the trust beyond the legally permissible limits.

In the present trust indenture, the trust is measured by three lives. In order to save the trust, the court below has excised the life of the first wife. This is not a separating of the good from the bad, but rather the summary casting out of an integral part of the trust for the purpose of validating it. Such emasculation, which this court now stamps with approval, would permit any invalid trust created for more than two lives to be validated by the simple expedient of eliminating the offending life or lives. Such an interpretation placed on the trust by the court renders the statute nugatory. It legislates retroactively what the Legislature has seen fit only to legislate prospectively. The judicial surgery which this court now employs is not of the type countenanced by the earlier cases.

Nor can we say that the measuring life of the first wife is unnecessary. This was achieved below, by the removal of provisions for the support of the eldest son during his minority, if both twins should die before reaching majority. However, the keynote of the trust is not plurality, but unity. The settlor attempted to provide for his children during their minorities. Each of these children have an equal claim on his affection. These claims were discharged by equal treatment in the trust instrument. There is no evidence that the settlor intended to prefer one or more children over the others. Since this is so, it is improper to cast aside the contingency.

Nor can we cast aside the contingency on the theory that it is remote. Mortality tables, of course, indicate that the probabilities are excellent for children, now at the age of 10, to reach their majorities. However, in dealing with specific lives, and not with general averages, the contingency of death before a person reaches his majority is neither remote nor improbable despite the present status of the health and well-being of the minors concerned. Such prophecies are without precedent.

The trust cannot be salvaged by the elimination of the life estates and accelerating the remainders (Oliver v. Wells, 254 N. Y. 451) since this would have the effect of converting contingent remainders to vested remainders, contrary to the settlor’s intent. (Matter of Durand, supra; Matter of Halsey, 286 N. Y. 154.)

Accordingly, the order of the Appellate Division should be reversed, and questions 1, 3 and 4 be answered in the affirmative, and question 2 answered in the negative.

Order affirmed, etc.


text:
    The People of the State of New York ex rel. Railroad Federal Savings and Loan Association, Appellant, against Cornelius T. Halpin, as Assessor of the Town of Harrison, County of Westchester, et al., Respondents. The People of the State of New York ex rel. Century Federal Savings and Loan Association, Appellant, against Joseph Carparelli, as Assessor of the Town of Harrison, County of Westchester et al., Respondents. In the Matter of Century Federal Savings and Loan Association, Appellant, against Joseph Carparelli, as Assessor of the Town of Harrison, County of Westchester, et al., Respondents.
    Submitted October 15, 1958;
    decided January 15, 1959.

      Floyd M. Grant for appellant.

      Benjamin I. Taylor, Jr., Town Attorney (Arthur A. Segall and Arnold 8. Alperstein of counsel), for respondents.
   Order of AppeEate Division reversed and that of Special Term reinstated, with costs in this court and in the AppeEate Division, upon the ground that the weight of evidence favors the determination of Special Term rather than that of the AppeEate Division. No opinion.

Concur: Chief Judge Coxway and Judges Froessel, Vax Voorhis and Burke. Judges Desmoxd, Dye and Fuld dissent and vote to affirm.


text:
    Aronette Manufacturing Co., Inc., Respondent, v. Capitol Piece Dye Works, Inc., Appellant, et al., Defendant.
    Submitted January 5, 1959;
    decided January 15, 1959.
   Motion to have appeal heard upon five copies of the record before the AppeEate Division denied.


text:
    William Foster, Appellant, v. City of New York, Respondent, et al., Defendants. Michael J. Adrian Corporation, Third-Party Plaintiff, v. Latorraca & Son, Third-Party Defendant. City of New York, Third-Party Plaintiff, v. Latorraca & Son, Third-Party Defendant.
    Submitted January 5, 1959;
    decided January 15, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Seymour Epstein, Esq., of 2689 Broadway, New York City, assigned as counsel to appellant on the appeal herein.


text:
    In the Matter of William (Bill) Atkinson et al., Respondents. Samuel R. Rosenbaum et al., Appellants.
    Submitted January 5, 1959;
    decided January 15, 1959.
   Motion to amend remittitur and to stay the examination of appellant Rosenbaum pending the taking of an appeal to or the filing of an application for a writ of certiorari in the Supreme Court of the United States denied in all respects. [See 5 N Y 2d 841.]

In Matter of Anderson [see 5 N Y 2d 841], motion for relief similar to that requested in Matter of Atkinson (Rosenbaum) denied in all respects.


text:
    James F. McManus, Respondent, v. Evelyn C. Ryan et al., Individually and as Copartners Doing Business under the Name of Hempstead Travel Bureau, et al., Appellants.
    Submitted January 12, 1959;
    decided January 15, 1959.

      Wilford E. Neier for motion.

      James F. McManus, in person, 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:
    Arbie R. Miles et al., Individually and as Deacons, Trustees and Members of Ebenezer Baptist Church, Inc., et al., Respondents, v. Anderson W. Wilson, Individually and as Pastor of Ebenezer Baptist Church, Inc., Appellant.
    Submitted January 12, 1959;
    decided January 15, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it wiE be amended by adding thereto the foEowing: Upon the appeal herein there was presented an aEeged constitutional question under the Constitution of the United States, viz.: AppeEant contended that the interference by the civil courts with the internal affairs of a reEgious body was a violation of the First Amendment. The Court of Appeals held that there was no such violation and that this question was insubstantial in view of the fact that appeEant, by stipulation, had submitted to a membership vote the question of his retention in office as pastor. [See 5 N Y 2d 822.]


text:
    Arbie R. Miles et al., Individually and as Deacons, Trustees and Members of Ebenezer Baptist Church, Inc., et al., Respondents, v. Anderson W. Wilson, Individually and as Pastor of Ebenezer Baptist Church, Inc., Appellant.
    Submitted January 12, 1959;
    decided January 15, 1959.

      Snitow and Snitow for motion.

      Solomon Z. Ferziger opposed.
   Motion to have respondents adjudged in contempt of the Court of Appeals denied.


text:
    Frances Nash, Individually and as Executrix of Edward M. Nash, Deceased, Respondent, v. Max Frank, Individually and as Executor of Louis B. Frank, Deceased, et al., Appellants.
    Submitted January 5, 1959;
    decided January 15, 1959.

      Robert J. Philips, Joseph M. Callahan and Joseph A. Doran for motion.

      Sydney D. Robins and Jacob Goodman opposed.
   Motion granted and, pending the hearing and determination of the appeal herein, delivery of any deeds of conveyance to any purchasers under the sale of the properties herein pursuant to the final judgment of the Supreme Court, New York County, entered December 15,1958, is stayed, and Joseph T. P. Sullivan, Referee to sell, is stayed from taking any steps or proceedings to complete the sale of the properties herein, including delivery of the deeds to the purchasers thereof. Case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Frank Costello, Appellant.
    Submitted January 12, 1959;
    decided January 15, 1959.
   Motion for enlargement of time granted and case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Max Firestone, Appellant.
    Submitted January 5, 1959;
    decided January 15, 1959.
   Motion for enlargement of time granted and case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    Revona Realty Corp., Respondent, v. Morton Wasserman, Appellant.
    Submitted January 12, 1959;
    decided January 15, 1959.

      Joel Arnold for motion and opposed to cross motion.

      Marry J. Ruthoser for cross motion and opposed to motion.
   Motion granted and appeal dismissed, without costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution.

Cross motion denied.


text:
    Rocco Rosetano, Appellant, v. State of New York, Respondent.
    Submitted January 12, 1959;
    decided January 15, 1959.

      Louis J. Lefkowitz, Attorney-General (Jerome Lefkowitz of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed upon the ground that no appeal lies to the Court of Appeals as of right.


text:
    David Smith, Respondent, v. Beatrice Rothman et al., Defendants, and Aaron Fichler, Appellant.
    Submitted January 5, 1959;
    decided January 15, 1959.
   Motion to dismiss appeal [for failure to file an undertaking] denied.

Motion for leave to prosecute appeal as a ppor person and for assignment of counsel granted and Louis N. Forman, Esq., of 701 Seventh Avenue, New York City, assigned as counsel to appellant on the appeal herein.


text:
    Joanna F. Torrella, Appellant, v. Anton J. M. Torrella, Respondent.
    Submitted January 12, 1959;
    decided January 15, 1959.
   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:
    Abraham Karp, Respondent, v. William Karp, Appellant, et al., Defendant.
    Submitted January 7, 1959;
    decided January 22, 1959.

      A. S. Cutler and Max Wiener for appellant.

      Emil N. Baar and Milton I. Newman for Abraham Karp, respondent.

