author: Chief Judge Conway.

text:
    Electrolux Corporation, Appellant, v. Val-Worth, Inc., et al., Defendants, and Vacuum Cleaner Conservation Company, Inc., et al., Respondents.
    Argued March 10, 1959;
    decided July 8, 1959.

      Hamilton Hicks for appellant.
    I. “Bait advertising ” by misrepresentation is not the equivalent of lawful 11 loss lead ’ ’ merchandising. (Bourjois, Inc., v. Park Drug Co., 82 F. 2d 468; Fisher v. Star Co., 231 N. Y. 414; Tiffany & Co. v. Tiffany Prods., 262 N. Y. 482; International News Serv. v. Associated Press, 248 U. S. 215; Veatch v. Wagner, 116 F. Supp. 904; People v. Glubo, 5 A D 2d 527; Admiral Corp. v. Price Vacuum Stores, 141 F. Supp. 796; Coty v. Parfums de Grande Luxe, 298 F. 865; Landstrom v. Thorpe, 189 F. 2d 46.) II. Defendants’ advertising was deceptive throughout. (Electrolux Corp. v. Michaels Bros., 207 Misc. 60; Singer Mfg. Co. v. Bedlich, 109 F. Supp. 623; General Elec. Co. v. Schwartz, 99 F. Supp. 365; General Elec. Co. v. Re-New Lamp Co., 128 F. 154; Ingersoll v. Doyle, 247 F. 620; Green v. Electric Vacuum Cleaner Co., 132 F. 2d 312; Champion Plug Co. v. Sanders, 331 U. S. 125; Champion Spark Plug Co. v. Reich, 98 F. Supp. 242.) III. There was no waiver, estoppel nor laches. (Prestonettes v. Coty, 285 F. 501, 264 U. S. 359.) IV. The trial court properly enjoined the continuance of all of the misleading practices although some had been discontinued before the action was commenced. V. The trial court properly designated a Referee to compute damages. (Ronson Art Metal Works v. Gibson Lighter Mfg. Co., 3 A D 2d 227; Warren, Inc., v. Turner’s Gowns, Ltd., 285 N. Y. 62.)

      Sidney S. Bobbé and Raymond Sacks for respondents.
    I. The advertising complained of having ceased on January 12, 1953, there was no right to commence this action on June 9, 1953 to restrain such advertising. (People v. Canal Bd., 55 N. Y. 390; 1130 President St. Corp. v. Bolton Realty Corp., 300 N. Y. 63.) II. Plaintiff was estopped from enjoining the advertising of the machines as rebuilt by Famous Vacuum Shops, since it had expressly requested and acquiesced in such form of advertising to its profit. (William H. Keller, Inc., v. Chicago Pneumatic Tool Co., 298 F. 52; Bennett & Sons v. Farmers’ Seed & Gin Co., 288 F. 365, 263 U. S. 704.) III. Even without estoppel, it was not deceptive to advertise under the name of Famous Appliance Shops or Famous Vacuum Shops. (Samuel Stores v. Queen City Credit Clothing Corp., 157 Misc. 186, 248 App. Div. 677; Warren, Inc., v. Turner’s Gowns, Ltd., 285 N. Y. 62.) IV. It was not deceptive to sell rebuilt machines as Electrolux machines merely because some worn-out accessories had been replaced by substantially equivalent, new ones, especially since plaintiff had consented to and profited by such practice. (Champion Plug Co. v. Sanders, 331 U. S. 125; Champion Spark Plug Co. v. Reich, 98 F. Supp. 242; Singer Mfg. Co. v. Briley, 207 F. 2d 519; Singer Mfg. Co. v. American Appliance Co., 86 F. Supp. 737; Green v. Electric Vacuum Cleaner Co., 132 F. 2d 312, 41 F. Supp. 562; Electrolux Corp. v. Michaels Bros., 207 Misc. 60; Singer Mfg. Co. v. Redlich, 109 F. Supp. 623; General Elec. Co. v. Schwartz, 99 F. Supp. 365; General Elec. Co. v. Re-New Lamp Co., 128 F. 154.) V. There was no “ bait advertising ” by misrepresentation. (Sunbeam Corp. v. Payless Drug Stores, 113 F. Supp. 31; General Elec. Co. v. Gem Vacuum Stores, 36 N. J. Super. 234; Bourjois, Inc., v. Park Drug Co., 82 F. 2d 468; May’s Furs & Ready-to-Wear v. Bauer, 282 N. Y. 331; Ronson Art Metal Works v. Gibson Lighter Mfg. Co., 283 App. Div. 937.) VI. There was no right to award plaintiff damages, particularly respondents’ profits. (Square D Co. v. Sorenson, 224 F. 2d 61; Radio Shack Corp. v. Radio Shack, 180 F. 2d 200;
      Michel Cosmetics v. Tsirkas, 282 N. Y. 195; G. H. Mumm Champagne v. Eastern Wine Corp., 142 F. 2d 499, 323 U. S. 715; J. C. Penney Co. v. H. D. Lee Mercantile Co., 120 F. 2d 949; Brooks Clothing v. Brooks Bros., 60 F. Supp. 442, 158 F. 2d 798; Warren, Inc., v. Turner’s Gowns, Ltd., 285 N. Y. 62.)

      Arthur E. Pettit and Carey Vennema for the Singer Manufacturing Company, amicus curies.

    I. “Bait” advertising is to be distinguished from “loss-leader ” advertising and sales and from “ selling-up ” practices. II. Legislative bodies, administrative tribunals and extra-legal agencies consider bait advertising as being below any acceptable standard of commercial morality and are making strenuous efforts to wipe it out. (People v. Glubo, 5 A D 2d 527; Williamson v. Lee Opt. Co., 348 U. S. 483; Semler v. Dental Examiners, 294 U. S. 608.) III. The facts found by the Appellate Division constitute bait advertising. IV. Bait advertising constitutes unfair competition and should be enjoined. (International News Serv. v. Associated Press, 248 U. S. 215; Fisher v. Star Co., 231 N. Y. 414; Madison Sq. Garden Corp. v. Universal Pictures Co., 255 App. Div. 459; Metropolitan Opera Assn. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 279 App. Div. 632; Mutual Broadcasting System v. Muzak Corp., 177 Misc. 489; Twentieth Century Sporting Club v. Transradio Press Serv., 165 Misc. 71; Associated Press v. KVOS, 80 F. 2d 575, 299 U. S. 269; Veatch v. Wagner, 109 F. Supp. 537; Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F. Supp. 490; Singer Mfg. Co. v. Redlich, 109 F. Supp. 623; Bourjois, Inc., v. Park Drug. Co., 82 F. 2d 468; Sunbeam Corp. v. Payless Drug Stores, 113 F. Supp. 31; General Elec. Co. v. Gem Vacuum Stores, 36 N. J. Super. 234.)
   Chief Judge Conway.

The plaintiff is the manufacturer of the widely known ‘ ‘ Electrolux ’ ’ vacuum cleaner. The defendants-respondents are Solomon Sacks, who does business as “ Famous Vacuum Shops ” and “ Famous Appliance Shops,” and Vacuum Cleaner Conservation Company, Inc., of which Sacks is the president and principal stockholder.

It appears that respondents have been purchasing used ‘ ‘ Model XTT ’ ’ Electrolux vacuum cleaners from plaintiff and others since 1948 for prices ranging from $3.00 to $7.50 each. Respondents would then disassemble the machines, clean and rebuild them, and, when necessary, supply new parts and accessories some of which were not manufactured by the plaintiff. The result would then be sold and advertised as ‘ ‘ rebuilt Electrolux” vacuum cleaners (trade-mark “Electrolux” displayed prominently). However, a small label and a decalcomania transfer which recite that the machine was reconditioned by Famous Vacuum Shops were attached to the machine.

In 1949 plaintiff requested by letter that respondents make it clear that the machines have been rebuilt by “Famous” rather than by Electrolux. Since-then, respondents have continued to buy thousands of used machines from plaintiff, rebuild them and advertise them as rebuilt by Famous Vacuum Shops, or Famous Appliance Shops with the full knowledge and acquiescence of plaintiff until January of 1953. However, the plaintiff, though it sold many used machines which it had acquired as ‘ ‘ trade-ins ’ ’ to dealers such as respondents, refused at all times to sell them new parts and accessories.

In 1952 respondents arranged for television advertising with a television promoter. They agreed that the commercials would furnish telephone numbers for prospective inquirers and that telephone responses would be turned over to respondents for $2 to $3 each. During the commercials which were broadcast over four television channels, the actor or salesman exhibited a “ rebuilt Electrolux,” described it as such in glowing terms and offered it for $14.95. Telephone numbers were also furnished for prospective inquirers.

The record further discloses that Adler, an investigator hired by the plaintiff, called one of the telephone numbers furnished during the commercial and requested a demonstration. Subsequently, one Forde, a salesman, arrived at Adler’s home where he demonstrated and sold to him a rebuilt machine. But then he attempted to sell a new machine not manufactured by the plaintiff which he claimed was a better machine. However, the investigator refused to make any further purchase and subsequently turned the rebuilt machine over to plaintiff’s engineers who examined it. Although the motor and body were manufactured by Electrolux, some of the accessories were not.

The proof also demonstrates that respondents sold new machines manufactured by several of plaintiff’s competitors but that respondents did not mention these machines on the commercials. Bather, they offered the rebuilt machines at $14.95 for the purpose of attracting prospects to whom more expensive new machines not manufactured by plaintiff might be sold. Furthermore, respondents’ salesmen were not compensated for selling the ‘' rebuilt Electrolux ’ ’ but rather their compensation depended on sales of the other machines.

In June of 1953 Electrolux brought an action seeking injunctive relief, as well as damages, against Sacks, Vacuum Cleaner Conservation Company and others who are not parties to this appeal. After trial before the court sitting without a jury, Special Term rendered a decision with specific findings of fact, including those set forth above, and conclusions of law.

