author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Anthony Peter Riela, Appellant.
    Argued March 2, 1960;
    decided April 21, 1960.

      Louis Mansdorf for appellant.
    I. No crime of criminal contempt was committed because the court at no time ordered or directed appellant to answer the questions to which he asserted the constitutional plea of privilege against self incrimination. (Matter of Spector v. Allen, 281 N. Y. 251; People v. Steuding, 6 N Y 2d 214; Brown v. United States, 359 U. S. 41; Mills v. Louisiana, 360 U. S. 230; Raley v. Ohio, 360 U. S. 423; Flaxer v. United States, 358 U. S. 147; Emspak v. United States, 349 U. S. 190; Quinn v. United States, 349 U. S. 155; Hoffman v. United States, 341 U. S. 479; Maffie v. United States, 209 F. 2d 225; Carlson v. United States, 209 F. 2d 209; Hooley v. United States, 209 F. 2d 219; Matter of Commission of Investigation of State of N. Y. v. Lombardozzi, 7 A D 2d 48, 5 N Y 2d 1026; Castellano v. Commission of Investigation, 361 U. S. 7.) II. The instant case is distinguishable from, and not controlled by, authorities relied upon by the People. (Knapp v. Schweitzer, 357 U. S. 371; Mills v. Louisiana, 360 U. S. 230; Dunham v. Ottinger, 243 N. Y. 423; Matter of Commission of Investigation of State of N. Y. v. Lombardozzi, 7 A D 2d 48, 5 N Y 2d 1026; Castellano v. Commission of Investigation, 361 U. S. 7; Hoffman v. United States, 341 U. S. 479; Brown v. Walker, 161 U. S. 591.) III. Assuming, but not conceding, the validity of the indictment and of the conviction, the 17 counts of contempt are repetitious, and, if all are proved, they can constitute but one, single contempt. (Yates v. United States, 355 U. S. 66; People v. Amarante, 278 App. Div. 827; Matter of Amato,
      204 Misc. 454; People v. Saperstein, 2 N Y 2d 210.) IV. The People failed to establish beyond a reasonable doubt that defendant was guilty of contumaciously and unlawfully refusing to answer legal and proper interrogatories. (People v. Finkelstein, 202 Misc. 1080; Matter of Herlands, 204 Misc. 373; People v. Richter, 182 Misc. 96; Brown v. United States, 359 U. S. 41; Matter of Investigation into Criminal Abortions in Kings County, 206 Misc. 830; United States v. Palermo, 259 F. 2d 872; United States v. Icardi, 140 F. Supp. 383.) V. The court erred in applying and refusing to apply divers principles of law. (United States v. Zwillman, 108 F. 2d 802; Matter of Hirshfield v. Craig, 239 N. Y. 98; Matter of Cole, 208 Misc. 697; Matter of Morse, 42 Misc. 664; Matter of Osborne, 68 Misc. 597; Matter of Greenleaf, 176 Misc. 566; Hendricks v. United States, 223 U. S. 178; Matter of Manning v. Valente, 272 App. Div. 358; Blair v. United States, 250 U. S. 273.) VI. Under the facts herein, appellant’s constitutional guarantees of the Constitutions of the United States and New York, and the statutes of New Jersey, have been violated. VII. Section 2447 of the Penal Law, as applied herein with section 618-a of the Code of Criminal Procedure, is unconstitutional in that the immunity offered pursuant thereto is not coextensive with the peril of prosecution existing for a nonresident witness where Grand Jury minutes have been forwarded to state agencies co-operating with the witness ’ home state, other states and the federal government. (People v. De Feo, 284 App. Div. 622, 308 N. Y. 595.) VIII. Section 618-a of the Code of Criminal Procedure as applied herein is unconstitutional because it was used to lure a nonresident witness into this state, when such witness was a potential defendant and a target of investigation, and where the subsequent offer of immunity was not coextensive with the peril of prosecution existing in the witness’ home state, other states, and the federal government. (United States v. Zwillman, 108 F. 2d 802; Hoffman v. United States, 341 U. S. 479; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253.) IX. The denial of a hearing on the issue of the witness’ materiality pursuant to section 618-a of the Code of Criminal Procedure is a denial of procedural due process repugnant to appellant’s constitutional rights under the Fourteenth Amendment and sections 1 and 2 of article IY and clause 2 of article YI of the United States Constitution, and section 6 of article I of the New York Constitution. (Matter of Stamler, 279 App. Div. 908; New York v. O’Neill, 359 U. S. 1.)

      George Boldman, District Attorney (Eliot H. Lumbard and Joseph Fisch of counsel), for respondent.
    I. Appellant’s conduct before the Grand Jury constituted a criminal contempt of court under section 600 of the Penal Law since the Grand Jury has the power to confer immunity and to compel a witness to answer. (Brown v. United States, 359 U. S. 41; People v. Saperstein, 2 N Y 2d 210.) II. The holdings of Knapp v. Schweitzer (2 N Y 2d 913, 357 U. S. 371) and Mills v. Louisiana are applicable to and controlling upon the case at bar. (Mills v. Louisiana, 360 U. S. 230.) III. Each instance of appellant’s refusal to answer constitutes a separate violation of law. (People v. Saperstein, 2 N Y 2d 210; Matter of Amato, 204 Misc. 454; People v. Breslin, 306 N. Y. 294; Matter of Commission of Investigation of State of N. Y. v. Lombardozzi, 7 A D 2d 48, 5 N Y 2d 1026; Yates v. United States, 355 U. S. 66.) IY. Appellant’s willful, contumacious and unlawful refusal to answer was established beyond a reasonable doubt. (Matter of Commission of Investigation of State of N. Y. v. Lombardozzi, 7 A D 2d 48, 5 N Y 2d 1026; Jack v. Kansas, 199 U. S. 372; Feldman v. United States, 322 U. S. 487; Matter of Greenleaf, 176 Misc. 566; Matter of Cost, 198 Misc. 782, 277 App. Div. 1049, 304 N. Y. 800; Spohrer v. Cohen, 3 Misc 2d 248.) Y. Principles of law and rules of evidence were properly applied by the court in conducting the trial. (Blair v. United States, 250 U. S. 273; Hendricks v. United States, 223 U. S. 178; Hale v. Henkel, 201 U. S. 43; People v. Stern, 3 N Y 2d 658; Matter of Morse, 42 Misc. 664; Matter of Manning v. Valente, 272 App. Div. 358, 297 N. Y. 681; People v. Besser, 207 Misc. 692; Matter of InterCity Associates, 207 Misc. 1012; People ex rel. Travis v. Knott, 204 App. Div. 379.) YI. No rights of appellant guaranteed under the Constitutions and laws of the United States and the states of New York and New Jersey were violated. The immunity conferred upon appellant was coextensive with and as broad as his privilege against self incrimination. (Matter of Commission of Investigation of State of N. Y. v. Lombardozzi, 7 A D 2d 48, 5 N Y 2d 1026; Mills v. Louisiana, 360 U. S. 230;
      Knapp .v. Schweitzer, 2 N Y 2d 913, 357 U. S. 371; Dunham v. Ottinger, 243 N. Y. 423.) VII. Appellant’s appearance before the Grand Jury as a witness was in accordance with law and appellant was properly subject to its jurisdiction. (Matter of Stamler, 279 App. Div. 908.)
   Fuld, J.

Anthony Peter Biela was one of the 60-odd guests who had gathered at the country estate of Joseph Barbara in Apalachin, New York, on a November day in 1957. This gathering, having attracted considerable attention from law enforcement officials, became the target of investigation by the Grand Jury of Tioga County. Biela, called as a witness, made two appearances before that body. From the beginning, he refused to answer any questions concerning the ‘1 Apalachin meeting ’ ’, as it has come to be known, on the ground that to do so might tend to incriminate him and, in the course of his two appearances before the Grand Jury, he persisted in the claim of privilege and declined to answer 17 questions about that same subject. Thereupon, at the request of the District Attorney of Tioga County, the Grand Jury, acting pursuant to the authority vested in it by section 2447 of the Penal Law, “ conferred immunity ” upon Biela and ordered him, following the procedure prescribed by the statute, to answer the questions previously put to him. The same 17 questions were again asked and Biela, reiterating his reliance upon the privilege, again refused to answer.

As a consequence of his refusal, the Grand Jury indicted him, charging him, in 17 different counts, with 17 separate crimes of contempt in violation of section 600 of the Penal Law. The defendant waived his right to a jury and went to trial before the County Judge. The latter, finding him guilty on all 17 counts, sentenced him to 60 days in jail upon each, to run concurrently, and imposed a fine of $250 on each count, for a total fine of $4,250.

Before proceeding to an elaboration of the question which prompted the grant of leave to appeal to this court, we consider briefly the only two other points urged by the defendant which warrant discussion: (1) that the immunity provided by section 2447 of the Penal Law had not been properly conferred and (2) that, in any event, such immunity was not broad enough to assure him the protection guaranteed by the Constitution. As to the first, it is necessary only to observe that a reading of section 2447 makes it manifest that the Grand Jury had unquestioned power to confer immunity upon Biela and direct him to answer under pain of prosecution for contempt. And, as to the second point, it is equally clear, under current decisions, that a witness may be compelled to answer in a state proceeding, as long as the immunity granted by the state protects against prosecution under its laws, even though it may not protect against prosecution by the federal government or by other states. (See, e.g., Mills v. Louisiana, 360 U. S. 230; Knapp v. Schweitzer, 357 U. S. 371; Matter of Commission of Investigation of State of N. Y. v. Lombardozzi, 5 N Y 2d 1026, appeal dismissed sub nom. Castellano v. Commission of Investigation, 361 U. S. 7.)

