text:
    In the Matter of Louis I. Nash, Appellant, against Gay Apparel Corporation et al., Respondents. Louis I. Nash, Respondent, v. Gay Apparel Corporation,Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion for an order setting the appeals down for argument during the week of June 6, 1960 granted. Appellant’s brief to be served and filed not later than May 23,1960; respondents’ brief to be served not later than June 2, 1960.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Claim of Dorothy Santacroce, Appellant, against 40 W. 20th Street, Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion to have the appeal heard upon the available copies of the record before the Appellate Division granted.


text:
    In the Matter of Lawrence C. Suttle, Appellant, against Stephen P. Kennedy, as Police Commissioner of the City of New York, et al., Respondents.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 10 days, appellant serves and files an undertaking on appeal and pays $10' costs and, within 20 days, files the return on appeal, in which events motion denied.


text:
    In the Matter of Twentieth Century-Fox Film Corporation, Appellant, against Lawrence E. Gerosa, as Comptroller of the City of New York, Respondent.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion for an order requiring the inclusion of two Referees’ reports in the record on appeal denied with leave to renew upon the argument. Respondent is directed to produce these reports upon the argument.


text:
    The People of the State of New York, Respondent, v. Robert Blue, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.

      John M. Braisted, Jr., District Attorney (Thomas R. Sullivan of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed upon the ground that no appeal lies directly to this court from the County Court.


text:
    The People of the State of New York, Respondent, v. Ralph Freccia, Jr., Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion for enlargement of time granted.

Motion to have the appeal heard upon the original record granted..


text:
    The People of the State of New York, Respondent, v. John A. Britting and Albert G. Glass, Appellants.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion by appellant Glass to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Whether the denial of the motions of defendant Glass made during trial for a mistrial and a severance upon the ground that he was then unable to testify in his own defense because of his physical condition violated his rights to due process of law and the equal protection of the laws under the Fourteenth Amendment of the Constitution of the United States. This court held that the rights of defendant Glass under the Fourteenth Amendment of the Constitution of the United States had not been violated or denied. [See 8 N Y 2d 771.]


text:
    The People of the State of New York, Respondent, v. Charles Glinton, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, namely, whether the rights of defendant under the Fourteenth Amendment were violated by the admission in evidence of statements made by defendant while he was being lawfully detained as a material witness. The Court of Appeals held that the statements were properly received in evidence and that defendant’s constitutional rights were not violated. [See 8 N Y 2d 742.]


text:
    The People of the State of New York, Respondent, v. Wesley Johnson, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.
   'Motion to have the appeal heard upon the original record and typewritten briefs and for assignment of counsel granted and Anthony F. Marra, Esq., of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Willard H. Phillips, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning June 20, 1960 fixed for execution of the death sentence. [See 6 N Y 2d 788.]


text:
    The People of the State of New York, Respondent, v. Charles Woodson, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion to have the appeal heard upon the original record and typewritten briefs and for assignment of counsel granted and Anthony F. Marra, Esq., of 100- Centre Street, New York City, assigned as counsel to appellant on the appeal herein.


text:
    Ben Rubin, Doing Business as Island Factors Company, Respondent, v. Freeman Electric Construction Co., Inc., Defendant, and Maurice Freeman, Appellant.
    Submitted May 16, 1960;
    decided May 19, 1960.
   Motion to withdraw the appeal herein granted, without costs.


text:
    Arnold Schildhaus, Appellant, v. Bernard Gilroy, as Commissioner of the Department of Buildings of the City of New York, Respondent.
    Argued April 27, 1960;
    decided May 19, 1960.

      Arnold Schildhaus, in person, and Harry H. Lipsig for Arnold Schildhaus, appellant.

      Charles H. Tenney, Corporation Counsel (Irving Genn and Seymour B. Quel of counsel), for respondent.
   Appeal dismissed, without costs, upon the ground that the appeal presents questions other than the constitutionality of a statute (Civ. Prac. Act, § 588, subd. 4).


text:
    Corinne C. Waterman, Appellant, v. Henry Kaufman et al., Respondents, et al., Defendants. Corinne C. Waterman, Appellant, v. Henry Kaufman et al., Respondents, et al., Defendants.
    Submitted May 16, 1960;
    decided May 19, 1960.

      Abraham J. Yasgour for motion.
    No one opposed.
   Motion, in each action, 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:
    Oilcakes and Oilseeds Trading Co., Inc., Respondent, v. Sinason-Teicher Inter American Grain Corp., Appellant.
    Argued April 28, 1960;
    decided May 26, 1960.

      Lester Lyons and Milton S. Teicher for appellant.

      Thomas L. Rohrer and Allan A. Baillie for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of New York Automatic Canteen Corp., Appellant, against Lazarus Joseph, as Comptroller of the City of New York, Respondent.
    Argued April 27, 1960;
    decided May 26, 1960.

      John F. Costelloe, James K. Crimmins, George A. Weiss and Richard W. Collins for appellant.