In addition to the facts already stated, Special Term found that the procedure was to endeavor to sell the ‘ ‘ rebuilt Electrolux ” and then to “ switch ” the transaction to the new machine by calling the rebuilt Electrolux ” “ just a lot of junk ”, and by saying that it looked “ silly ” and by disparaging it generally. Furthermore, respondents would give a salesman the names and addresses of four telephone inquirers, four new machines but only one “ rebuilt Electrolux.” Moreover, the salesman would be instructed not to permit the rebuilt machine to leave his hands but rather to disparage it and to try to sell the new machine instead. In addition the rebuilt machine could not be sold profitably for $14.95 for the initial cost and business expenses compelled respondents to rely on the sale of the higher priced machines in order to make the operation a paying one. In short, the court found that the telecasts were calculated to give the impression that a used Electrolux with Electrolux parts, which retained the quality associated in the public mind with plaintiff’s products, was obtainable at a low price whereas respondent’s actual purpose was to discourage the purchase of the advertised machines and induce the public to buy costly machines of makes other than Electrolux.

Special Term also found that some of the non-Electrolux parts were functionally inferior to the corresponding parts manufactured by the plaintiff. Moreover, it was further found that Sacks instructed the television promoter to telecast that the machines were rebuilt by the famous vacuum cleaner company (meaning Electrolux, a famous company). This use of the word “ famous ” was held to be deceptive whether used as an adjective or a noun. However, the court also found that since January 12, 1953, when Electrolux made its first complaint in this regard, there has been no advertising using the word “famous”, the reference having been changed to Parsons Appliance Corporation.

Special Term concluded, in substance, that it was actionably deceptive to advertise the rebuilt machines with the Electrolux name when they contained non-Electrolux parts and that it was also actionable to use the name without stating that the reconditioning was actually performed by Vacuum Cleaner Conservation Company. The court also held that respondents’ sales practices constituted “bait advertising ” and that, as such, it was unfair to the public as well as the plaintiff owner of the advertised trade name. In addition, the court took the view that plaintiff was entitled to damages attributable to defendants’ acts of unfair competition, in an amount to be determined by a court-appointed Referee.

Accordingly, a judgment was entered thereon which, in substance, enjoined defendants from (1).using the word “ Electrolux ’ ’ unless the machines were wholly and completely the product of the plaintiff; (2) from offering any vacuum cleaner under the trade name “ Electrolux ” for the purpose of luring prospects with the object of diverting them from the advertised article by disparagement or otherwise and for the purpose of inducing them to purchase a product not manufactured by the plaintiff; (3) from advertising and selling under the name “Electrolux” a machine which was reconstructed by the Vacuum Cleaner Conservation Company without stating that the reconstruction was the work of that company; (4) from advertising and selling under the name “ Electrolux ” and representing that the machines were built by someone else than the actual rebuilder; and (5) from using the word “famous ” in advertising and promoting vacuum cleaners not rebuilt by plaintiff so that the use of the word ‘ famous ’ ’ was deceptive or misleading. Furthermore, the judgment directed that a Referee be appointed to report on the damages attributable to the acts of unfair competition including an accounting based on defendants’ profits.

The Appellate Division, with one Justice dissenting, reversed certain specific findings of fact, made additional findings, reversed the conclusions of law, and, accordingly, dismissed the complaint. In addition to finding that plaintiff had shown no damages from the acts complained of, the Appellate Division found, in general, that respondents’ use of the word “ famous ”, a common trade name, was not deceptive, and, further, that there were no representations that the machines were new or rebuilt by plaintiff. Moreover, it observed that since 1948 plaintiff has been selling old machines to respondents, who, in turn, had since then been using the same methods of refurbishing and labelling the machines with plaintiff’s knowledge. Furthermore, although the Appellate Division agreed that respondents used the rebuilt machines as a lure to sell the new machines, it found that defendants did not refuse to sell the rebuilt machines, but did, in fact, sell 5,000 of them subsequent to 1948, including the one sold to plaintiff’s investigator.

It readily appears from the foregoing that three types of conduct are here involved. The first two which form the essence of the first cause of action in the complaint fall into that category of unfair competition wherein it is charged that defendants have “ palmed off ” their goods as those of the plaintiff. They are (a) the use of the Electrolux trade name on a machine which contains non-Electrolux parts and accessories, and (b) the use of the word ‘£ famous ’ ’ on the telecast. The third is respondents’ use of the rebuilt machine as a lure to sell other nonadvertised machines which is alleged in the complaint as the second cause of action and which shall be treated last.

When the Appellate Division reverses specific findings of fact and makes new findings, as in this case, it becomes our duty to determine which findings are supported by the weight of the credible evidence (Civ. Prac. Act, § 605; see Roberts v. Fulmer, 301 N. Y. 277, 281 [1950]; Chamberlain v. Feldman, 300 N. Y. 135,139 [1949]). In this connection, we note that the additional finding that respondents have been using the same procedure of replacing worn and missing parts since 1948 is amply supported by the record. In addition, the Appellate Division and the Special Term are in essential agreement on the facts as to the prior dealings between plaintiff and respondents in which plaintiff sold the old machines with knowledge and acquiescence in the fact that the machines would be reconditioned and sold as rebuilt Electrolux vacuum cleaners. In brief, plaintiff knew what was happening to the machines and, yet, continued to sell old vacuum cleaners to respondents although at the same time refusing any new parts and accessories with which to repair them.

The Appellate Division held that plaintiff was estopped from enjoining a course of business of which it not only presumbly had knowledge, but in which it actively participated. We agree in this conclusion. For, as we have said in Rothschild v. Title Guar. & Trust Co. (204 N. Y. 458, 461 [1912]), “ Where a person wronged is silent under a duty to speak, or by an act or declaration recognizes the wrong as an existing and valid transaction, and in some degree, at least, gives it effect so as to benefit himself or so as to affect the rights or relations created by it between the wrongdoer and a third person, he acquiesces in and assents to it and is equitably estopped from impeaching it.” Assuming that it was actionable to use foreign parts in the “ rebuilt Electrolux ”, plaintiff profited by continuing sales of trade-in machines while at the same time refusing to sell genuine Electrolux parts to respondents. “ One cannot knowingly sanction business methods adopted by a rival, much less invite his competitor to engage in a business and later recover damages for the alleged losses to his business by means which he encouraged.” (William H. Keller, Inc., v. Chicago Pneumatic Tool Co., 298 F. 52, 59 [7th Cir., 1923], cert, denied 265 U. S. 593 [1924]; see, also, Landers, Frary & Clark v. Universal Cooler Corp., 85 F. 2d 46, 49 [2d Cir., 1936]; Bennett & Sons v. Farmers’ Seed & Gin Co., 288 F. 365, 367 [5th Cir., 1923], cert, denied 263 U. S. 704 [1923]; 2 Nims, Unfair Competition & Trade Marks [4th ed., 1947], § 416, p. 1303.) Furthermore, inasmuch as plaintiff is so estopped from complaining of respondents’ use of the trade name Electrolux on old Electrolux machines which had been rebuilt with parts and accessories not manufactured by plaintiff, we do not consider whether any of the non-Electrolux parts are inferior. Nor do we need decide whether under other circumstances the use of those parts in the reconditioning and sale of used Electrolux vacuum cleaners would be an actionable act of unfair competition.

The second question results from the use of the word famous ” in the telecasts prior to January 12, 1953. Even if we assume that both courts deemed it misleading, we observe that there is no question but that this practice was discontinued on television after protest by plaintiff about six months prior to the commencement of the action. The Appellate Division took the view that this discontinuance six months prior to the commencement of the action and the absence of any indication in the record that defendants intend to resume the practice render an injunction unnecessary and inappropriate. We are in accord with this result, for the extraordinary relief of an injunction is protection for the future and is not proper unless the injury is imminent. (See 1130 President St. Corp. v. Bolton Realty Gorp., 300 N. Y. 63, 69 [1949]; May’s Furs & Ready-to-Wear v. Bauer, 282 N. Y. 331, 343 [1940].) In addition, the written use of the word “ famous ” in connection with “ Famous Appliance Shops ” does not seem to be in question, especially since, in 1949, plaintiff merely insisted that future radio broadcasts make it clear that the machines had been rebuilt by * Famous ’ ’. Also, we agree that that part of the injunction which restrained respondents from offering machines which were rebuilt by Vacuum Cleaner Conservation Company without stating that the reconstruction was the work of that particular company was error. Representations that the machines were rebuilt by Parsons Appliance Corporation, Famous Vacuum Shops or Famous Appliance Shops would have no effect on plaintiff unless they tended to impute the work to Electrolux. Therefore, Electrolux is not entitled to have such representations enjoined.

Accordingly, plaintiff’s first cause of action in the nature of “ palming off ” was properly dismissed. Furthermore, inasmuch as it was an equitable cause of action which failed, the trial court could not award damages for the alleged deceptive use of the word “ famous ” on television. “ * * * [W]hen plaintiff pleads an equitable cause of action only and fails to prove the facts relied on to sustain the equity jurisdiction, equity will not retain the case for the purpose of awarding him damages (Doyle v. Allstate Ins. Co., 1 N Y 2d 439, 442 [1956]; see, also, Merry Realty Co. v. Shamokin & Hollis Real Estate Co., 230 N. Y. 316, 324 [1921]; Bradley v. Aldrich, 40 N. Y. 504, 511 [1869].)

Thus, there remains only the second cause of action. The issue there is whether respondents’ sales activities which have been characterized by the Special Term as 1 ‘ bait advertising ’ ’ are actionable and whether an injunction will lie.

The Appellate Division agreed with Special Term that respondents were using the rebuilt machines as a lure to sell a more costly machine not made by plaintiff. However, they reversed those findings of fact which spelled out a sales program lacking any bona fide intent to sell the rebuilt machines but instead planning to disparage it in order to “ switch ” the transaction to other machines at the expense of plaintiff’s reputation and good name. Most of the evidence on those issues was based on the testimony of (a) Adler, the investigator, (b) Forde, the salesman who testified for the plaintiff, and (c) of defendant Sacks. There was a sharp conflict of testimony, particularly between Forde and Sacks. That raised an issue of credibility which was primarily in the hands of the original trier of the facts (Roberts v. Fulmer, 301 N. Y. 277, 285 [1950], supra; Smith v. Smith, 273 N. Y. 380, 383 [1937]). In addition, Forde’s testimony was corroborated by Sack’s own admissions as to the extent of his expenses for selling a $14.95 machine and his admission that he did not pay any compensation to any of his salesmen if and when they sold a “ rebuilt Electrolux ” machine. Accordingly, on the basis of the whole record, we conclude that those findings of the trial court on this issue which were reversed by the Appellate Division are supported by the weight of the credible evidence and should not have been reversed.