      John H. Van Surdam for Dry Dock Savings Bank, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fui®, Froessel, Van Voorhis and Buree.


text:
    Bove Finishing Company, Inc., Respondent, v. Wertsville Industries, Inc., Appellant.
    Argued November 18, 1958;
    decided January 22, 1959.

      John D. Graves for appellant.

      Samuel Davidson for respondent.
   Judgment of Appellate Division modified by dismissing the third cause of action, insofar as it sets forth a claim for loss of profits, upon the ground that the evidence is insuEcient as a matter of law to support the finding that defendant was chargeable for loss of profits in the amount of $1,425 and, as so modified, aErmed in all other respects with costs to respondent. No opinion.

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


text:
    Marsha Bolkin, an Infant, by Her Guardian ad Litem, Lawrence Kamer, Respondent, et al., Plaintiff, v. Max Levy, Defendant, and Tidewater Coal Docks Corporation, Appellant.
    Submitted January 5, 1959;
    decided January 22, 1959.
   Motion to dismiss appeal withdrawn.


text:
    Marjorie Cromer, as Administratrix of the Estate of Philip Cromer, Deceased, Appellant, v. Andrew Gull Corporation et al., Respondents.
    Submitted January 12, 1959;
    decided January 22, 1959.

      Hobart B. Marvin for motion.

      Alfred S. Julien opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellant serves and files a stipulation for judgment absolute and an undertaking on appeal and pays $10 costs and, within 20 days, files the return on appeal, in which events, motion denied.


text:
    Albert B. Daggett, as Administrator of the Estate of James L. Daggett, Deceased, et al., Respondents, v. Al Keshner et al., Defendants, and Hyman Beribitsky et al., Individually and as Copartners Doing Business under the Name of B & S Garage, Appellants.
    Submitted January 5, 1959;
    decided January 22, 1959.

      Morris Pottish for motion and opposed to cross motion.

      William L. Shumate opposed to motion and for cross motion.
   Motion denied.

Cross motion granted only to the extent of permitting movant, Nationwide Mutual Insurance Company, to be joined as a party.


text:
    In the Matter of Jose Camacho, Appellant, against John Doe et al., Constituting the Board of Inspectors of Election of the 26th Election District of the 6th Assembly District of the County of Bronx, Respondents.
    Submitted January 19, 1959;
    decided January 22, 1959.
   Motion for leave to prosecute appeal as a poor person granted.


text:
    In the Matter of the Accounting of Dorothea A. Shearn, as Executrix of Clarence J. Shearn, Deceased, Appellant. Charles H. Birdsall, Respondent.
    Submitted January 12, 1959;
    decided January 22, 1959.

      Sidney S. Levine for motion.

      Charles E. Birdsall 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:
    The People of the State of New York, Respondent, v. George Cizike, Appellant.
    Submitted January 19, 1959;
    decided January 22, 1959.
   Motion for enlargement of time granted and case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Thomas G. Daniel, Appellant.
    Submitted January 12, 1959;
    decided January 22, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Leroy Keith, Appellant.
    Decided January 22, 1959.
   On the court’s own motion, reargument ordered during the February, 1959 session of the Court of Appeals solely with respect to Points VIII, IX and X of appellant’s brief. Meanwhile, the District Attorney will furnish the attorney for appellant with a copy of the document mentioned in Point X of said brief.


text:
    The People of the State of New York, Respondent, v. Woodrow Miller, Appellant.
    Submitted January 12, 1959;
    decided January 22, 1959.
   Motion for enlargement of time granted and case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. James Peck, Ralph Di Gia, George Willoughby, Hollis Wyman, Jr., Tom Rick, Robert Gilmore, Marcus Cohen, Dale Brothington, Albert Uhrie, Patricia Daw and Elizabeth Quigley, Appellants. The People of the State of New York, Respondent, v. Abraham J. Muste, Kent Larrabee, Eileen Fantino, Ralph Di Gia, Henry J. Maiden, Bayard Rustin, Helen Russell, Mary Ann McCoy, Edith Horwitz, Patricia Rusk, James Peck, Robert Fisher, Hugh Corbin, Jackson Maclow, Dale Brothington, Andrew Osgood, Michael Kovalak and Henry Babcock, Appellants.
    Submitted January 12, 1959;
    decided January 22, 1959.
   Motions for further enlargement of time granted and cases set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. John Valentino, Appellant.
    Submitted January 19, 1959;
    decided January 22, 1959.
   Motion for enlargement of time granted and case set down for argument during the April, 1959 session of the Court of Appeals.

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 defendant on the appeal herein.


text:
    Abe Weistrop, Respondent, v. Necchi Sewing Machine Sales Corp. et al., Appellants.
    Submitted January 12, 1959;
    decided January 22, 1959.

      John C. Marbach for motion.

      Samuel B. Herbst and George Trosk opposed.
   Motion denied and case set down for argument on February 23, 1959, defendants-appellants to serve and file their brief, if any, by February 1, 1959..


text:
    The People of the State of New York, Respondent, v. Alice M. Myers, Appellant.
    Submitted February 23, 1959;
    decided February 24, 1959.
   Motion to have appeal heard upon the original record and seven legible typewritten briefs granted.

Motion for enlargement of time granted and case set down for argument during the April, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Benjamin Oyola, Appellant.
    Submitted February 23, 1959;
    decided February 24, 1959.
   Motion to have appeal heard upon the original record and legible typewritten briefs granted.

Motion for enlargement of time granted and case set down for argument during the April, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. James Peck, Ralph Di Gia, George Willoughby, Hollis Wyman, Jr., Tom Rick, Robert Gilmore, Marcus Cohen, Dale Brothington, Albert Uhrie, Patricia Daw and Elizabeth Quigley, Appellants. The People of the State of New York, Respondent, v. Abraham J. Muste, Kent Larrabee, Eileen Fantino, Ralph Di Gia, Henry J. Maiden, Bayard Rustin, Helen Russell, Mary Ann McCoy, Edith Horwitz, Patricia Rusk, James Peck, Robert Fisher, Hugh Corbin, Jackson Maclow, Dale Brothington, Andrew Osgood, Michael Kovalak and Henry Babcock, Appellants.
    Submitted February 23, 1959;
    decided February 24, 1959.
   Motion for a further enlargement of time granted and cases set down for argument during the April, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Roland Chester Pitts, Appellant.
    Submitted February 23, 1959;
    decided February 24, 1959.
   Motion for enlargement of time granted and case set down for argument during the April, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Pete Pollock, Appellant.
    Submitted February 23, 1959;
    decided February 24, 1959.
   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 ex rel. Amos Williams, Respondent, against Robert E. Murphy, as Warden of Auburn Prison, Respondent. The People of the State of New York, Appellant.
    Submitted February 23, 1959;
    decided February 24, 1959.
   Application by respondent for leave to file seven legible typewritten briefs on the appeal herein granted.


text:
    In the Matter of Lawrence R. Knobel, Appellant.
    Argued January 12, 1959;
    decided February 26, 1959.

      Osmond K. Fraenkel for appellant.
    No one opposed.
   Appeal dismissed, without costs, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. No opinion.

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


text:
    Bertrand E. Moebus, Appellant, v. Paul Tishman Co,, Inc., et al., Respondents, et al., Defendant.
    Argued January 21, 1959;
    decided February 26, 1959.

      John J. Tomich, Joseph Dean Edwards, Jacques Smit, Dominic Morabito and Olin S. Nye for appellant.

      John Nielsen and John P. Smith for Paul Tishman Co., Inc., and another, respondents.

      Richard E. Shandell and Desmond T. Barry for Horn Construction Co., respondent.
   Appeal dismissed, with costs, upon the ground that the sole question presented involves a nonreviewable exercise of discretion (Quick Service Novelty Corp. v. Scharf, 4 N Y 2d 799; Feingold v. City of New York, 4 N Y 2d 783). No opinion.

Concur: Chief Judge Conwat and Judges Desmond, Dte, Fuld, Froessel, Van Yoorhis and Burke.


text:
    The People of the State of New York, Respondent, v. Louis Battice, Appellant.
    Argued January 7, 1959;
    decided February 26, 1959.

      Anne Thacher Clarke and Florence M. Kelley for appellant.

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

Concur: Chief Judge Conway and Judges Dye, Froessel, Van Voorhis and Burke. Judges Desmond and Fuld dissent and vote to reverse and to order a trial of defendant’s sworn allegations of coercion, misrepresentation and suppression of facts (see People v. Picciotti, 4 N Y 2d 340, and cases cited therein).


text:
    The People of the State of New York, Respondent, v. Donald E. De Croat and Peter M. Ferraro, Appellants.
    Argued November 10, 1958;
    decided February 26, 1959.

