text:
    The People of the State of New York, Appellant, v. Howard B. Wakeman and Robert J. McNulty, Respondents.
    Submitted February 23, I960;
    decided February 25, 1960.
   Motion to submit one typed copy of the Grand Jury minutes upon the appeal granted.

Motion for enlargement of time granted and case set down for argument during the March, 1960 session of the Court of Appeals.


source: Caselaw Access Project

license: Public Domain

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, Respondent.
    Submitted February 23, 1960;
    decided February 25, 1960.

      Louis J. Lefkowitz, Attorney-General (Joseph J. Bose of counsel), for application.
    No one opposed.
   Application granted and appeal dismissed.


text:
    William Shemin, Appellant, v. City of New York, Defendant, and Nicholas Di Menna & Sons, Inc., Respondent.
    Argued January 18, 1960;
    decided February 25, 1960.

      Herbert L. Brickman, Sheldon Lowe and Joel B. Zweibel for appellant.

      Paul Englander for respondent.
   Appeal as to the second cause of action dismissed. Although the only appealable paper is the judgment of the Appellate Division, the appeal was taken from that court’s order; the judgment was not entered until after service of the notice of appeal from the order and no further notice was thereafter filed.

As to the first and third causes of action, application to withdraw stipulation for judgment absolute granted and appeal dismissed.


text:
    Henry L. McCarthy, Commissioner of Welfare of the City of New York, as Assignee of Charles Sheridan et al., Respondent, v. Milton M. Karpel, Appellant.
    Submitted February 23, 1960;
    decided February 25, 1960.

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

      Milton M. Karpel, in person, opposed.
   Motion granted and appeal dismissed upon the ground that the appeal was not taken within the time limited by law.


text:
    In the Matter of Frank La Forge, Jr., Appellant, against Stephen P. Kennedy, as Police Commissioner of the City of New York, Respondent. In the Matter of John P. Ix, Appellant, against Stephen P. Kennedy, as Police Commissioner of the City of New York, Respondent.
    Argued January 13,1960;
    decided March 3, 1960.

      James H. Tully and John T. Redmond for appellants.

      Charles H. Tenney, Corporation Counsel (Robert L. Ellis and Seymour B. Quel of counsel), for respondent.
   Orders of Appellate Division reversed and determinations of respondent annulled upon the ground that this record lacks substantial evidence to support them. No opinion.

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


text:
    Sverre Larsen, Appellant, v. First National City Bank of New York, Defendant, and Safeway Steel Scaffolds Supply Corp., et al., Respondents.
    Argued January 18, 1960;
    decided March 3, 1960.

      Benjamin H. Siff and Samuel Brill for appellant.

      Edward J. Pacelli and Walter G. Evans for Safeway Steel Products, Inc., respondent.

      John P. Carson for Safeway Steel Scaffolds Supply Corp., respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Robert Battipaglia, Appellant, against Executive Committee of the Democratic County Committee of the County of Queens, by Warren J. O’Brien, Its Treasurer, et al., Respondents.
    Argued January 18, 1960;
    decided March 3, 1960.

      Henry W. Schober for appellant.

      Benjamin S. Rosenthal for respondents.
   Order affirmed, without costs; no opinion.

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


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.
    Argued January 19, 1960;
    decided March 3, 1960.

      Edward Q. Carr, Jr., and Anthony F. Marra for appellant.

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

      Isidore Dollinger, District Attorney (Walter E. Dillon of counsel), for People of the State of New York, respondent in action and in proceeding.
   In People v. Sams: Order affirmed. Even if coram nobis was not available, the order affirming the denial of defendant’s application should be affirmed. (People v. Cassell, 6 N Y 2d 762.) No opinion.

In People ex rel. Sams v. Murphy : Order affirmed; no opinion.

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


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.
    Argued January 12, 1960;
    decided March 3, 1960.

      Charles H. Tenney, Corporation Counsel (Seymour B. Quel, Fred Iscol and Thomas C. Patterson of counsel), for appellants.

      Samuel Resnicoff for respondents.

      Charles F. Murphy for Association of Assistant Park Directors of the City of New York, amicus curiæ.

   Order affirmed, with costs; no opinion.

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


author: Fuld, J.

text:
    Albert B. Daggett, as Administrator of the Estate of James L. Daggett, Deceased, et al., Respondents, v. Al Keshner et al., Defendants, and Hyman Berebitsky et al., Individually and as Copartners Doing Business under the Name of B & S Garage, Appellants, and Nationwide Mutual Insurance Company, Joined Appellant.
    Argued January 14, 1960;
    decided March 3, 1960.

      William L. Shumate for appellants and joined appellant.

      Morris Pottish for respondents.

      Frederick L. Scofield, Matthew S. Gibson, Robert Hill Nix and Paul A. Grouch for Gulf Oil Corporation, amicus curiæ.

   Judgment affirmed, with costs.

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

Fuld, J.

(dissenting). I recognize that the Legislature may change the settled rule of law which ‘ ‘ looks only to the proximate cause of the mischief, in attaching legal responsibility, and allow a recovery to be had against those whose acts contributed, although remotely, to produce it” (Bertholf v. O’Reilly, 74 N. Y. 509, 524), but the Administrative Code provision upon which the plaintiffs here rely does not, in my view, effect any such far-reaching change. The plaintiffs were not required, it is true, to prove ‘ ‘ negligence ’ ’ on the part of the defendants, for violation of the statute in and of itself constituted the wrong upon which the action could be predicated. The statute did not, however, dispense with, or render unnecessary, proof that its violation was the direct and proximate cause of the injury complained of and, if the plaintiffs were to succeed, it was incumbent upon them to establish such a causal connection. That they could not do, since, concededly, there occurred between wrong and injury an intervening criminal act of arson which made the injury a highly remote and unforeseen effect of the wrong.

Judgment affirmed.


text:
    Oak Lane Realty Corp., et al., Appellants, v. Trinity Evangelical Lutheran Church, Respondent.
    Argued January 7, 1960;
    decided March 3, 1960.

      Gordon Miller for appellants.

      Abraham Karp for respondent.
   Judgment affirmed, with costs. The findings and conclusions that the deed to defendant did not impose the restriction on the subject property are sufficient in themselves to require affirmance of the judgment. We pass upon no other question. No opinion.

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


text:
    Admiral Corporation, Respondent, v. Reines Distributors, Inc., Appellant. Admiral Credit Corporation, Respondent, v. Reines Distributors, Inc., Appellant.
    Argued February 29, 1960;
    decided March 3, 1960.

      Berthold E. Eoeniger and Stanley R. Bookstein for motion.