      Charles H. Tenney, Corporation Counsel (Morris L. Heath, Stanley Buchsbaum and John J. Lyden of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Bankers Trust Company, as Trustee under a Trust Made by Charles H. Pratt, Respondent. Helen A. Pratt et al., Appellants; Children’s Home Society of Florida et al., Respondents.
    Submitted April 26, 1960;
    decided May 26, 1960.

      Mary R. Cowell and Eugene F. Scoles for appellants.

      Leland J. Markley for respondent charities.

      Kelley, Drye, Newhall & Maginnes for Children’s Home Society of Florida, respondent.

      Thomas C. Chamberlain for New York Infirmary, respondent.

      George Gray Zabriskie for Seamen’s Church Institute of New York, respondent.

      Root, Barrett, Cohen, Knapp & Smith for Tuskegee Institute, respondent.

      Putney, Twombly, Hall & Skidmore for Berkshire Industrial Farm, respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the principal of the trust estate; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Hulan E. Jack, Appellant.
    Argued May 16, 1960;
    decided May 26, 1960.

      John R. Davison, Carson De Witt Baker and John R. Sanders for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Ralph Downs, Appellant.
    Argued April 18, 1960;
    decided May 26, 1960.

      Otto F. Fusco, Murray Gans and Andrew Tyler for appellant.

      Isidore Dollinger, District Attorney (Irving Anolik of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster. Chief Judge Desmond dissents and votes to reverse and to order a new trial (People v. Di Biasi, 7 N Y 2d 544).


text:
    In the Matter of J. P. Morgan & Co., Incorporated, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued April 26, 1960;
    decided May 26, 1960.

      George A. Brownell, Spencer Byard and Stephen W. Hanley for appellant.

      Charles H. Tenney, Corporation Counsel (James J. McGowan and Morris Handel of counsel), for respondent.
   Order affirmed, without costs. In our view the evidence in this record supports the determination of the Appellate Division. In reaching this conclusion we do not pass up the issue of whether any weight should he given to the ratio of assessed valuations to the sale prices of other properties. The evidence relative thereto was offered by both parties and received without objection, but neither Special Term nor the Appellate Division gave any indication of its consideration. No opinion.

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


text:
    Bertha Carlson, Appellant, v. Costan Corp. et al., Respondents. Costan Corp., Third-Party Plaintiff-Appellant, v. Barton, Inc., Third-Party Defendant-Respondent.
    Submitted May 16, 1960;
    decided May 26, 1960.
   Motion to dismiss appeal denied upon the condition that plaintiff-appellant perfect her appeal within the time fixed in the stipulation between the parties.


text:
    In the Matter of George Arents et al., Appellants, against Theodore F. Squires et al., Constituting the Board of Appeals of the Incorporated Village of Southampton, Long Island, et al., Respondents.
    Submitted May 23, 1960;
    decided May 26, 1960.
   Motion to amend remittitur so as to clarify the decision denied, with $10 costs and necessary printing disbursements. [See 7 N Y 2d 1009.]


text:
    In the Matter of Garrison King, Appellant, against Board of Regents of the State of New York et al., Respondents.
    Submitted May 16, 1960;
    decided May 26, 1960.

      Charles A. Brind for motion.

      Morris M. Oppenhein opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the appeal was not timely taken (Civ. Prac. Act, § 592, subd. 1).


text:
    In the Matter of Irwin Slater (Admitted to the Bar as Irving Slutzkin), an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Submitted April 18, 1960;
    decided May 26, 1960.
   Motion to dismiss appeal withdrawn.


text:
    The People of the State of New York, Respondent, v. Jacob Berger, Appellant.
    Submitted May 23, 1960;
    decided May 26, 1960.
   Motion for enlargement of time granted.


text:
    The People of the State of New York, Respondent, v. Anne Chopak, Appellant.
    Submitted May 23, 1960;
    decided May 26, 1960.
   Motion to dispense with the printing of the record on appeal herein granted.


text:
    The People of the State of New York, Respondent, v. Namro Holding Corp., Appellant.
    Submitted May 23, 1960;
    decided May 26, 1960.
   Motion for enlargement of time granted.


text:
    In the Matter of the State of Washington, Respondent, against Robert E. Harvey, Appellant.
    Argued April 27, 1960;
    decided May 26, 1960.

      Peter Campbell Brown, Clayton D. Hollinger, Edwin A. Lewis and Ralph L. Ellis for appellant.

      Frank S. Hogan, District Attorney (Jeremiah B. McKenna and Peter R. Rosenblatt of counsel), for respondent.
   Appeals dismissed, without costs, and the matter remitted to the Appellate Division with directions to dismiss the appeal taken to that court (Matter of Ryan [Hogan], 306 N. Y. 11, 18).


text:
    The People of the State of New York, Respondent, v. Julius Fuller, Appellant.
    Argued April 26, I960;
    decided May 27, 1960.

      Samuel Segal and Philip Segal for appellant.

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

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


text:
    In the Matter of Sipal Realty Corporation, Appellant. Martin L. Dankers et al., Respondents.
    Submitted May 16, 1960;
    decided May 27, 1960.