      Henry Hirschberg and Joseph Avis for appellants.

      Howard C. St. John, District Attorney (Joseph P. Torraca of counsel), for respondent.
   Judgment affirmed; 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. William R. Calderon, Appellant.
    Argued January 19, 1959;
    decided February 26, 1959.

      John T. De Graff, Jr., for appellant.

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

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


text:
    David Broser, as Administrator of the Estate of Laurie J. Broser, Deceased, an Infant, Appellant, v. Bernard Sternbach et al., Respondents.
    Argued January 12, 1959;
    decided February 26, 1959.

      Irving Levine for appellant.

      John M. Cunneen for Bernard Sternbach, respondent.

      Harry Turner for Charles Turner and another, respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Fboessel, Van Voobhis and Btjbke.


text:
    Gabriela Gautieri, Appellant, v. New Rochelle Hospital Association, Respondent.
    Argued January 6, 1959;
    decided February 26, 1959.

      Morton S. Bums, Samuel J. Kalmanson and Benjamin E. Siff for appellant.

      Donald J. Eager and J. Richard Burns for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Ann B. Newburger, Appellant, v. Andrew M. Newburger, Respondent.
    Argued January 5, 1959;
    decided February 26, 1959.

      Kalman I. Nulman for appellant.

      Jesse Climenko for respondent.
   Order affirmed, without costs. Question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Erie County Water Authority, Appellant, against Jay Kramer et al., Individually and Constituting the New York State Labor Relations Board, et al., Respondents.
    Argued November 12, 1958;
    decided February 26, 1959.

      H. Eliot Kaplan, Melvin L. Bong and Laurence J. Olmstead for appellant.

      George E. Moehringer and Philip Feldblum for State Labor Relations Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Froessel and Burke. Judge Van Voorhis dissents and votes to reverse and to reinstate the order of Special Term on the opinion of O’Brien, J., at Special Term.


text:
    Saul Bellask, Appellant, v. Coronation Homes, Inc., Respondent.
    Argued January 13, 1959;
    decided February 26, 1959.

      Bernard Meyerson, Barry Rappaport and Jerome Heffer for appellant.

      William F. McNulty and Frederick Mellor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Christopher Markel, Respondent, v. Philip R. Spencer, Defendant, and Ford Motor Company, Appellant. Shares Marked, Respondent, v. Philip R. Spencer, Defendant, and Ford Motor Company, Appellant.
    Argued January 9, 1959;
    decided February 26, 1959.

      Percival D. Oviatt, Jr., for appellant.

      Sidney K. Schoenwald for respondents.
   In each action: Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conwat and Judges Desmond, Dye, Ftjld, Fboessel, Van Voobhis and Bubke.


text:
    Marian J. Stafford, Respondent-Appellant, v. William F. Stafford, Jr., Appellant-Respondent.
    Argued January 7, 1959;
    decided February 26, 1959.

      Joseph Feinstein for appellant-respondent.

      S. S. Goldsmith and Nathaniel M. Gallin for respondent-appellant.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Fboessel and Van Yoobhis. Taking no part: Judge Bubke.


text:
    Arlene Marcus, an Infant, by Her Guardian ad Litem, Samuel B. Marcus, Respondent, v. London & Lancashire Indemnity Company of America, Appellant.
    Argued January 12, 1959;
    decided February 26, 1959.

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

      Harold Weiss for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Caryl E. Cohen, Appellant, against Teachers’ Retirement Board of the Teachers’ Retirement System of the City of New York, Respondent.
    Argued November 19, 1958;
    decided February 26, 1959.

      Copal Mintz for appellant.

      Charles H. Tenney, Corporation Counsel (Joseph F. Gibbons, Seymour B. Quel, Rose Schneph and Sidney P. Nadel of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Judges Desmond, Dye, Ftjld, Feoessel and Bubke. Chief Judge Conway and Judge Van Yooehis dissent and vote to reverse and to grant the petition for claimed service credit, accruing prior to withdrawal, subject to the favorable action of the Board of Education and the Teachers’ Betirement Board, upon the ground that under section B20-5.0 of the Administrative Code of the City of New York petitioner was entitled to the status for the purpose in suit to which he was entitled immediately prior to his withdrawal.


text:
    Pease & Elliman, Inc., Appellant, v. S. H. Kress & Co., Respondent.
    Argued November 14, 1958;
    decided February 26, 1959.

      Hyman R. Friedman and William K. Friedman for appellant.

      Emerson F. Davis and Charles R. Van de Walie for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles J. Nelson, Respondent, v. Joyce A. Rumsey, Appellant. John A. Smith, Appellant, v. Charles J. Nelson, Respondent. John A. Smith, Respondent, v. Joyce A. Rumsey, Appellant.
    Argued January 9, 1959;
    decided February 26, 1959.

      Charles B. Swartwood for Joyce A. Rumsey, appellant.

      Paul Reed Taylor, Max Etkind and Abraham Golos for John A. Smith, appellant and respondent.

      William E. Palmer for Charles J. Nelson, respondent.
   In each action: Judgment affirmed, with 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. Albert Altruda, Appellant.
    Argued January 12, 1959;
    decided February 26, 1959.

      William W. Kleinman and Eugene Gold for appellant.

      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Mandel & Company, Inc., Appellant, v. Johanna Rado et al., Respondents, et al., Defendants.
    Argued January 5, 1959;
    decided February 26, 1959.

      Meyer Kraushaar and Louis Cohen for appellant.

      George M. Golden for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Chester Bornscheuer, Appellant, against Joseph S. Corbett et al., Constituting the Board of Zoning Appeals of the Town of Brookhaven, Suffolk County, et al., Respondents.
    Argued January 6, 1959;
    decided February 26, 1959.

      George Dyson Friou for appellant.

      Douglas E. Brown for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Claim of Catherine Gray, Respondent, against Jeremiah Burns, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued January 22, 1959;
    decided February 26, 1959.

      Morgan F. Bisselle and Warren G. Tucker for appellants.

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

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


text:
    Queensboro Farm Products, Inc., Respondent, v. State of New York, Appellant.
    (Claim No. 32788.)
    Argued January 9, 1959;
    decided February 26, 1959.

      Louis J. Lefkowitz, Attorney-General (Richard E. Shepp and Paxton Blair of counsel), for appellant.

      Bernard L. Bermant for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Van Voobhis. Judge Burke dissents and votes to reverse upon the dissenting memorandum of Williams and Halpern, JJ., in the Appellate Division.


text:
    The People of the State of New York ex rel. Joseph Scarola, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent.
    Submitted November 12, 1958;
    decided February 26, 1959.

      Joseph Scarola, appellant in person.

      Louis J. Lefkowits, Attorney-General (Paxton Blair, William S. Elder, Jr., and J. Bruce MacDonald of counsel), for respondent.
   Order affirmed; 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 Alan G. Kraemer et al., Respondents, against County Court of Suffolk County et al., Appellants.
    Submitted January 5, 1959;
    decided February 26, 1959.
   Motion to have appeal heard upon the original record, together with the required number of printed additional papers and briefs, granted.


text:
    Louis J. Martino et al., Doing Business as Marcel Martino & Co., Appellants, v. Golden Gift, Inc., et al., Respondents, et al., Defendants.
    Submitted February 23, 1959;
    decided February 26, 1959.

      Lester Kissel for motion.

      David Avstreih opposed.
   Motion granted and appeal 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:
    The People of the State of New York, Respondent, v. Edward Eckwerth, Appellant.
    Submitted February 23, 1959;
    decided February 26, 1959.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning Monday, April 6, 1959, fixed for the execution of the death sentence herein. [See 4 N Y 2d 811.]


text:
    The People of the State of New York, Appellant, v. Anniello Ercole, Also Known as “ T ”, Respondent.
    Submitted January 12, 1959;
    decided February 26, 1959.
   Motion for reargument dismissed upon the ground that the question presented has been rendered moot by the death of defendant Anniello Ercole. [See 4 N Y 2d 617.]


text:
    The People of the State of New York, Respondent, v. Edward J. Kiernan, Appellant.
    Submitted January 19, 1959;
    decided February 26, 1959.
   Motion for enlargement of time granted and case set down for argument during the April, 1959 session of the Court of Appeals.