We come, now, to the real question in the case, namely, whether the defendant is guilty of 17 crimes of contempt or of one. Concerning this, it is our opinion that, while there can be no doubt that Biela’s conduct before the Grand Jury constituted criminal contempt under section 600 of the Penal Law, his conviction of 17 separate crimes of contempt, each susceptible to punishment of a year in prison, was totally unjustified.

It is quite true, as the Appellate Division observed, that ‘ ‘ the questions [asked of the defendant] were by no means the same question rephrased ”, but, in a case such as the present, where the refusal to answer was grounded, albeit mistakenly, on the privilege against self incrimination, the circumstance that no two questions could have been answered by a single response is beside the point. What is of significance is that it was apparent from the very start of his interrogation that Biela, relying upon the privilege, would decline to answer any question bearing on the “Apalachin meeting ”, and that the questions, different though they were from one another, all related to that one subject. This being so, he is guilty of the single contempt of refusing to give testimony concerning the Apalachin gathering, rather than 17 contempts for refusal to answer individual questions about it. (See, e.g., Yates v. United States, 355 U. S. 66, 73; United States v. Costello, 198 F. 2d 200, 204, cert. denied 344 U. S. 874; United States v. Orman, 207 F. 2d 148, 160; Maxwell v. Rives, 11 Nev. 213, 221; Fawick Airflex Co. v. United Elec., Radio & Mach. Workers, 56 Ohio L. Abs. 419, 426, 92 N. E. 2d 431, 436, appeal dismissed 154 Ohio St. 206.)

Any other result impresses us as offensive, for, if each separate reassertion of privilege and refusal to answer were to be treated as a distinct contempt, there would be no limit to the number of contempts for which Riela could have been held. The District Attorney could just as well have asked 60 questions about Apalachin — for instance, whether Riela knew each of the 60 individuals reputed to have been present — as 17, and, if each could become the predicate of a distinct contempt, the limit of punishment would then depend only on the extent of the District Attorney’s ingenuity and whim. As the Supreme Court said in the somewhat similar case of Yates v. United States (355 U. S. 66, 73, supra), “ the prosecution cannot multiply contempts by repeated questioning on the same subject of inquiry within which a recalcitrant witness already has refused answers. ’ ’

Riela, under existing law, may well have been under the necessity, once he asserted the privilege, of repeating the claim as to each and every question asked him, lest an answer to any one be deemed to effect a complete waiver of the privilege. (See, e.g., People v. Cassidy, 213 N. Y. 388, 394; Rogers v. United States, 340 U. S. 367, 372-374; Brown v. Walker, 161 U. S. 591, 597; 8 Wigmore, Evidence [3d ed., 1940], pp. 438-439.) This being so — to paraphrase what was said in the Costello case (198 F. 2d 200, 204, supra) — the contempt was total when the defendant made it clear that he would not answer questions about Apalachin on the ground of self incrimination and his repeated refusals may not properly be considered as anything more than expressions of his intention to adhere to his initial assertion of the privilege; and, surely, they were not separately punishable. The contempt here to be punished is Riela’s misguided refusal to give any testimony about Apalachin, and not his reiteration of that refusal in response to the many questions which the District Attorney elected to put to him.

People v. Saperstein (2 N Y 2d 210, cert, denied 335 U. S. 946), upon which the People strongly rely, does not support their contrary position; the situation with which we there dealt was essentially different from the one now before us. Saperstein was adjudged guilty of five crimes of contempt because of his evasiveness or, more specifically, his refusal “ to state definitely ” who were the participants in five separate telephone conversations which had been wire tapped. Each of the contempts was based not upon a refusal grounded on any claim of privilege, but, among other things, on his patently evasive testimony that he did not know, and could not tell, whether he himself had participated in those telephone conversations. These refusals came at different points during the course of testimony which was otherwise freely given, and each refusal was unrelated to every other one. Under such circumstances, there could be no assurance, after the witness had refused to answer the question with respect to the first phone call, that he would likewise refuse to answer the later questions about the other conversations. It was not possible in Saperstein, as it was here, to predict or foresee the pattern of refusal which necessarily attends the assertion of a claim of privilege.

In short, what distinguishes this case from People v. Saperstein is that here we have a claim of privilege which ‘ ‘ carved out an area of refusal ”. (Yates v. United States, 355 U. S. 66, 73, supra.) In the present case, the District Attorney necessarily knew, ahead of time, that the claim of privilege once asserted would be repeated, while in Saperstein the prosecutor had to continue questioning to find the limits of the defendant’s refusal to answer. In Saperstein, in other words, the District Attorney was engaged in bona fide interrogation, in the sense that he could reasonably have supposed that the witness would answer each of the questions asked, while here the District Attorney repeated 17 questions knowing full well from Riela’s response to his first query that he would not answer any of them.

The defendant committed but a single contempt with relation to one subject; his conviction of 17 separate crimes was, therefore, impermissible and the sentences imposed may not stand.

The judgment should be reversed and the case remitted to the County Court of Tioga County for resentence.

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

Judgment reversed, etc.


source: Caselaw Access Project

author: Fuld, J. Desmond, Ch. J.

license: Public Domain

text:
    Pauline R. Weiss, Respondent-Appellant, v. Francis A. Fote et al., Respondents, and City of Buffalo, Appellant. Willie L. Alexander, Respondent, v. Francis A. Fote, Defendant, and City of Buffalo, Appellant.
    Argued January 19, 1960;
    decided April 21, 1960.

      Anthony Manguso, Corporation Counsel (Daniel J. Lucitt of counsel), for appellant.
    I. The discretionary determination or judgment of the Board of Safety of the City of Buffalo, in locating and/or timing traffic signals which are not defective and which function as planned, cannot impose liability in negligence upon the City of Buffalo. (Steitz v. City of Beacon, 295 N. Y. 51; Matter of Emerson v. Buck, 230 N. Y. 380; McCabe v. City of New York, 213 N. Y. 468; Blanshard v. City of New York, 262 N. Y. 5; City of Albany v. Newhof, 230 App. Div. 687, 256 N. Y. 661; Kamnitzer v. City of New York, 265 App. Div. 636; Murrain v. Wilson Lines, 296 N. Y. 845; Haslam v. State of New York, 167 Misc. 455; Newiadony v. State of New York, 276 App. Div. 59; Coates v. United States, 181 F. 2d 816; Sickman v. United States, 184 F. 2d 616; Olson v. United States, 93 F. Supp. 150; Boyce v. United States, 93 F. Supp. 866; Urquhart v. City of Ogdensburg, 91 N. Y. 67; Lansing v. Toolan, 37 Mich. 152; Stratton v. City of New York, 190 N. Y. 294; Bernardine v. City of New York, 294 N. Y. 361; Lockwood v. Village of Buchanan, 18 Misc 2d 862.) II. The proof of plaintiffs-respondents, Weiss and Alexander, was not sufficient as a matter of law to prove the City of Buffalo guilty of actionable negligence that was the proximate cause of the accident. (Clark v. City of Buffalo, 288 N. Y. 62; Applebee v. State of New York, 308 N. Y. 502; Eastman v. State of New York, 303 N. Y. 691; Barna v. State of New York, 267 App. Div. 261; Gurevitch v. State of New York, 205 Misc. 487.) III. No actionable negligence can be imputed to the City of Buffalo. (Yusko v. Remizon, 280 App. Div. 637; Cartee v. Saks Fifth Ave., 277 App. Div. 606; Williams v. State of New York, 308 N. Y. 548; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; People v. Grant, 306 N. Y. 258; Hubbell v. City of Yonkers, 104 N. Y. 434; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.) IV. The court committed reversible errors during the trial by its comments and rulings as herein enumerated. (Ferguson v. Hub

      bell, 97 N. Y. 507; Dougherty v. Milliken, 163 N. Y. 527; Rosenfeld v. American Ins. Co., 260 App. Div. 697; Parish v. Baird, 160 N. Y. 302; Ward v. City of Troy, 55 App. Div. 192; Blind v. Rochester Aeronautical Corp., 273 App. Div. 1056; Cahill v. Kleinberg, 233 N. Y. 255; Begley v. Prudential Ins. Co. of America, 6 A D 2d 869, 1 N Y 2d 530; People v. Harris, 136 N. Y. 423; Stearns v. Field, 90 N. Y. 640.) V. The court, over objections, committed prejudicial, reversible errors in its charge to the jury. (Lyman v. Village of Potsdam, 228 N. Y. 398.) VI. The verdict in favor of plaintiff-respondent, Weiss, is excessive and should be set aside. (Jones v. New York Cent. & H. R. R. R. Co., 99 App. Div. 1; Kligman v. City of New York, 281 App. Div. 93; Conkey v. New York Cent. R. R. Co., 206 Misc. 1077; Turack v. State of New York, 259 App. Div. 1105, 285 N. Y. 737; Callahan v. State of New York, 179 Misc. 781, 266 App. Div. 1054; Elliott v. Zellar, 192 Misc. 350; Fried v. New York, N. H. & Hartford R. R. Co., 183 App. Div. 115, 230 N. Y. 619.) VII. The service of a proper notice of claim upon a duly designated officer of the City of Buffalo was not proven by either plaintiff-respondent. (MacMullen v. City of Middletown, 187 N. Y. 37.)