Thus, the facts disclose a sales promotion with the following steps:

1. Advertising a ‘' rebuilt Electrolux ” at a very attractive price in order to invite inquiry.

2. Graining admittance to people’s homes under the guise of answering the inquiries, but really for the purpose of selling a much more expensive new machine in competition with Electrolux.

3. “ Switching ” the transaction by “ knocking ” or disparaging the ‘ ‘ rebuilt Electrolux ’ ’ and introducing the new machine.

As we have already indicated, we hold that plaintiff may be deemed to have allowed its trade name and mark to be employed by defendant in the sale of ‘ ‘ rebuilt Electrolux ’ ’ vacuum cleaners. But this is not to say that plaintiff has consented that its name and mark be used as a lure in a “ bait and switch” promotion scheme to sell new vacuum cleaners in direct competition with itself.

Unfair competition was thought at one time to consist generally in “ palming off ”, i.e., “ * * * the sale of the goods of one manufacturer * * * for those of another.” (Elgin Nat. Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, 674 [1901]; see, also, Howe Scale Co. v. Wyckoff, 198 U. S. 118, 140 [1905]; Neva-Wet Corp. v. Never Wet Processing Corp., 277 N. Y. 163,168 [1938].) Protection from “ palming off ” has been extended in our courts to situations where the parties are not even in competition. (See, e.g., Cornell Univ. v. Messing Bakeries, 285 App. Div. 490 [3d Dept.], affd. 309 N. Y. 722 [1955] ; Tiffany & Co. v. Tiffany Prods., 237 App. Div. 801, affd. 262 N. Y. 482 [1933] ; see, also, Fisher v. Star Co., 231 N. Y. 414, 427 [1921], cert, denied 257 U. S. 654 [1921]; Time, Inc., v. Life Color Lab., 279 App. Div. 51 [1st Dept., 1951], affd. 303 N. Y. 965 [1952].) Moreover, in 1918 the Supreme C'ourt of the United States refused to limit relief from unfair competition to cases of “ palming off ” in International News Serv. v. Associated Press (248 U. S. 215 [1918]) where defendant news gathering service was pirating news gathered and reported by plaintiff to eastern newspapers and then transmitting it, as its own product, to western newspapers in time for publication in the west. The Supreme Court commenting that defendant is “endeavoring to reap where it has not sown” (243 U. S. 239) held that plaintiff had property rights in the freshly gathered news which might not be misappropriated by defendant. The principle that one may not misappropriate the results of the skill, expenditures and labors of a competitor has since often been implemented in our courts. (See, e.g., Madison Sq. Garden Corp. v. Universal Pictures Co., 255 App. Div. 459 [1st Dept., 1938]; Mutual Broadcasting System v. Muzak Corp., 177 Misc. 489 [Sup. Ct., 1941]; Dior v. Milton, 9 Misc 2d 425 [Sup. Ct., 1956], affd. 2 A D 2d 878; De Jur-Amsco Corp. v. Janus Camera, 16 Misc 2d 772 [Sup. Ct., 1956].) Our court has recognized that approach in Germanow v. Standard Unbreakable Watch Crystals (283 N. Y. 1, 18 [1940]) and in Fisher v. Star Co. (231 N. Y. 414, 428 [1921], supra).

The growth of the protection against such ‘ ‘ parasitism ’ ’ reflects the requirement that the courts and the law keep pace with the mushrooming increases in business complexity and the concomitant opportunities afforded thereby for chicanery. As the Appellate Division, First Department has said: “ Unfair competition is a form of unlawful business injury. * * * The incalculable variety of illegal commercial practices denominated as unfair competition is proportionate to the unlimited ingenuity that overreaching entrepreneurs and trade pirates put to use.” (Ronson Art Metal Works v. Gibson Lighter Mfg. Co., 3 A D 2d 227, 230-231 [1st Dept., 1957].) There is no question that this case involves an ingenious scheme put forth by unscrupulous entrepreneurs. But whether it may be enjoined as unfair competition is a difficult problem. Although there are a number of cases in other jurisdictions which have touched on the problem (see, e.g., General Elec. Co. v. Gem Vacuum Stores, 36 N. J. Super. 234 [1955]; Singer Mfg. Co. v. Redlich, 109 F. Supp. 623 [S. D., Cal., 1952]; Admiral Corp. v. Price Vacuum Stores, 141 F. Supp. 796 [E. D., Penn., 1956]), our research has not disclosed any cases where the issue has been squarely presented and decided.

It is true that a manufacturer may not sue * * * as a vicarious avenger of the defendant’s customers” (Ely-Norris Safe Co. v. Mosler Safe Co., 7 F. 2d 603, 604 [2d Cir., 1925]). But if defendants’ methods are deceitful and run contrary to accepted business ethics, the public policy of the State is relevant, though perhaps not decisive, in evaluating a claim of unfair competition. Judge Duer observed over a century ago: “ To protect him * * * [the owner of the trade-mark] is not only the evident duty of a court as an act of justice, but the interests of the public, as well as of individuals, require that the necessary protection shall be given.” (Amoskeag Mfg. Co. v. Spear Ripley, 2 Sandf. 599, 605 [1849].) We are in accord with these sentiments and take the view that it is relevant that activities of the nature of “ bait and switch ” advertising are deceptive and harmful to the public interest. Although we expressly do not comment upon the applicability of criminal prosecution to this case, we need only refer to our recent decision in People v. Glubo (6 N Y 2d 461, decided April 9, 1959) where we upheld a conviction under section 421 of the Penal Law. There, of course, the proof showed an elaborate plan for evading delivery of the advertised machines. However, this appeal, though it does not show such an elaborate plan and absolute intent and plan not to sell the advertised article, certainly discloses that defendants intended to avoid selling the rebuilt machine if possible. But, of course, we need not characterize respondents’ activities as being subject to criminal prosecution in order to label it as injurious to the public. It is sufficient to note that they follow the same general format. In addition, though again we make no comment as to its applicability, we note that the public policy of this State has been recently expressed in section 396 of the General Business Law which empowers the Attorney-General to bring injunction proceedings against advertising “ * * * with the intent, design, or purpose not to sell the merchandise, commodity, or service so advertised”.

The majority of the Appellate Division took the view that an injunction here would impinge upon “ loss leader ” selling where a merchant offers goods at a loss in order to attract customers to whom he can make other more profitable sales. But this is not a situation where a person comes into a store attracted by a bargain and buys other items as well. (See Sunbeam Corp. v. Payless Drug Stores, 113 F. Supp 31 [N. D., Cal., 1953].) Here, the customer, who is, as indicated by the dissenting Justice below, trapped in his own home, is faced with a choice between the rebuilt machine as to which only he made inquiry and the new machine, with the salesman using all of his talents to effectuate the “switch”. Furthermore, it is not common for the average consumer to purchase two vacuum cleaners at one time, which demonstrates how this scheme uses plaintiff’s good name as a weapon against itself in a highly competitive market. Finally, one cannot say that it is normal business ethics for a merchant to discourage sales of items which he has advertised in glowing terms in order to sell different unadvertised goods. Thus, it is difficult to see how an injunction on these facts would impinge upon ordinary “ cut-rate ” or “ loss-leader ” selling practices.

It is easy to understand the natural outrage which would be experienced by the management of a reputable firm upon learning that its name and mark have been employed in a disreputable scheme to gain admission to people’s homes. Aside from the pain caused by possible exposure to the ire of those of the public who would feel cheated as soon as the salesman revealed his true purpose, there is the pain of having one’s good will employed as a weapon in direct competition against one’s self. Furthermore, there are substantial legal damages caused thereby, the continuance of which equity is empowered to prevent. Respondents’ salesmen, as they disparage the rebuilt machine in order to effectuate the ‘1 switch ’ ’, are not likely to attribute any malfunctioning or inferiority to the reconditioning work of their employer rather than to Electrolux. Thus, the public is made susceptible to a jaundiced view of basic Electrolux design or structure. In fact, whether or not the rebuilt machine is a “piece of junk ” or “silly”, the purchasing public is likely to lose confidence in the name and mark of Electrolux. Disparagement or “ Imocking ” is essential to this scheme and it results in real damage to Electrolux. This is further exaggerated by the fact that the advertisement, which sets up the opportunity to “ knock ” the product, makes profuse use of the name “Electrolux” in glowing terms. Thus, it is clear that those persons to whom respondents send their salesmen are conditioned by the advertising to think in terms of Electrolux, and the disappointment inevitably caused by the ‘1 switch ’ ’ or attempted 1‘ switch ’ ’ is bound to be damaging. Similar sentiments were expressed in Bourjois, Inc., v. Park Drug Co. (82 F. 2d 468 [8th Cir., 1936]) where defendant was accused of using falsehoods to divert customers from plaintiff’s nationally known brand of cosmetics to its own brand. The court commented that defamation or false representations concerning another’s product “ * * * when proven to have been made by the clerks of a mercantile corporation as a part of a selling plan or system, constitute unfair competition which may be enjoined at the instance of the person whose good will is injured thereby.” (82 F. 2d, p. 470; see, also, Allen Mfg. Co. v. Smith, 224 App. Div. 187 [4th Dept., 1928].) Moreover, respondents’ acts of unfair competition are to be distinguished from disinterested acts of trade libel. (See, e.g., Reporters’ Assn. v. Sun Print. & Pub. Assn., 186 N. Y. 437 [1906]; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384 [1902]; Tower v. Crosby, 214 App. Div. 392 [1925].)

It is, in a sense, fruitless to examine each individual step in the scheme for actionable wrong. They are so dependent upon one another that one can only say that its entirety is an unfair method of direct competition. “ The various aspects of a plan or scheme, when considered singly, may very well appear innocent. The true nature of the plan or scheme is revealed only when the various aspects are viewed as a totality. ’ ’ (Matter of Castle Hill Beach Club v. Arbury, 2 N Y 2d 596, 608 [1957].) Moreover, this is a scheme which has been made possible only by comparatively recent developments in mass communication and advertising, particularly television, and, thus, it does not fall with precision into any previous groupings of unfair competition. But this is no reason to deny justice or equity. Thus, the trial court was correct in its conclusion that respondents’ activities constitute “bait advertising ” and should be enjoined.