Motion to have appeal heard upon the original record and upon the printed record in People v. Riordan (288 N. Y. 544), and upon typewritten briefs and papers granted.


text:
    The People of the State of New York, Respondent, v. Walter Stanley Marshall, Appellant.
    Submitted February 23, 1959;
    decided February 26, 1959.
   Motion to have appeal heard upon the original record and papers granted.


text:
    The People of the State of New York, Respondent, v. Bernard Rohrlich, Appellant.
    Submitted February 23, 1959;
    decided February 26, 1959.
   Motion to have appeal heard upon the original record and typewritten briefs and papers granted.


text:
    Joseph Romero, as Administrator of the Estate of Helen Romero, Deceased, Appellant, v. Josephine Sjoberg et al., Respondents.
    Submitted February 23, 1959;
    decided February 26, 1959.

      Louis GoTkin for motion.

      Louis J. Opal opposed.
   Motion denied upon the ground that the appeal is taken only “from the judgment * * * in favor of the [bank] ”, which is severable from the remainder of the judgment.


text:
    Uly L. Townes, Appellant, v. Park Motor Sales, Inc., Respondent.
    Submitted February 23, 1959;
    decided February 26, 1959.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division, together with the required number of printed additional papers and briefs, granted.


text:
    In the Matter of the Application of Thornton J. Meacham, Jr., an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Submitted February 23, 1959;
    decided February 26, 1959.

      Nathan H. Mitchell and Marguerite Hines for motion.

      Raymond P. Whearty and Frank H. Gordon 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:
    The People of the State of New York, Respondent, v. Harold Davidson, Appellant.
    Argued November 17, 1958;
    decided March 5, 1959.

      Richard Henry Pershan for appellant.

      Daniel V. Sullivan, District Attorney (Irving Anolik and Walter E. Dillon of counsel), for respondent.
   Judgment affirmed pursuant to section 542 of the Code of Criminal Procedure. No opinion.

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


text:
    In the Matter of the Arbitration between Iino Shipbuilding & Engineering Co., Ltd., Appellant, and Hellenic Lines Limited, Respondent.
    Submitted November 13, 1958;
    decided March 5, 1959.

      George Yamaoka, Helen F. Tuohy and Francis P. Kelly for appellant.

      Wharton Poor and R. Glenn Bauer for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Kenneth Stein, Doing Business as Cherry Grove Ferry Service and Fire Island Pines Ferry Service, Respondent, v. Joseph Pokorny et al., Doing Business as Joe and Frank’s Water Taxi, Appellants.
    Argued January 9, 1959;
    decided March 5, 1959.

      James V. Fallon for appellants.

      Irwin N. Wilpon and Marshall G. Kaplan for respondent.
   Judgment affirmed, without costs. We think the Appellate Division was correct in holding that, until duly licensed, defendants may be enjoined. No opinion.

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


text:
    The People of the State of New York, Appellant, v. David Mechanic, Respondent.
    Argued October 14, 1958;
    decided March 5, 1959.
    Remittitur Amended April 17, 1959.

      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for appellant.

      Louis Kaye for respondent.
    Remittitur Amended April 17, 1959.
   Order of Appellate Division reversed and judgment of County Court reinstated upon the dissent in the Appellate Division. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Fboessel, Van Voobhis and Burke.

Motion for reargument denied.

Motion to amend remittitur granted and County Court, Queens County, is requested to direct its Clerk to return the remittitur to this court for amendment and, when returned, it will be amended to read as follows: 11 Order of the Appellate Division reversed and a new trial ordered.”


text:
    Lou Stillman, Appellant, v. Paramount Pictures Corp. et al., Respondents, et al., Defendants.
    Argued November 11, 1958;
    decided March 5, 1959.

      John S. Finn, Louis Scadron and Allan A. Masur for appellant.

      Richard Colby, Louis Phillips and Leonard Kaufman for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Coeway and Judges Desmoed, Dye, Fuld, Froessel, Yae Voorhis and Burke.


text:
    In the Matter of Meyer Lichtenstein, Individually and as Chairman of the Committee for the Preservation of the Merit System of Appointments in the New York City Public Schools, Respondent, against William Jansen, as Superintendent of Schools of the City of New York, et al., Appellants.
    Argued November 19, 1958;
    decided March 5, 1959.

      Peter Campbell Brown, Corporation Counsel (Isidore Heyman, Seymour B. Quel and Robert E. Hugh of counsel), for appellants.

      A. Mark Levien for respondent.

      Frank E. Karelsen, Robert M. Benjamin and Fred N. Fishman for Public Education Association, amicus curies, in support of respondent’s position.

      Jules Kolodny for New York Teachers Guild, amicus curies, in support of respondent’s position.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Fold, Froessel, Van Voorhis and Burke. Judge Dye dissents and votes to reverse. Taking no part: Judge Desmond.


text:
    Charlotte Shork, Appellant, v. Freeman Higgins, Respondent.
    Argued January 6, 1959 ;
    decided March 5, 1959.

      Clifton F. Weidlich for appellant.

      John P. Gibbons and Robert L. Flynn for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Crowell-Collier Publishing Company et al., Respondents, v. Samuel Josefowitz et al., as Trustees under the Fenia Josefowitz Trusts, et al., Appellants.
    Argued November 12, 1958;
    decided March 5, 1959.

      Samuel I. Rosenman, Max Freund, Andrew J. Schoen and Donald Laventhall for appellants.

      John Schulman, Solomon A. Klein and Bella L. Gralnick for respondents.
   Order affirmed, with costs. First question certified answered in the affirmative; second and third questions certified answered in the negative. No opinion.

Concur: Chief Judge Cohway and Judges Desmond, Dye, Field, Froessel, Yah Yoorhis and Burke.


text:
    The People of the State of New York, Respondent, v. Oscar Johhson, Appellant.
    Argued November 13, 1958;
    decided March 5, 1959.

      Julius A. Itzkowitz, Leo Healy and Julius Venner for appellant.

      Edward S. Silver, District Attorney (Joseph P. Hoey and David Diamond of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Mary Goines, Appellant, v. Pennsylvania Railroad Company, Respondent, et al., Defendants.
    Submitted March 2, 1959;
    decided March 5, 1959.

      Sidney J. Ungar, Norman N. Liben and Norman I. Caplan for motion.

      Joseph P. Allen 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:
    In the Matter of the Claim of Leonard Engle, Appellant, against Niagara Mohawk Power Corporation et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted March 2, 1959;
    decided March 5, 1959.
   Motion to have appeal heard upon one typewritten copy of the record before the Appellate Division and typewritten papers and briefs granted to the extent that one typewritten record may be filed together with the required number of printed additional papers and printed briefs.


text:
    Stephen Nesladek, Appellant, v. United States Trucking Corp., Respondent.
    Submitted February 23, 1959;
    decided March 5, 1959.

      Melvin C. Hartman, Clarence E. Galston and Herbert Burstein for motion.

      Bernard W. Goldenberg and John B. Davison opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the sole question presented involves a nonreviewable exercise of discretion (Quick Service Novelty Corp. v. Scharf, 4 N Y 2d 799; Feingold v. City of New York, 4 N Y 2d 783).


text:
    The People of the State of New York, Respondent, v. Thomas G. Daniel, Appellant.
    Submitted March 2, 1959;
    decided March 5, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the April, 1959 session of the Court of Appeals.


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.
    Submitted February 23, 1959;
    decided March 5, 1959.

      Charles Stephen St. Andrews, in person, for motion.
    No one opposed.
   Application denied upon the ground that an appeal lies as of right.


text:
    Spartan Coat, Apron, Towel and Linen Supply Co., Inc., Appellant, v. Louis Simon, Individually and as Secretary-Treasurer of the Amalgamated Laundry Workers Joint Board, Amalgamated Clothing Workers of America, Respondent.
    Submitted February 23, 1959;
    decided March 5, 1959.
   Motion to have appeal heard upon 10 copies of the record before the Appellate Division, together with the required number of printed additional papers and printed briefs, granted.


text:
    The People of the State of New York, Respondent, v. George Cizike, Appellant.
    Submitted March 9, 1959;
    decided March 10, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the April, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Joseph Hughes, Appellant.
    Submitted March 9, 1959;
    decided March 10, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the April, 1959 session of the Court of Appeals.


text:
    Ruth Ettman, Appellant, v. Equitable Life Assurance Society of the United States, Respondent.
    Argued January 13, 1959;
    decided March 12, 1959.

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

      Nicholas A. Mescia, Leo D. Fitzgerald and Eugene T. O’Neill for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative; no opinion.

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


text:
    Edward Chesney, Appellant, v. Board of Education of Union Free School District No. 5 of the Towns of North Castle, Greenburgh and Mount Pleasant, Respondent.
    Submitted January 13, 1959;
    decided March 12, 1959.