      Philip H. Magner, Jr., Samuel Sapowitch and Gerald L. Baskey for respondent-appellant.
    I. The clearance interval was unsafe and inadequate as a result of the negligence of the Traffic Engineer, Henry Osborne, an employee or agent of the City of Buffalo. II. The lack of a proper clearance interval was a proximate cause of the accident. (Vinci v. Charney, 192 Misc. 302; Foley v. State of New York, 294 N. Y. 275; Kingsland v. Erie County Agric. Soc., 298 N. Y. 409; Gibson v. State of New York, 173 Misc. 893; McDonald v. Central School Dist., No. 3, 179 Misc. 333, 264 App. Div. 943, 289 N. Y. 800.) III. The city is liable to plaintiff for the negligence of its agents or employees in improperly designing the intersection traffic control system. (Bernardine v. City of New York, 294 N. Y. 361; Steitz v. City of Beacon, 295 N. Y. 51; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; McCrink v. City of New York, 296 N. Y. 99; Joy v. City of Jamestown, 207 Misc. 873, 286 App. Div. 991; Parsons v. City of New York, 248 App. Div. 825, 273 N. Y. 547; Cleveland v. Town of Lancaster, 264 N. Y. 568; Schuster v. City of New York, 5 N Y 2d 75; Murphy v. De Revere, 279 App. Div. 929, 304 N. Y. 922; Annino v. City of Utica, 276 N. Y. 192; Metzroth v. City of New York, 241 N. Y. 470; Ziehm v. State of New York, 270 App. Div. 876; Urquhart v. City of Ogdensburg, 91 N. Y. 67; Monk v. Town of New Utrecht, 104 N. Y. 552; Garratt v. Trustees of Canandaigua, 135 N. Y. 436; Paine v. Village of Delhi, 116 N. Y. 224; Seifert v. City of Brooklyn, 101 N. Y. 136; Stern v. International Ry. Co., 220 N. Y. 284; Kiernan v. Mayor, 14 App. Div. 156.) IV. Expert opinion testimony is permissible as to the safety of the traffic control methods adopted for the intersection. (Price v. Powell, 3 N. Y. 322; Curtis v. Gano, 26 N. Y. 426; Moore v. Westervelt, 27 N. Y. 234; Hart v. Hudson Riv. Bridge Co., 84 N. Y. 56; Ward v. Kilpatrick, 85 N. Y. 413; Finn v. Cassidy, 165 N. Y. 584; Sykes v. Village of Portland, 193 Mich. 86; Eargle v. Sumter Light. Co., 110 S. C. 560; Dardanelle Pontoon Bridge & Turnpike Co. v. Croom, 95 Ark. 284; Storms v. City of Fulton, 263 App. Div. 927.) V. The notice of claim was sufficient and the propriety of the service was not in issue. (Matter of Huntley v. City of Albany, 201 Misc. 426; Miller v. City of New York, 187 Misc. 926; Teresta v. City of New York, 304 N. Y. 440; Mink v. City of Albany, 203 Misc. 94; Gerding v. Haskin, 141 N. Y. 514; Bissel v. Campbell, 54 N. Y. 353; Booth v. Bunce, 31 N. Y. 246; Ramsay v. Miller, 202 N. Y. 72.)

      Willard M. Pottle for Francis A. Fote, respondent.
    The judgment dismissing plaintiff’s complaint as to respondents Fote should be affirmed.

      Edmund S. Brown for Willie L. Alexander, respondent.
    I. The jury determined that respondent Alexander was not negligent. II. The judgment dismissing plaintiff’s complaint as to respondent Alexander should be affirmed.
   Fuld, J.

In the early evening of October 31, 1955, a collision occurred in Buffalo between an automobile owned and operated by Willie Alexander and an automobile operated by Francis Fote and owned by him and his wife. Alexander was proceeding south on Delaware Avenue and Fote was driving west on Delavan Avenue. The impact of the collision propelled Fote’s car across the intersection, where it jumped the curb on the southwest corner and crushed Pauline Weiss, who had just alighted from a bus on her way home from work, against a fire hydrant. Mrs. Weiss sustained serious injuries and instituted an action, naming Alexander, the Fotes and the City of Buffalo as defendants. Alexander’s car was damaged and he too brought suit against the city and Francis Fote.

At the trial, the plaintiffs sought to show that the traffic signal lights maintained by the City of Buffalo at the intersection of Delaware and Delavan Avenues were negligently designed in that the “clearance interval” — the four-second interval between the time the green signal for east-west traffic on Delavan Avenue ended and the signal for north-south traffic on Delaware Avenue turned green — was too short, with the result, in this instance, that east-west traffic was “green-lighted” before all of the north-south traffic had cleared the intersection. The city’s evidence was that the lights had been designed and installed by its Board of Safety, that ample study of traffic conditions at the intersection, including numerous traffic checks, had been made prior to their installation in 1952 and that there was no showing of any other accident in the more than three years which had elapsed since that time.

The jury was instructed (1) to find the defendant city liable if it was negligent in failing to provide a sufficient “ clearance interval” and (2) to find the defendants Fote and Alexander liable if they drove into the intersection negligently. In each case, a verdict was returned in favor of the plaintiff, but only against the City of Buffalo; the consequent judgments were unanimously upheld by the Appellate Division, and the appeals, taken by both the city and the plaintiff Weiss, are here by permission of this court.

On the appeal by Mrs. Weiss from the judgment in favor of Alexander and the Fotes, we may simply say that there is no basis, on the record before us, for interfering with it; indeed, her suit was actually tried on the theory that the City of Buffalo alone was negligent. Consequently, we need concern ourselves solely with the question of the latter’s liability, and as to this it is our conclusion that the evidence fails to show a breach of any duty owed to the plaintiffs by the city.

Even before the Legislature had, by the enactment of what is now section 8 of the Court of Claims Act, provided for the general waiver of immunity by the State, the immunity enjoyed by the State and its subdivisions with respect to the maintenance of the streets and highways had already been withdrawn. Reviewing the case law, which antedated passage of the immunity waiver provision, the court in Annino v. City of Utica (276 N. Y. 192, 196), declared that a municipality “ owed to the public the absolute duty of keeping its streets in a reasonably safe condition for travel ’ ’. (See, also, Brusso v. City of Buffalo, 90 N. Y. 679; Storrs v. City of Utica, 17 N. Y. 104.) But, in measuring that duty, we have long and consistently held that the courts would not go behind the ordinary performance of planning functions by the officials to whom those functions were entrusted. This rule, announced in 1883 in Urquhart v. City of Ogdensburg (91 N. Y. 67), has been uniformly followed since that time. In the Urquhart case, the court denied liability for injuries arising out of a “ radical defect ’ ’ in the plan of a sidewalk built by the municipality, and in the course of its opinion wrote (p. 71):

“ The rule is well settled that where power is conferred on public officers or a municipal corporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power or an erroneous estimate of the public needs, no civil action can be maintained. ’ ’

The rationale of the decision is found in language quoted by the court from Chief Judge Cooley’s opinion in Lansing v. Toolan (37 Mich. 152, 154): “ Courts and juries are not to say [municipal corporations] shall be punished in damages for not giving to the public more complete protection; for * * * that would be to take the administration of municipal affairs out of the hands to which it has been entrusted by law.”

It is significant, we believe, that the body of cases which follows Urquhart (see, e.g., Watson v. City of Kingston, 114 N. Y. 88, 91; Paine v. Village of Delhi, 116 N. Y. 224, 228; Stern v. International Ry. Co., 220 N. Y. 284, 294; Barrett v. State of New York, 220 N. Y. 423, 430-431; Pitman v. City of New York, 141 App. Div. 670, 672; Treadwell v. City of Yonkers, 192 App. Div. 421, 423) is completely set apart by its distinctive rationale from the body of cases which denies municipal liability on the broad ground that the sovereign can do no wrong. (See, e.g., Maximilian v. Mayor, 62 N. Y. 160,164-165; Lefrois v. County of Monroe, 162 N. Y. 563, 566-567; Wilcox v. City of Rochester, 190 N. Y. 137, 141-142; Matter of Gewerts v. Berry, 258 N. Y. 505, 508.) The first set of cases rests immunity on the policy of maintaining the administration of municipal affairs in the hands of state or municipal executive officers as against the incursion of courts and juries, while the other rests the immunity on the sovereign character of the state or municipality in the performance of its governmental functions. Bernardine v. City of New York (294 N. Y. 361) makes it clear that the line of cases which predicated immunity from suit on the mere abstract principle of governmental sovereignty lost its legal force and effect with the passage of the Court of Claims Act. But Urquhart v. City of Ogdensburg (91 N. Y. 67, supra) and the cases which follow it retain their vitality in our system of law, since there is no indication in section 8 of the Court of Claims Act that the State intended to broaden the scope of liability in an area where the sovereign immunity rule had already been withdrawn.

