author:
Burke, J. Chief Judge Desmond (concurring).
      Fuld, J. (dissenting).

text:
    Mary A. Leotta, Individually and as Administratrix of the Estate of Alfred R. Leotta, Deceased, Appellant-Respondent, v. Joseph E. Plessinger, Defendant, Harvey B. Hole, Respondent-Appellant, and Riggs Dairy Express, Inc., Respondent. Ellen Axtell, Appellant-Respondent, v. Joseph E. Plessinger, Defendant, Harvey B. Hole, Respondent-Appellant, and Riggs Dairy Express, Inc., Respondent. Vida Axtell, Appellant-Respondent, v. Joseph E. Plessinger, Defendant, Harvey B. Hole, Respondent-Appellant, and Riggs Dairy Express, Inc., Respondent.
    Argued October 11, 1960;
    decided December 1, 1960.

      John C. Kinney for Ellen Axtell, appellant-respondent.
    I. It was error for the Appellate Division to reverse plaintiff’s judgment against Biggs upon the ground that the lease had terminated as a matter of law prior to the accident. (War Emergency Co-op. Assn. v. Widenhouse, 169 F. 2d 403; Venuto v. Robinson, 118 F. 2d 679, 314 U. S. 627; Hodges v. Johnson, 52 F. Supp. 488; American Tr. Lines v. Smith, 246 F. 2d 86, 355 U. S. 889; Brainard v. New York Cent. R. R. Co., 242 N. Y. 125; Interstate Motor Lines v. Great Western Ry. Co., 161 F. 2d 968; Dolman v. United States Trust Co. of N. Y., 2 N Y 2d 110; General Elec. Co. v. Moretz, 270 F. 2d 780; Day v. Chamber of Commerce of U. S., 239 App. Div. 447, 264 N. Y. 522; Scudero v. Campbell, 263 App. Div. 956, 288 N. Y. 328.) II. The Appellate Division committed additional error in dismissing plaintiff’s complaint. (Sagorsky v. Malyon, 307 N. Y. 584; Scheuer v. Scheuer, 308 N. Y. 447.) III. The record discloses a cause of action against Biggs based upon its violation of the Interstate Commerce Commission regulations. (Costello v. Smith, 179 F. 2d 715; Gallagher’s Estate v. Battle, 209 Md. 592.) IV. The record discloses a cause of action against Biggs based upon its common-law liability. (Hodges v. Johnson, 52 F. Supp. 488.) V. The record discloses a cause of action against Biggs based upon its liability under the doctrine of estoppel. (Switzer v. Aldrich, 307 N. Y. 56; Buono v. Stewart Motor Trucks, 263 App. Div. 969, 292 N. Y. 637; Shuba v. Greendonner, 271 N. Y. 189; Reese v. Rea

      more, 292 N. Y. 292.) VI. The trial court properly sustained the objections to Hole’s offer of proof that the driver Plessinger had failed to obtain liability insurance. (Simpson v. Foundation Co., 201 N. Y. 479; Rodzborski v. American Sugar Refining Co., 210 N. Y. 262; Lindboe v. Syracuse Tr. Co., 175 Misc. 396; McGovern v. Oliver, 177 App. Div. 167; Martyn v. Braun, 270 App. Div. 768; Wood v. New York State Elec. & Gas Corp., 257 App. Div. 172, 281 N. Y. 797; Arcara v. Moresse, 258 N. Y. 211.) VII. The trial court properly sustained the objections to the offer of proof showing that appellant Hole’s undisclosed motive for the bobtail limitation was based upon liability insurance. (Cassin v. Stillman, Delehanty-Ferris Co., 185 App. Div. 63.)

      Charles P. Knapp for Vida Axtell, appellant-respondent.
    I. The trial jury properly found that the accident was caused by the negligent operation of the tractor. II. The trial court properly left the question of the duration of the lease to the trial jury. (Rentways, Inc., v. O’Neill Milk & Cream Co., 308 N. Y. 342; Taylor v. United States Cas. Co., 269 N. Y. 360; Dolman v. United States Trust Co. of N. Y., 2 N Y 2d 110; Pennsylvania Greyhound Lines v. Board of Public Utilities Comrs., 107 F. Supp. 521; Interstate Motor Lines v. Great Western Ry. Co., 161 F. 2d 968; Tri-State Cas. Ins. Co. v. Loper, 204 F. 2d 557; Zeiger v. Riley, 270 App. Div. 771; Barber v. Jewel Tea Co., 278 N. Y. 540; Kattan v. Silver Fleet Motor Express Co., 257 App. Div. 997; Gallagher’s Estate v. Battle, 209 Md. 592; Hodges v. Johnson, 52 F. Supp. 488.) III. The trial jury properly found that Plessinger was operating the tractor within the scope of authority given by defendant Hole. (Mandelbaum v. United States, 251 F. 2d 748; Winnowski v. Polito, 294 N. Y. 159; Piwowarski v. Cornwell, 273 N. Y. 226; Barber v. Jewel Tea Co., 252 App. Div. 362, 278 N. Y. 540; Arcara v. Moresse, 258 N. Y. 211; Simpson v. Foundation Co., 201 N. Y. 479; Lindboe v. Syracuse Tr. Co., 175 Misc. 396.)

      Domenick L. Gabrielli and John B. Mowry for Mary A. Leotta, appellant-respondent.
    I. The trial jury properly determined the issues of the negligent operation of the tractor as well as the damages sustained by plaintiffs. II. Riggs Dairy Express, Inc., is liable by statute as an Interstate Commerce Commission carrier and the trial court properly left the question of the duration of the lease to the jury. (Dolman v. United States Trust Co. of N. Y., 2 N Y 2d 110; General Elec. Co. v. Moretz, 270 F. 2d 780; Atchison, T. & S. F. Ry. Co. v. Scarlett, 300 U. S. 471; Rentways, Inc., v. O’Neill Milk & Cream Co., 308 N. Y. 342; Taylor v. United States Cas. Co., 269 N. Y. 360; Zeiger v. Riley, 270 App. Div. 771; Barber v. Jewel Tea Co., 278 N. Y. 540; Kattan v. Silver Fleet Motor Express Co., 257 App. Div. 997; Hodges v. Johnson, 52 F. Supp. 488.) III. Biggs Dairy Express, Inc., is liable at common law. (Marriott v. National Mut. Cas. Co., 195 F. 2d 462.) IY. The jury properly found, as a fact, that Plessinger was operating the tractor within the scope of his authority. (Mandelbaum v. United States, 251 F. 2d 748; Winnowski v. Polito, 294 N. Y. 159; Piwowarski v. Cornwell, 273 N. Y. 226; Chaika v. Vandenberg, 252 N. Y. 101; Barber v. Jewel Tea Co., 252 App. Div. 362, 278 N. Y. 540; Simpson v. Foundation Co., 201 N. Y. 479; Lindboe v. Syracuse Tr. Co., 175 Misc. 396.)

      Robert M. Wightman for Harvey B. Hole, respondent-appellant.
    I. The trial court erred in refusing to permit proof of the failure of defendant Plessinger to provide liability insurance. (McGovern v. Oliver, 177 App. Div. 167; Martyn v. Braun, 270 App. Div. 768; Rashall v. Morra, 250 App. Div. 474; Fluegel v. Coudert, 244 N. Y. 393; Lozada v. Copeland, 207 Misc. 382; Chaika v. Vandenberg, 252 N. Y. 101; Conca v. Cushman’s Sons, 277 App. Div. 360; St. Andrassy v. Mooney, 262 N. Y. 368; Arcara v. Moresse, 258 N. Y. 211.) II. If the judgments in favor of plaintiffs and against defendant Biggs Dairy Express, Inc., are reinstated, defendant Harvey B. Hole will be entitled to an indemnification from defendant Biggs Dairy Express, Inc., and the judgments over should be reinstated. (Owen v. Rochester-Penfield Bus Co., 304 N. Y. 457; Elliott v. Flushing Sand & Stone Co., 273 App. Div. 782; Gorham v. Arons, 282 App. Div. 147; Dittman v. Davis, 274 App. Div. 836.)

      Copal Mintz for respondent.
    I. Under the law of New York, a lessee of a motor vehicle is not responsible for the negligence of the operator thereof, if such operator is a person other than the lessee or his employee or agent; such operator is deemed an independent contractor, whose negligence is not imputable to the person served by him. (Miranda v. Lo Curto, 249 N. Y. 191; Shuba v. Greendonner, 271 N. Y. 189; Cherwien v. Geiter, 272 N. Y. 165; Costello v. Smith, 179 F. 2d 715; Kaplan Trucking Co. v. Lavine, 253 F. 2d 254; Hodges v. Johnson, 52 F. Supp. 488; Gallagher’s Estate v. Battle, 209 Md. 592.) II. The applicability of the New York rule is not affected by the ICC rules. (Hodges v. Johnson, 52 F. Supp. 488; Fullerton v. Motor Express, 375 Pa. 173.) III. No provision in the lease served to render Biggs liable. (Dolman v. United States Trust Co., 2 N Y 2d 110; Brainard v. New York Cent. R. R. Co., 242 N. Y. 125; Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519; Crane v. New York World Tel. Corp., 308 N. Y. 470.) IV. The presence of the decal on the tractor did not impose liability on Biggs. (Shuba v. Greendonner, 271 N. Y. 189; Reese v. Reamore, 292 N. Y. 292; Switzer v. Aldrich, 307 N. Y. 56; Phoenix Ins. Co. v. Guthiel, 2 N Y 2d 584; Kellogg v. Church Charity Foundation, 203 N. Y. 191.) V. The record is devoid of proof of negligence on the part of Plessinger. (Cole v. Swagler, 308 N. Y. 325; Lahr v. Tirrill, 274 N. Y. 112; Marinan v. Kronberger, 280 N. Y. 640; Epstein v. Cohen, 288 N. Y. 307; Tortora v. State of New York, 269 N. Y. 167; Galbraith v. Busch, 267 N. Y. 230; Wallace v. Berdell, 97 N. Y. 13; People v. Rides, 273 N. Y. 214; Miller v. Smith, 20 App. Div. 507.) VI. Having upheld the verdicts, the trial court committed additional error in denying Biggs’ motion for judgment over against Hole and granting the latter’s motion for judgment over against Biggs. (War Emergency Co-op. Assn. v. Widenhouse, 169 F. 2d 403. 335 U. S. 898.)
   Burke, J.