      Frank J. Hand for appellant.

      William T. Gallagher for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Albert Naeris, Individually and as Guardian ad Litem of Alar Naeris, an Infant, Respondent, v. New York Telephone Company, Appellant.
    Argued January 20, 1959;
    decided March 12, 1959.

      Robert Luce Donohue, G. Wallace Bates, Jordan B. Bassett and Edward F. Snydstrup for appellant.

      Arnold B. Elkind and George Brody for respondents.
   Order affirmed, with costs, and judgment absolute directed against appellant in accordance with the stipulation. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Froessel and Burke. Judge Van Voobhis dissents and votes to reverse and to dismiss the complaint upon the dissenting opinion of Stevens, J., in the Appellate Division.


text:
    Louise De Leon, as Successor Committee of the Person and Property of Louis Kuhn, Appellant, v. Corbetta Construction Company, Inc., et al., Respondents, et al., Defendants.
    Argued January 13, 1959;
    decided March 12, 1959.

      Emile Z. Berman, Morris Aarons and Charles M. Mattingly, Jr., for appellant.

      Hobart B. Marvin, William J. Kenney and Lillian E. Cuff for Corbetta Construction Company, Inc., respondent.

      Walter G. Evans and Joseph Kane for Nathan L. Weingrad, respondent.
   Judgment affirmed, without 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 666 Fifth Corp., Appellant, against Tax Commission of the City of New York, Respondent.
    Argued January 19, 1959;
    decided March 12, 1959.

      Robert H. Sterling, Harry L. Ettinger and George L. Genung 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 Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of the Claim of Sheila Shaw, Respondent. General Mutual Insurance Company, Appellant; Isador Lubin, as Industrial Commissioner, Respondent.
    Argued January 16, 1959;
    decided March 12, 1959.

      Paul F. Donohue and Myron Komar for appellant.

      Robert L. Harder for Sheila Shaw, respondent.

      Mahlon Z. Eubank for Commerce and Industry Association of New York, Inc., amicus curice, in support of appellant’s position.

      Costello, Cooney & Fear on for Associated Industries of New York State, Inc., amicus curice, in support of appellant’s position.
   Order affirmed, with costs to claimant-respondent; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld and Burke. Judges Froessel and Van Voorhis dissent and vote to reverse for the reasons stated by Herlihy, J., in his dissenting opinion in the Appellate Division.


text:
    Jerome Kaufman, Individually and as Administrator of the Estate of Lynn Kaufman, Deceased, Appellant, v. American Youth Hostels, Inc., Respondent.
    Argued January 6, 1959;
    decided March 12, 1959.

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

      Lillian E. Cuff for respondent.
   Order modified by striking out the third affirmative defense as to both causes of action (see Boll v. Sharp & Dohme, 281 App. Div. 568, affd. 307 N. Y. 646; Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36, 41; Walters v. Rao Elec. Equipment Co., 289 N. Y. 57) and, as so modified, affirmed, without costs. Question certified answered in the negative. No opinion.

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


text:
    In the Matter of the Accounting of Thurlow Burgmyer, as Trustee under the Will of Jennie R. Cutter, Deceased, Respondent. Edward B. Wallace, as Committee of the Property of Mabel E. Spellissy, an Incompetent, et al., Appellants; Annie E. P. Avery et al., Respondents.
    Argued January 15, 1959;
    decided March 12, 1969.

      Philip G. Reilly and Edward B. Wallace for appellants.

      James G. Foley and James S. Regan, Jr., for Thurlow Burgmyer, respondent.

      Newbold Morris and David E. Sedgwick for Annie E. P. Avery and others, respondents.

      David Keller and Daniel G. Connolly for Hyman Wank, Public Administrator, respondent.
   Order affirmed, with costs payable out of the estate to all parties appearing separately and filing separate briefs; 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. Saul Greenberg and George Ornstein, Appellants.
    Submitted February 23, 1959;
    decided March 12, 1959.
   Motion by appellant Greenberg to amend the remittitur granted. Return of the 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 an alleged question under the Constitution of the United States, viz.: Appellant Greenberg contended that in violation of his constitutional rights he did not receive a fair trial as guaranteed by the Fifth and Fourteenth Amendments. The Court of Appeals held that there was no such violation and that there was no substance or merit to appellant’s contentions. [See 5 N Y 2d 907.]


text:
    The People of the State of New York, Respondent, v. Daniel J. Mancini and Robert Ralph Romano, Appellants.
    Submitted March 2, 1959;
    decided March 12, 1959.
   Motions for enlargement of time granted and cases set down for argument during the April, 1959 session of the Court of Appeals.


text:
    Lillian Sacknoff, Appellant, v. Samuel Sacknoff, Respondent.
    Submitted March 2, 1959;
    decided March 12, 1959.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division granted.


text:
    In the Matter of Peter E. Going, Appellant, against Stephen P. Kennedy, as Police Commissioner of the City of New York, et al., Respondents.
    Submitted March 2, 1959;
    decided March 12, 1959.
   Motion to amend remittitur granted and remittitur amended to read as follows: “ Order affirmed, without costs.” [See 5 N Y 2d 900.]


text:
    In the Matter of David Meyer, Appellant, against New York Hospital, Respondent.
    Submitted March 9, 1959;
    decided March 12, 1959.

      Jonathan Hayt for motion.
    No one opposed.
   Motion granted and appeal dismissed upon the ground that the order sought to he appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v. Henry Cipolla, Respondent.
    Submitted March 9, 1959;
    decided March 12, 1959.
   Motion for enlargement of time granted and case set down for argument during the May, 1959 session of the Court of Appeals.


text:
    In the Matter of the Accounting of Sally Libin, as Administratrix of the Estate of William Rubin, Deceased, Appellant. Albert D. Levin, Respondent.
    Submitted January 22, 1959;
    decided March 13, 1959.

      George N. Kanoff, Abraham Jame and Mildred Zilko for appellant.

      Albert D. Levin, in person, and David Bernstein for Albert D. Levin, respondent.
   Order affirmed, with costs to claimant-respondent payable out of the estate; no opinion.

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


text:
    Clarence Lockrow, Respondent, v. Church of the Holy Family, Appellant.
    Argued January 16, 1959;
    decided March 13, 1959.

      Luke A. Burns, Jr., for appellant.

      Lawrence Conboy for respondent.
   Order affirmed, with costs. Questions certified answered in the negative. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Froessel and Burke. Judge Van Voorhis dissents and votes to reverse and to dismiss the complaint upon the dissenting-opinion of Goldman, J., in the Appellate Division,


text:
    In the Matter of the Commission of Investigation of the State of New York, Respondent, against Carmine Lombardozzi and Costenze Peter Valenti, Appellants. In the Matter of the Commission of Investigation of the State of New York, Respondent, against Frank Joseph Valenti, Rosario Mancuso, Joseph Riccobono, Paul Castellano and Michele Miranda, Appellants.
    Argued January 19, 1959;
    decided March 13, 1959.

      Gilbert S. Rosenthal and Aaron J. Jaffe for Frank J. Valenti, appellant.

      Anthony J. Fernicola for Rosario Mancuso, appellant.

      Joseph E. Brill and Nicholas P. Iannuzzi for Joseph Riccobono, appellant.

      Harris B. Steinberg, Abraham H. Brodsky and Leo H. Hirsch, Jr., for Paul Castellano and another, appellants.

      Eliot H. Lumbard, Nathan Skolnik, Justin J. Finger, Arnold Weiss and Alfred Donati, Jr., for respondent.
   In each case: Order affirmed (Knapp v. Schweitzer, 357 U. S. 371, 380-381). No opinion. Motion denied.

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


text:
    Martin E. Eaton et al., Copartners Doing Business under the Name of York Company, Respondents, v. Laurel Delicatessen Corp. et al., Appellants, et al., Defendants.
    Argued January 21, 1959;
    decided March 13, 1959.

      Louis H. Solomon for appellants.

      Robert I. Rogin for respondents.
   Judgment affirmed, with costs (Kelso & Co. v. Ellis, 224 N. Y. 528, 535; Petroleum Acceptance Corp. v. Queen Anne Laundry Service, 265 App. Div. 692, 693). No opinion.

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


text:
    Lee Johnson, Appellant-Respondent, v. Mutual Benefit Health and Accident Association of Omaha, Nebraska, Respondent-Appellant.
    Argued January 14, 1959;
    decided March 13, 1959.

      Bruce G. Dean for appellant-respondent.