Lawfully authorized planning by governmental bodies has a unique character deserving of special treatment as regards the extent to which it may give rise to tort liability. It is proper and necessary to hold municipalities and the State liable for injuries arising out of the day-by-day operations of government —for instance, the garden variety injury resulting from the negligent maintenance of a highway — but to submit to a jury the reasonableness of the lawfully authorized deliberations of executive bodies presents a different question. (See Dalehite v. United States, 346 U. S. 15, 42; Feres v. United States, 340 U. S. 135,141-142; United States v. Union Trust Co., 221 F. 2d 62, 75-78, affd. 350 U. S. 907; 2 Harper and James, Law of Torts [1st ed., 1956], p. 1608; Herzog, Liability of the State of New York for Purely Governmental ” Functions, 10 Syracuse L. Rev. 30, 31-33; Peck, The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception, 31 Wash. L. Rev. 207, 209.) To accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts. Acceptance of this conclusion, far from effecting revival of the ancient shibboleth that ‘ the king can do no wrong ”, serves only to give expression to the important and continuing need to preserve the pattern of distribution of governmental functions prescribed by constitution and statute.

In the case before us, the Common Council of Buffalo, acting through its delegated agent, the Board of Safety, made extensive studies of traffic conditions at the intersection of Delaware and Délavan Avenues. It was its considered judgment, based on these studies, that four seconds represented a reasonably safe ‘ clearance interval ’ ’ and there is nothing to suggest that its decision was either arbitrary or unreasonable. To state the matter briefly, absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it — and there is no indication of either here — we perceive no basis for preferring the jury verdict, as to the reasonableness of the “clearance interval”, to that of the legally authorized body which made the determination in the first instance. Indeed, as we read the lengthy and involved body of testimony before the jury, there is ample basis for doubting that body’s capacity to arrive at a conclusion as to the “ clearance interval’s ” reasonableness.

The plaintiffs contend that the Court of Claims Act destroyed any and all facets of governmental immunity and that numerous decisions of this court have so held. Such a reading of the statute and our cases is mistaken. In providing that “ The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations ” (Court of Claims Act, § 8), the Legislature intended to put an end to the immunity of the State which derived from its status as a sovereign. In other words, it was the legislative design that, in respect of its legal status, the State be treated like any individual or corporation. This is far different from saying, however, that the Court of Claims Act places the State on a parity with private corporations or individuals in respect of all of its defenses. Neither the language of the statute nor its tenor supports such a view.

Nor is it sustained by our decisions. In Bernardine v. City of New York (294 N. Y. 361, supra), the injury sued upon was caused by a runaway police horse, and we found the municipality liable because its sovereign status was not a defense; maniifestly, no question of immunity for acts of planning government services was raised. In McCrink v. City of New York (296 N. Y. 99), the injury resulted from the Police Commissioner’s having retained an habitual drunkard on the force, and we held that the city was subject to liability; but, here again, there was' no question concerning the exercise of expert judgment in the course of government planning for the public safety. In Murphy v. De Revere (304 N. Y. 922), Nuss v. State of New York (301 N. Y. 768) and Van de Walker v. State of New York (278 N. Y. 454), the court was solely concerned with the defendant’s liability for improper maintenance or operation of a traffic signal, not its planning or designing. And, in Eastman v. State of New York (303 N. Y. 691), although the suit seems to have been predicated, in part, on the State’s negligence in planning an intersection without a stop sign, our affirmance rested on an entirely different theory. The court’s decision simply reflected the rule that, once having planned the intersection, the State was under a continuing duty to review its plan in the light of its actual operation and that the proof established a breach of such duty. More particularly, the court considered, as sufficient to demonstrate a violation of the State’s continuing obligation to maintain the safety of the highways, evidence that physical conditions had changed at the intersection and that a number of accidents had occurred after the stop sign had been removed. In the case before us, however, the situation is quite different; there is no showing that the continuing obligation which, rested on the municipality was violated. There is no proof either of changed conditions or of accidents at the intersection which would have required the city to modify the signal light ‘ clearance interval ”. In point of fact, it appeared that the signal lights had operated for upwards of three years, with an estimated 1,521,705 traffic changes, without evidence of a single accident.

To conclude: The immunity which the State enjoyed solely by reason of its status as a sovereign had been severely criticized as unjust and ill adapted to the facts of modern life. The State’s explicit waiver of such immunity reflected the felt needs of the times. Nothing in the legislative history of the Court of Claims Act, however, indicates that the waiver provision was designed to override the well-defined and carefully reasoned body of law governing the measure of the State’s responsibility for highway safety. The city’s defense which we here sustain rests not on any anachronistic concept of sovereignty, but rather on a regard for sound principles of government administration and a respect for the expert judgment of agencies authorized by law to exercise such judgment. In.the area of highway safety, at least, it has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged, in negligence suits; something more than a mere choice between conflicting-opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public. No such evidence was offered here.

To those who begin with the assumption that the signal light design involved in this case was faulty, our decision must of riecessity seem harsh and reminiscent of outmoded theories of governmental immunity. BuL it is precisely the validity of that assumption which is at issue; to assume its validity is to beg the question. We are of the opinion tha* the traditional reliance on a jury verdict to assess fault and general tort liability is misplaced where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury. Although a jury verdict is to be highly regarded, it is neither sacrosanct nor preferable to the judgment of an expert public planning body. For this reason, liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis.

In each action, the judgment insofar as appealed from by the City of Buffalo should be reversed and the complaint dismissed, with costs in all courts. In action No. 1, the judgment insofar as appealed from by the plaintiff, Weiss, should be affirmed, without costs.

Desmond, Ch. J.

(dissenting). Despite ample proof of the city’s causative negligence in providing too brief a clearance interval for the east-west traffic light at this busy and dangerous intersection, the city is adjudged to be as matter of law immune from liability for such fault. Such a holding is in direct opposition to the applicable precedents, particularly Eastman v. State of New York (303 N. Y. 691). (See, also, Van de Walker v. State of New York, 278 N. Y. 454; Nuss v. State of New York, 301 N. Y. 768, and Murphy v. De Revere, 304 N. Y. 922.) In Eastman we rejected the very defense here held to be an absolute one: that is, the defense that the malfunctioning of this light was the result of governmental planning by qualified officers. (In other words, that the city “ planned it that way ”.)

By this decision we are taking a long and surprising step backward into the old, abandoned area of governmental immunity. As far back as 1928 (Augustine v. Town of Brant, 249 N. Y. 198, 205) this court noted that “ The modern tendency is against the rule of nonliability ’ ’. Any exemption from liability (Parsons v. City of New York, 273 N. Y. 547) for improper maintenance of traffic signal lights was eliminated by Eastman and Nuss (supra). Since there is liability for eliminating a stop sign formerly in place (Eastman) or for failing to keep an existing traffic stop sign in such condition and location as to be visible (Nuss), there must for stronger reasons be liability where, as found here by the jury on sufficient evidence, the city so adjusted the traffic light that there was not sufficient time for east-west traffic moving on the green light to cross before opposing or north-south traffic was invited into the intersection by the change of the light. Significantly, Rhyne on Municipal Law (p. 433) notes that nonliability for defective operation of traffic lights is the rule “ in jurisdictions where there is no statutory waiver of sovereign immunity”.

It is not the law that liability of a municipality can never be the result of a choice between decisions, in the course of governmental planning. Certainly Eastman (supra) involved such a policy choice or exercise of discretion, as did McCrink v. City of New York (296 N. Y. 99, see pp. 105-106) and Schuster v. City of New York (5 N Y 2d 75). In McCrink we held specifically (p. 106) that governmental discretion of a chief executive officer was “ superseded by the duty to abate ” the risk.

Even if the timing of a single traffic light could be considered the kind of high-level policy decision not reviewable by the courts there would still be another basis for liability here, that is, the creation by the city’s affirmative act of a trap or a nuisance. The city cannot escape liability where its ‘ ‘ policy decision” thus causes a “danger so needless that the choice becomes unreasonable” (Stern v. International Ry. Co., 220 N. Y. 284, 291; see Kamnitzer v. City of New York, 265 App. Div. 636; Karnasiewics v. New Britain, 131 Conn. 691). It incurs liability when in abating one risk it unreasonably creates another (Majka v. Haskell, 301 N. Y. 206, 210). It could in its discretion decide whether to have a stop-go light or some other control device or no device at all but, having assumed to act, it had to act carefully (Glanzer v. Shepard, 233 N. Y. 236, 239; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160,167). “ Appellant having elected to install, and having installed the signal system in question, it was a corporate duty not to permit its operation in a manner calculated to cause injury to others” (Johnston v. City of East Moline, 405 Ill. 460, 468).

The very distinction now attempted to be made between the present case and Eastman and Nuss (supra) seems to have been overruled in Murphy v. De Revere (304 N. Y. 922, supra). Even if Eastman applies only where there is a specially dangerous situation (see Vitetta v. State of New York, 285 App. Div. 1114, motion for leave to appeal denied 309 N. Y. 1031), this would not help the city in the present case since the extraordinarily heavy traffic on Delaware and Delavan Avenues created obvious dangers which were recognized when the city installed the lights and invited motorists to proceed into the intersection on the green light.

The judgment should be affirmed, with costs.

Judges Dye, Burke and Foster concur with Judge Fuld; Chief Judge Desmond dissents in an opinion in which Judges Froessel and Van Voorhis concur.

Judgment accordingly.