      Laurence Sovik opposed.
   Motion granted and case set down for argument during the March, 1960 session of the Court of Appeals.


text:
    Olive Cornell, Also Known as Olive M. Irwin, Appellant, v. Elven J. Cornell, Defendant, and Charlotte McCabe, Intervenor-Respondent.
    Submitted February 23, 1960;
    decided March 3, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: There was argued an alleged constitutional question under the Constitution of the United States, viz.: Whether the Supreme Court of the State of New York has the power to grant a final judgment of divorce nunc pro tunc under the circumstances set forth in this record without violating the prohibitions contained in section 10 of article I and in section 1 of the Fourteenth Amendment of the United States Constitution. The Court of Appeals held there was no such violation and that no substantial constitutional question was presented. [See 7 N Y 2d 164.]


text:
    Michael P. Grace, II, Individually and as a Trustee under the Will of Janet Grace, Deceased, Appellant, v. Deepdale, Inc., et al., Defendants, Committee of Janet M. Grace, by Grace National Bank of New York, et al., Respondents. (Action No. 1.) Corinne Grace, as Guardian ad Litem for Michael P. Grace, Jr., an Infant, Appellant, v. Joseph P. Grace, Jr., et al., as Trustees under the Will of Janet Grace, Deceased, et al., Respondents. (Action No. 2.)
    Argued January 11, 1960;
    decided March 3, 1960.

      Denis G. McInerney, Robert E. Lawther and John P. Boland for motions.

      George J. Schaefer opposed.
   Motions granted and appeals in action No. 1 dismissed upon the ground that no substantial constitutional question is directly involved.


text:
    Elizabeth Howland, Respondent, v. Mabel G. P. Smith, Individually and as Executrix of Lester R. Smith, Deceased, Appellant.
    Submitted February 29, 1960;
    decided March 3, 1960.

      Matthew J. Shevlin for motion.

      Francis P. Rivette opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Morgan D. Ryan, Appellant, against Supreme Court of the State of New York et al., Respondents.
    Argued February 23, 1960;
    decided March 3, 1960.

      Bernard Tompkins, in person, for motion and opposed to cross motion.

      N. Le Van Haver opposed to motion and for cross motion.
   Motion denied. Case set down for argument during the March, 1960 session of the Court of Appeals.

Cross motion granted.


text:
    In the Matter of the Probate of the Will of Robert S. Turton, Deceased. In the Matter of the Estate of Robert S. Turton, Deceased. Government of British Honduras, Appellant; Harold A. Penso et al., Respondents.
    Submitted February 29, 1960;
    decided March 3, 1960.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division granted.


text:
    The People of the State of New York, Respondent, v. Ronald Chapman, Appellant.
    Submitted February 23, 1960;
    decided March 3, 1960.
   Motion for enlargement of time granted and ease set down for argument during the April, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Joseph Corbo, Appellant.
    Submitted February 29, 1960;
    decided March 3, 1960.
   Motion to amend remittitur to conform to the mandate in United States ex rel. Corbo v. La Vallee (270 F. 2d 513) granted. Return of remittitur requested and, when returned, it will be amended to read as follows: “ Judgment reversed and a new trial ordered. ” [See 307 N. Y. 928.] Cross motion of defendant denied.


text:
    The People of the State of New York, Respondent, v. Alberto L. De Lamela, Appellant.
    Submitted February 23, 1960;
    decided March 3, 1960.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division and upon typewritten briefs and for assignment of counsel granted and Daniel H. Greenberg, Esq., of 110 East 42nd Street, New York City, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Lawrence Denmark, Appellant.
    Submitted February 23, 1960;
    decided March 3, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the April, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Alfred Gencarelli, Appellant.
    Submitted February 23, 1960;
    decided March 3, 1960.
   Application to have appeal heard upon the original record and for assignment of counsel granted and Edward J. Grogan, Esq., 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. Leonard J. Lo Verde, Appellant.
    Submitted February 29, 1960;
    decided March 3, 1960.
   Motion to amend remittitur denied. Defendant may be tried only on the third count of the indictment. [See 7 N Y 2d 114.]


text:
    The People of the State of New York, Respondent, v. Frank Mistretta, Appellant.
    Submitted February 23, 1960;
    decided March 3, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the, United States, viz.: Defendant contended that the trial court’s rulings on the issue of the pretrial identifications of defendant by two of the People’s witnesses violated his rights under the Fourteenth Amendment. The Court of Appeals held that the pretrial identifications themselves and their use at trial did not violate defendant’s rights under the Fourteenth Amendment. [See 7 N Y 2d 843.]


text:
    The People of the State of New York ex rel. Edward M. Barr, Jr., Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Submitted February 23, 1960;
    decided March 3, 1960.
   Motion for leave to appeal to the Court of Appeals and to prosecute appeal as a poor person denied.


text:
    The People of the State of New York ex rel. Joseph Imbruglia, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Submitted February 23, 1960;
    decided March 3, 1960.

      Paul F. Donohue, in person, for motion.
    No one opposed.
   Motion granted.


text:
    Natalie M. Presbrey, Appellant, v. Oliver M. Presbrey et al., Respondents. Natalie M. Presbrey, Appellant, v. Oliver M. Presbrey, Respondent.
    Submitted February 23,1960;
    decided March 3, 1960.

      Daniel F. Scanlan for motions to extend time to argue appeals and opposed to motions to dismiss appeals.

      Philip L. Leit for motions to dismiss appeals and opposed to motions for extension of time.
   In each action: Motions for extension of time and to dismiss appeal denied; appeal set down for argument during the April, 1960 session of the Court of Appeals, the record on appeal and appellant’s brief, if any, to be served and filed not later than March 25, 1960.


text:
    Earl C. Sylvander et al., Individually and on Behalf of All Other Stockholders Similarly Situated, Appellants, v. Louis J. Taber et al., Respondents, and Louis J. Lefkowitz, Attorney-General of the State of New York, Intervenor-Respondent.
    Argued February 23, 1960;
    decided March 3, 1960.

      Benjamin E. Shove for motion.

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz of counsel), for motion.

      Martin F. Kendrick opposed.
   Motion denied.


text:
    Rosalie A. Verduce et al., Appellants, v. Board of Higher Education in the City of New York, Respondent, et al., Defendants.
    Submitted February 29, 1960;
    decided March 3, 1960.
   Motion to have appeal heard upon six copies of the record before the Appellate Division granted,


text:
    Helen M. Zampino, Appellant, et al., Plaintiff, v. Colgate-Palmolive Company, Defendant, and F. W. Woolworth Co., Respondent.
    Submitted February 23, 1960;
    decided March 3, 1960.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellant serves and files an undertaking on appeal and pays $10 costs and, within 20 days, files the return on appeal, in which events motion denied.


text:
    The People of the State of New York, Respondent, v. Dennis P. O’Dowd, Appellant.
    Argued March 21, 1960;
    decided March 22, 1960.

      Eugene M. Hanson for motion.

      Louis J. Lefkowits, Attorney-General (Robert E. Fischer of counsel), opposed.
   Motion granted and case set down for argument during the week of March 28,1960, the record to be filed by March 26, 1960, and appellant’s brief, if any, to be filed by March 28, 1960.


text:
    In the Matter of Gramercy Company, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued February 24, 1960;
    decided March 24, 1960.

      Herbert Whyman and Otto H. Frank for appellant.