      Harold E. Simpson for respondent-appellant.
   Resettled judgment, insofar as appealed from, modified by increasing the amount thereof in the sum of $100 to cover hospital expenses to which plaintiff is entitled under the policy as written, with interest, and, as so modified, affirmed, with costs to plaintiff. Appeals from the judgment of April 10, 1958 dismissed as superseded. No opinion.

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


text:
    In the Matter of Veronica E. T. Maxted, Appellant, against Marine Midland Trust Company of New York, as Trustee, Respondent.
    Argued January 19, 1959;
    decided March 13, 1959.

      Stoddard B. Colby, Herman A. Heydt, Jr., and Rosemary Edelman for appellant.

      Walter E. Warner, Jr., and Gerald FitzGerald for respondent.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dyb, Fuld, Fboessel, Van Voobhis and Btjbke.


text:
    In the Matter of the Appointment of a Committee of the Person and Property of Jack Goldberg, an Alleged Incompetent Person. Sylvia Cantor, Appellant; Solomon Z. Ferziger, as Special Guardian of the Incompetent, Jack Goldberg, Respondent.
    Argued January 22, 1959;
    decided March 13, 1959.

      Nathan Greenberg for appellant.

      Solomon Z. Fersiger, in person, and Bernard Meyer son for Solomon Z. Ferziger, respondent.
   Order affirmed, with 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. Leroy Keith, Appellant.
    Argued October 16, 1958;
    reargued February 23, 1959;
    decided March 13, 1959.

      Herbert S. Siegal and Solon S. Kane for appellant.

      Daniel V. Sullivan, District Attorney (Irving Anolik, Walter E. Dillon and Andrew C. McCarthy of counsel), for respondent.
   Upon reargument, judgment of conviction affirmed in the folloAving memorandum: ‘ ‘ Assuming that the alleged dying declaration of the victim, a copy of which has been furnished to counsel for appellant, was made in expectation of immediate death and after hope of recovery had been abandoned, it is so unclear and self contradictory that one cannot know that the person who took this stenographic statement was actually in communication with the dying man, who could not speak, and is supposed to have responded to questions merely by shaking his head affirmatively or negatively. If the statement is of any significance, it tends to implicate defendant in the crime charged rather than to exculpate him. Although the Trial Judge should have directed that this statement be produced for the inspection of counsel for the defendant during the trial, failure to do so or omission to receive it in evidence could not have prejudiced defendant.” No opinion.

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


text:
    Albert B. Daggett, as Administrator of the Estate of James L. Daggett, Deceased, et al., Respondents, v. Al Keshner et al., Defendants, and Hyman Beribitsky et al., Individually and as Copartners Doing Business under the Name of B & S Garage, Appellants.
    Submitted March 9, 1959;
    decided March 13, 1959.
   Motion to clarify the order of this court dated January 22, 1959 [see 5 N Y 2d 937] granted and the order amended to read as follows: Ordered, that Nationwide Mutual Insurance Company be and it hereby is joined as a party defendantappeEant for the sole purpose of obtaining an adjudication as to the liabiEty of the insured to plaintiffs and, if the judgment be affirmed, the making of this joinder order or the fact of joinder of Nationwide pursuant to this order shaE not increase its EabiEty or the Emits of its liabiEty under its poEcy of insurance or prejudice any defenses it may have with respect to its obhgation under the poEcy.


text:
    In the Matter of Local 824, International Longshoremen’s Association (Ind.), Appellant, against Waterfront Commission of New York Harbor, Respondent. In the Matter of John Bowers, Appellant, against Waterfront Commission of New York Harbor, Respondent.
    Submitted February 23, 1959;
    decided March 13, 1959.

      William P. Sirignano for motion.

      Henry A. Lowenberg opposed.
   Motion denied with leave to renew upon the argument.


text:
    In the Matter of the Claim of Eugene R. Sittniewski et al., Appellants. Twin Coach Company, Respondent; Isador Lubin, as Industrial Commissioner, Respondent.
    Submitted February 23, 1959;
    decided March 13, 1959.

      John R. Davison and Edward D. Flaherty for motion.
    No one opposed.
   Appeal withdrawn.


text:
    Junius S. Morgan, Respondent, v. City of Glen Cove, Appellant.
    Argued January 14, 1959;
    decided March 12, 1959.

      Luke A. Mercadante and Eugene B. Hurley for appellant.

      Jackson A. Dykman, Augustus J. Wheeler and Herman Meltzer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Coxway and Judges Desmoxd, Dye, Fuld, Fboessel, Vax Voobhis and Burke.


text:
    In the Matter of the Estate of Samuel Niedelman, Deceased. Hilda Niedelman et al., Appellants; Frederick W. Marquand, as Executor and Trustee of Samuel Niedelman, Deceased, et al., Respondents.
    Argued January 13, 1959;
    decided March 13, 1959.

      Leonard G. Bisco and John E. Higgiston, Jr., for appellants.

      Burton T. Ryan and Harold A. Westcott for Frederick W. Marquand, as executor and trustee, respondent.

      Gerard V. Murphy, in person, and Harold D. Romanow for Gerard V. Murphy, special guardian for David Millendorf and others, infants, respondent.
   Order affirmed, Avith. costs payable out of the estate to all parties appearing separately and filing separate briefs; no opinion.

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


text:
    Valley Sand and Gravel Corporation, Respondent, v. Continental Casualty Company, Appellant, et al., Defendants.
    Argued January 22, 1959;
    decided March 13, 1959.

      W. Clyde O’Brien and Robert S. Burnham for appellant.

      William M. Marks and Raymond F. Allen for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    In the Matter of the Accounting of Samuel Thorne, Formerly Samuel Thorne, Jr., et al., as Surviving Trustees of Trusts Created by Samuel Thorne, Respondents; Jonathan E. Thorne, by His Guardian ad Litem, Eli H. Bronstein, et al., Appellants; United States of America et al., Respondents.
    Submitted April 6, 1959;
    decided April 7, 1959.
   Motion for adjournment of argument granted and case set down for argument during the May, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Matilda Carman, Appellant.
    Submitted April 6, 1959;
    decided April 7, 1959.
   Motion for enlargement of time granted and case set down for argument during the May, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Edward J. Kiernan, Appellant.
    Submitted April 6, 1959;
    decided April 7, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the May, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. James Peck, Ralph Di Gia, George Willoughby, Hollis Wyman, Jr., Tom Rick, Robert Gilmore, Marcus Cohen, Dale Brothington, Albert Uhrie, Patricia Daw and Elizabeth Quigley, Appellants. The People of the State of New York, Respondent, v. Abraham J. Muste, Kent Larrabee, Eileen Fantino, Ralph Di Gia, Henry J. Maiden, Bayard Rustin, Helen Russell, Mary Ann McCoy, Edith Horwitz, Patricia Rusk, James Peck, Robert Fisher, Hugh Corbin, Jackson Maclow, Dale Brothington, Andrew Osgood, Michael Kovalak and Henry Babcock, Appellants.
    Submitted April 6, 1959;
    decided April 7, 1959.
   Motion for a further enlargement of time granted and cases set down for argument during the October. 1959 session of the Court of- Appeals.


text:
    The People of the State of New York, Respondent, v. Irving Rothman, Also Known as Victor Rothschild, Appellant.
    Submitted April 6, 1959;
    decided April 7, 1959.
   Motion to have appeal heard upon the original record and legible typewritten briefs granted.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Joseph Tarsia, Appellant.
    Argued February 12, 1980;
    Decided April 1, 1980

      POINTS OF COUNSEL

      Remo A. Allio for appellant.
    I. The first statement of January 28, 1976 was not given voluntarily. (People v Zimmer, 68 Misc 2d 1067, 40 AD2d 955; Townsend v Sain, 372 US 293; People v Wilson, 78 Misc 2d 468, 47 AD2d 671; Leyra v Denno, 347 US 556; People v Leonard, 59 AD2d 1; Wan v United States, 266 US 1.) II. The second statement of January 28, 1976 was not given voluntarily. (People v Valeris, 31 NY2d 51.) III. The third statement of January 28, 1976 was not given voluntarily. (Spano v New York, 360 US 315; Chambers v Florida, 309 US 227; Thomas v State of North Carolina, 447 F2d 1320; Lego v Twomey, 404 US 477.) IV. The trial court erred in allowing Gaul’s testimony concerning the stress evaluation test. V. The court erred in allowing the test questions and the answers into evidence together with Lieutenant Gaul’s remarks.