      . The same is true of Johnston v. City of East Moline (405 Ill. 460) — upon which the dissent relies (p. 590) —for there the intersection collision occurred at a time when, to the city’s knowledge, the traffic signal, which was supposed to control westbound traffic, was unlighted and out of commission. It should also be noted that the quotation from Rhyne on Municipal Law, appearing in the dissenting opinion (p. 590), likewise relates only to the “ operation ” of traffic lights.


text:
    Irving Arnold, Respondent, v. National Plastikwear Fashions, Inc., et al., Defendants, and Harry I. Green et al., Appellants.
    Submitted October 5, 1959;
    decided October 8, 1959.

      Edwin W. Tucker for motion.

      Nathan W. Shapiro and Morris B. Gerstenhaber 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:
    Theresa Berger, Respondent, v. Nathan Berger, Appellant.
    Submitted October 5, 1959;
    decided October 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 an undertaking on appeal and pays $10 costs, in which events motion denied.


text:
    James Carolan et al., Appellants, v. Sol Fieber et al., Respondents, et al., Defendant. City of New York, Respondent, v. James Carolan et al., Appellants.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon one copy of the record before the Appellate Division granted.


text:
    John Cassidy, Appellant, v. Ethel Donner et al., Respondents.
    Submitted October 5, 1959;
    decided October 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 an undertaking on appeal and pays $10 costs and, within 20 days thereafter, files the return on appeal, in which events motion denied.


text:
    M. Mal Deitch, Respondent, v. Harry Kessler et al., Appellants.
    Submitted October 5, 1959;
    decided October 8, 1959.

      George J. Malinsky and I. Richard Smith for motion.

      Henry A. Panoff opposed.
   Motion granted, the return to be filed within 15 days. The case is set down for argument during the November, 1959 session of the Court of Appeals.


text:
    Marjorie Glickman, Appellant, v. Home Title Guaranty Company, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.

      Joseph R. Zibelli for motion.

      George P. Lane 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:
    Nancy R. Glover et al., Appellants, v. Board of Education of Central School District No. 1 of the Towns of Avoca, Wheeler, Cohocton, Howard, Fremont, Bath, Prattsburg, Steuben County, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.

      Robert M. Wightman for motion.
    No one 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:
    Greater New York Mutual Insurance Company, Respondent, v. Victory Perry, Defendant, and Arnold M. Frankel et al., Appellants.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellants serve and file an undertaking on appeal and pay $10 costs, in which events motion denied.


text:
    J. I. Kislak, Inc., Appellant, v. Carol Management Corporation, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.

      Edward Elman for motion.

      Sylvan D. Freeman opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Michael Le Glaire, as Administrator of the Estate of Shushanna Le Glaire, Deceased, Appellant, v. New York Life Insurance Company, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon the original record and legible typewritten briefs granted.


text:
    Gabriel Lichtenstein et al., Copartners Doing Business under the Name of Manor Realty Co., Appellants, v. Emil Levitt et al., Individually and as Copartners Doing Business under the Name of Rosan Management Company, Respondents and Third-Party Plaintiffs. Pelmad Corporation et al., Third-Party Defendants.
    Submitted October 5, 1959;
    decided October 8, 1959.

      Edward A. Scott, Jr., and Alexander Pfeiffer for motion.

      David Stein 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:
    Edward A. Lipton et al., Appellants, v. Winfield R. Bruce, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon the available copies of the record submitted on the prior appeal to the Court of Appeals, together with printed additional papers and briefs, granted.


text:
    Henry L. McCarthy, Commissioner of Welfare of the City of New York, as Assignee of Charles Sheridan and Another, Respondent, v. Milton M. Karpel, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.

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

      Milton M. Karpel, in person, opposed.
   Motion granted. The appeal was taken from the order of the Appellate Division, the judgment, the only appealable paper, having been entered some time after service of the notice of appeal.


text:
    In the Matter of Franciscan Missionaries of Mary, Respondent, against D. Reginald Herdman et al., Constituting the Zoning Board of Appeals of the Town of Clarkstown, Appellants.
    Submitted July 6, 1959;
    decided October 8, 1959.

      Charles B. McGroddy, Jr., for motion.

      Everett J. Johns and David W. Silverman opposed.
   Motion denied and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    In the Matter of the Claim of Margaret Gorsky, Appellant, against City of New York et al., Respondents, and Special Funds Conservation Committee, Respondent. Workmen’s Compensation Board, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Abraham Sher, Esq., of 320 Broadway, New York City, assigned as counsel to appellant on the appeal herein.


text:
    In the Matter of Toby Greenspan, Appellant. Irving Greenspan, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon one copy of the record before the Appellate Division and upon typewritten additional papers and briefs, treated as a motion to prosecute the appeal herein as a poor person, granted. Cross-application of respondent denied.


text:
    In the Matter of the Claim of John L. Mendygral, Appellant, against Lismore Bar & Grill et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Leonard Thorner, Esq., of 50 Court Street, Brooklyn, New York, assigned as counsel to appellant on the appeal herein.


text:
    In the Matter of the Claim of Bertha Miller, Respondent, against National Cabinet Company et al., Appellants, and Michigan Mutual Insurance Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued October 5, 1959;
    decided October 8, 1959.

      Morgan F. Bisselle for motion.

      Benedict T. Mangano opposed.
   Motion denied, with $10 costs.


text:
    In the Matter of Thomas M. Quinlan, Petitioner, against Joseph J. Caputa, as State Rent Administrator, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.

      Robert Lesterwick, Jr., for motion.

      Emory Gardiner and Harold Zucker opposed.
   Motion dismissed upon the ground that the Court of Appeals lacks jurisdiction to entertain the motion.


text:
    In the Matter of John Scarpati et al., Appellants, against Ralph Feriola et al., Constituting the Zoning Board of Appeals of the City of Yonkers, Respondents. Anna La Rocca et al., Intervenors-Respondents.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellants serve and file an undertaking on appeal and pay $10 costs, in which events motion denied.


text:
    The People of the State of New York ex rel. Joseph J. Damanski, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Application for leave to appeal and for assignment of counsel denied.


text:
    The People of the State of New York, Respondent, v. Carmine Di Biase, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Irving Engel, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Charles Glinton, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Thomas P. Hannigan, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. John W. Hocking, Defendant, and Robert Burd, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for assignment of counsel granted and Richard F. Griffin, Esq., 400 Erie County Bank Building, Buffalo, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Abe Linzer and Aaron Linzer, Appellants.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion by appellant Abe Linzer to have the appeal heard upon the original record and for enlargement of time withdrawn.


text:
    The People of the State of New York, Respondent, v. William E. Lyons, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted.


text:
    The People of the State of New York, Respondent, v. Ivory Mason, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case 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. Frederick Foss McElroy, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon the original record granted.


text:
    The People of the State of New York, Respondent, v. Frank Mistretta, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Application to have appeal heard upon the original record and for assignment of counsel granted and John R. Davison, Esq., of 90 State Street, Albany, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Elliot Moroch, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals. .


text:
    The People of the State of New York, Appellant, v. Floyd E. Palen, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.

      John T. Casey, District Attorney, for motion and opposed to cross motion.

      M. Andrew Dwyer, Jr., opposed to motion and for cross motion.
   Motion granted and case set down for argument during the October, 1959 session of the Court of Appeals.

Cross motion denied.


text:
    The People of the State of New York, Respondent, v. George Perez and John Mangi, Appellants.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Frank Piscitello, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon the original record together with legible typewritten additional papers and legible typewritten briefs granted.


text:
    The People of the State of New York, Respondent, v. Donald Schwer, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case 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. Walter Raymond Smart, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Vincent Joseph Spano, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.

      Herbert S. Siegel for motion.

      Daniel V. Sullivan, District Attorney (Irving Anolik of counsel), opposed.
   Motion granted. Return of remittitur requested and, when returned, it will be amended to provide as follows: Judgment of conviction of the County Court, Bronx County, reversed and the matter remitted to the County Court, Bronx County, for a new trial.


text:
    The People of the State of New York, Respondent, v. Joseph Tomaselli, Appellant.
    Submitted October 5, 1959;

    decided October 8, 1959.
   Motion for assignment of counsel granted and Joseph P. Carey, Esq., of 2 Cannon Street, Poughkeepsie, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Walter West, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. James Winningham, Also Known as Jose B. Perez, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Irving Zelkowitz, Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have the appeals heard upon the original records denied without prejudice to a renewal thereof upon a proper showing made in affidavits.


text:
    The People of the State of New York ex rel. Earl Curman, Respondent, against Robert E. Murphy, as Warden of Auburn Prison, and The People of the State of New York, Appellants.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion by respondent for leave to submit typewritten briefs on the appeal herein granted.


text:
    The People of the State of New York ex rel. Norbert Paul Eastman, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.

      Norbert Paul Eastman, in person, for motion.