The plaintiffs appeal as of right from judgments entered on orders of reversal dismissing their complaints against Biggs. The defendant Hole appeals by permission from the affirmance of judgments in favor of the plaintiffs against him.

The question presented on the appeals from the dismissal of the complaints is whether, under a one-trip lease, the lessee carrier (Biggs Dairy Express, Inc., operating pursuant to an Interstate Commerce Commission [ICC] franchise) can be held liable for the negligence of the lessor’s driver (Plessinger) which occurred subsequent to the delivery of the cargo and while en route to locate a return load. In viewing the facts ‘ in the aspect most favorable to plaintiffs ” (Sagorsky v. Malyon, 307 N. Y. 584, 586), we find that plaintiffs established a prima facie case against Biggs, and that the dismissal of the complaints was, therefore, improper.

On November 15, 1956 Biggs entered into a motor trip lease agreement with defendant Hole’s driver (Plessinger) for the purpose of transporting a cargo of an ICO regulated commodity from Chicago, Illinois, to Somerville, Massachusetts. Upon arrival at Somerville on November 19, 1956, Plessinger secured a helper at Welby’s Truck Terminal, unloaded his truck and, subsequently, in accordance with instructions, made a check call to Biggs at Chicago to report delivery. Since no return load was available at Welby’s, he proceeded, pursuant to Biggs’ general manager’s suggestion given a year before, to Jack Smith’s (a cargo broker) at Avoca (near Bath, New York). Bn route he met ‘ ‘ another Biggs Dairy driver ’ ’ and they proceeded directly to Smith’s, but, since a return load was not available, he detached the trailer and secured lodgings in Bath. Two days later, on November 22, 1956, while returning to Smith’s, he was involved in the accident giving rise to the present actions. Subsequent to the accident, and on December 1, 1956, a return load was obtained through the services of Smith. It is not without significance that the necessary liability insurance for this cargo was supplied through Biggs and billed to Hole at a cost based upon gross revenue; that Smith’s manifest refers to the tractor as being owned by ‘ ‘ Harvey Hole per Biggs DXP ’ ’; and Smith testified that, every time he did business with Plessinger in the three years prior to the accident, Plessinger was operating for Biggs.

It is obvious that, if the accident had taken place during the initial trip to Somerville, the lessee Biggs would have been responsible. (Costello v. Smith, 179 F. 2d 715; ICC Beg. [Code of Fed. Beg., tit. 49], § 207.4, subd. [a], par. [4]; Bestatement, Torts, § 428.) Bespondent Biggs argues, however, and the Appellate Division held, that the contract between the parties was a one-way lease which had been fully performed five days prior to the accident, which happened at a time when Plessinger was solely Hole’s employee. We do not agree.

Due to grave concern over abuses and exploitation of trip leasing (Beports of the Commission, Lease and Interchange of Vehicles by Motor Carriers Ex Parte No. MC-43, 51 M. C. C. 461 [1950]; 52 M. C. C. 675 [1951]; Trip-Leasing Under the Motor Carrier Act, 34 Boston L. Rev. 307; Liability of Carriers for Independent Contractors’ Negligent Operation of Leased Motor Trucks, 43 Iowa L. Rev. 531) and in order to provide safeguards and delineate responsibility following an accident, the Motor Carrier Act of 1935 was fortified with the regulations and rules adopted and promulgated by the Interstate Commerce Commission, effective September 1, 1953 (Code of Fed. Reg., tit. 49, ch. I, subchapter B, part 207; upheld in American Trucking Assns. v. United States, 344 U. S. 298). These rules provided in pertinent part as follows:

“ § 207.4 * • *
(a) . The contract, lease, or other arrangement for the use of such equipment —
(1) . Shall be made between the authorized carrier and the owner of the equipment;
(2) . Shall be in writing * * *
(4). Shall provide for the exclusive possession, control and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the authorized carrier, as follows:
(i) For the duration of said contract, lease or other arrangement * * *
(6) . * * * The duration of the contract, lease or other arrangement shall coincide with the time for the giving of receipts for the equipment, as required by paragraph (b) of this section; and
(7) . Shall be executed in triplicate; * * * one copy shall be retained by the owner of the equipment, one copy shall be carried on the equipment specified therein during the entire period of the contract, lease or other arrangement. * * *
(b) . Receipts * ' * * and when the possession by the authorized carrier ends, it or its employee or agent shall obtain from the owner of the equipment, or its regular employee or agent duly authorized to act for it, a receipt specifically identifying the equipment and stating therein the date and the time of day possession thereof is taken.
* * *
(d). Identification of equipment. The authorised carrier * * * shall properly and correctly identify such equipment as operated by it when such equipment is operated by or for such carrier, during the period of the lease. * * *
(1). The authorised carrier operating equipment under these rules shall remove any legend, showing it as the operating carrier, displayed on such equipment, and shall remove any removable device showing it as the operating carrier, before relinquishing possession of the equipment.”

The purpose of the latter complementary section, it seems, is to implement the former provisions relating to exclusive possession and assumption of responsibility. The object is reasonably accomplished by expressly providing how and when possession is to terminate. Any other construction would permit willful false identification without penalty, and render the provision impotent. It is noteworthy, therefore, that, at all times before mentioned and especially at the time of the accident, the tractor involved bore Biggs’ identification decal (see § 207.4, subd. [d]), and Biggs had not obtained a receipt (see § 207.4, subd. [a], par. [6]; subd. [b]) from Plessinger indicating that possession had been relinquished to lessor Hole. Both the lease and the attached unsigned receipt were with Plessinger (see § 207.4, subd. [a], par. [7]) at the time of the accident. In addition, the evidence indicates that it was customary for the decal to remain, and for the papers to be, in the operator’s possession until after his return to the home station. This evidence tends to show that, regardless of the written provisions of the lease to the contrary, Biggs acquiesced in a violation of the express mandate of the regulations which provide for the proper method to relinquish possession. Since Biggs seemingly failed to comply, or take any serious steps to assure compliance, it does not seem unreasonable to leave the question of liability to a jury. Although the settlement instructions of: the contract provide that the “ [d]elivery receipts, log sheets and settlement copy of the within lease and agreement must be mailed on the same day cargo is delivered ”, it states an alternative that “ [i]n the event lessor shall fail to follow the above instructions payment may be delayed 30 days after the trip release is completed ’ ’. In addition to the fact that these instructions did not insure the removal and forwarding of the decal, it seems apparent from the record that Plessinger preferred, and Riggs acquiesced in, the suggested alternative. However, even if it be assumed that Plessinger breached his duty to remove the decal and forward the documents, a jury may find that in this capacity he was acting as Riggs ’ agent, and that Riggs is, therefore, responsible for the default. In this regard it is significant that evidence was adduced indicating that return trips were an absolute economic necessity; and that from this evidence an inference could be reasonably drawn that Riggs, although not participating in the return profits, found it necessary to assist drivers in finding incoming trips in order to secure the continued willingness of the truckers to carry its outgoing cargo. In this posture Riggs’ voluntary advice, insurance service and permission to retain the decals and the receipts are matters obviously vital to the issues presented. As noted by the dissent below “ The permission to retain the Riggs’ I. C. C. decals or placards upon the trucks was part of the same pattern, designed to serve the same end, or at least a jury could so find. "While it was not necessary to use the I. C. C. franchise for shipments of agricultural products, since they were exempt, the permission to use Riggs’ name and I. C. 0. certificate number was helpful in various ways upon the return trip. For one thing, prospective shippers were more likely to give business to one who operated under an established common carrier name and certificate than to an individual trucker operating under his own name without I. C. C. certification and without any evidence of financial responsibility. Furthermore, public officials checking the vehicle en route would be influenced by the presence of the I. C. C. placard as indicating that proper inspections of the vehicle had been made and that the operation was being conducted by a responsible certificated carrier.” (Emphasis supplied.)

The terms of the lease, in and of themselves, would have no effect upon a possible disregard of the nondelegable mandate of the regulations. (See American Tr. Lines v. Smith, 246 F. 2d 86, 89; Hodges v. Johnson, 52 F. Supp. 488, 491.)

If the jury were to conclude that Biggs willfully failed to comply, it is apparent that, under the regulations and in accord with its policy, Biggs as a matter of law would be in possession and control and, therefore, must assume responsibility.

In Fullerton v. Motor Express (375 Pa. 173) the court stated that “ The law is clear that an identifying sign on a commercial vehicle declares its reputed ownership as much as a flag proclaims the nationality of the ship which flies it. If the ship is sailing under false colors it will have to answer for the deception. If a name on a vehicle mis-states ownership, opportunity is afforded the named person or firm to disprove the asserted proprietorship. '* * * Any business organization which permits a commercial conveyance to ply the public highways prominently proclaiming its name owes a duty to the public to stand by that voluntary self-advertising proclamation. That responsibility, of course, is not absolute. The named firm may introduce evidence to show that the identifying trappings were camouflage, or innocent coincidence, or that, although admitting ownership of the vehicle, the driver thereof ignored instructions and headed for Chicago instead of New York as directed. But such explanations are for the jury to evaluate and appraise in the light of all the surrounding circumstances.” (Fullerton v. Motor Express, supra, pp. 175-176; emphasis supplied; see, also, the automobile registration cases, Switzer v. Aldrich, 307 N. Y. 56; Buono v. Stewart Motor Trucks, 292 N. Y. 637; Reese v. Reamore, 292 N. Y. 292; Shuba v. Greendonner, 271 N. Y. 189.)

This estoppel and submission to the jury is quite in harmony with the public policy of this jurisdiction in analogous situations. For example, in Barber v. Jewel Tea Co. (278 N. Y. 540; see, also, Zeiger v. Riley, 270 App. Div. 771), we held that whether a truck was being used in the defendant’s business and was subject to its control and direction was properly submitted to the jury.

On this record, therefore, we belive that a prima facie case has been made out, and that a jury may conclude that Biggs is liable for knowingly allowing the use of its name and certification, and/or that (in view of § 207.4, subd. [a], par. [6]) the lease was still in effect at the time of the accident.