In respect to the damages, however, the provision for an accounting was improper. ‘ ‘ What is true of all actions, is especially true in a suit for unfair competition: disposition of each case peculiarly depends upon the precise state of facts disclosed.” (Roman Silversmiths v. Hampshire Silver Co., 282 App. Div. 21, 27 [1st Dept., 1953], affd. 306 N. Y. 894 [1954].) There is nothing here to indicate that the purchasers of the rival machines thought that they were doing business with Electrolux. Plaintiff urges upon us the case of Warren, Inc., v. Turner’s Gowns, Ltd. (285 N. Y. 62 [1941]) where we said that “ * * * equity will treat the wrongdoer as a trustee for the plaintiff so far as the former has realized profits from its acts ” (285 N. Y., p. 68). But there, the defendant was giving the impression that it was a branch store of the plaintiff. The damage in the instant case is chiefly to the good will and reputation of plaintiff corporation. Thus, it would seem that the measure of damages would be any loss in business which can be traced directly to respondents ’ disparagement of the ‘ rebuilt Electrolux.” (See Singer Mfg. Co. v. Redlich, 109 F. Supp. 623 [S. D., Cal., 1952], supra.) This will no doubt be most difficult to prove, due to the widespread and shifting nature of the injury which is, of course, one of the reasons dictating injunctive relief. But if the plaintiff is able to prove such damages, it should be given the opportunity to do so. (See Warren, Inc., v. Turner’s Gowns, Ltd., supra; Alexander’s Dept. Stores v. Ohrbach’s, Inc., 269 App. Div. 321 [1st Dept., 1945].)

Accordingly, the judgment of the Appellate Division is modified (1) to reinstate the judgment of the Special Term insofar as it provides that defendants be enjoined from offering any vacuum cleaner under the trade name Electrolux at an attractive price for the purpose of luring prospects with the object of diverting them from the advertised article by disparagement or other like conduct and for the purpose of inducing them to purchase a product or products not manufactured by the plaintiff, and (2) to reinstate that part of the judgment which provides for a reference on the issue of damages but not including defendants’ profits, with costs.

Judges Desmond, Dye, Froessel, Van Voorhis and Burke concur with Chief Judge Conwat; Judge Fuld dissents and votes to affirm.

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, with costs to appellant.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Floyd Dinan, Appellant. The People of the State of New York, Respondent, v. Milton Poplees, Appellant. The People of the State of New York, Respondent, v. Frank Castellucci, Appellant. The People of the State of New York, Respondent, v. Frank Poplees, Also Known as Frank Day, Appellant. The People of the State of New York, Respondent, v. Albert Bricker, Appellant.
    Argued March 6, 1959;
    decided April 9, 1959.

      Walter B. Soling er, II, and George W. Scapolito for appellants.

      Joseph F. Gagliardi, District Attorney (Leonard Rubenfeld, Warren J. Schneider and Arthur V. Práete of counsel), for respondent.

      Frank S. Hogan, Richard G. Denser, Charles W. Manning and H. Richard Uviller for New York State District Attorneys’ Association, amicus curiae.

   Order affirmed; no opinion.

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


text:
    In the Matter of Edward M. Otis et al., Respondents, et al., Petitioner, against Bernard T. Silverman et al., Constituting the Civil Service Commission of the City of Yonkers, et al., Respondents, and Walter T. Duffy, Appellant.
    Argued February 25, 1959;
    decided April 9, 1959.

      Paul Bleakley and Wilbur J. 8pit ser for appellant.

      Morton N. Wekstein for Edward M. Otis and others, respondents.

      J. Raymond Hannon, Corporation Counsel (John F. Trainor of counsel), for Bernard T. Silverman and others, respondents.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Max Firestone, Appellant.
    Submitted March 11, 1959;
    decided April 9, 1959.

      George E. Maccaro for appellant.

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

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


text:
    Benjamin Ackman et al., Doing Business as Ackman Brothers, Appellants, v. Toren, Inc., Respondent.
    Argued March 10, 1959;
    decided April 9, 1959.

      Joseph Howard Kats and Adolph Ba,ngser for appellants.

      Louis M. Bornstein and David Bornstein for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    In the Matter of Leroy Douglas, Appellant, against New York State Thruway Authority, Respondent.
    Argued February 27, 1959;
    decided April 9, 1959.

      Morris Block for appellant.

      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen, Paxton Blair and Norman M. Beck of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Meta Enslein, Respondent, v. Hudson & Manhattan Railroad Company, Appellant-Respondent, and Peelle Company, Appellant, et al., Defendant.
    Argued February 25, 1959;
    decided April 9, 1959.

      Joseph Fennelly, Jr., William 8. O’Connor and Gregory A. Lee for appellant.

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

      Benjamin H. 8iff and Abraham B. Fuss for respondent.
   Judgment affirmed, with costs to plaintiff against both defendants and with costs to defendant Hudson & Manhattan Railroad Company against defendant, the Peelle Company. No opinion.

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


text:
    Reo Garment Inc., Appellant, v. Jason Corporation, Respondent, et al., Defendant.
    Submitted January 22, 1959;
    decided April 9, 1959.

      Robert R. Kaufman for appellant.

      Caesar L. Pitassy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Frances McNeely, Appellant, against Carmine DeSapio, as Secretary of State of the State of New York, Respondent.
    Argued March 2, 1959;
    decided April 9, 1959.

      Morris M. Oppenheim and Stephen L. Oppenheim for appellant.

      Louis J. Lefkowits, Attorney-General (Herman F. Nehlsen and Paxton Blair of counsel), for respondent.

      Menahem Stim for Association of Private Hospitals, Inc., amicus curies.

   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of B. L. Rothstein, Respondent, against County Operating Corp., Respondent, and Edward P. Larkin et al., Constituting the Town Board of the Town of Hempstead, Appellants.
    Argued March 2, 1959;
    decided April 9, 1959.

      Robert M. Stein and John A. Morhous for appellants.

      George Trosh, Arthur A. Kaye, Salvatore L. Di Giovanna and Eugene L. Weisbein for B. L. Bothstein, respondent.

      George Trosh for Lemir Realty Corp., amicus curiae, in support of respondent’s position.
   Order affirmed, with costs. In making determinations upon applications for special exceptions under the Zoning Ordinance, the Town Board exercises judgment or discretion of a character which is reviewable as to reasonableness in a proceeding under article 78 of the Civil Practice Act (Matter of Lerner v. Young, 286 App. Div. 1109, motion for leave to appeal denied 309 N. Y. 1035; Matter of Frantellizzi v. Herman, 1 A D 2d 980, motion for leave to appeal granted [but appeal not prosecuted] 1 N Y 2d 643). No opinion.

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


text:
    George Mendes, Appellant, v. Caristo Construction Corp., Respondent, et al., Defendant. Caristo Construction Corp., Third-Party Plaintiff-Appellant, v. Artistic Bronze Tablet Co., Inc., Third-Party DefendantRespondent.
    Argued March 9, 1959;
    decided April 9, 1959.

      Bernard Meyer son and Paul P. Meltser for appellant.

      Joseph P. Feury and Willaim J. Kermey for Caristo Construction Corp., respondent and third-party plaintiff-appellant.

      Raymond C. Green, Harry Schechter, Milton L. Freedman and Charles G. Tierney for third-party defendant-respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fxjld, Feoessel, Van Voobhis and Bubke.


text:
    200 East End Avenue Corporation, Appellant, v. General Electric Company, Respondent.
    Argued January 6, 1959;
    decided April 9, 1959.

      John P. McGrath, Martin D. Jacobs and Frederick R. Adler for appellant.

      Phil E. Gilbert, Jr., Harold R. Tyler, Jr., and L. Mason Harter for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anthony Bernardo, Plaintiff, v. Fordham Hoisting Equipment Company et al., Defendants. Fordham Hoisting Equipment Company, Inc., Third-Party Plaintiff-Appellant, v. Donato & Gagliano, Inc., Third-Party Defendant-Respondent.
    Argued March 4, 1959;
    decided April 9, 1959.

      William F. McNulty for third-party plaintiff-appellant.

      Sanford, Saideman and Bernard Helfenstein for third-party defendant-respondent.
   • Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fund, Fboessel, Van Vooehxs and Btjbke.


text:
    Robert W. Zielinski, Respondent, v. Helen K. Zielinski, Appellant.
    Submitted March 11, 1959;
    decided April 9, 1959.

      Joseph Buff for appellant.

      Hyman G. Gould for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Abraham Alfenbaum, Respondent, v. State of New York, Appellant.
    (Claim No. 34265.)
    Argued March 2, 1959;
    decided April 9, 1959.

      Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for appellant.

      A. E. Schulgasser for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Beatrice Kamen, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    Argued March 4, 1959;
    decided April 9, 1959.

      Abraham Gruber for appellant.

      David B. Crow for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    James L. Doyle, Respondent, v. National Transportation Co., Inc., et al., Defendants, and John Dentato, Appellant.
    Argued March 9, 1959;
    decided April 9, 1959.

      Asher Marcus and Thomas J. Flood for appellant.

      Jacob Zane Hoffman and Irving Payson Zinbarg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Saul H. Adlerstein et al., for Themselves and All Other Persons Similarly Situated, Respondents, v. City of New York et al., Appellants.
    Argued February 25, 1959;
    decided April 9, 1959.

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

      Jacob Greenwald, Morton H. Feder and Bertram S. Bermar for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Edwin Duryea, Appellant.
    Argued March 9, 1959;
    decided April 9, 1959.

      John M. Gersof and David J. Weinblatt for appellant.

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

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


text:
    Andrew Golia, Appellant, et al., Plaintiffs, v. Health Insurance Plan of Greater New York, Defendant, and Astoria Medical Group et al., Respondents.
    Submitted January 5, 1959;
    decided April 9, 1959,
   Motion to have appeal heard upon one copy of the record before the Appellate Division, together with seven copies of legible typewritten additional papers and legible typewritten briefs, granted.


text:
    In the Matter of Anonymous (No. 19), Appellant, against George A. Arkwright, as a Justice of the New York State Supreme Court, Respondent.
    Argued April 6, 1959;
    decided April 9, 1959.

      Raphael H. Weissman for motions and opposed to cross motion.

      Michael Gaputo, Denis M. Hurley and Michael A. Castaldi for cross motion and opposed to motions.
   Motion for a certificate that a constitutional question is involved on the appeal herein denied.

Motion for an order of substitution granted and Honorable Edward G. Baker substituted as respondent in place of Honorable George A. Arkwright, retired.