      William L. Messing for motion.

      Barney B. Fensterstock opposed.
   Motion denied.


text:
    The People of the State of New York, Respondent, v. Leonard Wolochen, Appellant.
    Submitted May 23, 1960;
    decided May 27, 1960.
   Motion to have the appeal heard upon the original record and for assignment of counsel granted and John J. Phelan, Esq., 686 Ellieott Sg. Building, Buffalo, New York, assigned as counsel to appellant on the appeal herein. The case is set down for argument during the first Fall session of the Court of Appeals.


text:
    Harry Levy, Doing Business as Harry Levy Realty Co., Appellant, v. Robert Hayman et al., Respondents.
    Submitted May 23, 1960;
    decided May 27, 1960.

      Walter B. Solinger, II, for appellant.

      Sidney Feldshuh for respondents.
   Appeal dismissed, with costs, upon the ground that the judgment was rendered in an action originally commenced in a court other than the Supreme Court, a County Court, a Surrogate’s Court, or the Court of Claims (Civ. Prac. Act, § 588, subd. 1, par. [b]; N. Y. Const., art. VI, § 7, subd. [7]; cf. Civ. Prac. Act. § 589, subd. 1, par. [b]).


text:
    In the Matter of Curtis Roosevelt, Respondent, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Appellants. In the Matter of Curtis Roosevelt et al., Respondents, against James M. Power et al., Constituting the Board of Elections of the City of New York, and Joseph Rosenberg, Appellants.
    Argued June 2, 1960;
    decided June 2, 1960.

      Abraham J, Gellinoff, Nelson Kantor and Max D. Blossner for Joseph Rosenberg, appellant.

      Charles H. Tenney, Corporation Counsel (Saul Moshoff and Arthur H. Geisler of counsel), for James M. Power and others, appellants.

      Leonard S. Halpert for respondent.
   Orders of the Appellate Division reversed and those of Special Term reinstated, without costs, for the reasons stated in the opinion at Special Term. No opinion.

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

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


text:
    In the Matter of Joseph Licitra, Appellant, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents. In the Matter of Joseph J. Kunzeman, Appellant, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued June 2, 1960;
    decided June 2, 1960.

      I. Robert Bassin for Joseph Licitra, appellant.

      Alan Beldock for Joseph J. Kunzeman, appellant.

      Leo Brown and Isidore Levine for respondents.
   In each proceeding: Order affirmed, without costs. The Executive Committee was legally constituted pursuant to the valid Rules of the Liberal Party of Queens County. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Burke, Foster and Bergan . Judge Van Voorhis dissents and votes to reverse and to grant the petition upon the ground that it required a legally constituted Executive Committee to grant the party authorization for indorsement of candidates of another political party as required by subdivision 4 of section 137 of the Election Law.

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


text:
    In the Matter of Sidney Shiffman et al., Appellants, against James M. Power et al., Constituting the Board of Elections of the City of New York, and Harry M. Mortimer, Respondents. In the Matter of Sidney Shiffman et al., Appellants, against James M. Power et al., Constituting the Board of Elections of the City of New York, and Charles P. De Martino, Respondents.
    Argued June 2, 1960;
    decided June 2, 1960.

      Marie M. Lambert for appellants.

      Harold L. Fisher and Seth Rubenstein for Harry M. Mortimer and Charles P. De Martino, respondents.
   In each proceeding: Order affirmed, without costs; no opinion.

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

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


text:
    In the Matter of Chester C. Gorski, Respondent, against Thomas J. Griffin et al., Appellants, et al., Respondents.
    Argued June 2, 1960;
    decided June 2, 1960.

      Robert P. Leacy for appellants.

      Francis J. Offermann, Jr., for respondent.
   Order affirmed, without costs; no opinion.

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

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


text:
    In the Matter of John T. Clarkin et al., Appellants, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al, Respondents. (Two Proceedings.)
    Argued June 2,1960;
    decided June 2, 1960.

      George Kent Weldon and Kenneth W. O’Hare for appellants.

      William J. McGinley for respondents.
   Orders affirmed, Avithout costs; no opinion.

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

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


text:
    Virginia M. Oman, an Infant, by Her Guardian ad Litem, William M. Oman, et al., Respondents, v. E. Robison, Inc., Appellant; Franbar Realty Co., Appellant-Respondent, et al., Defendant.
    Argued May 19,1960;
    decided June 9, 1960.

      Mizell Wilson, Jr., for Franbar Realty Co., appellant.

      Bernard Meyerson and Thomas V. Kingham for E. Robison, Inc., appellant.