      Charles H. Tenney, Corporation Counsel (Edith I. Spivack and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Thomas Akel, Alias “ Brooklyn Tommy ”, Alias “ Brooklyn Kid ”, Alias “ Thomas Dorio ”, Appellant. The People of the State of New York, Respondent, v. Salvatore Giordano, Alias “Joseph Pappa ”, Alias “James Russo ”, Alias “ James Costello ”, Alias “ Salvatore Giordana ”, Alias “ James Giordano ”, Alias “ Joseph Cosenza ”, Appellant. The People of the State of New York, Respondent, v. Saverio Maimone, Alias “ Salvatore Marvone ”, Alias “ Sibbie ”, Appellant. The People of the State of New York, Respondent, v. Robert Douglas Williams, Alias “ Bob Williams ”, Appellant.
    Argued March 2, 1960;
    decided March 24, 1960.

      Maurice Edelbaum and Ira H, Holley for Thomas Akel, appellant.

      Nancy Carley for Salvatore Giordano, appellant.

      Edward H. Levine and Vernon C. Rossner for Saverio Maijnone and Bobert Douglas Williams, appellants,

      Edward S. Silver, District Attorney (William Sonenshine and Aron E. Koota of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph L. Mathews, Appellant.
    Argued March 1, 1960;
    decided March 24, 1960.

      Joseph L. Mathews, appellant in person.

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

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


text:
    The People of the State of New York, Respondent, v. Luther Montgomery, Appellant.
    Argued March 1, 1960;
    decided March 24, 1960.

      Richard Lieb, Anthony F. Marra and Herbert Kronish for appellant.

      Isidore Dollinger, District Attorney (Walter E. Dillon of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Feoessel, Van Voobhis, Burke and Fosteb.


text:
    The People of the State of New York, Respondent, v. Irving Engel, Appellant.
    Argued March 1, 1960;
    decided March 24, 1960.

      Herbert Monte Levy for appellant.

      Frank D. O’Connor, District Attorney (Howard D. Stave of counsel), for respondent.
   Judgments reversed, information dismissed and fine remitted upon the authority of Smith v. California (361 U. S. 147). No opinion.

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


text:
    The People of the State of New York, Respondent, v. Jerome P. Jerome, Appellant.
    Argued January 20, 1960;
    decided March 24, 1960.

      George C. Pratt for appellant.

      Manuel W. Levine, District Attorney (Henry P. DeVine of counsel), for respondent.
   Order affirmed. In affirming herein, we call attention to the District Attorney’s statement, on the appeal before us, that the People would consent to a motion by defendant to restore his appeal from the judgment of conviction to the calendar of the Appellate Division. No opinion.

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


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 February 23, 1960;
    decided March 24, 1960.

      Michael J. Kenny for appellants.

      Morris Block and Oscar J. Greene for respondent.

      Albert J. Foley for Firemen’s Association of the State of New York, amicus curiæ.

   Judgment affirmed, without costs; no opinion.

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


text:
    Eleanor L. Berkson, as Executrix of Seymour Berkson, Deceased, et al., Appellants, v. Time, Incorporated, et al., Respondents.
    Argued March 1,1360;
    decided March 24, 1960.

      Charles Henry for appellants.

      Harold R. Medina, Jr., and Stephen E. O’Neil for respondents.
   Judgment affirmed, with costs; no opinion.

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


author: Van Voorhis, J.

text:
    In the Matter of George Arents et al., Appellants, against Theodore F. Squires et al., Constituting the Board of Appeals of the Incorporated Village of Southampton, Long Island, et al., Respondents.
    Argued January 14, 1960;
    decided March 24, 1960.

      Jackson A. Dykman, Lawrence R. Condon, Ralph W. Crolly and Ulysses S. Grant for appellants.

      William B. Platt, Jr., Village Attorney (Edward T. Kelly of counsel), for Board of Appeals of the Incorporated Village of Southampton, Board of Trustees of the Incorporated Village of Southampton and A. Lee Allen, respondents.

      Osborne A. McKegney for Southampton Holding Corporation and the Southampton Bath and Tennis Club, Inc., respondents.

      Gordon M. Lipitz for Overdune Corporation, respondent.
   Order affirmed, without costs.

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

Van Voorhis, J.

(dissenting). The object of this article 78 proceeding is to prevent the operation of the Southampton Bath and Tennis Club, Inc., as in violation of the village zoning ordinance. This club was formed in the Autumn of 1953. At that time the zoning ordinance permitted in the most restricted residential zone, where this club was situated, a “ Club house not conducted for gain” (art. IV, § 1, subd. A, par. [c]). After objection had been taken by the next door neighbors that this club failed to answer this description, but was in reality being operated for profit, the Zoning Board of Appeals granted a variance ‘1 for the use of the premises as a bath and tennis club with related activities as heretofore operated” (italics supplied) on condition that it be operated for the benefit of its members. Before this variance was granted, however, the Village Board of Trustees had amended the ordinance so as to exclude clubs entirely from residential districts of this character. The club can, therefore, be continued only if it was a pre-existing lawful use. The granting of this variance and the conditions attached was a nullity. There was no evidence of practical difficulty or unnecessary hardship, which is required under section 179-b of the Village Law (Matter of Forrest v. Evershed, 7 N Y 2d 256), nor was the variance in harmony with the intent of the ordinance. There would have been no occasion for this attempted variance unless the club was previously operated for gain. Either this club previously conformed or did not conform to the zoning ordinance of the village. If it conformed, the variance was superfluous. If it did not conform, no variance granted subsequent to the abolition by the local legislature of clubs in this zone could sanction its earlier operation, so as to give it a status which it did not possess prior to the extinction of such uses by the amendment to the zoning ordinance.

In rendering its decision granting this void variance, the Zoning Board of Appeals also said “We hold that the record establishes this Club to have been one not conducted for gain ’.” The board said this notwithstanding its annexation of a condition to the variance that the use of this property “ shall be restricted to operation by a bona fide membership corporation primarily and substantially, for the benefit of its members, as a private club with its membership electing its board of directors or trustees at least annually and also having a voice in club affairs at least equal to what this Board shall find to be the customary practice or procedure with reference to private clubs.” Other conditions annexed were that the club report annually to the Zoning Board of Appeals information showing that it was being operated in compliance with the zoning ordinance, and that no additional buildings, facilities or capital improvements should be installed without the written approval of the Zoning Board of Appeals to the end that the number of persons which the accommodations are designed to serve ‘ ‘ shall always be kept in line with the type of operation contemplated, the area involved and the character of the community.” The annexation of these unusual conditions, in the exercise of an assumed supervisory power in the Zoning Board over membership corporations, tacitly recognized that the operation of the club previously did not conform to the ordinance. These conditions were manifestly inserted due to the circumstance that the club was not managed by its members and served indiscriminately the patrons of the proprietors of the inns, restaurants and boarding houses in Southampton and vicinity.