      Louis J. Lefkowitz, Attorney-General (Joseph J. Rose of counsel), opposed.
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division denying reargument, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within • the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the order of the Appellate Division affirming the order of the Wyoming County Court, dismissed upon the ground that the application was not made within the time specified in subdivision 3 of section 592 of the Civil Practice Act.


text:
    The People of the State of New York ex rel. Anthony Paqua, Appellant, against Edward M. Fay, as Warden of Green Haven Prison, et al., Respondents.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Edward J. Filipowicz, Esq., of 226 Union Street, Poughkeepsie, New York, assigned as counsel to appellant on the appeal herein.


text:
    Marian Rempe, Appellant, v. Allan W. Betts et al., as Temporary Administrators of the Estate of Vincent Astor, Deceased, Doing Business as Hotel St. Regis et al., Respondents.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon two printed copies of the record before the Appellate Division granted.


text:
    Alicia L. Sherman, Appellant, v. Leonard Sherman, Respondent.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion to have appeal heard upon five copies of the record before the Appellate Division and legible typewritten additional papers granted.


text:
    Harold G. Waters et al., Respondents, v. Peter McNearney, Defendant, and Schenectady Baseball Club, Inc., Appellant.
    Submitted October 5, 1959;
    decided October 8, 1959.
   Motion for a stay denied (see Civ. Prac. Act, § 594).


text:
    The People of the State of New York, Respondent, v. Pete Pollock, Appellant.
    Submitted October 5, 1959;
    decided October 14, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was preseated and necessarily passed upon a question under the Constitution of the United States, viz.: Appellant Pollock contended that the order of the court impanelling a special jury violated his right to a fair and impartial trial by a jury of his peers under the Fourteenth Amendment to the Constitution of the United States. The Court of Appeals held that the order impanelling a special jury did not violate his right under the Fourteenth Amendment. [See 6 N Y 2d 890.]


text:
    Louis J. Alphin, Respondent, v. Frank Dudish, Appellant.
    Submitted October 5, 1959;
    decided October 15, 1959.
   Motioh to dismiss appeal for failure to prosecute granted and appeal dismissed upon consent, without costs.


text:
    Nathan Baker et al., Doing Business under the Name of Brevoort Management Co., Appellants, v. Long Island Rail Road Company, Respondent.
    Submitted October 5, 1959;
    decided October 15, 1959.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellants serve and file an undertaking on appeal and pay $10 costs, in which events motion denied.


text:
    Olive Cornell, Also Known as Olive M. Irwin, Appellant, v. Elven J. Cornell, Defendant, and Charlotte McCabe, Intervenor-Respondent.
    Submitted October 5, 1959;
    decided October 15, 1959.

      John R. Davison for motion.

      William D. Ferguson opposed.
   Motion denied.


text:
    John Dallesandro, Appellant, v. Henry Holt and Company Incorporated (Sued Herein as Henry Holt and Company, Inc.), Respondent.
    Submitted October 5, 1959;
    decided October 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, in which events motion denied.


text:
    Exempt Firemen’s Association of the City of New Rochelle, Respondent, v. City of New Rochelle, New York, et al., Appellants.
    Argued October 5, 1959;
    decided October 15, 1959.

      Morris Block for motion to dismiss appeals.

      Murray C. Fuerst, Corporation Counsel (John A. Bodmer of counsel), and Michael J. Kenny opposed.

      Michael J. Kenny for cross motion.

      Morris Block opposed to cross motion.
   Motion to dismiss appeal of individual defendants denied.

Motion to dismiss appeal of appellant City of New Rochelle granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that it is not a party aggrieved.

Cross motion of individual defendants granted.


text:
    Jacob Gottlieb, Respondent, v. Gustave B. Garfield et al., Defendants and Third-Party Plaintiffs-Appellants; Arthur R. Silsdorf, Third-Party Defendant-Respondent, et al., Third-Party Defendant.
    Submitted October 5, 1959;
    decided October 15, 1959.

      Gustave B. Garfield, in person, for motion.

      Arthur R. Silsdorf, in person, opposed.
   Motion, insofar as leave to appeal is sought from the dismissal of the second counterclaim, denied; motion otherwise dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning . of the Constitution.


text:
    Edward C. Klee, Appellant, v. Robert F. Wagner et al., Respondents, et al., Defendant.
    Submitted October 13, 1959;
    decided October 15, 1959.

      Morris Shapiro for motion.

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


text:
    Anne Leff, as Administratrix of the Estate of Jacob M. Leff, Deceased, Appellant, v. Seymour Goldstein, Defendant, and Norda Essential Oil & Chemical Company, Inc., Respondent.
    Submitted October 5,1959;
    decided October 15, 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:
    In the Matter of George Brennan et al., Respondents-Appellants, against Carl J. Rubino et al., Constituting the Waterfront Commission of New York Harbor, Appellants-Respondents.
    Submitted October 5,1959;
    decided October 15, 1959.
   Motion by respondents-appellants to have appeal heard upon the original record, together with legible typewritten additional papers and legible typewritten briefs, granted.


text:
    In the Matter of the Accounting of First National Bank and Trust Company of Corning, as Trustee under the Will of John Maloney, Deceased, Respondent. Winifred Richar, as Executrix of Marietta M. Watson, Deceased, et al., Respondents; Joseph W. Kelly et al., Appellants.
    Submitted October 5,1959;
    decided October 15, 1959.
   Motion for an order precluding appellant Rubery from serving and filing a brief on the appeal herein withdrawn.


text:
    The People of the State of New York, Respondent, v. Arthur Benjamin, Appellant.
    Submitted October 5,1959;
    decided October 15, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Elliot L. Hoffman, Esq., of 475 Fifth Avenue, New York City, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Carmen De Cabia, Appellant.
    Submitted October 5, 1959;
    decided October 15, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Henry Flakes and Walter T. Green, Appellants.
    Submitted October 13,1959;
    decided October 15, 1959.
   Motions for a further enlargement of time granted and cases set down for argument during the November, 1959 session of the Court of Appeals.


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


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


text:
    The People of the State of New York ex rel. William Davidson, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent.
    Submitted October 5, 1959;
    decided October 15, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Messrs. Peter M. Nucci and Richard D. Field, of 81 Broadway, Greenlawn, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Joseph De Pasquale, Appellant, against Daniel McMann, as Acting Warden of Clinton Prison, Respondent.
    Submitted October 5,1959;
    decided October 15, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and B. Loyal O’Connell, Esq., of 35 Clinton Street, Plattsburg, New York, assigned as counsel to appellant on the appeal herein.


text:
    Yetta Smith et al., Appellants, v. 1630 Grand Avenue Corporation, Respondent.
    Submitted October 5, 1959;
    decided October 15, 1959.

      I. Sidney Worthman for motion.

      Morton A. Bernstein opposed.
   Motion granted and appeal herein, being treated as one from an order dismissing the complaint for failure to prosecute, dismissed, with costs and $10 costs of motion, upon the ground that the determination sought to be reviewed involves a pure question of discretion of the type not reviewable by the Court of Appeals (Trapani v. Samuels, 3 N Y 2d 931).


text:
    Leatrice O. Sutton et al., Appellants, v. Holden A. Evans, Jr., Respondent.
    Submitted October 13, 1959;
    decided October 15, 1959.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellants serve and file an undertaking on appeal and pay $10 costs and, within 20 days, file the return on appeal, in which events motion denied.


text:
    Harry Topp, Appellant, v. Casco Products Corp., Respondent.
    Submitted October 5, 1959;
    decided October 15, 1959.

      William F. McNulty for motion.

      August Zolotorofe opposed.
   Motion granted and appeals dismissed, with costs and $10 costs of motion, upon the ground that the determination sought to be reviewed involves a pure question of discretion of the type not reviewable by the Court of Appeals (Trapani v. Samuels, 3 N Y 2d 931).


text:
    In the Matter of Sunland Beverage Corp., Appellant, against Thomas E. Rohan et al., Constituting the State Liquor Authority, Respondents.
    Argued October 8, 1959;
    decided October 22, 1959.

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

      John J. Hyland and Hyman Amsel for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Civic Association at Roslyn Country Club, Inc., Plaintiff, and Mildred Brownstein et al., Individually and on Behalf of All Other Property Owners in the Development Area Known as “Roslyn Country Club ”, in the Town of North Hempstead, Similarly Situated, Appellants-Respondents, v. Levitt and Sons Incorporated et al., Respondents-Appellants.
    Submitted October 13,1959;
    decided October 22, 1959.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division, etc., granted.


text:
    Hornell Broadcasting Corporation, Appellant, v. A. C. Nielsen Company et al., Respondents.
    Submitted October 13,1959;
    decided October 22, 1959.
   Motion to dismiss appeal withdrawn.


text:
    Pearl Major, Appellant, v. Waverly and Ogden, Inc., Respondent.
    Submitted October 5, 1959;
    decided October 22, 1959.
   Motion for leave to appeal to the Court of Appeals and to prosecute appeal as a poor person granted.


text:
    In the Matter of Juana Lugo, a Person of Unsound Mind. Emilio Ciena, Respondent; State of New York, Appellant.
    Submitted October 19, 1959;
    decided October 22, 1959.
   Motion by respondent to submit legible typewritten briefs on the appeal herein granted.


text:
    In the Matter of Reginald Lush, Appellant, against Commissioner of Education of the State of New York, Respondent; Board of Education of Central School District No. 1, of the Towns of Manchester, Farmington, Hopewell, Ontario County, Intervenor-Respondent.
    Argued July 6, 1959;
    decided October 22, 1959.

      Charles A. Brind, Jr., and Max G. Morris for motions.

      Francis G. Hessney opposed.
   Motions granted and appeal dismissed upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of New York Compensation Insurance Rating Board, Its Members, Individually and as an Association, and Its Subscribers, Appellants, against Superintendent of Insurance of the State of New York, Respondent.
    Submitted October 19, 1959;
    decided October 22, 1959.