      Paul A. Crouch and George S. Pickwick for respondents.
   Judgment in favor of plaintiffs against defendant Franbar Realty Co. reversed and the complaint dismissed as to that defendant, without costs;.otherwise judgment affirmed, without costs, upon the ground that the location of the toys so near the door opening could be held by the jury to have created a condition dangerous to children who frequented this shop, and causative of this accidental injury. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Froessel and Burke. Judges Fuld, Van Voorhis and Foster dissent as to the affirmance of the judgment against defendant E. Robison, Inc., and vote to reverse and to dismiss the complaint as to that defendant as well, upon the ground that the evidence fails to establish that Robison was negligent either in maintaining the door or in creating a dangerous condition and upon the further ground that, in any event, there was no evidence of causal connection between the alleged negligence of this defendant and the infant plaintiff’s injury.


text:
    In the Matter of the Claim of Sally Herman, on Behalf of Herself and Minor Son, Appellant, against Greenpoint Barrel & Drum Reconditioning Company et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued May 17, 1960;
    decided June 9, 1960.

      Louis Mendelson and William Doblin for appellant.

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

      No appearance for Workmen’s Compensation Board, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Harry Zanicchi et al., Appellants, v. Harry Meyerowitz et al., Respondents.
    Argued May 23, 1960;
    decided June 9, 1960.

      Benjamin Weinberger for appellants.

      James T. Whalen and Joseph W. Nunan for Emanuel Landsman, respondent.

      Frederick Behr, Jr., for Harry Meyerowitz, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Eduarda Rivera, Respondent, v. Public National Bank and Trust Company of New York, Appellant.
    Argued May 18, 1960;
    decided June 9, 1960.

      Lillian E. Cuff and George J. Conway for appellant.

      Leonard A. Arye for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel and Burke. Judges Van Voorhis and Foster dissent and vote to reverse and dismiss the complaint upon the ground that defendant was not proved guilty of negligence as a matter of law.


text:
    Karl Hoffman, Appellant, v. Anthony Raconello, Doing Business under the Name of Modern Asphalt Driveways, Respondent, et al., Defendants.
    Submitted May 19, 1960;
    decided June 9, 1960.

      Frank H. Connelly for appellant.

      Robert Hill Nix and Paul A. Crouch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael M. Ben Ami et al., Infants, by Marcia Ben Ami Michel, Their Guardian ad Litem, Appellants, v. Yitshaq Ben Ami, Respondent.
    Argued April 28, 1960;
    decided June 9, 1960.

      Emily Marx for appellants.

      Lazaar Henkin for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Frank R. Williams, Respondent-Appellant, v. State of New York, Appellant-Respondent.
    (Claim No. 34104.)
    Argued May 23, 1960;
    decided June 9, 1960.

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

      Robert W. Hartnett for respondent-appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    Marinette T. Hering, Respondent, v. Arelyn C. Thurston, Appellant.
    Argued May 18, 1960;
    decided June 9, 1960.

      Max Cohen and Carrollton A. Roberts for appellant.

      William L. Clay for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. David Kasen, Appellant.
    Argued May 19, 1960;
    decided June 9, 1960.

      Louis Ginsburg and Jacob W. Friedman for appellant.

      Frank S. Hogan, District Attorney (Peter R. Rosenblatt and Richard G. Denzer of counsel), for respondent.
   Judgment reversed and the complaint dismissed. The People failed to establish the offense of disorderly conduct within the meaning of section 722 of the Penal Law (People v. Perry, 265 N. Y. 362). Motion to dismiss appeal denied. Application for enlargement of time granted. No opinion.

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


text:
    In the Matter of the Claim of Frank F. Puglia, Respondent, against Sing Sing Prison et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workmen’s Compensation Board, Respondent.
    Argued May 23, 1960;
    decided June 9, 1960.

      John M. Cullen for appellant.

      George J. Hayes, Charles G. Tierney and Morris N. Lissauer for Sing Sing Prison (State of New York) and another, respondents.
    No appearance for Frank F. Puglia and another, respondents.
   Order affirmed, with costs to respondents employer and carrier; no opinion.

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


text:
    Public Administrator of the County of New York, as Administrator of the Estate of Ephraim Stumer, Deceased, Respondent, v. Rubin Construction Corporation, Appellant, and Third-Party Plaintiff-Respondent-Appellant. World Steel Products Corp., Third-Party Defendant-Appellant-Respondent.
    Argued May 16, 1960;
    decided June 9, 1960.

      Thomas J. Walsh, John J. Loughran and John J. Klaum for Rubin Construction Corporation, appellant and third-party plaintiff-respondent-appellant.

      Raymond C. Green, Charles G. Tierney, Harry Schechter and Harold Klein for World Steel Products Corp., third-party defendant-appellant-respondent.

      Benjamin M. Cardozo and John S. Chapman, Jr., for respondent.
   Judgment affirmed, with costs to plaintiff against defendant Rubin Construction Corporation; no opinion.

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


text:
    Ethel H. Ward, Respondent, v. City of New Rochelle et al., Appellants.
    Argued May 23, 1960;
    decided June 9, 1960.

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

      William J. Greer and Samuel B. Hickman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Anthony Paqua, Appellant, against Edward M. Fay, as Warden of Green Haven Prison, et al., Respondents.
    Argued May 17, 1960;
    decided June 9, 1960.

      Edward J. Filipowicz for appellant.