The cases cited by respondent are not controlling since they relate to accidents occurring prior to the effective date of the regulations herein. (See, for example, Gallagher’s Estate v. Battle, 209 Md. 592.) In Costello vs Smith (179 F. 2d 715), in addition to the fact that the driver removed the decal before starting on the return trip, the court, in holding for the carrier, stated that, so long as the properly constituted authority was not content to regulate further the operation of trip leases, the court could not do so judicially. It is interesting to note that the ICO, filing a brief as amicus curice, informed the court that it was then considering regulations to protect the public against danger of one-way trip leases. These are the regulations, of course, which subsequently became effective prior to the accident herein.

Respondent Riggs, although not raising this question in the Appellate Division, now contends that the record is devoid of proof of negligence on the part of Plessinger. Riggs argues that the evidence that the tractor was skidding on the wrong side of the road is insufficient to raise an inference of negligence.

However, here there was a showing of negligent operation, hence the question of fault did not depend upon an inference of negligence. In the case at bar we have evidence of speed in excess of the limit permitted by the ordinance. (See Cole v. Swagler, 308 N. Y. 325, 330.) There was, therefore, enough evidence offered to make out a prima facie case.

On the cross appeal, defendant Hole contends that, since his liability was submitted solely under former section 59 (now § 388) of the Vehicle and Traffic Law, the trial court erred in refusing to permit evidence of lack of permission to operate the truck. In this regard Hole offered to testify that Plessinger violated the express terms of their lease agreement which mandated that insurance coverage be provided by Plessinger. The agreement was entered into approximately seven years prior to the accident. The trial court refused this offer of proof (1) because as a matter of law such noncompliance with the terms of the lease would not terminate or revoke any permission which may have been given, and (2) it did not come within any exception to the general rule which excludes evidence of insurance. Although we agree that the lease is at least ambiguous as to whether permission to operate and use ” shall cease (as distinguished from general termination of the entire lease), we do not believe it is a question that should have been decided as a matter of law.

It is axiomatic that, under former section 59 of the Vehicle and Traffic Law, proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner’s permission, express or implied (Wilson v. Harrington, 295 N. Y. 667; St. Andrassy v. Mooney, 262 N. Y. 368) and that this presumption continues until there is substantial evidence to the contrary. Where, therefore, substantial evidence established that permission was conditioned upon driving in a certain locality only (Chaika v. Vandenberg, 252 N. Y. 101 [son told not to drive in New York City]; Lozada v. Copeland, 207 Misc. 382 [cousin told to operate in the vicinity of Ebbets Field only]) or conditioned upon instructions not to allow any riders (Conea v. Cushman’s Sons, 277 App. Div. 360), the owner was exonerated from liability when an accident occurred subsequent to a breach of the restriction. These type restrictions are, of course, to be distinguished from limiting instructions which relate to the manner of operation, such as the speeding or careless pilotage of the car. In this latter situation the owner is still held accountable (Arcara v. Moresse, 258 N. Y. 211). However, even where the owner may escape liability, it is unquestionable that, unless the evidence adduced has no merit whatsover, the question of consent and authority is for the jury. (Leahy v. Kaszubski, 283 App. Div. 947, motion for leave to appeal denied 307 N. Y. 940; Ferris v. Sterling, 214 N. Y. 249, 253; Piwowarski v. Cornwell, 273 N. Y. 226, 228; Goldberg v. Frankel, 293 N. Y. 784.)

We hold that the insurance provision of this written contract is at least sufficient to raise a question of fact for the jury. The argument that such evidence is to be withheld under the general rule which excludes all evidence of insurance is untenable.

Ordinarily whether a defendant has or has not obtained insurance is irrelevant to the issues, and, since highly prejudicial, therefore, inadmissible. (Simpson v. Foundation Co., 201 N. Y. 479; Lindboe v. Syracuse Tr. Co., 175 Misc. 396.) However, if this fact is relevant- to one of the material issues, it cannot be excluded on the ground that it may be prejudicial (Richardson, Evidence [8th ed.], § 174, p. 143; 4 A. L. R. 2d 761). For example, it has been held proper to admit evidence that defendant insured the premises in question in order to prove that he either owned or controlled them (McGovern v. Oliver, 177 App. Div. 167; Martyn v. Braun, 270 App. Div. 768). The trial court erroneously limits the exceptions to ownership and control. We think that the question of permission is a material issue vitally affected by the provision of the lease requiring insurance. The offer of proof should not, therefore, be rejected upon the pretext that it is incidentally prejudicial to plaintiffs’ action.

Accordingly, the judgments below should be reversed and a new trial granted, with costs to abide the event, on all issues except the negligence of Plessinger.

Chief Judge Desmond (concurring).

I agree with Judge Burke except that, as to Riggs, I concur in the result only. Before Riggs can be held, there will, of course, have to be a trial on the question of the driver’s negligence. But Riggs is absolutely liable for any such negligence since his responsibility for the operation of this vehicle is fixed by law and is not open for dispute before a jury. I agree with so much of the dissenting opinion in the Appellate Division (8 A D 2d 502, 515) as says that the ICC regulations ‘ ‘ fix responsibility upon the common carrier for the operation of leased vehicles until the carrier has relinquished possession in accordance with the regulations and has caused its identifying insignia to be removed.” In other words, Riggs remained liable until the removal of its decal and the giving of the required receipt. I agree with the Appellate Division dissent that the ICC regulations imposed on Riggs under these circumstances the same absolute responsibility that the law of New York puts on a person in whose name an automobile is registered. Under our decisions construing New York law and policy, we do not leave it to a jury to decide whether the presence of the license on the car makes the registered licensee responsible. We estop that licensee from denying his ownership (Switzer v. Aldrich, 307 N. Y. 56; Phoenix Ins. Co. v. Guthiel, 2 N Y 2d 584). The IOC regulations were plainly intended to produce the same consequence and unless they are so construed and applied they cannot achieve their purpose of protecting the public on the highways.

Fuld, J. (dissenting).

I would affirm the Appellate Division judgments in their entirety.

It seems to me that Plessinger’s failure to obtain insurance is entirely irrelevant to a consideration of the defendant Hole’s liability and that, therefore, the trial court was correct in excluding evidence offered by that defendant as to this fact. The lease between Plessinger and Hole, it is true, contained a provision to the effect that Plessinger “ agrees to see that proper insurance is carried to free Lessor [Hole] of * * * public liability ”, but that did not constitute a limitation on the permission given Plessinger to use the vehicle. When Hole, as owner of the vehicle, leased it to Plessinger for an indefinite period, he granted the latter unqualified permission and authority to drive it. Plessinger’s agreement to procure insurance was no more a limitation on that permission or authority than was his further agreement—contained in the very same paragraph of the lease — “to comply with ICC rules and regulations and [to take] all responsibility for same.” A breach by Plessinger of either undertaking would undoubtedly entitle Hole to hold him for damages thereby suffered or incurred, but, certainly, it did not render conditional the permission which had been granted, or cancel out the authorization given, by the lease.

The policy embodied in section 388 (formerly § 59) of our Vehicle and Traffic Law is obvious: the public is to be protected against the financially irresponsible driver by imposing liability on the owner who has permitted another to use his vehicle. The statute, in other words, shifts the risk of loss due to injury at the hands of a financially irresponsible driver from the innocent victim to the owner.

The court’s holding strikes at the very fundament of our statute and points the way to easy evasion of the owner’s responsibility and liability for injuries resulting from negligent operation of his motor vehicle. The decision means that any owner can avoid the risk imposed upon him by statute by merely entering into a contract providing that the operator of his vehicle assume responsibility for its operation and carry insurance for that purpose. If the operator fulfills his contract and carries insurance, the owner is protected against loss and the public is as well. If, however, the operator fails to fulfill his contract — as is suggested in this case by the questioning—the majority of this court would render the owner immune from liability and let the burden of loss fall on the innocent injured party.

By mistakenly treating a contractual promise to obtain insurance as a condition of, or a limitation upon, the owner’s grant of permission to use his vehicle, the majority would, in effect, shift the burden of financial responsibility from the owner of a motor vehicle, where the Legislature placed it, to the innocent victim, whom the Legislature sought to protect. This result comports neither with the legislative design nor with sound public policy and, this being so, the trial court was correct in refusing to hear evidence that Plessinger had failed to fulfill his contractual obligation to procure insurance.

As to the appeals by the plaintiffs from the judgments in favor of Biggs, I need merely say that I agree with the Appellate Division’s dismissal of the complaints against that defendant for the reasons given in its opinion.

Each of the judgments appealed from should be affirmed.

Opinion by Judge Burke in which Judges Dye, Froessel and Foster concur; and in which Chief Judge Desmond concurs as to defendant Harvey B. Hole but concurs in the result only in a separate opinion as to defendant Riggs Dairy Express, Inc.; and in which Judge Van Voorhis concurs as to defendant Harvey B. Hole but dissents and votes to affirm the dismissal of the complaint as against defendant Riggs Dairy Express, Inc.; Judge Fuld dissents and votes to affirm the judgments in their entirety in an opinion.

Judgments reversed, etc.

Pages 465-704 are blank.

      . It is conceded that section 207.4 (subd. [a], par. [3]), providing that trip leases “shall be not less than 30 days”, was not in effect at the time of the accident herein.

      . This lease is not to be confused, with the lease made with Riggs by Plessinger on behalf of Hole.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Jeremiah Hickey, Appellant, against Joseph P. Kelly, as Commissioner of Motor Vehicles, Respondent.
    Argued March 3, 1960;
    decided April 21, 1960.

      E; James Hickey for appellant.

      Louis J. Lefkowitz, Attorney-General (Philip J. Fitzgerald and Paxton Blair of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Samuel Frank, Appellant.
    Argued March 31, 1960;
    decided April 21, 1960.

      William L. Barrow for appellant.

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

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


text:
    In the Matter of William Tarter et al., on Behalf of Themselves and All Other Owners of Real Property in Atlantic Beach, Nassau County, Similarly Situated, Respondents, against Edward P. Larkin, as Presiding Supervisor of the Town of Hempstead, Appellant.
    Argued March 29, 1960;
    decided April 21, 1960.

      John A. Morhous, Town Attorney (William, C. Mattison, Richard P. Charles and Mario Matthew Cuomo of counsel), for appellant.