Apparently the Board of Trustees of Southampton and the Zoning Board of Appeals were aiming at cross purposes. While the Board of Appeals was attempting to confirm the legality of the conduct of this beach club, the Village Trustees were doing what they could to legislate it out of existence. The Board of Appeals, of course, has no legislative power, which is locally delegated to the Village Trustees (Matter of Fox Meadow Estates v. Culley, 233 App. Div. 250, 251, affd. 261 N. Y. 506). This circumstance is not overcome by the resounding phraseology of the Board of Appeals in pronouncing a public policy for the village at variance with the public policy adopted by the Trustees. The Board of Appeals cannot enlarge a use contrary to the policy which has been enacted by the Village Board of Trustees,

The Southampton Bath and Tennis Club, Inc., is a membership corporation in the management of which the membership is forbidden to participate. Incorporation under the Membership Corporations Law does not establish that this is a “ Club house not conducted for gain ” within the former permitted scope of the ordinance. A membership corporation has to be something more than a front for persons endeavoring to make a profit from its operation as a business venture, if it were to qualify under the earlier provision of this ordinance. The club is located on real estate which constituted the country estate of the late Evander B. Schley. Title to the whole estate was taken by the promoters of the club for $25,000 on October 1,1953 in the name of the Overdune Corporation. Fifteen thousand dollars of this sum was obtained from a bank loan, and the balance of the purchase price was supplied by the seven incorporators of Overdune who are also the incorporators of the club. Two months later the club leased a portion of this property from Overdune at a stipulated annual rental of $15,000. The balance of the Schley estate was sold by Overdune in 1956 for $16,500. In 1957 Overdune sold the club property to a new corporation (in which a few of the original incorporators were interested) for $56,500 plus $9,000 to the club corporation for furniture and equipment. After deducting some capital improvements made by Overdune, this sale and the sale in 1956 resulted in a net gain to Overdune of $20,345.40 for property which they had bought in 1953 for $25,000. This profit was made in disregard of a letter — not legally binding — written by Overdune to the club saying that it was not the intention of Overdune to profit from the lease to the club, and that ‘ ‘ Ultimately title would vest in the Club when the expenditures of the originators had been returned.” The lease was assigned by Overdune to Southampton Holding, and a new lease was made at an annual rental of $12,000. A new letter was written by Southampton Holding to the club corporation, expressing an unenforcible intention that title would eventually belong to the club when the investment by Southampton Holding had been refunded along with capital improvements, mortgages and other items. Payment of these obligations included the profit to Overdune, contradicting the previous declaration of Overdune that it intended to receive no profit.

The various aspects of the enterprise have to be viewed as a totality in order to determine whether this was a “ Club house not conducted for gain ”. There is nothing sinister in the profit motive nor in the conduct of such a venture for gain. It just did not conform to the zoning ordinance if that was the fact. The large rental, the management and operation of the club by the promoters of the enterprise who owned the equity, and the circumstance that the club facilities were open to the use of the public patronizing the inns, restaurants and boarding houses in Southampton and vicinity — all of which are alleged as facts in the petition — created a question of fact requiring a trial in court concerning whether this was a clubhouse conducted or not conducted for gain.

The petition has been dismissed for legal insufficiency. That determination, it seems to us, is clearly erroneous. It is based on the mere form of the club as a membership corporation rather than on the substance of the transactions alleged in the petition. Matter of Semple School for Girls v. Boyland (308 N. Y. 382) and Matter of Carroll (New York Military Academy) (288 N. Y. 447) held that the financial structure and background need to be analyzed in order to determine whether a use is exclusively for the purposes of a tax exempt lessee corporation. In each case a nonprofit lessee corporation was held to be a vehicle through which others aimed to make a profit, which destroyed tax exemption. It was held to be irrelevant whether the lessee corporation actually made a profit or operated at a loss if it was contemplated that any profit would inure to the benefit of the sponsors. Justice Wenzel correctly stated in his dissent at the Appellate Division in this case that “ The question is not whether the tenant, respondent The Southampton Bath and Tennis Club, Inc., was operated for a profit but whether the owner was operating the property for anticipated profit. Nor is it important that the profit was not realized.” This is a correct statement of the law although it overlooks that, according to the facts alleged in the petition, an 80% profit was made on its investment in less than four years by Overdune. In the recent case of Civic Assn. at Roslyn Country Club v. Levitt & Sons (7 N Y 2d 894) the club, as here, was not operated by the members but by the sponsors of the enterprise. As the memorandum of this court indicates, its being called a club did not preclude a profit to the developers. There the zoning ordinance was amended to enable it to be operated in the area as a commercial enterprise.

The circumstances here are similar in essentials to Matter of Castle Hill Beach Club v. Arbury (2 N Y 2d 596) where, in effect, the public was admitted to the facilities of a beach club. Castle Hill was held not to be a club authorizing discrimination under section 40 of the Civil Bights Law. It would be interesting to consider what the situation would be regarding this beach club at Southampton, if a local hotel proprietor denied the facilities of this club to some but not all of the guests at his hotel on account of race, creed or color. Such practices would not be sanctioned. The Castle Hill decision would prevent the Southampton Bath and Tennis Club, Inc., from being held to be a club. The Castle Hill Beach Club was a membership corporation lessee.

The court apparently would hold that the allegations of this petition would warrant a trial of the issue except for the form in which this litigation comes into court. The Building Inspector of Southampton (after the correction of a preliminary difficulty concerning the design of the out buildings) granted a certificate of occupancy on an application of the club stating •that the club owned the property. This certificate was evidently issued on the basis that this constituted a Club house not conducted for gain ’ ’ within the uses permitted by the zoning ordinance. When the Building Inspector discovered that the application falsely stated that the club owned this property, and the other circumstances came to light indicating that it was operated for gain according to the facts alleged in the petition, the Building Inspector- — -after objection by the neighbors who also had recently learned the facts rendering the use illegal— revoked this certificate of occupancy by reason of the false statement of ownership contained in the petition, which he had power to do (People ex rel. Finnegan v. McBride, 226 N. Y. 252; Matter of Rosenbush v. Keller, 247 App. Div. 748, affd. 271 N. Y. 282; Rollins v. Armstrong, 226 App. Div. 687, 752, affd. 251 N. Y. 349; Southern Leasing Co. v. Ludwig, 217 N. Y. 100; Town of Oreenburgh v. Buser, 285 App. Div. 1090). These cases hold not merely that the Building Inspector was empowered to revoke the certificate of occupancy but that it was his duty and that he could be compelled to revoke it if the use did not conform to the zoning ordinance. That would be true regardless of any misstatement in the application for the certificate, although this false statement in the application was material to whether the club was operated for gain. After the Zoning Board of Appeals had reversed the Building Inspector and restored the certificate of occupancy, petitioners-appellants commenced this article 78 proceeding to review and to correct the disposition made by the Board of Appeals. The Building Inspector does not act in a quasi-judicial capacity. His acts were purely administrative. If he errs, his acts are subject to correction in the courts by mandamus rather than by certiorari (Matter of Small v. Moss, 277 N. Y. 501). Petitioners here, according to the facts alleged in the petition, are entitled to enforce a clear legal right. This, in turn, depends upon whether application is made to the courts to control his action in respect of a matter with which he has been vested with discretion (Matter of Gimprich v. Board of Educ. of City of N. Y., 306 N. Y. 401, 405-408; Matter of Small v. Moss, supra). In the present instance the Building Inspector is vested with no discretion to adjudicate whether this beach club is a nonconforming prior lawful use. If it is such a use, then a certificate of occupancy must issue. • Its issuance could be compelled by mandamus as a clear legal right by the same token whereby the issuance of a building permit for the erection of bathhouses and cabanas upon shore front property was compelled in Matter of Little v. Young (274 App. Div. 1005, affd. 299 N. Y. 699), or for the alteration of a dwelling in Matter of Davison v. Flanagan (273 App. Div. 870). Where a property owner is entitled to continue a nonconforming use, it is treated as “ a strict legal right” (Matter of 440 E. 102nd St. Corp. v. Murdock, 285 N. Y. 298). Whether or not a party is entitled to continue a prior use, or should be enjoined from doing so, is for the courts to decide (People v. Miller, 304 N. Y. 105). It is for the courts to decide here whether this beach club at Southampton was a Club house not operated for gain” before the zoning ordinance was amended by prohibiting such uses effective at the beginning of 1958. If it fell outside that category, the certificate of occupancy was properly revoked. If it was a clubhouse not operated for gain, then the certificate of occupancy was properly restored and the order appealed from should be affirmed.