      Louis J. Lefhowitz, Attorney-General (Joseph J. Rose of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    John J. Reynolds et al., Respondents, v. Judith Snow et al., as Administratrices of the Estate of Lillian R. Schwamm, Deceased, and of the Estate of Harvey L. Schwamm, Deceased, Appellants, et al., Defendant.
    Argued May 18, 1960;
    decided June 9, 1960.

      Frank A. Fritz, Anthony T. Antinozzi and Frank A. Fritz, Jr., for appellants.

      Ben Herzberg and Alvin H. Schulman for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Martin W. Frankel, Respondent, v. Tremont Norman Motors Corp, et al., Appellants.
    Argued May 17, 1960;
    decided June 9, 1960.

      Kalman I. Nulman and Robert Moers for appellants.

      Bernard E. Epstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Pekao Trading Corporation, Appellant, against George M. Bragalini et al., Constituting the State Tax Commission, Respondents.
    Argued May 16, 1960;
    decided June 9, 1960.

      Arthur C. Fink for appellant.

      Louis J. Lefkowitz, Attorney-General (Jean R. McCoy and Paxton Blair of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Froessel, Burke and Foster. Judges Fuld and Van Voorhis dissent and vote to reverse and to grant the relief demanded by appellant upon the ground that the transactions which have been taxed are indivisibly involved in foreign commerce.


text:
    Marian Rempe, Appellant, v. Allan W. Betts et al., as Temporary Administrators of the Estate of Vincent Astor, Deceased, Doing Business as Hotel St. Regis, Appellants-Respondents, and National House Cleaning Contractors, Inc., Respondent.
    Argued May 19, 1960;
    decided June 9, 1960.

      Richard E. Shandell and Joseph J. Brophy for appellant.

      Patrick E. Gibbons and James O. Denniston for appellants-respondents.

      E. Edan Spencer for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Alfred Gencarelli, Appellant.
    Argued May 18, 1960;
    decided June 9, 1960.

      Edward J. Grogan for appellant.

      Frank S. Hogan, District Attorney (Peter R. Rosenblatt of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Boston and Maine Railroad, Appellant, v. Illinois Central Railroad Company, Respondent.
    Submitted June 6, 1960;
    decided June 9, 1960.

      William T. Griffin and Herbert Burstein for motion.

      Donald L. Wallace and Erie J. Zoll, Jr., opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Anonymous for Admission to Practice as an Attorney.
    Submitted June 6, 1960;
    decided June 9, 1960.
   Motion to have the appeal heard upon the original record and typewritten briefs granted.


text:
    In the Matter of the Association for the Preservation of Freedom of Choice, Inc., Appellant, against Caroline Simon, as Secretary of State, et al., Respondents.
    Submitted May 23, 1960;
    decided June 9, 1960.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair of counsel), for motion.

      Edwin M. Bourke and Alfred Avins opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the appeal presents questions other than the constitutionality of a statute (Civ. Prac. Act, § 588, subd. 4).


text:
    In the Matter of the Association for the Preservation of Freedom of Choice, Inc., Appellant, against J. Irwin Shapiro, as Acting Justice of the Supreme Court, Queens County, Respondent.
    Submitted May 16, 1960;
    decided June 9, 1960.
   Motion for an order of consolidation of the appeals herein denied.

Motion to have the appeal heard upon seven legible typewritten copies of the record and upon mimeographed additional papers and briefs granted.

Motion to have the appeal heard during the week of June 6, 1960 denied.


text:
    In the Matter of the Arbitration between Michael Golodetz et al., Doing Business as M. Golodetz & Company, Respondents, and Timblo Irmaos Limitada, Appellant.
    Submitted June 6, 1960;
    decided June 9, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended to read as follows: Upon the appeal herein there was presented a question under the Constitution of the United States, viz.: Appellant contended that its right to due process of law under the Fourteenth Amendment to the Constitution was denied by the alleged refusal of the arbitrator to grant it an adjournment. The Court of Appeals held that there was no such denial. [See 8 N Y 2d 720.]


text:
    In the Matter of Ellis Johnson et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, against New York City Teachers ’ Retirement Board, Appellant.
    Submitted June 6, 1960;
    decided June 9, 1960.

      Benjamin Mazen and Jules Kolodny for motion.

      Charles H. Tenney, Corporation Counsel (Leo A. Larkin of counsel), opposed.
   Motion denied.


text:
    In the Matter of the Probate of the Will of Robert S. Turton, Deceased. In the Matter of the Estate of Robert S. Turton, Deceased. Government of British Honduras, Appellant; Harold A. Pense et al., Respondents.
    Submitted June 6, 1960;
    decided June 9, 1960.
   Motion for an adjournment of the argument of the appeal granted and case set down for argument during the first Fall session of the Court of Appeals.


text:
    Sidney Meltzer et al., Plaintiffs, v. Jacob S. Grazi, Appellant. William H. McCaffrey, Jr., as Temporary Receiver of Douglaston Estates, Inc., Respondent.
    Submitted June 6, 1960;
    decided June 9, 1960.

      William H. McCaffrey, Jr., in person, for motion.