      Charles E. Lapp, Jr., for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Arbitration between Michael Golodetz et al., Doing Business as M. Golodetz & Company, Respondents, and Timblo Irmaos Limitada, Appellant.
    Argued March 21, 1960;
    decided April 21, 1960.

      Clifton H. Stannage for appellant.

      Milton Handler, Stanley S. Groggins and Cecelia H. Goetz for respondents.
   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 Herman Doughty, Appellant, against William H. Loomis et al., Constituting the Board of Assessors of the Town of Smithville, Chenango County, Respondents.
    Argued March 29, 1960;
    decided April 21, 1960.

      Edward S. Nelson for appellant.

      William J. Gordon for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Daitch Crystal Dairies, Inc., Respondent, v. Harry Neisloss et al., Individually and as Copartners Doing Business under the Name of B-H-B Associates, et al., Appellants.
    Argued March 23, 1960;
    decided April 21, 1960.

      Samuel J. Silverman and Gerald D. Stern for Harry Neisloss, Benjamin Neisloss and Benjamin Braunstein, appellants.

      Joseph Liff and Leo Brady for Dilbert Quality Supermarket, Inc., appellant.

      Charles S. Port, Robert S. Feigen and Louis G. Pulvermacher for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Construction of the Will of James R. Garrett, Deceased. Otho S. Bowling, as Trustee, et al., Respondents; Grace K. Garrett, Appellant.
    Argued March 31, 1960;
    decided April 21, 1960.

      Albert L. Solodar and Max Wechsler for appellant.

      Otho S. Bowling, in person for Otho S. Bowling as trustee, respondent.

      John Wallis and Mal L. Barasch for Northwestern University, respondent.
   Order affirmed, with costs only to the trustee payable out of the trust fund; no opinion.

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


text:
    I. William Garfield, Appellant, v. Bernard J. Gillroy, Respondent.
    Argued March 23, 1960;
    decided April 21, 1960.

      Abraham J. Asche, Milton Gelman and Alvin L. Arnold for appellant.

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

      Louis J. Lefkowitz, Attorney-General (Jean R. McCoy and Paxton Blair of counsel), in his statutory capacity under section 71 of the Executive Law.
   Judgment affirmed, with costs; no opinion.

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


text:
    James B. Martin et al., as Trustees of the Joint Welfare Fund and of the Joint Pension Fund of the International Union of Operating Engineers, Local Unions 14, 14B, 15, 15A, 15C, AFL-CIO et al., Respondents, v. William Casey & Sons, Inc., Defendant, and Maryland Casualty Company et al., Appellants.
    Argued March 21, 1960;

      decided April 21, 1960.

      Emil V. Pilz for appellants.

      William J. Corcoran for respondents.
   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 Allied Chemical Corporation, Respondent, against Chester Kowal, as Comptroller of the City of Buffalo, Appellant.
    Argued March 25, 1960;
    decided April 21, 1960.

      Anthony Manguso, Corporation Counsel (William J. Ostrowski and Abraham I. Okun of counsel), for appellant.

      Alexander C. Cordes for respondent.
   Order affirmed, Avith costs; no opinion.

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


text:
    Eagle Contractors of Utica, Inc., Respondent-Appellant, v. Margaret Black, Appellant-Respondent.
    Argued March 25, 1960;
    decided April 21, 1960.

      Ira M. Ball for appellant-respondent.

      James H. Gilroy, Jr., for respondent-appellant.
   Judgment affirmed, with costs to plaintiff. A personal judgment was proper under the pleadings and proof. Cross appeal of plaintiff withdrawn on the argument, without costs. No opinion.

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


text:
    In the Matter of Andre E. Murphy, Appellant, against Joseph Schechter et al., Constituting the City Civil Service Commission of the City of New York, et al., Respondents.
    Argued March 29, 1960;
    decided April 21, 1960.

      John A. Esposito for appellant.

      Charles H. Tenney, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for respondents.
   Order 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. Dennis P. O’Dowd, Appellant.
    Argued March 31, 1960;
    decided April 21, 1960.

      Eugene M. Hanson for appellant.

      Louis J. Lefkowitz, Attorney-General (Robert E. Fischer, Alan J. Goldberg and Maxwell B. Spoont of counsel), for respondent.

      J. Herbert Gilroy for Board of Water Supply of City of Utica, amicus curia.

   Judgment affirmed; no opinion.

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


text:
    In the Matter of Emanuel J. Payton, Appellant, against New York City Transit Authority, Respondent.
    Argued April 1, 1960;
    decided April 21, 1960.

      Lawrence R. Bailey for appellant.

      Edward W. Summers, Daniel T. Scannell and Helen R. Cassidy for respondent.
   Order affirmed, without costs. The determination by the New York City Transit Authority is supported by substantial evidence. Insofar as the disciplinary action taken is claimed to have been excessive, power to review is conferred upon appellate courts by subdivision 5-a of section 1296 of the Civil Practice Act. We hold, however, that the discretion of the Authority was not abused in imposing the measure of discipline involved. No opinion.

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


text:
    In the Matter of Morgan D. Ryan, Appellant, against Supreme Court of the State of New York et al., Respondents.
    Argued March 31, 1960;
    decided April 21, 1960.

      N. LeVan Haver and John E. Egan for appellant.

      Bernard Tompkins, Special Assistant Attorney-General (Wilfred R. Caron of counsel), for respondent.
   ,Order affirmed, without costs; 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. Charles Glinton, Appellant.
    Argued February 24, I960;
    decided April 21, 1960.

      Joseph Aronstein, Eugene K. Jones and Nancy Carley for appellant.

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

Order affirmed; no opinion.

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


text:
    Marvin Odell et al., Appellants, v. Town of Carmel et al., Respondents.
    Argued February 29, I960-;
    decided April 21, 1960.

      Howard A. Thomsen for appellants.

      Joseph L. Burchetta for Garrett W. Vink, respondent.

      Joseph E. Sullivan, Town Attorney (Joseph L. Burchetta of counsel), for Town of Carmel, respondent.
   Judgment reversed, with costs to appellant Odell in all courts, and the case remitted to Special Term for further proceedings in accordance with the following memorandum: The affidavits and exhibits are sufficient to create a triable issue concerning the constitutionality and validity of the amendment to the Zoning Ordinance of the Town of C'armel adopted by the Town Board on September 13,1957, at least insofar as it affects the property of appellant Odell, and respondents’ motion for summary judgment should be denied. No opinion.

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


text:
    Lucy D. Welsh, as Administratrix of the Estate of George T. Welsh, Deceased, Respondent, v. Peerless Casualty Company, Appellant.
    Submitted March 31, 1960;
    decided April 21, 1960.

      Frank J. Wheelan for appellant.

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

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


text:
    Joseph R. Awad & Co., Inc., Appellant, v. Pillsbury Mills, Inc., Respondent.
    Submitted March 21, I960;
    decided April 21, 1960.

      William P. Hindman, Jr., for motion to dismiss appeal and opposed to motion for leave to appeal.

      Peter Rosenberg opposed to motion to dismiss appeal and for motion for leave to appeal.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the appeal was not timely (Civ. Prac. Act, § 592, subd. 1).

Motion for leave to appeal denied, with $10 costs and necessary printing disbursements. [See 8 N Y 2d 705.]


text:
    Paul C. Dooley, Doing Business as Dooley Provision Company, Respondent, v. Thomas Anton, Individually and as Secretary of Food Stores Local No. 34, Affiliated with Amalgamated Meat Cutters, Butchers and Allied Market Employees of AFL, et al., Appellants.
    Submitted April 18, 1960;
    decided April 21, 1960.
   Reargument ordered during the week commencing April 25, 1960. The court desires to hear argument and will receive briefs on the following issues: (1) The effect of the decision of the Supreme Court of the United States in Labor Bd. v. Drivers Local Union (362 U. S. 274) on the issue of State jurisdiction to enjoin the picketing here involved; (2) the impact of new paragraph (7) of subdivision (b) of section 8 of the National Labor Relations Act (73 U. S. Stat. 519 et seq.) upon /the present controversy, including the issue of mootness.


text:
    In the Matter of the Claim of Samuel Chernin, Appellant, against Progress Service Co., Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted April 18, 1960;
    decided April 21, 1960.
   Motion to have appeal heard upon the original record granted.


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


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


text:
    The People of the State of New York, Appellant-Respondent, v. Louis Von Cseh, Respondent-Appellant.
    Submitted April 18, 1960;
    decided April 21, 1960.
   Motion for enlargement of time granted and case set down for argument during the May, 1960 session of the Court of Appeals.


text:
    In the Matter of the Claim of Andrew Pjatak, Appellant, against City of New York, Respondent. Workmen’s Compensation Board, Respondent.
    Submitted April 18, 1960;
    decided April 21, 1960.

      Louis J. Lefkowitz, Attorney-General (Henriette Frieder of counsel), for motion to dismiss appeal.

      Sidney S. Levine opposed to motion to dismiss appeal and for motion for leave to appeal.
   Motion to dismiss appeal granted and appeal dismissed.

Motion for leave to appeal denied.


text:
    In the Matter of John P. Hassan, Appellant, against Magistrates’ Court of the City of New York et al., Respondents.
    Submitted April 18, 1960;
    decided April 21, 1960.

      John P. Hassan, in person, for motion.

      Louis J. Lefkowits, Attorney-General (Irving L. Rollins of counsel), opposed.
   Motion dismissed upon the ground that the determination sought to be reviewed involves discretion not reviewable by the Court of Appeals (Trapani v. Samuels, 3 N Y 2d 931).


text:
    The People of the State of New York, Respondent, v. Alfred Gencarelli, Appellant.
    Submitted April 18, 1960;
    decided April 21, 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. Thomas McCallum, Amended to Thomas Michael McCollum, Appellant.
    Submitted April 18, 1960;
    decided April 21, 1960
   Motion for enlargement of time granted and case set down for argument during the May, 1960 session of the Court of Appeals.


text:
    Martin W. Frankel, Respondent, v. Tremont Norman Motors Corp. et al., Appellants.
    Submitted April 18, 1960;
    decided April 21, 1960.

      Kalman I. Nulman and Robert Moers for motion.