The material parts of section 179-b of the Village Law, under which the Zoning Board of Appeals acted, provide that such Board of Appeals shall review “ any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this act. ’ ’ In reviewing such determinations, it is provided that the Board of Appeals ‘ ‘ shall have all the powers of the officer from whom the appeal is taken. ’ ’ In other words, in deciding whether the Building Inspector of Southampton correctly revoked the certificate of occupancy for this beach club, insofar as this issue is affected by the claim that it was a prior lawful nonconforming use, the powers of the Board of Appeals were identical with those of the Building Inspector. The nature of the power is not changed by the particular board or officer that exercises it, but the power classifies itself according to its function (Matter of Rothstein v. County Operating Corp., 6 N Y 2d 728). If the Building Inspector erred in concluding that this beach club fell outside of the classification of a “ Club house not conducted for gain ”, then it lay within the power of the Board of Appeals to correct his error and to restore the certificate of occupancy. It had the same power possessed by the Building Inspector. It could reverse the Building Inspector if, in its administrative judgment, it determined that the Building Inspector was mistaken in concluding the facts to be that this was not a lawful nonconforming use. For this purpose, the board was just one administrative agency placed over another. The Board of Appeals cannot finally determine to the exclusion of the courts questions of fact concerning whether this beach club constituted a permitted prior use. Consequently the substantial evidence rule does not apply. Being vested with only the powers of the Building Inspector in this respect, the Board of Appeals could overrule his administrative judgment, but the courts and not the Board of Appeals are the appointed forum for the determination of the facts and the law underlying whether this was a prior lawful nonconforming use. The situation regarding this is different from practical difficulty and unnecessary hardship cases where the board exercises discretion in granting variances. In such cases the jurisdiction of the courts is more limited. Here no discretion is reposed in either the Building Inspector or the Board of Appeals. Neither was vested with jurisdiction to try whether this was a lawful prior use.

Here the courts are vested with power to determine the facts concerning the nature of this club, without being concluded by any determination of the Zoning Board. The courts have always exercised jurisdiction to determine the facts with respect to prior uses. That jurisdiction is not transferred to the Zoning Board for the mere reason that it acted in an administrative capacity and without being charged with the exercise of discretion in restoring this certificate of occupancy. The courts could compel the revocation of the certificate, if the zoning ordinance was violated, even if the Building Inspector had never revoked it. The issuance by a Building Inspector of a certificate of occupancy or, in this case, by the Board of Appeals acting under the same authority cannot amend or dispense with the enforcement of a zoning ordinance if the certificate has been issued in violation of the provisions of the ordinance. The substantial evidence rule has no application to this situation.

If the Zoning Board had been the tribunal to decide whether this constituted a lawful prior nonconforming use, its determination would still need to be annulled by reason of the exclusion by the board of evidence offered by the petitioners at the hearing before the board (record, pp. 26-30) concerning what persons would benefit personally from the operation of the club and the management of the club as a private enterprise rather than as a membership corporation.

The order appealed from dismissing the petition for insufficiency in law should be reversed, and respondents directed to serve and file their answers pursuant to section 1291 of the Civil Practice Act.

Order affirmed.


text:
    In the Matter of the Arbitration between S & W Fine Foods, Inc., Appellant, and Office Employees International Union, Local 153, AFL-CIO, Respondent.
    Argued January 20, 1960;
    decided March 24, 1960.

      Murray E. Harston and J. David Delman for appellant.

      Walter M. Colleran for respondent.
   Order affirmed, with costs. In construing the language of this collective bargaining agreement as requiring the employer to pay its employees for Columbus Day, the arbitrator acted within his powers and is not chargeable with misconduct under section 1462 of the Civil Practice Act. No opinion.

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


text:
    Robert P. Shaw, Appellant, v. Susan Prestigiacomo, Defendant, and Carmine Leo Calarco, Respondent.
    Argued February 23, 1960;
    decided March 24, 1960.

      Sidney Naishtat for appellant.

      Carmine Leo Calarco, in person, Gloria J. Marolt and Thomas J. Halvey for Carmine Leo Calarco, respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Michael M. Ben Ami et al., Infants, by Marcia Ben Ami Michel, Their Guardian ad Litem, Appellants, v. Yitshaq Ben Ami, Respondent.
    Submitted March 21, 1960;
    decided March 24, 1960.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division granted.


text:
    Leonard Keller et al., Individually and as Copartners of Amsterdam Slat Co., Respondents, v. Fidelity & Casualty Company of New York, Appellant.
    Submitted March 21, 1960;
    decided March 24, 1960.

      Marvin L. Levitt for motion.

      Thomas A. Harnett opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that this court lacks jurisdiction to entertain it (Civ. Prac. Act, § 589, subd. 1, par. [b]).


text:
    In the Matter of the Probate of the Will of Albert Fox, Deceased. Herbert W. Fox et al., Respondents; Isabelle F. Hampton, Appellant.
    Submitted March 21, 1960;
    decided March 24, 1960.
   Motion to have appeal heard upon one copy of the record before the Appellate Division together with typewritten additional papers and typewritten briefs granted.


text:
    The People of the State of New York, Respondent, v. Ralph Downs, Appellant.
    Submitted March 21, 1960;
    decided March 24, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the April, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Julius Fuller, Appellant.
    Submitted March 21, 1960;
    decided March 24, 1960.
   Motion for enlargement of time granted and case set down for argument during the April, 1960 session of the Court of Appeals; appellant’s brief, if any, to be filed not later than April 1, 1960.


text:
    The People of the State of New York, Respondent, v. Pete Pollock, Appellant.
    Submitted March 21, 1960;
    decided March 24, 1960.
   Motion for a certificate pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning April 25, 1960 fixed for the execution of the death sentence. [See 6 H Y 2d 890.]


text:
    The People of the State of New York, Appellant, v. Howard B. Wakeman and Robert J. McNulty, Respondents.
    Submitted March 21, 1960;
    decided March 24, 1960.
   Motion for a further enlargement of time granted and case set down for argument during the May, 1960 session of the Court of Appeals.


text:
    The People of the State of New York ex rel. Arnold Schildhaus, Appellant, against Harry Silberglitt, as Warden, Respondent.
    Submitted- March 21, 1960;
    decided March 24, 1960.