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

      Louis J. Lefkowits, Attorney-General (Samuel A. Hirshowitz of counsel), opposed.
   Motion granted.


text:
    Adolpho Soto et al., Petitioners-Respondents, v. Lenscraft Optical Corp. (Rayex), Respondent, and Nathan Goldman, as President of Local 122, National Jewelry Workers Union, AFL-CIO, Appellant.
    Submitted October 5, 1959;
    decided October 22, 1959.

      Harry J. Halperin and Martin H. Schneider for motion and opposed to cross motion.

      Murray A. Frank opposed to motion and for cross motion.
   Motion to dismiss appeal denied.

Cross motion granted only to the extent of permitting Local 422 to intervene on the appeal, to submit briefs and to participate in the oral argument.


text:
    In the Matter of Twentieth Century-Fox Film Corporation, Appellant, against Lawrence E. Gerosa, as Comptroller of the City of New York, Respondent.
    Submitted October 5, 1959;
    decided October 22, 1959.

      Charles H. Tenney, Corporation Counsel (Stanley Buchsbaum of counsel), for motion.

      William W. Owens opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, 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. Gerard J. Brinkman, Appellant.
    Submitted October 13, 1959;
    decided October 22, 1959.
   Motions to have appeal heard upon the original record granted.


text:
    The People of the State of New York, Respondent, v. Dominic Clemente, Appellant.
    Submitted October 13, 1959;
    decided October 22, 1959.
   Motion to have appeal heard upon the original record granted.


text:
    The People of the State of New York, Respondent, v. Lawrence Denmark, Appellant.
    Submitted October 13, 1959;
    decided October 22, 1959.
   Motion for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v. John Dioguardi and John J. McNamara, Respondents.
    Submitted October 19, 1959;
    decided October 22, 1959.
   Motion for enlargement of time granted and case set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. Floyd E. Palen, Respondent.
    Submitted October 19, 1959;
    decided October 22, 1959. .
   Motion by respondent to submit legible typewritten briefs on the appeal herein granted.


text:
    The People of the State of New York, Respondent, v. Frank Piscitello, Appellant.
    Submitted October 13, 1959;
    decided October 22, 1959.
   Motion for enlargement of time granted and case set down for argument during the November, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Bobby Lee Sams, Appellant. The People of the State of New York ex rel. Bobby Lee Sams, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent. The People of the State of New York, Respondent.
    Submitted October 19, 1959;
    decided October 22, 1959.
   Motion to have appeals heard upon the original records and typewritten briefs and for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeals herein.


text:
    The People of the State of New York ex rel. George Edward Sillifant, Appellant, against Sheriff of the City of New York, Respondent.
    Submitted October 19, 1959;
    decided October 22, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States as follows: Appellant contended that the use of the questionnaire during the Grand Jury proceedings was a violation of his rights under the Fourteenth Amendment in that it deprived appellant of due process of law. The Court of Appeals held that appellant was not denied due process under the Fourteenth Amendment. [6 N Y 2d 487.]


text:
    Point Lookout Civic Association, Inc., et al., Appellants, v. Town of Hempstead et al., Respondents, et al., Defendants.
    Submitted October 5, 1959;
    decided October 22, 1959.

      John F. X. Browne for motion.

      John A. Morhaus and Robert M. Stein opposed.
   Motion dismissed upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and is, therefore, not covered by subdivision 2 of section 589 of the Civil Practice Act.


text:
    Charles B. Ripley et al., Individually and as Stockholders of International Railways of Central America, Suing in Behalf ’ of Themselves and All Other Stockholders, Similarly Situated, Appellants-Respondents, v. International Railways of Central America, Appellant-Respondent, and United Fruit Company, Respondent-Appellant.
    Argued October 5, 1959;
    decided October 22, 1959.

      Harry Bijur, Alexander Kahan and Roland T. Berner for motion.

      Porter R. Chandler opposed.
   Motion granted.


text:
    56-70 58th Street Holding Corp., Appellant, v. Fedders-Quigan Corporation, Respondent.
    Reargued October 5, 1959;
    decided October 23, 1959.
   Upon reargument, previous determination of April 17, 1959 (5 NY 2d 557) adhered to, viz.: Judgment of Appellate Division reversed and that of Trial Term reinstated, with costs in this court and in the Appellate Division. Opinion by Judge Froessel in which Chief Judge Conway and Judge Van Yoorhis concur; Judge Fuld concurs in a separate opinion; Judge Burke dissents in an opinion in which Judges Desmond and Dye concur.


text:
    In the Matter of Abraham Baer, an Alleged Incompetent Person, Appellant. Constance D. Baer et al., Respondents.
    Submitted October 5, 1959;
    decided October 23, 1959.

      David J. Levy, in person, Monroe L. Friedman and Joseph Spanier for motion and opposed to cross motion.

      Carl U. Werner, Henry Gale, Isidore Dollinger, in person, and Steckler, Frank & Gutman opposed to motion and for cross motion.
   Motion for an order of substitution denied.

Cross motion to dismiss appeal granted and appeal dismissed.


text:
    In the Matter of Philip F. Carolan et al., Respondents, against Joseph Schechter et al., Constituting the Department of Personnel, Civil Service Commission, City of New York, et al., Appellants.
    Submitted October 13, 1959;
    decided October 23, 1959.

      Samuel Resnicoff for motion.

      Charles H. Tenney, Corporation Counsel (Seymour B. Quel of counsel), opposed.
   Motion denied.


text:
    In the Matter of Shirley Thompson, Respondent, against John Scavo, Appellant.
    Submitted October 5, .1959;
    decided October 23, 1959.

      Arthur B. Lanphier and John J. Randazzo, Jr., for motion.

      Quentin E. Grant opposed.
   Motion dismissed upon the ground that this court lacks jurisdiction to entertain the motion (N. Y. Const., art. VI, § 7, subd. [7]; Civ. Prac. Act, § 589, subd. 1, par. [b]).


text:
    The People of the State of New York ex rel. Harlow Joseph Fraden, Appellant, against John F. McNeill, as Director of the Matteawan State Hospital of the County of Dutchess, et al., Respondents.
    Submitted October 19, 1959;
    decided October 23, 1959.
   Motion to have appeal heard upon the records and briefs before the Appellate Division, together with legible typewritten additional papers and legible typewritten supplemental briefs, granted.


text:
    In the Matter of Claire Newman, Respondent, against Mildred Millspaugh et al., Individually and Constituting the Board of Elections of the County of Sullivan, Respondents, and Ralph Meyer et al., Appellants. In the Matter of David Kreiswirth et al., Respondents, against Mildred Millspaugh et al., Individually and Constituting the Board of Elections of the County of Sullivan, Respondents, and Ralph Meyer et al., Appellants.
    Argued October 29, 1959;
    decided October 29, 1959.

      Hyman E. Mintz for appellants.

      George H. Rosen for David Kreiswirth and Myron Blackman, petitioners-respondents.

      Wilford A. Le Forestier for Douglas Hudson, County Chairman of the Republican County Committee of Rensselaer County, amicus curies.

      Harold Sussman for Town of Liberty Republican Committee, amicus curies.

   In each proceeding: Order affirmed; no opinion.

Concur: Chief Judge Conway and Judges Dye, Fuld, Froessel, Burke and Botein. Judge Van Voorhis concurs upon the ground that there was no compliance with subdivision 4 of section 137 of the Election Law.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Judge Desmond,


text:
    In the Matter of Edward J. Banko, Respondent, against Daniel E. Weber et al., Appellants, et al., Respondent.
    Argued October 29, 1959;
    decided October 29, 1959.

      John M. Tubridy and William B. Mahoney for appellants.

      Albert J. Rydzynski for petitioner-respondent.
   Order affirmed (Judiciary Law, § 5); no opinion.

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

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Judge Desmond.


text:
    Pasquale E. Mele, as Executive Member of the Republican County Committee of Bronx County for the 13th Executive District, Appellant-Respondent, v. John C. Ryder, Individually and as President of West Bronx Young Republican Club, et al., Respondents-Appellants.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motion to have appeal heard upon the original record granted.


text:
    The People of the State of New York, Respondent-Appellant, v. Gerard J. Brinkman, Appellant-Respondent. The People of the State of New York, Respondent, v. Dominic Clemente, Appellant.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motions for enlargement of time granted and cases set down for argument during the January, 1960 session of the Court of Appeals, the briefs of the parties appealing to be served and filed no later than December 21, 1959.


text:
    The People of the State of New York, Respondent, v. Carmine Di Biase, Appellant.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motion by respondent for a further enlargement of time granted and case set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Irving Engel, Appellant.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motion for a further enlargement of time denied.


text:
    The People of the State of New York, Respondent, v. Charles Glinton, Appellant.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Thomas P. Hannigan, Appellant.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motion for enlargement of time granted and case set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Jerome P. Jerome, Appellant.
    Submitted November 16,1959;
    decided November 17, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Frank Piscitello, Appellant.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the first week of the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Bobby Lee Sams, Appellant.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motion for a further enlargement of time granted and case set doAvn for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Pablo Vargas, Appellant.
    Submitted November 16, 1959;
    decided November 17, 1959.
   Motion for a further enlargement of time granted and case set doAvn for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Joseph Tomaselli, Appellant.
    Submitted November 16, 1959;
    decided November 18, 1959.
   Motion for enlargement of time granted and case set doAvn for argument on November 23,1959.


text:
    The People of the State of New York, Respondent, v. Walter Raymond Smart, Appellant.
    Submitted November 16, 1959;
    decided November 18, 1959.
   Motion for a further enlargement of time granted and case set doAvn for argument during the January, 1960 session of the Court of Appeals.