      Bernard E. Epstein unopposed.
   Motion granted upon condition that appellants serve and file their brief on or before May 2, 1960, and their reply brief, if any, on or before May 16, 1960, and be ready for argument during the session of this court commencing on May 16, 1960.


text:
    Denis Healy, Appellant, v. Jonas Rennert et al., Respondents.
    Submitted April 18, 1960;
    decided April 21, 1960.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division together with typewritten additional papers granted.


text:
    Zurich General Accident & Liability Insurance Company, Ltd., Respondent, v. Harbil Restaurant, Inc., et al., Appellants.
    Submitted April 18, 1960;
    decided April 21, 1960.
   Motion to dismiss appeals granted and appeals 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:
    In the Matter of Graceland Corp., Appellant, against Robert E. Herman, as State Rent Administrator, Respondent.
    Submitted April 18, 1960;
    decided April 21, 1960.

      Jacob B. Ward and Harold Zucker for motion.

      Stanley Law Sabel opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that there are questions involved other than the validity of a statutory provision under the Constitution of the State or of the United States (N. Y. Const., art. VI, § 7, subd. [2]; Civ. Prac. Act, § 588, subd. 4).


text:
    The People of the State of New York, Respondent, v. Pablo Vargas, Appellant.
    Submitted April 18, 1960;
    decided April 21, 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.: Whether the admission in evidence of statements made by defendant of an incriminatory nature violated the rights of defendant under the Fourteenth Amendment. The Court of Appeals held that the statements were properly received in evidence and that defendant’s constitutional rights were not violated [See 7 N Y 2d 555.1


text:
    In the Matter of Ralph H. Wiener et al., Doing Business as Freehold Investments, Respondents, against Joseph J. Caputa, as State Rent Administrator, Appellant.
    Submitted April 18, 1960;
    decided April 21, 1960.
   Motion to dismiss appeal withdrawn.


text:
    The People of the State of New York, Respondent, v. Lawrence Denmark, Appellant.
    Submitted April 18, 1960;
    decided April 21, 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:
    Howard Gooch, Appellant, v. Ronald Shapiro et al., Respondents. (Action No. 1.) Jane Holinko et al., Plaintiffs, v. Ronald Shapiro, Defendant. (Action No. 2.) Adam Orzuchowski, Plaintiff, v. Ronald Shapiro, Defendant. (Action No. 3.)
    Submitted April 18, 1960;
    decided April 21, 1960.

      Irving Moldauer for motion.

      Irving Nitzberg opposed.
   Motion denied; appellant’s brief, if any, to be served and filed within 15 days.


text:
    In the Matter of Albert Martin Cohen, an Attorney, Appellant. Denis M. Hurley, Respondent.
    Submitted April 18, 1960;
    decided April 21, 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.: Appellant asserted that his disbarment, based solely upon his reliance in good faith on his constitutional privilege against self incrimination in a non-adversary proceeding without any substantive charges of misconduct being made or proven against him at a full hearing where the right of confrontation and cross-examination of witnesses and full and ample defense would be available, was violative of due process of law under the Fourteenth Amendment, and that his disbarment, based on his assertion in good faith of his constitutional privilege against self incrimination which the Appellate Division held constituted a refusal to co-operate with the court and a breach of the Canons of Ethics, violated his guarantees of due process of law under the Fourteenth Amendment. The Court of Appeals held that the rights of appellant under the Fourteenth Amendment had not been violated. [See 7 N Y 2d 488.]


text:
    The People of the State of New York, Respondent, v. Irving Zelkowitz, Appellant. (Five Cases.)
    Argued March 23, 1960;
    decided April 28, 1960.

      Sidney D. Krum, David M. Markowitz and Edward Wagreich for appellant.

      Charles H. Tenney, Corporation Counsel (Robert L. Ellis and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Arlene Chernick, an Infant, by Sidney Chernick, Her Guardian ad Litem, et al., Respondents, v. Hartford Accident and Indemnity Co., Appellant.
    Argued April 18, 1960;
    decided April 28, 1960.

      Donald H. McCann and Walter E. O’Leary for appellant.

      Philip Korn for respondents.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Claim of James Johnson, Respondent, against Loew’s, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued March 29, 1960;
    decided April 28, 1960.

      Ralph S. Stowell and Joseph D. Edwards for appellants.

      Louis J. Lefkowitz, Attorney-General (Gilbert M. Landy, Paxton Blair and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion. > . j .

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel and Burke. Judge Van Voorhis dissents and votes to reverse and to dismiss the claim upon the ground that it i.s not supported by substantial evidence. Taking no part: Judge Foster.


text:
    Thomas P. Dinnean et al., Appellants, v. David C. Liebler et al., Respondents.
    Argued March 28, 1960;
    decided April 28, 1960.

      Walter A. Fullerton, William W. Bullis and Richard F. Mullaney for appellants.

      George J. Malinsky for respondents.
   Judgment affirmed, with costsno opinion.

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


text:
    H. H. Apartments, Inc., Appellant, v. Beachcliff Realty Corp., Respondent.
    Submitted April 1, I960;
    decided April 28, 1960.

      John J. Boyle, Bernard Gartlir and John C. O’Malley for appellant.

      Frank H. Connelly for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    General Accident Fire and Life Assurance Corporation, Ltd., Respondent, v. Frank Bongiorno, Defendant, and John Facchin et al., Appellants.
    Argued March 21, 1960;
    decided April 28, 1960.

      Charles H. Ellner for appellants.

      Barnett J. Nova, A. Chester Safian and Milton Zwisohn for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Van Voorhis, Burke and Foster. Judges Fuld and Froessel dissent and vote to reverse and to grant judgment in favor of appellants for the reasons set forth in the opinion of the dissenting Justices in the Appellate Division.


text:
    James W. Kelly, Doing Business under the Name of James I. Kelly & Son, Appellant, v. Board of Education of the City of New York, Respondent.
    Submitted April 1, 1960;
    decided April 28, 1960.

      David Groberg and Benjamin Groberg for appellant.

      Charles H. Tenney, Corporation Counsel (Beatrice Shainswit and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George R. Teich, Respondent, v. Aetna Industrial Corporation, Appellant.
    Argued March 22, 1960;
    decided April 28, 1960.

      David W. Kahn, William M. Kahn and Herbert P. Wilson for appellant.

      Theodore S. Jaffin and Herbert Feiler for respondent.
   Order affirmed, without costs. Question certified answered in the affirmative. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fund, Froessel, Burke and Foster. Judge Van Voorhis dissents and votes to reverse and to grant defendant’s motion for summary judgment upon the dissenting opinion of Justice Stevens in the Appellate Division.


text:
    Hornell Broadcasting Corporation, Appellant, v. A. C. Nielsen Company et al., Respondents.
    Argued March 22, 1960;
    decided April 28, 1960.

      Albert E. Hollis and William J. Holbrook for appellant.

      John J. Horey for Ra-Tel Broadcasters, Inc., respondent.

      Joseph A. McManus and Carleton G. Eldridge, Jr., for A. C. Nielsen Company, respondent.
   On appeal considered to be an appeal from a final judgment in favor of Ra-Tel Broadcasters, Inc.: Judgment affirmed, with costs. On appeal from order in favor of A. C. Nielsen Company: Appeal dismissed, with costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Fboessel, Van Voorhis, Bubble and Foster.


text:
    In the Matter of Adda, Inc., Appellant, against Tax Commission of the City of New York, Respondent.
    Argued March 21, 1960;
    decided April 28, 1960.

      Arthur A. Segall and Richard P. Streicher 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 Desmond and Judges Dye, Fuld, Froessel, Van Voorhis and Foster. Taking no part: Judge Burke.


text:
    The People of the State of New York, Respondent, v. John A. Britting and Albert G. Glass, Appellants.
    Argued March 30, 1960;
    decided April 28, 1960.

      Harris B. Steinberg, James D. G. Murray and Barbara A. Lindemann for John A. Britting, appellant.

      Richard J. Burke for Albert G. Glass, appellant.

      Louis J. Lefkowitz, Attorney-General (Jerome G. Ditore and Edwyn Silberling of counsel), for respondent.
   Memorandum: The proof in this case sustains the judgment of conviction on one count against both defendants for the crime of conspiracy in violation of subdivision 6 of section 580 of the Penal Law. It also sustains the conviction of both defendants on nine counts for the crimes of giving and taking bribes in violation of sections 1822 and 1823 of the Penal Law. However, on this record, the charges against defendant Britting on nine counts of taking unlawful fees (Penal Law, § 1826) and on five counts for taking illegal fees (Penal Law, § 855) were merged in the charges of bribery involving identical facts. In reality they amounted to duplicate convictions for the same offenses and, as such, they are reversed and the counts dismissed. As thus modified, the judgments of conviction should be affirmed.

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

Judgments modified, in accordance with the memorandum herein, and, as so modified, affirmed; no opinion.


text:
    Admiral Corporation, Respondent, v. Reines Distributors, Inc., Appellant. Admiral Credit Corporation, Respondent, v. Reines Distributors, Inc., Appellant.
    Argued March 28, 1960;
    decided April 28, 1960.

      Berthold H. Hoeniger, Stanley R. Bookstein and Malcolm A. Hoffmann for appellant.

      Laurence F. Sovik for respondents.
   In each action: Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    Kuhn, Smith & Harris, Inc., Respondent, v. Davies & Davies, Appellant.
    Argued March 22, 1960;
    decided April 28, 1960.

      J. Joseph Noble and Arnold Y. Claman for appellant.

      Joshua Binion Cahn, James H. Mathias and Harold W. Solomon for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Matthew Vaughan, Plaintiff, v. Globe Neon Sign Co., et al., Defendants. Service Sign Erectors Co., Inc., Third-Party Plaintiff-Appellant, v. Seniors Restaurant, Inc., Third-Party Defendant-Respondent.
    Argued April 1, 1960;
    decided April 28, 1960.

      B. Leo Schwarz and Marc Bazin for appellant.

      Sidney J. Loeb and Emanuel Morganbesser for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis M. Ehrlich, Appellant, v. C. B. S. Columbia, Inc., Respondent, et al., Defendant.
    Submitted April 25, 1960;
    decided April 28, 1960.
   Motion to have appeal heard upon the available copies of the record before the Appellate Division granted.


text:
    Kathleen Gambeski, Individually and as Executrix of Louis V. Gambeski, Deceased, Appellant, v. Hugo E. Gauthier, Respondent.
    Submitted April 18, 1960;
    decided April 28, 1960.