Cross motion to dismiss appeal granted and appeal dismissed upon the ground that there is no substantial constitutional question directly involved.


text:
    In the Matter of the Commission of Investigation of the State of New York, Respondent, against Frank Joseph Valenti, Rosario Mancuso, Joseph Riccobono, Paul Castellano and Michele Miranda, Appellants.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion by appellants Biccobono, Castellano and Miranda to amend the remittitur granted. Beturn of the remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeals herein on behalf of appellants, there were presented and necessarily passed upon the following questions, viz.: (1) Whether the procedure whereby appellants were committed violated the due process clause of the Fourteenth Amendment to the United States Constitution; (2) whether the privileges and rights of appellants not to be compelled to incriminate themselves under the Fifth Amendment to the United States Constitution were improperly infringed; and (3) whether the over-all effects of the proceedings violated the due process clause of the Fourteenth Amendment to the United States Constitution and the Fifth and Eighth Amendments to the United States Constitution. This court held that the rights and privileges of these appellants under the United States Constitution were not infringed or violated. [See 5 N Y 2d 1026.]


text:
    In the Matter of Richard Hymes et al., Petitioners, and Abraham Bealick, Appellant, against Joseph Schechter et al., Constituting the City Civil Service Commission of the City of New York, et al., Respondents.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion by appellant to have appeal heard upon the available copies of the record before the Appellate Division, together with the required number of printed additional papers and briefs, granted.


text:
    In the Matter of the Claim of Harry Schechter, Appellant, against State Insurance Fund, Respondent.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion to have appeal heard upon the original record, together with the required number of printed additional papers and briefs, granted.


text:
    Domenick Palladino, Appellant, v. City of New York, Respondent.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion for leave to appeal and to prosecute appeal as a poor person granted.


text:
    The People of the State of New York, Respondent, v. Anthony Coppola, Appellant.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion to have appeal heard upon the original record and printed briefs granted.


text:
    The People of the State of New York, Respondent, v. Walter T. Green, Appellant.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion for assignment of counsel granted and Messrs. Harold P. Kelly, Prudential Building, Buffalo, New York, and Leonard M. Sciolino, EHicott Square Building, Buffalo, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Alfonso Palma, Appellant.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion to have appeals heard upon the original records and legible typewritten briefs granted.


text:
    The People of the State of New York, Respondent, v. James William Smith, Also Known as John R. Wesley, Appellant.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion to have appeal heard upon the original record and typewritten briefs granted.

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


text:
    The People of the State of New York ex rel. Frank Egitto, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Submitted April 6, 1959;
    decided April 9, 1959.

      Louis J. Lefkowits, Attorney-General (Winifred C. Stanley of counsel), for motion.

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


text:
    Beatrix Shapiro et al., Plaintiffs, v. Town of Thompson, Sullivan County, Defendant and Third-Party Plaintiff-Respondent. Fidelity and Casualty Company of New York, Third-Party Defendant-Appellant.
    Argued April 6, 1959;
    decided April 9, 1959.

      Bose 8. Rosen and George H. Rosen for motion.

      Lawrence E. Lagarenne opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    David Smith, Respondent, v. Beatrice Rothman et al., Defendants, and Aaron Eichler, Appellant.
    Submitted April 6, 1959;
    decided April 9, 1959.
   Motion by respondent for leave to file 10 copies of legible typewritten briefs on the appeal herein granted.


text:
    Agnes V. Stolz, as Administratrix of the Estate of Henry G. Stolz, Appellant, v. New York Central Railroad Company, Respondent.
    Submitted March 11, 1959;
    decided April 9, 1959.
   Motion to have appeal heard upon five copies of the record before the Appellate Division, together with seven copies of legible typewritten additional papers and legible typewritten briefs, granted.


text:
    The People of the State of New York, Respondent, v. George Cizike, Appellant.
    Submitted April 13, 1959;
    decided April 15, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the May, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Roland Chester Pitts, Appellant.
    Submitted April 13, 1959;
    decided April 15, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the May, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. Prince Jagendorf Greene, Inc., Respondent.
    Submitted April 13, 1959;
    decided April 15, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. James William Smith, Also Known as John R. Wesley, Appellant.
    Submitted April 13, 1959;
    decided April 15, 1959.
   Motion for a further enlargement of time granted and case set down for argument during the May, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. George J. B. Weiss, Appellant.
    Submitted April 13, 1959;
    decided April 15, 1959.
   Motion for enlargement of time granted.


text:
    City of Albany, Appellant, v. Coplin Yaras, Respondent, et al., Defendants.
    Argued January 5, 1959;
    decided April 16, 1959.

      John W. Hacker, Corporation Counsel, for appellant.

      C. Dickerman Williams and Coplin Taras, in person, for Coplin Yaras, respondent.
   Order reversed, with costs in this court and in the Appellate Division, in the following Per Curiam: We hold that the order was appealable to the Appellate Division. Upon this record, the County Judge and the Commissioners of Appraisal may not be removed. (Judiciary Law, § 14; Matter of Hancock, 91 N. Y. 284, 292-293; Matter of Dodge & Stevenson Mfg. Co., 77 N. Y. 101; Matter of Rotwein [Goodman], 291 N. Y. 116, 123; County of Orange v. Storm King Stone Co., 229 N. Y. 460, 467.) The three questions certified [(a), (b) and (c)] are answered as follows: (a) in the affirmative; (b) in the negative; (c) not answered. Motion to strike material from respondent’s brief granted to the extent of striking therefrom the material contained at pages 61 to 70; motion otherwise denied.

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


text:
    In the Matter of John Haywood, Respondent, against Craig Colony et al., Appellants.
    Argued March 4, 1959;
    decided April 16, 1959.

      Louis J. Lefkowits, Attorney-General (Paxton Blair and William G. Robbins of counsel), for appellants.

      George J. Skivington for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Agnes M. C. Alfaro, Appellant, v. Carl E. Alfaro, Respondent.
    Submitted April 6, 1959;
    decided April 16, 1959.
   Motion to have the appeal heard upon the available copies of the record before the Appellate Division, together with 10 legible typewritten copies of the additional papers and briefs, granted.

Motion to compel respondent to pay the printing expenses of the appeal denied.


text:
    David Falk et al., Respondents, v. Meyer F. Goodman, Appellant.
    Submitted April 13, 1959;
    decided April 16, 1959.
   Motion for an order dispensing with the printing of certain exhibits on the appeal herein granted to the extent that photostatic copies of the exhibits may be included in the record.


text:
    In the Matter of the Commission of Investigation of the State of New York, Respondent, against Frank Joseph Valenti, Rosario Mancuso, Joseph Riccobono, Paul Castellano and Michele Miranda, Appellants.
    Submitted April 13, 1959;
    decided April 16, 1959.
   Motion by appellant Mancuso to amend the remittitur granted. Return of the remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein on behalf of appellant Mancuso there were presented and necessarily passed upon the following questions, viz.: (1) Whether the procedure whereby appellant Mancuso was committed deprived him of his right to a fair hearing and of a reasonable opportunity to prepare a defense which he claimed was tantamount to a deprivation of his right to counsel, as guaranteed by Amendments IV, V, VI, VII and XIV to the United States Constitution; (2) whether the law creating the Commission of Investigation is unconstitutional so as to grant ill-defined and omnipotent powers to the Commission; (3) whether the immunity granted appellant Mancuso was defective so as to deprive him of his rights under the Fifth Amendment to the United States Constitution; and (4) whether appellant Mancuso was deprived of his liberty for an indefinite time in violation of the Eighth Amendment to the United States Constitution. This court held that the rights and privileges of this appellant under the United States Constitution were not infringed or violated. [See 5 N Y 2d 1026.]


text:
    A. Elaine Rose et al., Appellants, v. Benjamin Brenner et al., Respondents.
    Submitted April 6, 1959;
    decided April 16, 1959.
   Motion to have the appeal heard upon the record before the Appellate Division denied with leave to renew upon a proper showing of facts evidencing hardship.


text:
    Ruth A. Tuttle, Appellant, v. W. T. Grant Company, Respondent.
    Argued February 27, 1959;
    decided April 17, 1959.

      Thomas Croucher for appellant.

      W. Clyde O’Brien and Robert 8. Burnham for respondent.
   Judgment reversed and new trial granted, with costs to abide the event, upon the ground that there are triable issues of fact presented. No opinion.

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


text:
    Yonkers Raceway, Inc., Respondent, v. National Union Fire Insurance Company of Pittsburgh, Pa., et al., Appellants.
    Argued February 25, 1959;
    decided April 17, 1959.

      David A. Ticktin for appellants.

      John G. Marbach and Louis Haimoff for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Judges Desmond, Dye, Fuld and Burke. Judges Froessel and Van Voorhis dissent and vote to reverse upon the dissenting opinion of Nolan, P. J., in the Appellate Division. Taking no part: Chief Judge Conway.


text:
    Esther Abady, Individually and as Administratrix of the Estate of Raymond Abady, Deceased, Appellant, v. Pennsylvania Railroad Company, Respondent.
    Argued March 2, 1959;
    decided April 17, 1959.

      A. Harold Frost, Frederick Mellor, Charles M. Mattingly, Jr., and Thomas P. Dwyer for appellant.

      Joseph P. Allen and Thomas V. McMahon for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Judges Desmond, Dye, Fuld and Burke. Chief Judge Conway and Judges Froessel and Van Voorhis dissent and vote to reverse upon the ground that the circumstantial evidence created a question of fact to be submitted to the jury.


text:
    Lena Thibault, as Committee of the Person and Property of Loretta Slater, an Incompetent, as Administratrix of the Estate of Bernard Slater, Deceased, Appellant, v. City of New York, Respondent, et al., Defendants. City of New York, Third-Party Plaintiff-Appellant, v. Broadway Maintenance Corporation et al., Third-Party Defendants-Respondents.
    Argued March 4, 1959;
    decided April 17, 1959.

      Benjamin H. Siff, John S. Bennett, Jr., Joseph Rothbard and Leo Rothbard for appellant.

      Charles JET. Tenney, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for City of New York, defendant-respondent and third-party plaintiff-appellant.

      William F. McNulty for third-party defendants-respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Costello, Appellant.
    Argued March 4, 1959;
    decided April 17, 1959.

      Osmond K. Fraenkel, Morris Shilensky and Edward Bennett Williams for appellant.

      Frank 8. Hogan, District Attorney (Charles W. Manning and Richard C. Denser of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Nelson Cassell, Appellant.
    Argued January 23, 1959;
    decided April 17, 1959.