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.
    Argued October 7, 1959;
    decided November 19, 1959.

      Gene Crescenzi for appellant.

      Charles H. Tenney, Corporation Counsel (Alfred Weinstein, Seymour B. Quel and Edwin Margolis of counsel), for respondents.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair of counsel), in his capacity under section 71 of the Executive Law.

      Leo Pfeffer, Shad Polier, Will Maslow and Janet Alter for American Jewish Congress, amicus curiæ.

   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Edward Goree, Appellant, et al., Defendant.
    Argued October 19, 1959;
    decided November 19, 1959.

      Charles C. Parlin, Jr., and Florence M. Kelley for appellant.

      Frank S. Hogan, District Attorney (Harold Roland Shapiro, Richard G. Denzer and Lawrence C. Rowe of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    William J. Friedman et al., Copartners Doing Business Under the Name of Friedman, Zoline & Rosenfield, Appellants, v. Victor S. Gettner et al., as Executors of Adolph L. Simon, Deceased, Respondents.
    Argued October 6, 1959;
    decided November 19, 1959.

      Bernard H. Greene and Bernard Finkelstein for appellants.

      Edward L. Sadowsky for respondents.
   Order affirmed, with costs. Questions certified answered in the negative. 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. Henry Exum, Appellant.
    Submitted October 13, 1959;
    decided November 19, 1959.

      Emanuel Redfield for appellant.

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

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


text:
    Uly L. Townes, Appellant, v. Park Motor Sales, Respondent.
    Argued October 14, 1959;
    decided November 19, 1959.

      Samuel Lawrence Brennglass and Daniel J. Pinsky for appellant.

      William P. McNulty and William S. O’Connor for respondent.
   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. Ivory Mason, Appellant.
    Argued October 22, 1959;
    decided November 19, 1959.

      Edward H. Levine, Albert Felix and Vernon L. Rossner for appellant.

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

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


text:
    In the Matter of Anonymous, Respondent, against New York City Transit Authority, Appellant.
    Argued October 6, 1959;
    decided November 19, 1959.

      Edward W. Summers, Daniel T. Scannell and Helen R. Cassidy for appellant.

      Nathaniel H. Kramer for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Lillian Sacknoff, Appellant, v. Samuel Sacknoff, Respondent.
    Submitted October 9, 1959;
    decided November 19, 1959.

      Max Wechsler and Albert L. Solodar for appellant.

      Edward I. Byer for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Rubin Feldman, Appellant, v. Joseph Bernham et al., Respondents.
    Argued October 6, 1959;
    decided November 19, 1959.

      Rubin Feldman, appellant in person.

      William M. Ivler, in person, and Wray S. Fleming for William M. Ivler, respondent.

      Francis N. Pollack and William M. Ivler for Joseph Bernham, respondent.

      Nathan H. Elman for Galef and Jacobs, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Best & Co., Inc., Appellant, against Tax Commission of the City of New York, Respondent.
    Argued October 7, 1959;
    decided November 19, 1959.

      M. James Spitzer, Lawrence Weston Krieger and Robert S. Levy 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:
    The People of the State of New York ex rel. Earl Curman, Respondent, against Robert E. Murphy, as Warden of Auburn Prison, et al., Appellants.
    Argued October 16, 1959;
    decided November 19, 1959.

      Louis J. Lefkowits, Attorney-General (Joseph J. Rose and Paxton Blair of counsel), for appellants.

      Carolyn Loeb Boaster g and Emanual Boast erg, Jr., for respondent.
   Order affirmed; no opinion.

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


text:
    Victor Menasche, Appellant, v. Interoceanic Commodities Corporation, Respondent.
    Argued October 19, 1959;
    decided November 19, 1959.

      Morris Berler and Howard Berler for appellant.

      Roger W. Landsdorf for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Arthur Usherson, Respondent, against Greeley Mills, Inc., et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workmen’s Compensation Board, Respondent.
    Argued October 13, 1959;
    decided November 19, 1959.

      John M. Cullen for appellant.

      Ralph S. Stowell and Joseph D. Edwards for Greeley Mills, Inc., and Jamestown Mutual Insurance Company, respondents.
   Order affirmed, with costs to respondents employer and carrier; 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. Marvin Pariser, Appellant.
    Argued October 14, 1959;
    decided November 19, 1959.

      Stephen A. Weiner and Florence M. Kelley for appellant.

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

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


text:
    Marion J. Boxer, Appellant, v. Herbert E. Boxer, Respondent.
    Argued October 20, 1959;
    decided November 19, 1959.

      Irving Lemov and Rudolph H. Erda for appellant.

      Ben Herzberg and Joseph S. Heilman for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Albert Grossman, Appellant.
    Argued October 23, 1959;
    decided November 19, 1959.

      Hyman Hecker for appellant.

      Joseph F. Gagliardi, District Attorney (Miles B. Suchin of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Ametco, Ltd., Appellant, v. Koitcho Beltchev et al., Respondents.
    Argued October 9, 1959;
    decided November 19, 1959.

      Anthony B. Cataldo for appellant.

      Nicholas R. Doman, respondent in person and for Koitcho Beltchev, respondent.
   Judgment affirmed, with costs; no opinion. .

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


text:
    Adams-Millis Corporation, Appellant, v. United States Hosiery Corporation, Defendant, and Harold Chell & Co., Ltd., Respondent.
    Submitted November 16, 1959;
    decided November 19, 1959.

      Kenneth W. Greenawalt and Thomas T. Adams for motion.

      Wallace B. Liverance, Jr., and J. Frederic Taylor 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:
    John Church et al., Appellants, v. Town of Islip et al., Respondents.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion to have appeal heard upon seven copies of 'the record before the Appellate Division granted.


text:
    John Esposito, Individually and as Guardian ad Litem for Joseph Esposito, an Infant, Appellants, v. City of New Rochelle, Defendant, and Benedetto Marciano et al., Respondents.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion for leave to prosecute appeal as poor persons granted.


text:
    Exempt Firemen’s Association of the City of New Rochelle, Respondent, v. City of New Rochelle, New York, Defendant, and Robert Reifenberger et al., Appellants.
    Argued November 16, 1959;
    decided November 19, 1959.

      Morris Block for motion.

      Michael J. Kenny opposed.
   Motion denied.


text:
    Charles Lo Piccolo, Appellant, et al., Plaintiffs, v. Knight of Rest Products Corporation, Respondent.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion to have appeal heard upon six copies of the record before the Appellate Division and to dispense with the printing of the exhibits granted, the original exhibits to be submitted ‘ upon the oral argument.


text:
    Anna Lorenzo, as Executrix of Antonio Lorenzo, Deceased, Appellant, v. Antonio Bussin, Respondent.
    Submitted October 19, 1959;
    decided November 19, 1959.
   Motion to have appeal heard upon the original record and to dispense with the filing of an undertaking denied.


text:
    In the Matter of Anonymous (No. 12), Appellant, against Supreme Court of the State of New York et al., Respondents. In the Matter of Anonymous (No. 12), Appellant, against George A. Arkwright, Individually and as a Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motions to dismiss appeals granted and appeals dismissed, with costs and $10 costs of each motion, unless, within 10 days, appellant serves and files an undertaking on each appeal and pays $10 costs on each motion and, within 20 days, files the return on each appeal, in which events motions denied.


text:
    In the Matter of the Claim of Sally Herman, on Behalf of Herself and Minor Son, Appellant, against Greenpoint Barrel & Drum Reconditioning Company et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion to have appeal heard upon three copies of the record before the Appellate Division granted.


text:
    In the Matter of Moe Kaplan et al., Respondents, against Thomas E. Rohan et al., Constituting the State Liquor Authority of the State of New York, Appellants.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion withdrawn.


text:
    In the Matter of Jerome C. Lewis, Appellant, for Reinstatement to the Bar. Association of the Bar of the City of New York, Respondent.
    Submitted November 16, 1959;
    decided November 19, 1959.

      Henry Hirschberg for motion.

      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:
    In the Matter of Vas Christoff, Appellant, against Joseph P. Kelly, as Commissioner of Motor Vehicles of the State of New York, Respondent.
    Submitted November 16,1959;
    decided November 19, 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:
    The People of the State of New York, Respondent, v. Lawrence Denmark, Appellant.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion to have appeal 'heard upon the record before the Appellate Division and for enlargement of time granted and case set down for argument during the January, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Gerald Gordon, Appellant.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion to have appeal heard upon the original record granted.


text:
    The People of the State of New York, Respondent, v. David Kasen, Appellant.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion to have appeal heard upon the original record granted.


text:
    The People of the State of New York, Respondent, v. Myron E. Wilson, Appellant.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Application to have appeal heard upon the original record and for assignment of counsel granted and Robert J. Edelman, Esq., Times Square Building, Rochester, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Joseph Emanuel, Appellant, against Daniel McMann, as Acting Warden [Joseph E. La Vallee, Warden] of Clinton Prison, Respondent. The People of the State of New York ex rel. Ralph La Shombe, Appellant, against J. Vernel Jackson [Joseph E La Vallee] , as Warden of Clinton Prison, Respondent.
    Submitted November 16, 1959;
    decided November 19, 1959.
   Motion by each appellant for leave to prosecute appeal as a poor person granted and cases set down for argument during the January, 1960 session of the Court of Appeals.