      Frederick W. Ritter for motion and opposed to cross motion.

      Joseph Tanenbaum opposed to motion and for cross motion.
   Motion denied.

Cross motion granted.


text:
    Town of Hempstead, Respondent, v. Herbert W. Goldblatt et al., Appellants.
    Submitted April 18, 1960;
    decided April 28, 1960.

      Edward M. Miller, Emil N. Baar and Milton I. Newman for motions.

      John A. Morhous, Town Attorney (Richard P. Charles, William C. Mattison and Mario Matthew Cuomo of counsel), opposed.
   Motion for leave to appeal denied on the ground that an appeal lies as of right.

Motion for an order certifying that a constitutional question is involved upon the appeal herein granted.


text:
    Michael Lessin, Appellant, v. Direct Delivery Service, Respondent, et al., Defendant.
    Submitted April 18, 1960;
    decided April 28, 1960.
   Motion to prosecute appeal as a poor person granted.


text:
    In the Matter of Lincoln Building Associates, Appellant, against Joseph Jame, Respondent.
    Submitted April 25, 1960;
    decided April 28, 1960.
   Motion by the Attorney-General of the State of New York for leave to file a brief and to argue orally pursuant to section 71 of the Executive Law granted.


text:
    The People of the State of New York, Respondent, v. Norman Brabson, Appellant.
    Submitted April 25, 1960;
    decided April 28, 1960.
   Application to have the appeal heard upon the original record and for assignment of counsel granted and David D. Siegal, Esq., of 1155 Ocean Avenue, Brooklyn, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Robert Conklin, Appellant.
    Submitted April 25, 1960;
    decided April 28, 1960.
   Application to have the appeal heard upon the original record and for assignment of counsel granted and Robert D. Schneider, Esq., of 100 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. Ralph Freccia, Jr., Appellant.
    Submitted April 18, 1960;
    decided April 28, 1960.
   Motion for assignment of counsel granted and Charles F. Orimi, Esq., of 917 M & T Building, Buffalo, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Appellant-Respondent, v. Wilbur Hill, Respondent-Appellant.
    Submitted April 25, 1960;
    decided April 28, 1960.
   Motion by appellant-respondent (to have the appeal heard upon the original record granted. [See 7 N Y 2d 1048.]


text:
    The People of the State of New York, Respondent, v. John Mulherin, Appellant.
    Submitted April 25, 1960;
    decided April 28, 1960.
   Motion for enlargement of time granted to the extent that the time for argument is enlarged to the May, 1960 session of the Court of Appeals; defendant’s brief, if any, to be served and filed by May 10,1960.


text:
    The People of the State of New York, Appellant, v. Vincent J. Squillante, Nunzio Squillante, and Bernard Adelstein, Respondents.
    Submitted April 25, 1960;
    decided April 28, 1960.
   Motion for a further enlargement of time granted and ease 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 April 18, 1960;
    decided April 28, 1960.

      Charles R. Tenney, Corporation Counsel (Seymour B. Quel of counsel), 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 proceeding within the meaning of the Constitution.


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, Respondents-Appellants, and National House Cleaning Contractors, Inc., Respondent.
    Submitted April 25, 1960;
    decided April 28, 1960.
   Motion by respondents-appellants to have appeal heard upon two copies of the record before the Appellate Division granted. [See 7 N Y 2d 733.]


text:
    John C. Tarrant et al., Respondents, v. Incorporated Village of Roslyn et al., Appellants.
    Submitted April 18, 1960;
    decided April 28, 1960.

      Jules Martin for motion.

      Clarence E. Steinberg opposed.
   Motion denied, with $10 costs.


text:
    John Esposito, Individually and as Guardian ad Litem for Joseph Esposito, an Infant, Appellant, v. City of New Rochelle, Defendant, and Benedetto Marciano et al., Respondents.
    Submitted April 21, 1960;
    decided April 28, 1960.

      David C. Gilberg for appellant.

      Alexander Gangel and James M. Mannix, Jr., for respondents.
   Appeal dismissed, without costs, upon the ground that the judgment was rendered in an action originally commenced in a court other than the Supreme Court, a County Court, a Surrogate’s Court or the Court of Claims (Civ. Prac. Act, § 588, subd. 1, par. [b]; N. Y. Const., art. VI, § 7, subd. [7]; cf. Civ. Prac. Act, § 589, subd. 1, par. [b]).


text:
    Sylvia Miner et al., Appellants, v. City of Yonkers et al., Respondents.
    Submitted April 18, 1960;
    decided April 29, 1960.

      Hotvard L. Kuttner and Leon London for motion.

      J. Raymond Hannon, Corporation Counsel (William F. Cauley, Jr., of counsel), opposed.
   Motion denied, with $10 costs and necessary printing disbursements.


text:
    The People of the State of New York, Respondent, v. Herbert Borum, Appellant.
    Submitted April 25, 1960;
    decided April 29, 1960.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Nathan A. Bork, Esq., of 17 Court Street, Buffalo, New York, assigned as counsel to appellant on the appeal herein.

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 ex rel. Michele Miranda, Respondent, against John J. McCloskey, as Sheriff of the City of New York, et al., Appellants.
    Argued March 30, 1960;
    decided April 29, 1960.

      Eliot H. Lumbard, Nathan Skolnik, Peter J. McQuillan, Joseph Fisch and Elliot L. Hoffman for Commission of Investigation of State of New York, appellant.

      Abraham H. Brodsky for respondent.
   Order affirmed. The witness directly responded with definite and unequivocal answers which were clear enough so that if shown to be false he would be guilty of perjury. (People ex rel. Valenti v. McCloskey, 6 N Y 2d 390, 402-403; Matter of Michael, 326 U. S. 224.) “ We are not at liberty to say * * * that ‘ the testimony is not a bona fide effort to answer the questions at all.’ ” (People ex rel. Falk v. Sheriff of N. Y. County, 258 N. Y. 437, 439; Matter of Foster v. Hastings, 263 N. Y. 311, 314; People ex rel. Valenti v. McCloskey, supra.) No opinion.

Concur: Chief Judge Desmond and Judges Fuld, Froessel, Van Voorhis and Foster. Judges Dye and Burke dissent and vote to reverse the order appealed from and to dismiss the writ of habeas corpus upon the ground that the answers given by respondent represented a carefully contrived and studied effort to escape the penalties of perjury, and to thwart and obstruct the legitimate object of the commission’s inquiry without revealing any of the essential facts concerning the matter under investigation. In our view, such conduct constituted a false, evasive and flagrant defiance of lawful processes.


text:
    In the Matter of the Commission of Investigation of the State of New York, Appellant, against Carmine Lombardozzi, Respondent.
    Argued March. 30, 1960;
    decided April 29, 1960.

      Eliot H. Lumbard, Nathan Skolnik, Peter J. McQuillan, Joseph Fisch and Elliott L. Hoffman for appellant.

      Myron J. Greene and Martin Greene for respondent.
   Order affirmed. The witness directly responded with definite and unequivocal answers which were clear enough so that if shown to be false he would be guilty of perjury (People ex rel. Valenti v. McCloskey, 6 N Y 2d 390, 402-403; Matter of Michael, 326 U. S. 224). “We are not at liberty to say * * * that ‘ the testimony is not a bona fide effort to answer the questions at all.’ ” (People ex rel. Falk v. Sheriff of N. T. County, 258 N. Y. 437, 439; Matter of Foster v. Hastings, 263 N. Y. 311, 314; People ex rel. Valenti v. McCloskey, supra.) No opinion.

Concur: Chief Judge Desmond and Judges Froessel, Van Voorhis and Foster. Judges Dye and Burke dissent and vote to reverse the.order appealed from and to deny the motion upon the ground that the answers given by respondent represented a carefully contrived and studied effort to escape the penalties of perjury, and to thwart and obstruct the legitimate object of the commission’s inquiry without revealing any of the essential facts concerning the matter under investigation. In our view, such conduct constituted a false, evasive and flagrant defiance of lawful processes. Taking no part: Judge Fuld.


text:
    Julius M. Gerzof, Appellant, v. Town of Huntington, Respondent.
    Argued March 31,1960;
    decided April 29, 1960.

      Julius M. Gerzof, in person, Lewis Allison and David J. Weinblatt for Julius M. Gerzof, appellant.

      Irving Cahn and Richard C. Cahn for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Burke and Foster. Judges Froessel and Van Voorhis dissent and vote to reverse and to reinstate the judgment of the Official Referee on the ground that upon this record the zoning ordinance precludes the use of plaintiff’s property for any purpose for which it is reasonably adapted.


text:
    The People of the State of New York, Respondent, v. Frank Kolakowski, Appellant.
    Argued April 20, 1960;
    decided April 29, 1960.

      Nathan A. Bork for appellant.

      Carman F. Ball, District Attorney (Robert A. Burrell of counsel), for respondent.
   Order of the Appellate Division reversed and the case remitted to that court. Under the circumstances of this case appellant was entitled, at least, to the assignment of counsel. No opinion.

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


text:
    Frank De Carlo, Respondent-Appellant, v. Elizabeth Falco et al., Respondents, and Louis Pallos et al., Appellants-Respondents.
    Argued April 18, 1960;
    decided April 29, 1960.

      Bernard Meyerson and Thomas V. Kingham for appeHantsrespondents.

      Benjamin Adler, Gustave G. Rosenberg and George W. Loomer for respondent-appellant.

      John M. Cunneen for respondents.
   Judgment modified by dismissing the complaint as to defendants Palios and, as so modified, affirmed, with costs to defendants Palios. The proof of Steve Palios ’ conduct, precipitated as it was by an emergency not of Ms own making, was as a matter of law insufficient to create liability (see Meyer v. Whisnant, 307 N. Y. 369; Andersen v. Bee Line, 1 N Y 2d 169). No opimon.

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


text:
    Charles Pace, Respondent, v. Frank Pace, Appellant, et al., Defendant.
    Argued April 21, 1960;
    decided April 29, 1960.

      Morton Singer and David Lench for appellant.