      Arnold Schildhaus, in person, for motion.

      Charles H. Tenney, Corporation Counsel (Seymour B. Quel of counsel), opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Sydney Snitow et al., Individually and as Copartners of Snitow & Snitow, Appellants, v. Nelson C. Dukes et al., Respondents.
    Submitted March 21, 1960;
    decided March 24, 1960.

      Joseph B. Franklin for motion.

      Snitow & Snitow 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 action within the meaning of the Constitution.


text:
    Lew Wallace, Also Known as Louis Goldberg, Appellant, v. Allstate Insurance Company et al., Respondents.
    Submitted March 21, 1960;
    decided March 24, 1960.

      Olin S. Nye for motion.

      Lew Wallace, in person, opposed.
   Motion granted and appeal 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:
    Rosa E. Walton, Appellant, v. Lester T. Doyle, as Trustee in Reorganization of Surface Transportation Corporation of New York, Respondent.
    Submitted March 21, 1960;
    decided March 24, 1960.
   Motion to have appeal heard upon the available copies of the record before the Appellate Division granted.


text:
    Ethel H. Ward, Respondent, v. City of New Rochelle et al., Appellants.
    Submitted February 23,1960;
    decided March 24, 1960.

      Murray C. Fuerst, Corporation Counsel (Herman D. Schmier of counsel), for motion.

      William J. Greer and Samuel B. Hickman opposed.
   Motion denied upon the ground that an appeal lies as of right.


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.
    Argued January 21, 1960;
    decided March 24, 1960.

      George Salvatore for appellant-respondent.

      Lewis Abrahams and Adolph C. Orlando for respondents-appellants.

      Samuel D. Smoleff for Citizens Union of the City of New York, amicus curiæ.

      Robert C. Rosenberg and J. Boyd Henson for Association of New York State Young Republican Clubs, Inc., amicus curiæ.

   Appeal "by plaintiff dismissed, without costs, upon the ground that the question certified is not decisive of the correctness of the order appealed from since it appears from such order that the decision of the Appellate Division was based in part upon an exercise of discretion (Evadan Realty Corp. v. Patterson, 297 N. Y. 732; Cohen and Karger, Powers of the New York Court of Appeals, pp. 375-377). Appeal by defendants dismissed, without costs, upon the ground that it is taken without permis-. sion of the Appellate Division from an order that is not final (Maryland Cas. Co. v. Roebling’s Sons Co. of N. Y., 266 N. Y. 610).


text:
    Robert P. Shaw, Respondent, v. Susan Prestigiacomo, Appellant, et al., Defendant.
    Argued February 23, 1960;
    decided March 24, 1960.

      Gloria J. Marolt and Carmine Leo Calarco for appellant.

      Sidney Naishtat for respondent.
   Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Rene Lang, Respondent, against Marion Lang, Also Known as Marion Rothstein, Appellant.
    Argued March 2, 1960;
    decided March 31, 1960.

      Richard T. Davis and William C. Woodson for appellant.

      Leonard Hemley, Stephen S. Bernstein and James H. Powell for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. John Evans, Respondent.
    Argued February 29, 1960;
    decided March 31, 1960.

      Frank D. O’Connor, District Attorney (Howard D. Stave of counsel), for appellant.

      Fred Newman for respondent.
   Order reversed and a new trial ordered (People v. Lopez, 7 N Y 2d 825; People v. Liebenthal, 5 N Y 2d 876); no opinion.

Concur: Chief Judge Desmond and Judges Dye, Froessel and Burke. Judges Fuld, Van Voorhis and Foster dissent and vote to affirm upon the ground that the testimony offered on behalf of the People is incredible as a matter of law.


text:
    The People of the State of New York, Appellant, v. Ester Smith, Respondent.
    Argued March 1, 1960;
    decided March 31, 1960.

      Charles H. Tenney, Corporation Counsel (John A. Murray and Seymour B. Quel of counsel), for appellant.

      Eugene R. Canudo and Jack Newton Lerner for respondent.
   Order reversed and a new trial ordered. On this record there was sufficient evidence to permit the trier of facts to determine that defendant had knowledge of the overcrowding. No opinion.

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


text:
    Alicia L. Sherman, Appellant, v. Leonard Sherman, Respondent.
    Argued February 29, 1960;
    decided March 31, 1960.

      Paul Englander for appellant.

      Irving Moldauer and Daniel Cohen for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Judges Dye, Froessel, Van Voorhis and Foster. Chief Judge Desmond and Judges Fuld and Bubke dissent from so much of the judgment as grants defendant a separation on his counterclaims and vote to reverse the judgment to that extent and to dismiss defendant’s counterclaims upon the ground that the record fails to establish cruel and inhuman treatment of defendant by plaintiff. (See, e.g., Russ v. Russ, 4 F Y 2d 743, affg. 3 A D 2d 888.)


text:
    The People of the State of New York, Respondent, v. Bernard Malone, Appellant.
    Argued February 26, I960;
    decided March 31, 1960.

      Abraham H. Brodsky for appellant.

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

Concur: Chief Judge Desmond and Judges Dye, Fuld, Feoessel, Van Voobhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. Frederick Foss McElroy, Appellant.
    Argued February 24, 1960;
    decided March 31, 1960.

      Robert H. Jones, III, for appellant.

      John T. Garry, II, District Attorney (Condon A. Lyons of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Gerald Olson, Appellant.
    Submitted February 26, 1960;
    decided March 31, 1960.

      Lester R. Dimond, Jr., for appellant.

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), for respondent.
   Judgments reversed and information dismissed upon the ground that the guilt of defendant was not proven beyond a reasonable doubt. No opinion.

Concur: Chief Judge Desmond and Judges Fold, Van Voorhis, Burke and Foster. Judges Dye and Froessel dissent and vote to affirm.


text:
    The People of the State of New York, Respondent, v. Henry Flakes and Walter T. Green, Appellants, et al., Defendant.
    Argued January 22, 1960;
    decided March 31, 1960.

      William B. Mahoney and William Sims for Henry Flakes, appellant.

      Harold P. Kelly and Leonard M. Sciolino for Walter T. Green, appellant.

      Carman F. Ball, District Attorney (Robert A. Burrell of counsel), for respondent.
   Judgments of conviction affirmed. On this whole case, including the jury’s refusal to recommend life imprisonment pursuant to section 1045-a of the Penal Law as to either of these defendants, it was not prejudicial error for the court to decline to charge the degrees of homicide. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis and Foster. Judges Froessel and Burke dissent as to defendant Green only and vote to reverse and to grant a new trial as to defendant Green upon the ground that the evidence alluding to Green’s prior status, which reflected a previous bad character, created prejudice against this defendant.


text:
    Anna Lorenzo, as Executrix of Antonio Lorenzo, Deceased, Appellant, v. Antonio Bussin, Respondent.
    Submitted February 26, 1960;
    decided March 31, 1960.