      Herbert S. Siegal for appellant.

      Edward 8. Silver, District Attorney (William 1. Siegel of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Francis E. Lareau, Respondent, v. Order of United Commercial Travelers of America, Appellant.
    Argued January 21, 1959;
    decided April 17, 1959.

      Herbert A. Steinke, Jr., for appellant.

      Harvey M. Lifset and Elias Moubar for respondent.
   Order affirmed and judgment absolute directed against appellant on the stipulation, with costs in all courts. No opinion. (Burr v. Commercial Travelers Mut. Acc. Assn., 295 N. Y. 294, 301-303; McGrail v. Equitable Life Assur. Soc., 292 N. Y. 419, 424-425; Mansbacher v. Prudential Ins. Co., 273 N. Y. 140, 144; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81, 84-85; Lewis v. Ocean Acc. & Guar. Corp., 224 N. Y. 18, 20-21.)

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld and Froessel. Judges Van Voorhis and Burke dissent and vote to reverse and dismiss the complaint on the authority of Wilcox v. Mutual Life Ins. Co. (265 N. Y. 665).


author: Bubke, J. (dissenting).

text:
    Mary Sheridan, as Administratrix of the Estate of Hugh W. Sheridan, Deceased, Appellant, v. City of New York, Defendant, and Lester T. Doyle, as Trustee of the Surface Transportation Corporation of New York, Respondent.
    Argued February 24, 1959;
    decided April 17, 1959.

      Paul O’Dwyer, Anthony Saceo and Howard N. Meyer for appellant.

      Stuart Riedel, Qoodwyn Kuyh and Addison B. Scoville for respondent.
   Judgment affirmed, without costs.

Concur: Judges Desmond, Dye, Fuld, Fboessel and Van Voobhis. Judge Bubke dissents in the following opinion in which Chief Judge C'onway concurs.

Bubke, J. (dissenting).

Bast Tremont Avenue at West Farms Square in the Borough of The Bronx has two pedestrian islands located in the roadway. These islands are utilized solely as bus stops where passengers may board and alight from buses owned by the defendant Surface Transportation Corp. The roadway between these islands is used exclusively by the defendant for its buses. All other traffic, including municipal buses, is prohibited from using this area.

On the night of June 26, 1953 plaintiff’s intestate was waiting at the bus stop for the eastbound Morris Park Avenue bus. The bus arrived, and stopped at its designated place to receive passengers. The intestate proceeded towards the entrance of the vehicle, when the door suddenly closed. Intestate began to knock on the door. His foot became caught in a hole in the pavement immediately opposite the entrance to the bus and, as the bus moved away, intestate lost his balance and fell under the vehicle. The rear wheels of the bus passed over his body, inflicting upon him serious injuries, which subsequently resulted in his death.

It appeared that the defect in the pavement was present for several months. The jury returned a verdict for the plaintiff. The Appellate Division reversed on the law and the facts and dismissed the complaint.

We need not elaborate on the argument that, under various contracts and agreements, defendant was obligated to maintain and repair the bus stop area. It is undisputed that Surface Transportation leased the route franchise from the Third Avenue Transit Corporation, successor to the Third Avenue Railway Corporation. In 1940 Third Avenue agreed to maintain the existing pavement in the railroad area in repair until the tracks were removed by the City of New York. The agreement also provided that the rights, powers, conditions, provisions, requirements and limitations ” inured to the benefit of the company, its successors and assigns. Hence, upon leasing the franchise to Surface, these obligations to maintain the existing sidewalks in repair devolved upon that company, and the liability of Surface could be predicated on that theory.

However, it is our opinion that the facts presented by the plaintiff were sufficient to establish a prima facie case in common-law negligence.

It has long been established that a railroad is obliged to accommodate all persons presenting themselves on the platform, before the signal to depart was given. (Hickenbottom v. Delaware, Lackawanna & Western R. R. Co., 122 N. Y. 91; Paulitsch v. New York Cent. & H. R. R. R. Co., 102 N. Y. 280; Dobiecki v. Sharp, 88 N. Y. 203, 208; Brassell v. New York Cent. & H. R. R. R. Co., 84 N. Y. 241; Egg v. Rochester Ry. Co., 115 App. Div. 804.) It is equally well settled that it is the duty of the agent of a street surface transportation corporation to give persons intending to become passengers on a street car a reasonable opportunity to board the vehicle. (Masterson v. Crosstown St. Ry. Co., 201 N. Y. 499, 501.) Thus, when passengers are boarding or alighting from such vehicles at regularly established stops, it is negligence on the part of the agent suddenly to put the vehicle in motion, without giving a signal. (Keating v. New York Cent. & H. R. R. R. Co., 49 N. Y. 673.)

Where a passenger is injured in attempting to board a car which has slowed down, it is incumbent upon the prospective passenger to demonstrate that the motorman actually saw him, and responded to his signal but went off without allowing a reasonable time to permit him to get safely on the car. (Clinton v. Brooklyn Heights R. R. Co., 91 App. Div. 374; Fremont v. Metropolitan St. Ry. Co., 83 App. Div. 414; Bachrach v. Nassau Elec. R. R. Co., 35 App. Div. 633.) On the other hand, where the vehicle is completely stopped for the purpose of taking on passengers, if the agent of the transportation company knew or should have known that a person intended to take passage and did not afford him a reasonable opportunity to board the car in safety, then the transportation company is liable for injuries sustained by the passenger in attempting to board the vehicle. (Johnston v. New York City Ry. Co., 120 App. Div. 456; Sexton v. Metropolitan St. Ry. Co., 40 App. Div. 26; Dean v. Third Ave. R. R. Co., 34 App. Div. 220; Schwartz v. New York City Ry. Co., 55 Misc. 214; Zampelli v. New York City Ry. Co., 55 Misc. 213; Pfeffer v. Buffalo Ry. Co., 4 Misc. 465, affd. 144 N. Y. 636.) Thus, when a street surface car has come to a full standstill, reasonable care in its operation demands that it should not be started without some effort on the part of the conductor or motorman to determine whether this may be done with safety to passengers or prospective passengers. (Bessenger v. Metropolitan St. Ry. Co., 79 App. Div. 32.) Where a bus or train or trolley car stops at the place designated for receiving passengers for that purpose, the transportation company’s agent is chargeable with notice that passengers are getting on (Laverty v. Interurban St. Ry. Co., 49 Misc. 510) and he is bound to look and see if he can proceed to shut the door in safety; if he could not see that the area was clear, he is remiss in starting np. (Lang v. Interborough R. T. Co., 76 Misc. 195; Goldwasser v. Metropolitan St. Ry. Co., 32 Misc. 682.)

Whether a prospective passenger has had a reasonable opportunity to board the vehicle, and whether the company’s agents knew or should have known that a passenger was attempting to board the bus, are questions of fact for the jury. (Johnston v. New York City Ry. Co., 120 App. Div. 456, supra; Bessenger v. Metropolitan St. Ry. Co., 79 App. Div. 32, supra; Sexton v. Metropolitan St. Ry. Co., 40 App. Div. 26, supra; Lang v. Interborough R. T. Co., 76 Misc. 195, supra; Klein v. Interurban St. Ry. Co., 55 Misc. 211; Zambelli v. New York City Ry. Co., 55 Misc. 213, supra; Schoenfeld v. Metropolitan St. Ry. Co., 40 Misc. 201; Pfeffer v. Buffalo Ry. Co., 4 Misc. 465, affd. 144 N. Y. 636, supra.)

Thus the jury could have reasonably found, on the evidence, that decedent was not afforded a reasonable opportunity to board the bus, and that the bus driver was negligent in failing to determine whether all prospective passengers at the bus stop had boarded his vehicle.

Furthermore, it can no longer be doubted that transportation companies operating these vehicles owe a duty to prospective passengers, as well as passengers, to provide a safe place, not only to alight, but to enter the vehicle. (Keener v. Tilton, 283 N. Y. 454; Schwartz v. Brooklyn & Queens Tr. Corp., 264 App. Div. 905; Young v. Jamaica Buses, 262 App. Div. 860; Lewis v. Brooklyn Bus Corp., 252 App. Div. 875; Engel v. Brooklyn & Queens Tr. Corp., 252 App. Div. 792; MacKenzie v. Union Ry. Co., 82 App. Div. 124, affd. 178 N. Y. 638; Speck v. International Ry. Co., 133 App. Div. 802.)

“ The defendant selects its stopping place, invites its passengers to take the car and alight at that particular point, and some assurance of safety must accompany this selection and invitation.” (Speck v. International Ry. Co., 133 App. Div. 802, 805, emphasis supplied.) “ It was the duty of the railroad company to furnish plaintiff with a reasonably safe place from which to board the trolley car.” (Schwartz v. Brooklyn & Queens Tr. Corp., 264 App. Div. 905, supra.) Whether the company has furnished a safe place is a question of fact for the jury. (Young v. Jamaica Buses, 262 App. Div. 860, supra.)

While it certainly is true that McMahon v. Surface Transp. Corp. of New York (272 App. Div. 202, 203) states that there must be some relationship of carrier and passenger before the duty devolves upon the carrier to provide a safe place to alight or board, injury suffered there was the result of a crowd pushing plaintiff on a place which was not a station or platform. The facts here indicate materially different circumstances. These islands were built specifically for the purpose of permitting ingress and egress from defendant’s public transportation vehicles. The bus stopped at a point directly opposite the hole in the sidewalk which had been in disrepair for several months. Under such circumstances, a question of .fact is presented.

To hold in effect that, as a matter of law, plaintiff’s intestate was not a prospective passenger, and thus was not the recipient of the duty owing by the carrier to exercise reasonable care in selecting a safe place to board the bus, would, to my mind, undermine settled law.

Accordingly the judgment of the Appellate Division should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed.


text:
    In the Matter of McGinnis’ Broadway Rest., Inc., Appellant, against Thomas E. Rohan et al., Constituting the State Liquor Authority, Respondents.
    Argued March 3, 1959;
    decided April 17, 1959.

      Hyman N. Glickstein, Daniel W. Meyer and Sol Bogen for appellant.

      Emanuel D. Black and Oscar A. Bloustein for respondents.
   Order affirmed, with costs; no" opinion.

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


text:
    The People of the State of New York ex rel. James Francis Hughes, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent. The People of the State of New York, Respondent.
    Argued February 27, 1959;
    decided April 17, 1959.