      Paul O’Dwyer, Howard N. Meyer and Joan O’Dwyer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of 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.
    Argued April 20, 1960;
    decided April 29, 1960.

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

      Murray A. Gordon for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Natalie M. Presbrey, Appellant, v. Oliver M. Presbrey, Respondent.
    Argued April 19, 1960;
    decided April 29, 1960.

      Daniel F. Scanlan for appellant.

      Philip L. Leit and Ira S. Rosenberg for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Natalie M. Presbrey, Appellant, v. Oliver M. Presbrey et al., Respondents.
    Argued April 19, 1960;
    decided April 29, 1960.

      Daniel F. Scanlan for appellant.

      Philip L. Leit and Ira S. Rosenberg for respondents.
   Judgment affirmed, without costs; no opinion.

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


author: Van Voorhis, J. (dissenting).

text:
    In the Matter of the Claim of Paul Denman, Respondent, against Many & Zanetti et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued March 29, 1960;
    decided April 29, 1960.

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

      Louis J. Lefkowitz, Attorney-General (Daniel Polansky, Paxton Blair and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs to the Workmen’s Compensation Board (Matter of Vroman v. Van Alstyne, 293 N. Y. 837; Matter of Norris v. Kaempfer, 274 App. Div. 857, motion for leave to appeal denied 298 N. Y. 935; Matter of Thompson v. Quigley, 260 App. Div. 824, motion for leave to appeal denied 284 N. Y. 820; Matter of Sigurd v. Maxwell, 260 App. Div. 824, motion for leave to appeal denied 284 N. Y. 820; see, also, Matter of Gordon v. New York Life Ins. Co., 300 N. Y. 652; Matter of Reid v. Rose, 306 N. Y. 880; Matter of Waterbury v. Dieges & Clust, 284 App. Div. 912, motion for leave to appeal denied 307 N. Y. 944; Matter of Chisamore v. Borden Co., 279 App. Div. 700, motion for leave to appeal denied 303 N. Y. 1012).

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel and Burke. Judge Van Voorhis dissents in the following opinion. Judge Foster taking no part.

Van Voorhis, J. (dissenting).

The question is whether the claim should be dismissed upon the ground that the claimant is an independent contractor instead of an employee. He is a farmer who owned and operated his own farm and occasionally agreed with other farmers to do jobs for them with his farm machinery. The majority of the Workmen’s Compensation Board found that in doing so he entered into an employer-employee relationship. The dissenting member of the board considered that the evidence indicated that he was an independent contractor. In my judgment he became an independent contractor as matter of law.

Claimant was a self-employed farmer. He owned a piece of farm machinery designed to make the soil more loose and friable, called a rotortiller. Not every farmer owns a rotortiller; some own balers, combines or other machines, expensive to buy and subject to rapid depreciation and obsolescence, but essential to modern farming. Only in ease of exceptionally large farms can a farmer afford to own all of the necessary farm machinery. Smaller farmers are obliged to rent or to pool their mechanical resources.

Farmer Many called on claimant to use his rotortiller on several farm lots which he agreed to work at his standard rate of $15 an hour which he told Many amounted to about $15 an acre. Many told claimant what fields to till and when the work was to be begun but was not present at the start nor at any time during the progress of the work, and exercised no supervision or control over the manner in which claimant operated the rotor-tiller. It rained during the night before the day of the accident. In the morning claimant asked Many if he thought it was too wet to work the ground, to which Many replied: “ Well, you know as much about farming as I do. Whenever you think it is ready, go ahead and do it.” The machine struck a boulder, tipped over and claimant was injured.

The dissenting member of the Workmen’s Compensation Board stated: ‘ The element of supervision and control necessary to establish employer-employee relationship in these borderline cases is lacking.” In my view that statement is correct. The factors spelling an independent contractor relationship under the decided cases are present. The claimant furnished valuable machinery, supplied the fuel for its operation and operated it himself. Only the end result was prescribed by farmer Many, who told claimant what lots were to be tilled but retained no power to control the details of the work nor to discharge claimant before the work had been completed. It was to be finished when claimant was able to finish it. It was left to claimant’s discretion whether to work on the day of the accident, in view of the condition of the soil after rain. Many knew that claimant rotortilled other farms and had heard what a good job he did. He contracted with claimant to till his fields. He was interested only in the final result, leaving to the claimant the method of doing the work.

"The same rules define this relationship in workmen’s compensation as at common law (Matter of Duffy v. Kedenburg, 278 App. Div. 31, 34; Matter of Beach v. Velzy, 238 N. Y. 100; Matter of Litts v. Risley Lbr. Co., 224 N. Y. 321, 324; Matter of Manning v. Whalen, 259 App. Div. 490, 492). Present- here are the distinguishing features of independent contraotorship prescribed by the decisions applying these rules to the Workmen’s Compensation Law itself. The opinion in Matter of Beach v. Velsy (supra, p. 105, per Pound, J.) noted that owners of property must at times call in painters, carpenters, plumbers and other skilled workmen to perform work which is ordinarily done by the job, adding: “ If the property owner employs men to work for him without reference to any given piece of work and under bis direction and control, he knows that he is an employer of labor and is in a position to protect himself from liability for injuries sustained by them in the course of their employment. The doctrine of liability without fault should not be stretched beyond the limits established by the legislature in order to cover eases of hardship which are not provided for.” That reasoning is applicable to the present case, where, besides the factors there present, we have the added important circumstance that claimant operated his own machinery on Many’s property. In Beach v. Velsy {supra) it was said: “That the work was to be paid for by the hour could make no difference. It did not give the appellant control over the job ” (p. 104). Payment on an hourly basis was likewise held to be not controlling in Matter of Newland v. Bear (218 App. Div. 308) or in Hungerford v. Bonn (183 App. Div. 818, 821). Especially irrelevant is that factor where, as here, the hourly charge was chiefly for the rental of the rotor-tiller. Bulldozers, cranes, trucks and other mobile equipment are usually rented with the operator at a specified sum per hour, but their owners do not thereby cease to be independent contractors. Other decisions defining the independent contractor’s status in accordance with the above are: Matter of Mace v. Morrison & Fleming (267 App. Div. 29, affd. 293 N. Y. 844); Matter of Sullivan Co. (289 N. Y. 110); Matter of Lichtenager v. Silverman (234 App. Div. 127, affd. 260 N. Y. 667); Matter of Renouf v. New York Cent. R. R. Co. (254 N. Y. 349); Matter of Jenny v. Order of Minor Conventuals (247 N. Y. 582); Matter of Rheinwald v. Builders’ Brick & Supply Co. (223 N .Y. 572); Matter of Empie v. Cossart (259 App. Div. 941); Matter of Keefer v. Boyd & Whipple (257 App. Div. 879); Mahoney v. Daycock (213 App. Div. 501); Adel v. Rubin (210 App. Div. 499), and Matter of Prince v. Schwartz (190 App. Div. 820). In each of the cases cited, the claimant was denied workmen’s compensation for the reason that he was held to be an independent contractor for reasons applicable to the claim at bar. In many of them the claimant furnished his own equipment. In Matter of Sullivan v. Glens Falls Portland Cement Co. (202 App. Div. 854, affd. 234 N. Y. 552), the claimant-owned a farm on which he had an ensilage cutter which he hired out for use to another farmer. He was held to be an independent contractor. In Matter of Van Valkenburgh v. New York State Vocational School (256 App. Div. 1008), the claim was dismissed upon the same ground in .the ease of a farmer who owned a threshing machine, with which he did commercial threshing for other farmers.

A truck driver who rented out his truck, driving it himself, was held to be an independent contractor in Matter of Kavanaugh v. Belden (231 App. Div. 412). The same was held in the case of a farmer who agreed to haul logs with his own equipment in Daly v. Blount Lbr. Co. (213 App. Div. 486), and of the owner and driver of an automobile truck who hired it out to haul garbage for a stock farmer in Halletz v. Wiseman (193 App. Div. 4).

This array of authorities, more nearly resembling this claim than the oases cited in the majority memorandum, has not heretofore been left behind. There is no substantial evidence here to support the finding of the majority of the board. Modern mechanized farming is prohibitive in cost and in physical and functional obsolescence, unless the farmer owns more acres than most New York State farmers possess. Hence the ownership of farm machinery frequently requires taking outside jobs like this one, and by such arrangements, often reciprocal, farmers are benefited who own, and likewise those who do not own, farm machinery. Their arrangements are usually informal, and few would be likely to suspect that such a liability as this accompanies the renting of owner-operated farm equipment.

Unfortunate as this accident is, it could as easily have happened to claimant while rotortilling his own farm. Nor is there anything in such relationship with other farmers which, under previous practice and precedent, would lead them to believe that they rather than he should bear the burden of guarding against this eventuality.

The order appealed from should be reversed and the claim dismissed.

Order affirmed.


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.
    Argued March 23, 1960;
    decided April 29, 1960.

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

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz, Paxton Blair and George K. Bernstein of counsel), for respondent.

      Edwin D. Kyle for National Council on Compensation Insurance, amicus curiæ.

      Joseph Dean Edwards and Mahlon Z. Eubank for Commerce and Industry Association of New York, amicus curiæ.

   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Henry Flakes and Walter T. Green, Appellants.
    Submitted May 16, 1960;
    decided May 17, 1960.
   Motion by appellant Walter T. Green to amend remittitur and for a stay of execution denied. [See 7 N Y 2d 1038.]


text:
    The People of the State of New York, Appellant-Respondent, v. Louis Von Cseh, Respondent-Appellant.
    Submitted May 16, 1960;
    decided May 17, 1960.
   Joint motion for a further enlargement of time denied and ease set down for argument during the week of June 6, 1960.


text:
    In the Matter of the Claim of Marie Martinelli, Respondent, against Metropolis Trucking Company et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 27, 1960;
    decided May 19, 1960.

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

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

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel and Burke. Judge Van Voorhis dissents and votes to reverse and to dismiss the claim upon the ground that the award is not sustained by substantial evidence. Taking no part: Judge Foster.


text:
    Harold G. Waters et al., Respondents, v. Peter McNearney, Defendant, and Schenectady Baseball Club, Inc., Appellant.
    Argued April 22, 1960;
    decided May 19, 1960.

      Harold E. Blodgett and Amedeo H. Volpe for appellant.