      Patrick D. Monserrate, District Attorney (Patrick H. Mathews of counsel), for respondent.
    I. The psychological stress evaluation test and/or testing technique utilized in the instant case were not such as to render the resultant confessions inadmissible as the product of coercion. (Clewis v Texas, 386 US 707; People v Wilson, 78 Misc 2d 468; People v Zimmer, 68 Misc 2d 1067, 40 AD2d 955; People v Leonard, 59 AD2d 1; People v Everett, 10 NY2d 500; People v Leyra, 302 NY 353.) II. The length and technique of interrogation were not such as to render the resultant confessions inadmissible as the product of coercion. (People v Clow, 62 AD2d 880; People v Leonard, 59 AD2d 1; People v Anderson, 42 NY2d 35; People v Prochilo, 41 NY2d 759.) III. It was not error to permit testimony before the trial jury concerning the psychological stress evaluation test since it was the defense that desired to reveal such matters as basis for their argument that defendant’s ultimate confession was involuntary. (People v Tarsia, 67 AD2d 210; People v McCain, 42 AD2d 866.)
   OPINION OF THE COURT

Fuchsberg, J.

On this appeal, in the face of the trial strategy-adopted by the defendant, we conclude that it was not error to admit testimony concerning the defendant’s submission to a voice stress evaluation test or a tape recording of the test questions and answers. Additionally, we hold that defendant’s oral and written inculpatory statements were not rendered involuntary as a matter of law merely because they followed upon his participation in the test.

After a trial by jury, Joseph Tarsia was convicted of an attempt to murder his estranged wife (Penal Law, §§ 110.00, 125.25, subd 1), and the judgment entered thereon has since been affirmed by the Appellate Division. The operative facts follow.

On December 7, 1975, defendant’s wife, while standing in the doorway of her farmhouse, was struck by what was later determined to be a deer slug fired from a .20 gauge shotgun. Shortly thereafter, when police were already on the scene, defendant emerged from the woods behind the house, where he claimed he had been hunting. He carried a rifle with a spent shell casing still in the chamber; the weapon, however, was incapable of firing the round that injured the wife. Defendant manifested complete surprise when told that his wife had been shot. Except to mention that he had seen two other hunters in the woods, he denied any knowledge of how the shooting had occurred.

Ten days later, defendant was questioned again, this time in connection with what the police described to him as a "possible violation of shooting”. After he had been advised of, and had waived, his Miranda rights, he persisted in denying any involvement in the incident. However, when the detective suggested a means by which he could put to rest any suspicion, especially on the part of the victim’s family, that he was responsible for the shooting, defendant agreed to submit to a voice stress evaluation test, which was arranged for January 28, 1976 at one o’clock.

At the appointed time defendant arrived at the local police department, again was advised of his rights and again waived them, this time in writing. He thereupon was interviewed by one Lieutenant Gaul, who familiarized him with the test procedures and administered the test. Because its results fed the examiner’s suspicions about defendant’s veracity, Gaul questioned Tarsia further about several details of his story. Soon after this, in a cathartic outburst, defendant admitted shooting his wife. He subsequently made one oral and two written confessions during the balance of his session with the police, which lasted until nearly midnight.

Tarsia now contends, as he did unsuccessfully in a pretrial suppression hearing, that the techniques employed by the examiner incidental to the administering of the voice stress test overbore his will to such a degree that his confessions must be deemed involuntary and, thus, inadmissible to prove his guilt. Additionally, he argues that the totality of the circumstances, but chiefly the nearly 11 hours that elapsed between the hour he arrived to take the test and the time his final statement was taken, vitiated the confessions. Finally, defendant alleges as reversible error the introduction of Lieutenant’s Gaul’s testimony describing the administration of the test as well as the subsequent replaying to the jury of the tape-recorded interview, an integral part of the procedure. The Appellate Division rejected all of these contentions (67 AD2d 210). We believe its decision was correct.

Inasmuch as its alleged misuse furnishes much of the basis for defendant’s appeal, some description of the test is in order. Its purpose, like that of the polygraph or "lie detector”, is to measure certain physiological manifestations of stress which commonly are thought to accompany untruthful or evasive answers. While a polygraph records changes in respiration, blood pressure, heart rate and the skin’s resistance to electric current (see People v Leone, 25 NY2d 511, 513; Scientific and Expert Evidence in Criminal Advocacy [Cederbaums and Arnold eds], ch 10, pp 221-222), the theory of the voice stress test is that the utterance of false responses causes involuntary nervous reactions which are manifested by inaudible frequency modulations in the human voice detectable with the aid of a device known as the voice stress evaluator (Moenssens and Inbau, Scientific Evidence in Criminal Cases [2d ed], § 15.13, pp 638-639). The procedure followed in the present case illustrates in greater detail how the instrument is utilized.

The test, which lasted but five minutes, first called upon Gaul, as the tester, to familiarize Tarsia with a prearranged series of questions concerning the shooting in order to avoid his misunderstanding them when he thereafter would be asked to answer each of them with a simple "yes” or "no”. Included were so-called "irrelevant” questions (for example, "Are you presently wearing a hat?”), whose design was to elicit nonstress or "normal” responses for use as standards of comparison. Typical of the relevant queries which focused on the defendant’s role in the episode under investigation were "Do you suspect someone of shooting your wife?” "Do you know who shot your wife?” and "Did you shoot your wife?”; to each, defendant responded in the negative. A tape of the responses, recorded as they were given, was then played through the stress evaluator, which, in turn, produced a chart reflecting the relative degree of stress under which each answer was given, heavy stress presumably indicating an untruthful response.

Unlike the polygraph, whose reliability as a determinant of truth or falsity has been the object of scientific testing during its much longer history, the voice stress evaluator has only come on the market in the last decade, during which it has had not only far less time but also far fewer occasions in which to prove itself. Yet, attempts to demonstrate that the polygraph is possessed of scientific certainty have been held too indecisive to warrant judicial acceptance (People v Leone, supra, p 517; Pereira v Pereira, 35 NY2d 301, 306-307; see, generally, 3A Wigmore, Evidence [Chadbourn rev ed], § 999; Use of Polygraphs as "Lie Detectors” by the Federal Government, H Rep No. 198, 89th Cong, 1st Sess, p 1). Not surprisingly, then, in light of the limited opportunities for judicial appraisal of proofs submitted in support of the accuracy of the voice stress test, with its kindred reliance upon manifestations of a mixture of physical and emotional reactions, that device has fared no better in the courts (see State v Schouest, 351 So 2d 462, 468-469 [La]; Smith v State, 31 Md App 106, 120 ["(a) lie detector test by any other name is still a lie detector test”]). In any event, the People in the present case having failed to challenge these determinations or to make any attempt to prove any advance in the test’s acceptance in the scientific community, we confine ourselves to observing that, unlike the degree of equivocation that exists regarding the reliabiity of the polygraph (see People v Leone, supra, pp 514-516), authorities on voice stress analysis tend to agree that test is not reliable (see Moenssens and Inbau, Scientific Evidence in Criminal Cases [2d ed], § 15.14; Link, Detection Through Voice-Analysis, 3 Military Police Law Enforcement J, pp 38, 40).

This said, we now consider the contention that the trial court should not have allowed Lieutenant Gaul to describe his administering of the voice stress test. In this connection, it should be made clear that the lieutenant did no more than present a word picture of his preliminary interview with the defendant, as well as recite the questions he had put, the answers he had received and the substance of the ensuing interview in which he had engaged the defendant. For practical purposes, he did not communicate the evaluator’s recording nor his own interpretation of the data it produced. And, other than that these may have been included in his part of the colloquy that surrounded the giving of the test, he did not characterize defendant’s answers as true or false.

We specifically note too that the propriety of this testimony and of the tape-playing episode must both be evaluated in the perspective of the trial strategy mounted by defendant’s counsel. Apparently convinced that a successful defense hung on the possibility of overcoming the seemingly insuperable handicap created by the three sets of admissions, he elected early on to candidly concede the making of the confessions. Obviously, he hoped to shift the decisive focus of the trial onto his contention that the criminal charges, and the confessions on which they so heavily depended, were produced by psychological pressures which drew their strength from a highly suspect and invidious pseudo-scientific device. To that end, the role of the test as the lynchpin of the defense of involuntariness was to be stressed throughout the trial in an attempt to correlate it with the graduation of the confession from one which started, in the first statement, with Tarsia’s specific denial of intent to kill and, as the argument went, culminated, under pressure of the police activity, in one in which he was willing to say that he intended to kill.