      Emil P. Grossi and Albert A. Sclafani for appellant.

      John P. McGrath and Frederick B. Adler for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mervyn Robitzek, Appellant, v. Reliance Intercontinental Corp., Respondent.
    Argued February 29, 1960;
    decided March 31, 1960.

      Chester A. Lessler and Leonard Holland for appellant.

      Eugene L. Bondy and Bertram Braufman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Irene Elian et al., Appellants, v. Jules Teck, Respondent.
    Submitted March 21, 1960;
    decided March 31, 1960.

      Edward M. Miller for motion.

      Henry J. O’Hagan 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:
    Phyllis P. Keilson, Respondent, v. Jacob F. Keilson, Appellant.
    Submitted March 21, 1960;
    decided March 31, 1960.

      Norman Annenberg for motion.

      Sidney A. Wolff 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 November 23,1959;
    decided March 31, 1960.
   Motion to dismiss appeal withdrawn.


text:
    In the Matter of the Claim of Anna Von Der Lin, Appellant, against 635 Park Ave. Corp. et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted March 28, 1960;
    decided March 31, 1960.
   Motion to have appeal heard upon the original record granted.


text:
    In the Matter of Frank La Forge, Jr., Appellant, against Stephen P. Kennedy, as Police Commissioner of the City of New York, Respondent. In the Matter of John P. Ix, Appellant, against Stephen P. Kennedy, as Police Commissioner of the City of New York, Respondent.
    Submitted March 21, 1960;
    decided March 31, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows : Orders of the Appellate Division reversed and the determinations of respondent annulled, with costs in all courts, upon the ground that this record lacks substantial evidence to support them. [See 7 N T 2d 973.]


text:
    In the Matter of Louis I. Nash, Appellant, against Gay Apparel Corporation et al., Respondents. Louis I. Nash, Respondent, v. Gay Apparel Corporation, Appellant.
    Submitted March 28, 1960;
    decided March 31, 1960.
   Motion to have appeals heard upon five copies of the record before the AppeEate Division denied with leave to renew upon a showing of adequate reasons.


text:
    In the Matter of the Probate of the Will of Saba Sandberg, Deceased. Carol A. Brown et al., Appellants; Leon Sandberg, as Executor of Sara Sandberg, Deceased, Respondent.
    Submitted March 21, 1960;
    decided March 31, 1960.

      William L. Darrow for motion.

      Irving H. Stolz 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 Philip R. Sheridan et al., Respondents, against Stephen P. Kennedy, as Police Commissioner of the Police Department of the City of New York, et al., Appellants.
    Submitted March 21, 1960;
    decided March 31, 1960.

      Murray A. Gordon for motion.

      Charles H. Tenney, Corporation Counsel (Edward A. Doberman of counsel), opposed.
   Motion denied. Case set down for argument during the first week of the April, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Robert John Foley, Appellant.
    Submitted March 28, 1960;
    decided March 31, 1960.
   Motion for enlargement of time granted and case set down for argument during the May, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Gerald Gordon, Appellant.
    Submitted March 28, 1960;
    decided March 31, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, viz.: Whether defendant was deprived of counsel and a fair trial, and whether his rights to due process under the Fourteenth Amendment were thereby violated or infringed. The Court of Appeals held that there was no violation or infringement of defendant’s rights. [See 7 N Y 2d 942.]


text:
    The People of the State of New York, Appellant-Respondent, v. Wilbur Hill, Respondent-Appellant.
    Submitted March 28, 1960;
    decided March 31, 1960.
   Motion to have appeal heard upon the original record and typewritten briefs and for assignment of counsel granted and Anthony F. Marra, Esq., of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Edward Kumm, Appellant.
    Submitted March 28, 1960;
    decided March 31, 1960.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Lauren D. Rachlin, Esq., 710 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, Appellant, v. Vincent J. Squillante, Nunzio Squillante, and Bernard Adelstein, Respondents.
    Submitted March 28, 1960;
    decided March 31, 1960.
   Motion for enlargement of time granted and case set down for argument during the April, 1960 session of the Court of Appeals.


text:
    The People of the State of New York ex rel. Jacob Goldman, Respondent-Appellant, against Wilfred L. Denno, as Warden of Sing Sing Prison, et al., Appellants-Respondents.
    Submitted March 28, 1960;
    decided March 31, 1960.
   Motion to have appeal heard upon the original record and typewritten briefs and for assignment of counsel granted and Anthony F. Marra, Esq., of 100 Centre Street, New York City, assigned as counsel to appellant Goldman on the appeal herein.


text:
    Dorothy W. Temple, Respondent, v. Philip Liebmann, Appellant.
    Argued February 29, 1960;
    decided March 31, 1960.

      Ephraim London and Helen L. Buttenwieser for motion.

      Robert S. Groban, Robert A. Chuck and Anthony S. Farinacci opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that no substantial constitutional question is presented.


text:
    Lillian C. Bernard, as Administratrix of the Estate of Matthew Bernard, Deceased, Appellant, v. Village of Andover, Respondent.
    Argued March 1, 1960;
    decided April 1, 1960.

      David M. Franz for appellant.

      Albert E. Hollis and John J. Horey for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Stanley Skinner Corwin, Appellant.
    Argued March 1, 1960;
    decided April 1, 1960.

      Stanley Skinner Corwin, appellant in person.

      Louis J. Lefkowits, Attorney-General (Ruth Kessler Toch and Paxton Blair of counsel), for respondent.
   Order, insofar as appealed from, affirmed; no opinion.

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


text:
    C. Gerard Dodge, Appellant, v. Frederick W. Richmond, Respondent.
    Argued March 21, 1960;
    decided April 1, 1960.

      William J. Butler and Stanley Getter for motion.

      Lloyd I. Isler and John B. Loughran opposed.
   Motion denied and case set down for argument during the first week of the April, 1960 session of the Court of Appeals.


text:
    Lenore S. Trimble, Respondent, v. Arthur A. Beaudry, Appellant.
    Submitted March 21, 1960;
    decided April 1, 1960.

      Arthur A. Beaudry, in person, and Ludwig M. Wilson for motion.

      Hyman Abrams 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.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Gordon Vasquez, Appellant.
    Decided June 4, 1987

      APPEARANCES OF COUNSEL

      Irving Tenenbaum for appellant.

      Denis Dillon, District Attorney (Susan Katz Richman and Anthony J. Girese of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Defendant was granted leave to appeal by a Judge of this court so that we could determine whether he was denied effective assistance of counsel in his appeal to the Appellate Division.