      Richard T. Horigan for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel and Burke. Judge Van Voorhis dissents and votes to reverse and to dismiss the complaint upon the ground that the plaintiffs have failed to prove facts sufficient to constitute a cause of action. Taking no part: Judge Foster.


text:
    The People of the State of New York, Respondent, v. Ronald Chapman, Appellant.
    Argued April 19, 1960;
    decided May 19, 1960.

      Sidney J. Feltenstein, Joseph Pinckney, William G. Wall and Ivan Michael for appellant.

      Frank S. Hogan, District Attorney (Peter J. O’Connor and Charles W. Manning of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    In the Matter of Paul P. Oteri et al., Appellants, against Temporary State Housing Rent Commission, Respondent.
    Argued April 20, 1960;
    decided May 19, 1960.

      Irvin L. Lubar and Jacob S. Spiro for appellants.

      Emory Gardiner and Harold Zucker for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Burke and Foster. Judges Froessel and Van Voorhis dissent and vote to reverse for the reasons stated by Botein, P. J., in Ms dissenting opinion in the Appellate Division.


text:
    The People of the State of New York, Respondent, v. Arthur Benjamin, Appellant.
    Argued April 25, 1960;
    decided May 19, 1960.

      Harold A. Meriam, Jr., 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 Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Carl E. Moore, Respondent, v. Plaza Commercial Corp., Appellant.
    Submitted April 20,1960;
    decided May 19, 1960.

      Cecil A. Citron for appellant.

      Julius Helfand and Stanley C. Lesser for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Brooklyn Union Gas Company, Appellant, against Public Service Commission of the State of New York, Respondent.
    Argued April 21, 1960;
    decided May 19, 1960.

      Edwin F. Russell and Robert B. Lisle for appellant.

      Kent H. Brown, George H. Kenny and Norman Abell for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Arthur H. Botjer, as Director and Trustee of Joseph L. Fisher Foundation, Inc., Appellant-Respondent. Joseph L. Fisher Foundation, Inc., et al., Respondents-Appellants; Attorney-General of the State of New York, Intervenor-Respondent.
    Argued April 20, 1960;
    decided May 19, 1960.

      Samuel Conrad Cohen for appellant-respondent.

      Copal Mintz, Norman Burger, in person, and David Harrison Storper for Norman Burger and another, respondents-appellants.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Arbitration between Garrett Corporation, Respondent, and Frank Ix & Sons New York Corporation, Appellant.
    Argued April 25, 1960;
    decided May 19, 1960.

      James C. Slaughter and Jules J. L. Hessen for appellant.

      John Logan O’Donnell and Robert W. Biggar, Jr., for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Anthony Leshnick et al., Respondents, v. Vera Kaltovich, Appellant, et al., Defendants.
    Submitted April 22, 1960;
    decided May 19, 1960.

      William T. Griffin and Sigmond F. Sarnowski for appellant.

      Ruth Lerner for respondents.
   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 the Claim of John L. Mendygral, Appellant, against Lismore Bar & Grill et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued April 20, 1960;
    decided May 19, 1960.

      Herbert L. Levy and Leonard Thorner for appellant.

      Ralph S. Stowell for Lismore Bar & Grill and Century Indemnity Company, respondents.
    No appearance for Workmen’s Compensation Board, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the City of New York, Respondent, on Behalf of the New York City Housing Authority, Relative to Acquiring Title to Real Property Located within the Block Bounded by Franklin D. Roosevelt Drive, and Other Streets in the Borough of Manhattan, City of New York, for a New York State-Aided Low Rent Public Housing Project Known as Woodrow Wilson Houses. Eugene Gandolfo et al., Appellants.
    Argued March 22, 1960;
    decided May 19, 1960.

      Samuel Goldstein, Darnel J. Pinsky, Bernard H. Friedman and Arthur D. Goldstein for Eugene Gandolfo et al., appellants.

      Walter R. Gelles, Leffert Holz and Bernard M. Kaufman for Labette Realty Corporation, appellant.

      George Bergen, Morris Eder and Harold L. Leddy for Issy Monaskefsky, appellant.

      David I. Shivitz for Ryma Corporation, appellant.

      James J. Chambers for Therlian Realty Corporation, appellant.

      Charles H. Tenney, Corporation Counsel (Irving Genn and Seymour B. Quel of counsel), for respondent.
   Order of the Appellate Division modified with respect to damage parcels Nos. 2, 7 and 9 and the decree of Special Term reinstated as to said parcels, with costs to each of said claimants in this conrt and in the Appellate Division, upon the ground that the weight of evidence more nearly supports the determination of Special Term with respect to those parcels and, as so modified, the order is in all other respects affirmed, with one bill of costs to respondent against appellants owners of damage parcels Nos. 5 and 10. No opinion.

Concur: Chief Judge Desmond and Judges Fuld, Froessel, Van Voorhis and Foster. Judges Dye and Burke dissent, in part, and vote to affirm the order of the Appellate Division respecting damage parcel No. 7 on the ground that the evidence of the actual gallonage sold, which is the commonly accepted gauge in the oil industry of the lease value of real property, supports the determination of the Appellate Division. (See McMichael, Appraising Manual [4th ed.], pp. 319, 325; Hannoch, The Unpredictable Service Station [The Appraisal Journal, July, 1957, p. 373].)


text:
    In the Matter of Hayes-Seventy-Third Corp., Appellant, against Carmine G. DeSapio, as Secretary of State of the State of New York, Respondent.
    Argued April 19, 1960;
    decided May 19, 1960.

      Menahem Stim and Allen S. Stim for appellant.

      Louis J. Lefhowitz, Attorney-General (Herman F. Nehlsen and Paxton Blair of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    C. Gerard Dodge, Appellant, v. Frederick W. Richmond, Respondent.
    Argued April 22, 1960;
    decided May 19, 1960.

      Lloyd I. Isler and John B. Loughran for appellant.

      William J. Butler, Stanley Geller and Peter B. Schwarzkopf for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    Abraham J. Kaminsky, Appellant, v. Albert M. Kahn, Respondent.
    Argued April 19, 1969;
    decided May 19, 1960.

      Samuel Robert Weltz and Milton B. Franklin for appellant.

      Samuel Shapiro for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick Kern et al., Respondents, v. John Hancock Mutual Lies Insurance Company, Appellant.
    Argued April 25, 1960;
    decided May 19, 1960.

      Stuart N. Updike, William P. Hindman, Jr., and Lee W. Meyer for appellant.

      David L. Benetar, H. H. Nordlinger and Robert C. Isaacs for respondents.
   Judgment affirmed, with costs; no opinion.

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


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 April 26, 1960;
    decided May 19, 1960.

      Laurence Sovik for appellants.

      Benjamin E. Shove for respondents.

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz, Paxton Blair and Philip Weinberg of counsel), for intervenorrespondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ida D. McCosker, Respondent v. Rollie Estates, Inc., Appellant.
    Argued April 21, 1960;
    decided May 19, 1960.

      Seymour Robinowitz for appellant.

      J. David Silvers and Norman C. Nicholson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Philip Hantman et al., a Copartnership Doing Business as Philip Hantman & Sons, Respondents, v. Devon Gardens, Inc., et al., Appellants, et al., Defendants.
    Argued April 21, 1960;
    decided May 19, 1960.

      Harold M. Edwards for appellants.

      Bennett Frankel and Frederick Zissu for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    A. & J. Cianciulli Inc., Respondent, v. Town of Greenburgh, Appellant.
    Argued April 25, 1960;
    decided May 19, 1960.

      John W. Real, Paul Perreten and William Macy for appellant.

      Jerome Beaudrias for respondent.
   Appeal dismissed, with costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Armando Aponte, Appellant, v. Roven Taxi, Inc., et al., Respondents.
    Submitted May 16, 1960;
    decided May 19, 1960.

      Allen J. Kaplan and Sheldon J. Kravitz for motion.

      Asher Marcus and Thomas J. Flood opposed.
   Motion dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Gerhard F. Beckhusen, Appellant, v. E. P. Lawson Company, Respondent.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion to have the appeal heard upon the available copies of the record before the Appellate Division and for certain other specified relief granted to the extent that the appeal may be heard upon three copies of the Appellate Division record; motion otherwise denied.


text:
    Harold Bruce, Respondent, v. Woll Bros., Inc., Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.

      Lewis B. Stackell for motion.

      Lazaar Henkin opposed.
   Motion to dismiss that part of the appeal taken from the order dated December 10, 1959 affirming the order dated December 12, 1958 denying resettlement granted and that part of the appeal dismissed, without costs, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Motion to delete a portion of the record denied with leave to renew upon the argument.


text:
    John Laskoski, Respondent, v. Waldo S. De Mers, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.

      Robert T. Skipworth for motion.

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


text:
    In the Matter of the Estate of Louisa Brookes, Deceased. Georgina Ryan, as Executrix of Louisa Brookes, Respondent; David P. Brookes, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.

      Harold R. Eriv and Sol Bloom for motion.

      William Gitelman and Robert Stein opposed.
   Motion denied upon the ground that an appeal lies as of right.


text:
    In the Matter of Nathaniel Ellenbogen, an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Submitted May 16, 1960;
    decided May 19, 1960.

      Eric Nightingale and George G. Hunter, Jr., for motion.

      Nathaniel Ellenbogen, in person, opposed.
   Motion granted and appeal dismissed upon the ground that no substantial constitutional question is presented.


text:
    In the Matter of the Estate of Arthur J. McCullough, Deceased. Emanuele Trotta et al., Individually and as Members of the Firm of Trotta & Spata, Appellants; Elizabeth Guinan, as Executrix of Arthur J. McCullough. Deceased, Respondent.
    Submitted May 16, 1960;
    decided May 19, 1960.

      Harry Scheer for motion.

      Alfred Feingold opposed.
   Motion denied. •


text:
    In the Matter of Louis I. Kaplan, as Commissioner of Investigation of the City of New York, Respondent. Julius Blumenfeld, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.

      Monroe J. Winsten for motions.

      Charles H. Tenney, Corporation Counsel (Beatrice Shainswit of counsel), unopposed.
   Motion for a stay granted and case set doWn for argument during the week of June 6,1960.

Motion to have appeal heard upon 10 copies of the record before the Appellate Division and typewritten additional papers granted.