      Charles Sutton 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:
    Martin G. Miller, an Infant, by His Guardian ad Litem Frank Miller et al., Appellants, v. Frank Hainzl, Doing Business as Tallwood Lodge, Respondent.
    Submitted June 6, 1960;
    decided June 9, 1960. .
   Motion to dismiss appeal withdrawn.


text:
    Mohegan International Corporation, Appellant, v. City of New York et al., Respondents.
    Submitted May 23, 1960;
    decided June 9, 1960.
   Motion to have the appeal heard upon the available copies of the record before the Appellate Division granted.


text:
    The People of the State of New York, Respondent, v. Norman Brabson, Appellant.
    Submitted June 6, 1960;
    decided June 9, 1960.
   Motion for enlargement of time granted and case set down for argument during the first Fall session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Lawrence Robert Lane, Appellant.
    Submitted June 6, 1960;
    decided June 9, 1960.
   Motion to have the appeal heard upon the original record and for enlargement of time granted. Case set down for argument during the first Fall session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Luther Montgomery, Appellant.
    Submitted June 6, 1960;
    decided June 9, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the foHowing: Upon the appeal herein there was presented a question under the Constitution of the United States, viz.: Appellant contended that his right to due process of law under the Fourteenth Amendment to the Constitution was violated. The Court of Appeals held that adequate assistance of counsel was afforded and that, therefore, there was no substance or merit to appellant’s contention. [See 7 N Y 2d 1001.]


text:
    The People of the State of New York ex rel. George Hetenyi, Appellant, against W. Cecil Johnston, as Director of Dannemora State Hospital, Respondent.
    Submitted June 6, 1960;
    decided June 9, 1960.

      Louis J. Lefhowitz, Attorney-General (Paxton Blair of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed upon the ground that no substantial constitutional question is presented.


text:
    Henry C. Polk, as Administrator of the Estate of Henry C. Polk, Jr., Deceased, et al., Appellants, v. New York Central Railroad Company et al., Respondents.
    Submitted June 6, 1960;
    decided June 9, 1960.
   Motion to have the appeal heard upon seven copies of the record before the Appellate Division granted.


text:
    Rose L. Pomerantz, as Administratrix of the Estate of Nathan J. Pomerantz, Deceased, Appellant, v. Henry W. Cave, Respondent. Rose L. Pomerantz, as Administratrix of the Estate of Nathan J. Pomerantz, Deceased, Appellant, v. “ Thomas ” S. Winslow, Respondent.
    Submitted May 16, 1960;
    decided June 9, 1960.

      Julius L. Goldstein for motion.

      John P. Brosnan opposed.
   Motion dismissed upon the ground that the determination is nonfinal within the meaning of the Constitution.


text:
    Corinne C. Waterman, Appellant, v. Henry Kaufman et al., Respondents, and Leo Marks et al., Defendants. Corinne C. Waterman, Appellant, v. Henry Kaufman et al., Respondents, and Doris Byrne et al., Defendants.
    Submitted June 6, 1960;
    decided June 9, 1960.

      Abraham Yasgour and Henry Kaufman for motion.

      Corinne C. Waterman, in person, opposed.
   In each action: 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:
    In the Matter of George P. Halperin et al., Respondents-Appellants, against Joseph J. Caputa, as State Rent Administrator, Appellant-Respondent. 969 Realty Company, IntervenorAppellant-Respondent.
    Argued May 25, 1960;
    decided June 10, 1960.

      Emory Gardiner and Harold Zucker for appellant-respondent.

      Arthur Karger and Robert S. Fougner for intervenorappellant-respondent.

      Lewis M. Isaacs, Jr., Raymond E. Burdick and Murray Schwartz for respondents-appellants.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Burke and Foster. Judge Van Voorhis dissents and votes to reverse and to reinstate the order of Special Term.


text:
    In the Matter of the Claim of Thomas Mlodozeniec, Respondent, against Worthington Corporation, Appellant. Workmen’s Compensation Board, Respondent.
    Argued May 26, 1960;
    decided June 10, 1960.

      Benedict T. Mangano for appellant.

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

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


text:
    In the Matter of the Claim of Marion Badillo, Respondent, against 1215 Grand Concourse Corp. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued May 24, 1960;
    decided June 10, 1960.

      Alexander E. Rosenthal and Irving Segal for appellants.

      Louis J. Lefhowitz, Attorney-General (John J. Quinn, Paxton Blair and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs to respondent board; no opinion.

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


text:
    In the Matter of the Claim of Michael Gallagher, Respondent, against Mason & Hanger Co., Inc., Appellant, and New York State Department of Mental Hygiene et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued May 25, 1960;
    decided June 10, 1960.

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

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

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


text:
    The People of the State of New York ex rel. Max J. Rubin et al., as Trustees of Hotel Windermere Trust, Respondents, against Tax Commission of the State of New York, Appellant.
    Argued May 17, 1960;
    decided June 10, 1960.

      Louis J. Lefkowitz, Attorney-General (Robert W. Bush and Paxton Blair of counsel), for appellant.