      Paul E. Cheeseman for appellant.

      Louis J. Lefkowits, Attorney-General (Paxton Blair and Raymond B. Madden of counsel), for respondents.

      John T. Casey, District Attorney, for the People of the State of New York, respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Arbitration between Uraga Dock Company, Ltd., Appellant, and Mediterranean & Oriental Steamship Corp., Respondent.
    Argued March 4, 1959;
    decided April 17, 1959.

      Wharton Poor, David L. Corbin and B. Glenn Bauer for appellant.

      Joseph M. Callahan, Joseph A. Doran, James E. Freehill and Morton Liftin for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Fuld, Froessel, Van Voorhis and Burke. Judge Dye dissents and votes to reverse upon the ground that the contract never became effective because of the failure to make the initial payment upon the terms and within the time provided. Proceedings to compel arbitration presuppose the existence of a valid and enforcible contract (Matter of Kramer & Uchitelle, 288 N. Y. 467).


text:
    The People of the State of New York, Respondent, v. Edward Eckwerth, Appellant.
    Submitted April 17, 1959;
    decided April 17, 1959.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning Monday, May 18, 1959, fixed for the execution of the death sentence herein. [See 4 N Y 2d 811.]


text:
    The People of the State of New York, Respondent, v. Henry Flakes, Appellant.
    Submitted April 13, 1959;
    decided April 17, 1959.
   Motion for assignment of counsel granted and Messrs. William B. Mahoney and William Sims, of Buffalo, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Leroy Keith, Appellant.
    Submitted April 15, 1959;
    decided April 17, 1959.
   Motion to amend remittitur granted to the extent indicated. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Defendant argued that his rights under the Constitution of the United States, as defined in Jencks v. United States (353 U. S. 657), were violated by the trial court when it denied him the opportunity to inspect any and all statements and memoranda in the file of the District Attorney for the purpose of defendant’s cross-examination of witnesses and, particularly, an alleged dying declaration of the victim of the alleged murder described in the memorandum of this court made in rendering its decision after reargument. This court held that defendant’s constitutional rights had not been violated and that the constitutional question argued was not substantial. [See 5 N Y 2d 1037.]


text:
    The People of the State of New York, Appellant, v. David Mechanic, Respondent.
    Submitted April 13, 1959;
    decided April 17, 1959.
   Motion to amend remittitur granted and remittitur amended to read as follows: Order of the Appellate Division reversed and a new trial ordered for the reasons stated in the dissent in the Appellate Division. [See 5 N Y 2d 991.]


text:
    Hilda M. Cardy, Respondent, v. Vernon G. Cardy, Appellant.
    Submitted May 11, 1959;
    decided May 12, 1959.
   Motion to dismiss appeal or to preclude appellant from filing a brief or, in the further alternative, to have the appeal heard at the present session of the Court of Appeals granted to the extent that the appeal be dismissed unless brought on for argument at the May, 1959 session of the Court of Appeals.


text:
    In the Matter of Saratoga Harness Racing Association, Inc., Respondent, against New York State Labor Relations Board, Appellant.
    Submitted May 11, 1959;
    decided May 12, 1959.
   Motion to have appeal heard at the May, 1959 session of the Court of Appeals granted and appeal set down for argument during the week of May 25,1959.


text:
    The People of the State of New York, Appellant, v. Eddie Massey, Respondent.
    Submitted May 11, 1959;
    decided May 12, 1959.
   Motion for enlargement of time granted and case set down for argument during the May, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Appellant-Respondent, v. Morgan D. Ryan, Respondent-Appellant.
    Submitted April 13, 1959;
    decided May 12, 1959.

      Bernard Tompkins, Leonard E. Beisman, Joseph F. Soviero, Jr., B. Baleigh D’Adamo and Bobert Orseek for motion.

      N. Le Van Haver opposed.
   Motion denied with leave to renew upon the argument.


text:
    The People of the State of New York, Appellant, v. Ernest A. Steuding, Defendant, and Morgan D. Ryan, Respondent. The People of the State of New York, Appellant-Respondent, v. Morgan D. Ryan, Respondent-Appellant.
    Submitted May 11, 1959;
    decided May 12, 1959.
   Motion to have appeals heard at the May, 1959 session of the Court of Appeals granted and appeals set down for argument during the week of May 25, 1959.


text:
    The People of the State of New York ex rel. Costenze P. Valenti, on the Petition of Gilbert S. Rosenthal, Appellant, against John J. McCloskey, as Sheriff of the City of New York et al., Respondents.
    Argued May 12, 1959;
    decided May 13, 1959.
   Motion for the fixation of bail denied and case set down for argument during the week of May 25, 1959.


text:
    The People of the State of New York ex rel. Frank J. Valenti, on the Petition of Gilbert S. Rosenthal, Respondent, against John J. McCloskey, as Sheriff of the City of New York, et al., Appellants.
    Argued May 12, 1959;
    decided May 13, 1959.

      Eliot H. Lumbard for motion.

      Gilbert S. Rosenthal opposed.
   Motion for a stay, under the circumstances here presented, granted on condition that the case be brought on for argument during the week of May 25, 1959; that relator Frank J. Valenti be given the opportunity, pending the hearing and determination of the appeal, to be released on a surety company bail bond in the amount of $15,000 and the Supreme Court, New York County, is directed to release said relator on bail upon the giving of a proper surety company bail bond, and that the case be set down for argument during the week of May 25,1959.


text:
    In the Matter of Ralph W. Kerbs, on Behalf of Himself and Other Tenants in Premises 308 East 79th Street, New York, New York, Appellant, against Robert C. Weaver, as State Rent Administrator, Respondent, and Sitek Realty Corp., Intervenor-Respondent.
    Argued April 16, 1959;
    decided May 14, 1959.

      William L. Messing for appellant.

      Harold Zucher and Nathan Heller for State Bent Administrator, respondent.

      Robert S. Fougner for intervenor-respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Irving Rothman, Also Known as Victor Rothschild, Appellant.
    Argued April 14, 1959;
    decided May 14, 1959.

      David T. Berman and Leon J. Kesner for appellant.

      Edward 8. Silver, District Attorney (William I. Siegel of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. John Branton, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent. The People of the State of New York, Respondent.
    Argued April 17, 1959;
    decided May 14, 1959.

      Donald L. Brush for appellant.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair and Joseph J. Bose of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Bernard Rohrlich, Appellant.
    Argued April 7, 1959;
    decided May 14, 1959.

      David M. Markowitz for appellant.

      Edward 8. Silver, District Attorney (William I. Siegal and Aaron Nussbaum of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Mark Luce, Appellant, v. Laura Hartman, Respondent.
    Argued January 16, 1959;
    decided May 14, 1959.

      David M. Frans for appellant.

      Joseph Brownstein for respondent.
   Judgment of the Appellate Division reversed and that of Trial Term reinstated, with costs in this court and in the Appellate Division, upon the ground that facts were submitted as to negligence and proximate cause justifying submission of the case to the jury. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Fuld and Feoessel. Judges Dye, Van Voobhis and Btjbke dissent and vote to affirm.


text:
    The People of the State of New York, Respondent, v. Willard H. Phillips, Appellant.
    Argued March 12, 1959;
    decided May 14, 1959.

      Henry W. Schober and Frank A. Frits, Jr., for appellant.

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

Concur: Chief Judge Conway and Judges Desmond, Dye, Field, Feoessel, Van Voobhis and Btjbke.


text:
    John Weil Plumbing Corp., Respondent, v. Cross Properties, Inc., et al., Appellants. John Weil Plumbing Corp., Respondent, v. 200 East End Avenue Corp., Appellant.
    Argued April 6, 1959;
    decided May 14, 1959.

      Edwin Efros and Albert Foreman for appellants.

      Murray Levine and Alvin Goldstein for respondent.
   In each action: Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

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


text:
    Department of Mental Hygiene of the State of California, Appellant, v. Samuel Renel et al., Respondents.
    Argued April 10, 1959;
    decided May 14, 1959.

      Norman Moloshoh and Roger W. Wilkins for appellant.

      Benedict A. Leerburger and Lee Basen for respondents.

      Michael F. Markel and Ann 8. Petluck for American Federation of International Institutes, Inc., et al., amici curios, in support of respondents’ position.
   Judgment affirmed, with costs; no opinion.

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


text:
    David Smith, Respondent, v. Beatrice Rothman, Defendant, and Aaron Eichler, Appellant.
    Submitted April 8, 1959;
    decided May 14, 1959.

      Louis N. Forman and Michael M. Platsman for appellant.

      Maco Berg for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of Saul Wolf, on Behalf of Himself and All Other Persons Similarly Situated, Appellant, against Paul D. Appleby, as Director of the Budget of the State of New York, Respondent.
    Argued February 24, 1959;
    decided May 14, 1959.

      Jacob Leiman for appellant.

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

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


text:
    In the Matter of the First Intermediate Accounting of Polly B. Howe et al., as Successor Trustees of the Trust Created by William D. Howe, Respondents. Cynthia H. Armour et al., Appellants; Polly B. Howe, Individually, et al., Respondents.
    Argued March 3, 1959;
    decided May 14, 1959.

      Sol A. Rosenblatt and Charles Roden for Cynthia H. Armour, appellant.

      J. Franklin Van Deren and George M. Vetter, Jr., for Priscilla H. Lawrence, appellant.

      Robert L. Clare, Jr., George W. Foley and Robert M. Feely for successor trustees, respondents.

      John Sculley, Jr., John G. Jackson and John J. Donahue for Polly B. Howe, individually, respondent.

      Edward G. Bathon, as guardian ad litem for Cynthia B. Miehalis et al., infants, respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the trust. Ho opinion.

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


text:
    Leonard Gershinsky, Appellant, v. State of New York, Respondent.
    (Claim No. 32632.)
    Argued April 6, 1959;
    decided May 14, 1959.

      Ernest L. Garb and Nathan L. Levine for appellant.

      Louis J. Lefhowits, Attorney-General (Jean B. McCoy and Paxton Blair of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Belmont Homes, Inc., Appellant, v. Howard P. Kreutzer et al., Individually and Constituting the Board of Commissioners of the Jericho Water District, in the Town of Oyster Bay, Nassau County, Respondents.
    Submitted March 5, 1959;
    decided May 14, 1959.

      Eugene R. Hurley for appellant.