So, when the District Attorney in his opening briefly alluded to the defendant’s voluntary submission to the stress test, defense counsel not only made no objection but, indeed, by his own remarks to the jury, made it his business to expose, rather than to suppress, the circumstances surrounding the testing of his client. Holding to this course, he also interposed no objection to Lieutenant Gaul’s testimony, not even when the witness, without defining the significance of his comment, at one point stated that he "saw stress indicated on the chart in regard to [Tarsia] shooting his wife”. It requires only elementary insight to understand that these tactics facilitated counsel’s own extensive cross-examination of the lieutenant along lines that would enhance the coercion theory on which he relied. Aside from problems of nonpreservation, for the defendant, aided by the advantages of hindsight, to now be permitted to reverse his chosen course and claim that the testimony regarding his submission to the stress test should have been excluded, would be to countenance his eating his cake and having it too. This we will not do. (Cf. People v Piazza, 48 NY2d 151, 163.)

This brings us to the tape-playing. It was almost at the conclusion of the lieutenant’s direct testimony that the prosecutor sought to play the tape which had recorded the stress interrogation and defendant’s subsequent admissions. Beside use of the occasion to renew his contention that the admissions were coerced, the sole objection defendant registered was directed only to the admissibility of the "test results”. In an accompanying colloquy, the District Attorney willingly conceded that any evaluation of defendant’s veracity could not go before the jury and pointed out that the playing of the tape could not serve such a purpose. It was equally clear that his offer was not intended to embrace any such proof, but instead would constitute demonstrative evidence which might shed some light on the tone, pace, timing and other audible characteristics of the questions and answers, with the precise words of which jury already had been favored. It cannot be gainsaid that defendant could have urged that, in the wake of the earlier description of the general purpose of the test’s questions and answers, the jury had been so hypersensitized to the nuances of speech of both interrogator and subject that it might, for instance, unwarrantedly and prejudicially read the defendant’s slightest pause and inflection as a sign of his mendacity. And true, in some circumstances a test that may carry with it an aura of scientific certainty could block out full consideration of other facets of proof so that the ability to obtain a fair decision could be compromised. On the other hand, from its point of view, the prosecution could have responded that the defendant’s concentration on the allegedly coercive nature and effect of the testing procedure had opened the door. However, we need not reach such a question in this case for, defendant having failed to specify this ground for his objection, the issue has not been preserved for our consideration (see CPL 470.05, subd 2; People v Moore, 42 NY2d 421, 435).

With all this as background, we may now examine the merits of defendant’s claim that the use of the voice stress test somehow coerced his confessions. We begin with the reminder that much of what is cherished in our society may be traced to the Federal and State Constitutions’ steadfast refusal to countenance confessions obtained by coercive means. To declare otherwise, in effect that the end of securing the conviction of a criminal justifies whatever means, however inhumane, the State chooses to employ, would signal the demise of public trust in the institutions of Government (see Olmstead v United States, 277 US 438, 485 [Brandeis, J., dissenting]). So, the law brooks no infringement of due process rights at the time they are most needed, when the accusatorial power of the State is brought to bear in the course of a criminal investigation. Everyone therefore agrees that "third degree” methods are intolerable; their potential for generating unreliable, if not patently false, confessions is readily recognizable even by the most unsophisticated (see, Paulsen, Fourteenth Amendment and the Third Degree, 6 Stan L Rev 411, 429; White, Police Trickery in Inducing Confessions, 127 U of Pa L Rev 581, 585).

However, while more subtle methods, though sometimes harder to perceive, are equally to be condemned when they trammel on the rights of those in custody (see Driver, Confessions and the Social Psychology of Coercion, 82 Harv L Rev 42, 51; Sobel, New Confession Standards, p 8), it may take a discerning eye to tell those that are fundamentally unfair from those which are no more than permissible instances in which the police have played the role of "midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation” (Culombe v Connecticut, 367 US 568, 576 [Frankfurter, J.]). What emerges from the cases is a reliance on the spirit of the constitutional protections, tampered always by the particular circumstances of each case (see People v Anderson, 42 NY2d 35, 38; Stein v New York, 346 US 156, 185; ALI Model Code of Pre-Arraignment Procedure, §§ 140.2, 140.4, 140.6, 150.2).

In.this case, the coerciveness argument derives from the subsidiary claims that defendant was misinformed as to the purpose of the voice stress test and made to believe that the test could prove his story false, as a result of which he felt under a compulsion to confess. Although there is no per se rule which makes confessions that follow on the heels of such a test inadmissible (see People v McGuffin, 55 AD2d 772, 773; United States v McDevitt, 328 F2d 282, 284 [involving polygraphs]), it would be naive to assume that the potential for abuse does not exist (see Bruner v People, 113 Col 194), or that, in appropriate circumstances, the use of voice stress test, like a polygraph, might not be a factor contributing to an involuntary confession (see People v Leonard, 59 AD2d 1, 14-15; People v Zimmer, 68 Misc 2d 1067, affd 40 AD2d 955; Ann., 23 ALR2d 1306).

For example, in People v Leonard (supra), a polygraph was found to have been misused to extract a confession. There, the examiner, professing to be concerned with helping the defendant, conveyed to him the impression that the machine was infallible and knew the truth (p 15) "just like [you] and God”, and detectives assured him that the machine had proved he had "lied” and that the examiner would so testify. Similarly, in People v Zimmer (supra), the confession was found to have been coerced when the defendant was repeatedly told by the examiner that the test revealed her untruthfulness and that its results could be used against her.

Our case evidences none of the characteristics that made the police tactics in Leonard and Zimmer so egregious. Admittedly, there was at least some measure of guile employed by the police, notably in imparting to the defendant that their concern was "a possible violation of shooting” rather than the serious charge of attempted murder. But such stratagems need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process (see People v Leyra, 302 NY 353; People v Isaacson, 44 NY2d 511, 520-523; cf. Brewer v Williams, 430 US 387) or that a promise or threat was made that could induce a false confession (People v Pereira, 26 NY2d 265, 266-267; People v McQueen, 18 NY2d 337, 346; United States ex rel. Everett v Murphy, 329 F2d 68, 70).

Here, no impression that the voice stress test was omniscient was foisted upon defendant. To the contrary, he was informed that the test could not determine whether he was lying. In addition, Lieutenant Gaul explained in advance what the signs of stress would be and examined the stress chart in defendant’s presence. Moreover, there was no misrepresentation made that the test results could be admissible in a trial against him. Rather, the test was used simply as an investigatory tool.

Nor can it be said as a matter of law that the police, their investigatory ardor not having been stilled by the test results, continued their inquiry in a manner calculated to undermine defendant’s free will. The record shows that they did not browbeat Tarsia with accusations of untruthfulness. True, Lieutenant Gaul did provocatively remark, upon examining the stress chart: "it looks like you have a serious problem here; it doesn’t look good from this particular test * * * it makes me have my doubts.” And he did confront the Miranda-warned defendant with several details from his version of the events of December 7 that Gaul asserted raised doubt as to Tarsia’s veracity: that the presence of a spent shell in defendant’s rifle was unusual because a hunter normally would automatically eject a shell after firing and reload the weapon; that, although defendant claimed to have shot at a deer, he never went to check for signs of whether he hit the deer; and that defendant had stated that he had gone to Binghamton for lunch that day — a 40-mile round trip. But this does not tell us that the confession that quickly followed was any more than the product of the permissible intimation that it was useless for Tarsia to conceal his culpability any longer.

Furthermore, it is uncontested that defendant voluntarily consented to participate in the test, appeared at the police station of his own volition and, though informed orally and in writing beforehand that he need not submit to the test and, if he chose to, could have counsel with him, never so much as hesitated in his co-operation with the police (see People v Wilson, 78 Misc 2d 468, 479, affd 47 AD2d 671).

Finally, as to the far from inconsequential fact that the defendant spent 11 hours, most of it in custody, with the police on the day he confessed, there is no claim he was ever physically abused or mistreated; or not allowed an opportunity to speak with the only person he requested to see, the woman with whom he was cohabiting; or even denied refreshment; or that there exist any circumstances not already detailed in this opinion on which any assertion of involuntariness can be posited (compare People v Anderson, 42 NY2d 35, 39-41). Additionally, that he was advised of his Miranda rights periodically during this interval, each time agreeing to waive them, is unquestioned. Without more, the length of time involved did not render the confessions obtained during that period inadmissible (see People v Carbonaro, 21 NY2d 271, 277; People v De Jesus, 63 AD2d 148, 153-154).

Consequently, on the total evidence, we are compelled to reject the contention that the proof was insufficient as a matter of law to support the affirmed findings that defendant’s inculpatory statements, notwithstanding, in particular, the use of the voice stress test, were voluntary and not the product of coercion (see People v Stephen J. B., 23 NY2d 611, 616; People v Leonti, 18 NY2d 384).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order affirmed.