      Harold A. Axel and Bernard A. Saslow for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Dun & Bradstreet, Inc., Appellant, against Tax Commission of the City of New York, Respondent.
    Argued May 25, 1960;
    decided June 10, 1960.

      Howard Hilton Spellman, Philip Sheridan McNally, Lawrence Weston Krieger and William Charles Herman for appellant.

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

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


text:
    Hermine Reiss et al., Respondents, v. Jacob Klein et al., Appellants.
    Argued May 24, 1960;
    decided June 10, 1960.

      Patrick E. Gibbons and William Roe for appellants.

      Alfred S. Julien for respondents.
   Judgnient affirmed, with costs; no opinion.

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


text:
    In the Matter of Herbert R. Reif, Appellant. Isador Lubin, as Industrial Commissioner, Respondent.
    Argued May 18, 1960;
    decided June 10, 1960.

      Clarence L. Burton for appellant.

      Louis J. Lefkowitz, Attorney-General (Samuel Stern, Paxton Blair and Harold F. Lee of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld and Burke. Judges Froessel, Van Voorhis and Foster dissent and vote to reverse and to grant the relief demanded upon the ground that operating a home is not a “ trade or business ” and that the Legislature specifically excluded from the unemployment insurance tax ‘ compensation paid in any medium other than cash to an employee for service not in the course of the employer’s trade or business ” (L. 1951, ch. 829; L. 1952, ch. 496). The statute containing this exclusion was enacted later than the general statute, its language is perfectly clear, and, in our opinion, the statutory exclusion controls.


text:
    Rosalie A. Verduce et al., Appellants, v. Board of Higher Education in the City of New York, Respondent, et al., Defendants.
    Argued May 23, 1960;
    decided June 10, 1960.

      Benjamin H. Siff and Lester Lewis Jay for appellants.

      Charles H. Tenney, Corporation Counsel (Alfred Weinstein, Seymour B. Quel and Stanley Katz of counsel), for respondent.
   Judgment reversed and a new trial granted, with costs to abide the event. On the particular facts of this case, and for the reasons stated in the dissenting opinion in the Appellate Division, issues of fact were presented which should have been submitted to a jury. No opinion.

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


text:
    In the Matter of 6 E. 112th Street Corp. et al., Appellants, against State Tax Commission of the State of New York, Respondent.
    Argued May 17, 1960;
    decided June 10, 1960.

      Emil Levin and Harry Merwin for appellants.

      Louis J. Lefkowitz, Attorney-General (Robert W. Bush and Paxton Blair of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Van Voorhis and Foster. Judges Fuld, Froessel and Burke dissent and vote to reverse upon the ground that, by their renting of a few furnished apartments without accompanying services of any kind, petitioners did not thereby engage in any other business nor cease to be “ wholly engaged ’ ’ in the business of real estate and ‘ in holding title to real estate for itself ’ ’, within the meaning of section 182 of the Tax Law and, accordingly, the commission’s reclassification of petitioners is arbitrary and unreasonable.


text:
    In the Matter of Edward W. Morehouse, Appellant, against Joseph H. Murphy et al., Constituting the State Tax Commission, Respondents.
    Submitted June 6, 1960;
    decided June 10, 1960.

      Louis J. Lefkowitz, Attorney-General (Edwin B. Oberwager of counsel), for motion.

      Jerome B. Hellerstein opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that no substantial constitutional question is presented.


text:
    The People of the State of New York, Respondent, v. Jack Meikle, Appellant.
    Submitted June 6, 1960;
    decided June 10, 1960.
   Motion to have the appeal heard upon the original record and typewritten briefs and for assignment of counsel granted and J. Kevin Meneilly, Esq., of 1 West 39th Street, New York City, assigned as counsel to appellant on the appeal herein.


text:
    Carol Smith, Appellant, v. Peter Kelly et al., Respondents.
    Submitted June 7, 1960;
    decided June 10, 1960.

      Thomas Grimes and Louis J. Castellano, Jr., for appellant.

      John D. Kelly and Joseph F. O’Brien for Peter Kelly and others, respondents.

      Henry J. O’Hagan for Arthur Birke and another, respondents.
   Application to withdraw stipulation for judgment absolute granted and appeal dismissed, without costs.


text:
    The People of the State of New York, Appellant-Respondent, v. Wilbur Hill, Respondent-Appellant.
    Argued June 7, 1960;
    decided July 8, 1960.

      John P. Cohalan, Jr., District Attorney (Harold Ashare of counsel), for appellant-respondent.

      Anthony F. Marra and John Carey for respondent-appellant.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Robert Conklin, Appellant.
    Argued May 27, I960;
    decided July 8, 1960.

      Robert D. Schneider for appellant.

      Frank S. Hogan, District Attorney (Peter R. Rosenblatt of counsel), for respondent.
   Order reversed, and matter remitted to the Court of General Sessions with directions to grant the application to vacate the sentence and to resentence defendant without the imposition of the additional sentence under section 1944 of the Penal Law. (See People v. Griffin, 7 N Y 2d 511.) No opinion.