      Lester H. Washburn, W. Shelby Coates and Le Roy C. Edwards for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rhoda L. P. Acker, Appellant, v. Manhattan Life Insurance Company, Respondent.
    Argued April 7, 1959;
    decided May 14, 1959.

      Mark K. Leeds and Arthur 8. Adler for appellant.

      John J. von der Lieth and Thomas A. Dwyer for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George J. B. Weiss, Appellant.
    Argued April 16, 1959;
    decided May 14, 1959.

      Selig Lenefshy for appellant.

      Edward 8. Silver, District Attorney (William I. Siegel and David Diamond of counsel), for respondent.
   Judgments reversed, the complaint dismissed and the fine remitted upon the ground that the evidence was not sufficient to establish the guilt of defendant beyond a reasonable doubt. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Robert Houghtaling, Appellant.
    Argued April 9, 1959;
    decided May 14, 1959.

      Michael Le Sawyer for appellant.

      David A. Eendler, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Michael J. Chasanoff et al., Appellants, against Alex Silberstein et al., Constituting the Board of Zoning and Appeals of the Village of Hewlett Harbor, Respondents.
    Argued March 2, 1959;
    decided May 14, 1959.

      W. Kenneth Chave for appellants.

      Edward S. Bentley for respondents.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Field, Fbobssbl, Van Voobhis and Bubke.


text:
    Columbia Broadcasting System, Inc., Appellant, v. Patrick A. McDonough, as President of Blueprint, Photostat and Photo Employees Union, Local 24910, AFL-CIO, et al., Respondents.
    Submitted May 13, 1959;
    decided May 14, 1959.
   Motion for a stay and to have the appeal heard at the May, 1959 session of the Court of Appeals granted to the extent that the appeal is set down for argument during the week of May 25,1959.


text:
    George De Veau et al., Individually and as Members of Local 1346 of the International Longshoremen’s Association (Ind.), and on Behalf of All Other Members of Local 1346 of the International Longshoremen’s Association (Ind.), Appellants, v. John M. Braisted, Jr., as District Attorney of Richmond County, Respondent.
    Submitted May 11, 1959;
    decided May 14, 1959.
   Motion to amend remittitur denied upon the ground that the opinion in the Court of Appeals shows that upon the appeal Federal questions were presented and necessarily passed upon. [See 5 N Y 2d 236.]


text:
    Julio Gonzalez, as Administrator of the Estate of Amalio Gonzalez, Deceased, Appellant, v. Mildred P. Van Nostrand, as Administratrix of the Estate of William Van Nostrand, Deceased, Respondent.
    Submitted May 11, 1959;
    decided May 14, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Philip Brown, Esq., of 164 Montague Street, Brooklyn, New York, assigned as counsel to appellant on the appeal herein.


text:
    Grove Hill Realty Company, Appellant, v. Ferncliff Cemetery Association et al., Respondents.
    Submitted April 6, 1959;
    decided May 14, 1959.

      Louis J. Lefkowits, Attorney-General (J. Bruce MacDonald of counsel), for motion.

      Thomas F. Groake opposed.
   Motion denied, with $10 costs.


text:
    In the Matter of Michael J. Clifford et al., Respondents, against Police Commissioner of the City of New York, Appellant.
    Submitted March 9, 1959;
    decided May 14, 1959.

      Charles H. Tenney, Corporation Counsel (Alfred Weinstein of counsel), for motion.

      Murray A. Gordon and Bernard Jacobson opposed.
   Motion for order of reversal denied.


text:
    In the Matter of Antonio Grottano, Appellant, against Stephen P. Kennedy, as Commissioner of the Police Department of the City of New York, Respondent.
    Argued May 11, 1959;
    decided May 14, 1959.

      William Richter for motion.

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


text:
    In the Matter of Peter L. Burde, a Minor Child. Yvonne C. Dowsey, Respondent; Minola C. Smith, Appellant.
    Submitted April 13, 1959;
    decided May 14, 1959.
   Motion for a stay granted upon condition that the appeal be ready for argument during the week of May 25,1959; otherwise, motion denied.


text:
    The People of the State of New York, Respondent, v. John G. Broady, Appellant.
    Submitted May 11, 1959;
    decided May 14, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, namely: Whether subdivision 6 of section 1423 of the New York Penal Law, as interpreted by this court herein, is unconstitutional as offending against the “ supremacy clause ” — article VI, clause 2 — of the Constitution of the United States. [See 5 N Y 2d 500.]


text:
    The People of the State of New York, Respondent, v. Ralph Dawkins and Jackson Turner, Jr., Appellants.
    Submitted May 11, 1959;
    decided May 14, 1959.
   Motion for orders pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning Monday, June 8, 1959, fixed for execution of the death sentence herein. [See 4 N Y 2d 967.]


text:
    Ernest Seaver, Appellant, v. Massachusetts Bonding and Insurance Company of Boston, Massachusetts, Respondent, and Ernest Du Pont, Defendant.
    Submitted May 11, 1959;
    decided May 14, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Philip D. O’Donnell, Esq., of 309 North Main Street, Herkimer, New York, assigned as counsel to appellant on the appeal herein.


text:
    William Shemin, Appellant, v. City of New York, Defendant, and Nicholas Di Menna & Sons, Inc., Respondent.
    Submitted May 11, 1959;
    decided May 14, 1959.
   Motion to have appeal heard upon five copies of the record before the Appellate Division and typewritten additional papers granted.


text:
    Edward J. Skellie, Appellant, v. Delaware and Hudson Railroad Corporation, Respondent.
    Submitted May 11, 1959;
    decided May 14, 1959.

      Alfred D. Kelly for motion.

      Robert A. Harlem opposed.
   Motion granted and appeal dismissed upon the ground that no constitutional question is directly involved (Civ. Prac. Act, § 588, subd. 1, par. [a]; see Civ. Prac. Act, § 589, subd. 3, par. [b]).


text:
    Albert C. Eidelberg, Appellant, v. Herman Zellermayer et al., Respondents.
    Submitted April 6, 1959;
    decided May 21, 1959.

      Edwin R. Wolff for appellant.

      George Newman and Nathaniel F. Silverstein for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sidney Hammer et al., as Executors of Max Hammer, Deceased, et al., Appellants, v. John N. Rosen, Respondent.
    Submitted May 11, 1959;
    decided May 21, 1959.
   Motion to have appeal heard upon 10 copies of the record before the Appellate Division together with the required number of printed additional papers granted.


text:
    Max Kaufman, Appellant, et al., Plaintiffs, v. Bette Zash, Individually and as Executrix of Rose Volin, Deceased, Respondent. Bette Zash, Respondent, v. Max Kaufman, Appellant.
    Submitted May 18, 1959;
    decided May 21, 1959.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division together with the required number of printed additional papers granted.


text:
    Anna Lakowitz et al., Appellants, v. Marlin Gardens, Inc., Respondent.
    Submitted May 11, 1959;
    decided May 21, 1959.

      Harold Baer, Jr., and Irving Segal for motion.

      Irving Hornada and David A. Goldner opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Frederick A. Nicholson et al., Appellants, v. 300 Broadway Realty Corporation, Respondent.
    Submitted May 11, 1959;
    decided May 21, 1959.

      Arthur J. Harvey for motion.

      John H. Gogan opposed.
   Motion denied with leave to renew upon the argument.


text:
    The People of the State of New York, Appellant, v. Margaret B. Alexander, Respondent. The People of the State of New York, Appellant, v. Margaret M. Alexander, Respondent.
    Submitted May 18, 1959;
    decided May 21, 1959.
   Motion for enlargement of time granted and cases set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. Kurt Klein, Respondent.
    Submitted May 18, 1959;
    decided May 21, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Pablo Vargas, Appellant.
    Submitted May 18, 1959;
    decided May 21, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York ex rel. Everett Rheim, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent.
    Submitted May 11, 1959;
    decided May 21, 1959.

      Everett Rheim, in person, for application.
    No one opposed.
   Application for leave to appeal, etc., dismissed upon the ground that the order sought to be appealed from does not finally determine the ■ proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Charles J. Wilkinson, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent.
    Submitted May 11, 1959;
    decided May 21, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and John I. O’Day, Esq., of Buffalo, New York, assigned as counsel to relator on the appeal herein.


text:
    George R. Baldwin, Sr., Individually and as a Member of the Board of Supervisors of Erie County, Respondent-Appellant, v. City of Buffalo, Appellant-Respondent, et al., Defendants. In the Matter of Frank J. Grimm, Individually and as District Councilman of the City of Buffalo, Respondent-Appellant, against City of Buffalo et al., Appellants-Respondents, et al., Respondents.
    Submitted May 21, 1959;
    decided May 21, 1959.
   Motion to have appeals heard at the present session of the Court of Appeals granted and appeals set down for argument Friday morning, May 29, 1959.


text:
    The People of the State of New York, Respondent, v. Ivory Mason, Appellant.
    Submitted May 18, 1959;
    decided May 21, 1959.
   Application for assignment of counsel granted and Messrs. Edward H. Levine of 120 Broadway, New York City, and Albert Felix of 29 Broadway, New York City, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Thomas G. Daniel, Appellant.
    Argued April 13, 1959;
    decided May 28, 1959.

      Henry W. Schober for appellant.

      Frank 8. Hogan, District Attorney (Lawrence K. Feitell, Richard G. Denser and Charles W. Manning of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Helen McDermott, an Infant, by Michael McDermott, Her Guardian ad Litem, et al., Respondents, v. City of New York, Appellant, et al., Defendants. City of New York, Third-Party Plaintiff, v. Detlef Kuhl et al., Third-Party Defendants.
    Argued April 9, 1959;
    decided May 28, 1959.

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

      Benjamin E. Siff and Samuel Z. Sorhin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Walter Stanley Marshall, Appellant.
    Argued April 7, 1959;
    decided May 28, 1959.

      Raymond J. De Silva, Jr., for appellant.

      Harold F. Simons, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    Prudential Westchester Corp., Appellant, v. Matilde Tomasino, Respondent.
    Argued March 11, 1959;
    decided May 28, 1959.

      Bruno Schachner, William Gold and Norman M. SheresTty for appellant.

      Morris Karnes and Alfred F. Sulla, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Froessel and Burke. Judges Fuld and Van Voorhis dissent and vote to reverse the judgment and to grant a new trial upon the dissenting opinion in the Appellate Division.