After entry of the judgment against him, defendant appealed to the Appellate Division and, at his request, the court assigned appellate counsel to represent him. Counsel prepared his brief, stating in it that defendant had evaluated the record, and prefaced his discussion of the legal merits with this statement: "As shall be indicated this is the fifth point out of a total of ten points the defendant-appellant wishes his appellate counsel to address. It has substantial merit in light of two recent decisions of the United States Supreme Court in appellate counsel’s opinion; whereas the other points the defendant-appellant seeks to raise do not. ” (Emphasis added.) Counsel then developed and argued the one point he considered meritorious, ineffectiveness of trial counsel. He set forth defendant’s remaining contentions in point II of the appellate brief as follows:

POINT II

"the remaining nine points the defendant-appellant REQUESTED HIS COUNSEL TO REVIEW HAVE BEEN CAREFULLY REVIEWED BY HIS COUNSEL, AND IN LIGHT OF THE RECORD, THE APPLICABLE STATUTORY AND CASE LAW, THEY HAVE BEEN FOUND TO BE WITHOUT MERIT

"These points (issues), which appellate counsel has reviewed and found to be lacking in merit, as submitted by the defendant-appellant to his counsel, are as follows:” (emphasis added).

Counsel thus dismissed out of hand nine arguments that defendant wished to assert. In our view, the procedure he followed denied defendant effective assistance of counsel and requires reversal of the order appealed.

The rule in Anders v California (386 US 738, 744, reh denied 388 US 924) permits appellate counsel to withdraw from representing a defendant if his appeal is "wholly frivolous” (see also, People v Gonzalez, 47 NY2d 606, 612, n 3; People v Crawford, 71 AD2d 38; People v Saunders, 52 AD2d 833). This was not a frivolous appeal, however; counsel determined that one of the issues advanced by defendant had substantial merit. That being so, counsel was duty bound to advance it and to serve as an "active advocate in behalf of his client” (Anders v California, supra, at 744). He was not obliged to discuss the nine allegedly meritless claims his client wanted addressed (see, Jones v Barnes, 463 US 745), and he should not have identified them and then disparaged them before the court. By doing so, counsel affirmatively undermined arguments his client wished the court to review and, for all practical purposes, precluded his client from presenting them effectively in a pro se brief.

The procedure to be followed by appellate counsel when a client requests that several points be presented to the court, some with merit and some with none, is to argue the claim found meritorious and make no comment about claims considered frivolous. As to them, counsel should instruct his client why he believes the points frivolous and advise him that if he still thinks they should be addressed, defendant may file a pro se brief with the court. If the client chooses to do so, counsel should protect his client’s opportunity to submit written argument on the points by notifying the court of his intentions.

Inasmuch as the required procedure was not followed in this case, the order should be reversed and the matter remitted to the Appellate Division, which should assign new counsel and consider the appeal de novo (see, People v Casiano, 67 NY2d 906, 907).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

       This case involves a direct appeal of the judgment of conviction as in People v Casiano (67 NY2d 906) and People v Gonzalez (47 NY2d 606). People v Bachert (69 NY2d 593) details the procedures to be followed when a defendant seeks to collaterally attack the judgment on the ground of ineffective assistance of appellate counsel.


text:
    Theresa Amodio, Appellant, v Michael P. Amodio, Respondent.
    Argued April 29,1987;
    decided June 4, 1987

      POINTS OF COUNSEL

      Howard J. Pobiner and A. Albert Buonamici for appellant.
    A. Charles D’Agostino for respondent.
   OPINION OF THE COURT

Per Curiam.

The only issue before the court in this divorce action is the value, for equitable distribution purposes, of defendant’s 15% stock interest in Capitol Electrical Supply Co., Inc., a closely held corporation. Defendant acquired the stock in 1980 for $87,500 pursuant to the terms of a shareholder’s agreement which provides that if defendant seeks to sell his stock within 20 years, the other shareholders may exercise a right of first refusal and purchase his shares for the price paid. The agreement also provides that if defendant dies within its 20-year term, the surviving stockholders can acquire his interest for $87,500. After a trial the court concluded that the stock was worth $87,500 and the Appellate Division affirmed.

There is no uniform rule for valuing stock in closely held corporations. "One tailored to the particular case must be found, and that can be done only after a discriminating consideration of all information bearing upon an enlightened prediction of the future” (Snyder’s Estate v United States, 285 F2d 857, 861). The Internal Revenue Service has declared that appropriate factors to be considered in valuing such stock for tax purposes include: (1) the nature and history of the business, (2) its particular economic outlook and that of its industry generally, (3) the book value of the stock and the financial condition of the business, (4) the company’s earning capacity, (5) its dividend paying capacity, (6) its goodwill and other intangible assets, (7) other sales of the corporation’s stock, and (8) the market price of stock of comparable corporations (Rev Rui 59-60, IRS Cum Bull 1959-1, at 237).

The Internal Revenue Service’s formulation is not the only method of valuing stock in a closely held corporation, but it has been recognized by authors and applied by appellate courts and was one of the two methods used by plaintiff’s expert witness in this case (see, Matter of Blake v Blake Agency, 107 AD2d 139, 146-147, lv denied 65 NY2d 609; Kaye v Kaye, 102 AD2d 682, 687; 3 Foster, Freed and Brandes, Law and the Family, New York § 15:2, at 644-645 [2d ed 1986]; Golden, Equitable Distribution of Property §§ 7.08-7.09, at 215-219 [1983]; 11C Zett-Kaufman-Kraut, NY Civ Prac, Equitable Distribution Actions § 69.04 [3], [4], at 69-26 — 69-44). Whatever method is used, however, must take into consideration inhibitions on the transfer of the corporate interest resulting from a limited market or contractual provisions (see, 3 Foster, Law and the Family, op. cit., at 645; 11C Zett, NY Civ Prac, op. cit., at 69-25, 69-46 — 69-48; cf., Matter of Blake v Blake Agency, supra, at 149). If transfer of the stock of a closely held corporation is restricted by a bona fide buy-sell agreement which predates the marital discord, the price fixed by the agreement, although not conclusive, is a factor which should be considered (see, Kaye v Kaye, 102 AD2d 682, 687, supra; Bowen v Bowen, 96 NJ 36, 473 A2d 73; Rev Rul 59-60, § 8; cf., Stern v Stern, 66 NJ 340, 331 A2d 257). The decisions below, however, could be read as indicating that the courts found the price fixed in the agreement controlling because under the agreement the stock was not currently transferable. That the stock could not immediately be sold is not dispositive; marital property may have a value to the holder notwithstanding that it has no present market value (see, O’Brien v O’Brien, 66 NY2d 576, 586-587 [value of professional license]; Majauskas v Majauskas, 61 NY2d 481 [value of vested but unmatured pension]; see also, 11C Zett, NY Civ Prac, op. cit. § 69.04 [1], at 69-24 — 69-25). The court must consider all the circumstances reflecting on the present worth of the property to the titleholder. It need not rely solely on the price set forth in a buy-sell agreement if other evidence exists.

In this case plaintiffs expert witness, using two different methods of appraisal, testified that the value of defendant’s stock was between $172,000 and $253,000. His first method computed the value of the stock by dividing the corporation’s estimated shareholder equity by defendant’s 15% interest in the corporation. The other valued the corporation, and defendant’s stock interest in it, by applying the guidelines for valuing close corporations set forth in Revenue Ruling 59-60. However, the witness did not consider the stock transfer restrictions contained in the shareholders’ agreement in either method. That being so, the courts properly determined defendant’s stock was worth $87,500, the price contained in the shareholders’ agreement, because that was the only evidence in the record of its actual value.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Order affirmed, with costs.