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


author: Chief Judge Desmond (dissenting).

text:
    Anna McCauley, as Executrix of Roderick McCauley, Respondent, v. State of New York, Appellant. Gordon Deshaw, as Administrator of the Estate of Wanda Deshaw, Deceased, Respondent, v. State of New York, Appellant. Henry S. Salamy et al., as Administrators of the Estate of Joseph H. Salamy, Deceased, Respondents, v. State of New York, Appellant.
    (Claim No. 32614.)
    (Claim No. 32615.)
    (Claim No. 32628.)
    Argued May 27, 1960;
    decided July 8, 1960.

      Louis J. Lefkcowitz, Attorney-General (Paxton Blair of counsel), for appellant.

      F. Walter Bliss, Adam B. Palmer, Hayward H. Plumadore and Perrin & Daniels for respondents.
   In each action: Judgment reversed, with costs in this court and in the Appellate Division, and the judgment of the Court of Claims reinstated. On this record, we are satisfied that a preponderance of the credible evidence favors the determination made in the Court of Claims. So viewed, it cannot reasonably be said in light of all the surrounding circumstances, including the weather and road conditions and the driver’s conduct, that the fatal happening was due to any neglect, failure or omission of the State to perform a duty owed.

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

Chief Judge Desmond (dissenting).

In these wrongful death claims against the State, the evidentiary facts here were undisputed, leaving for decision the ultimate or determinative conclusory facts. The Court of Claims dismissed the suits but the Appellate Division, reversing the judgments of dismissal and making new findings, awarded damages to claimants. Thus, as the case comes to us, the question is: does the weight of evidence favor tiie trial court’s decision or that of the Appellate Division?

About 11 o’clock on the evening of March 3, 1954, an automobile driven by Roderick McCauley, whose executrix is one of the claimants here, was going east on Route 3 in St. Lawrence County approaching a bridge which crosses the Raquette River. In the McCauley car were his son and four other people, all teenagers. The McCauley car and several other automobiles and a bus had earlier travelled to Canton, N. Y., carrying students, players and others to a school basketball game, and at the time of the fatal accident the cars were returning to Tupper Lake where all these people lived. The weather was quite cold with intermittent snow squalls, a stiff wind and resulting low visibility. The 24-foot-wide Route 3 had been plowed shortly before this accident over its whole width and on part of the adjoining shoulders. In other words, the snow had been pushed by the plows about 3 feet off the shoulder of the road with the result that a driver could not see where the paved highway ended and the shoulder began. The shoulder on driver McCauley’s southerly or right-hand side as he proceeded east toward the bridge was from 2 to 5 inches lower than the paved highway. The highway surface, because of weather conditions and because of the recent plowing and because it had not been sanded, was partly frozen and quite slippery. Indeed, the McCauley car had slipped off the highway some distance back. When the McCauley car was about 600 feet west of the bridge over the Raquette River, lights were seen coming toward Route 3 from the driver’s left and it was afterwards determined, although it was not so easy to know it at the time, that these lights were of a snowplow moving on an old Route 3 which approaches new Route 3 from the north. McCauley, whose car was proceeding quite slowly at the time apparently because of the lights which he saw coming from his left, directed his car gradually over to his right or toward the snowbank at the edge of the plowed area, so that his right wheels went onto the shoulder. He then drove ahead, with the right wheels on the shoulder, in the same direction he had been moving, that is, easterly and toward the bridge. When he got near the bridge he began to ease the car back off the shoulder onto the paved road, possibly because if he had left the right wheels on the shoulder he would have been heading toward the bridge abutment. As he tried to put his car back onto the paved road, the front wheels responded but the rear end did not swing over. Then the rear end suddenly moved over to the left and the car began its progress np along and across the road, ending np with the front end of the car passing between two posts located on the slope north of Route 3, west of the bridge, and somewhat below the north edge of the highway. The car plunged into the river, resulting in the death by drowning of the three persons whose estates are the claimants in this suit.

The Trial Judge held that there was no emergency requiring McCauley to drive onto the shoulder and that any negligence of the State as to the highway or the shoulders or as to the slope and posts on the northerly side of the road was not the proximate cause of the accident. The court found that the sole cause of the accident was the negligent manner in which McCauley drove his car onto, along and from the shoulder.

On appeal by the claimants to the Appellate Division, that court reversed, on the law and the facts, fixed the damages of all three claimants, and directed judgments accordingly, from which judgments the State appeals to this court as of right. The Appellate Division reversed all inconsistent findings of the Court of Claims and made new findings that McCauley was guilty of no negligence either in going onto the shoulder or in the way he drove onto or from the shoulder, that the difference in elevation between the shoulder and the pavement on the southerly side of Route 3 west of the bridge constituted negligent maintenance by the State, and that the guardrails or posts on the other side of the road were negligently set and maintained by the State and were partly the cause of the disaster. The Appellate Division’s majority opinion, after repeating the facts herein summarized, said that McCauley did not act negligently in slowly driving onto the shoulder to avoid what he thought might be a danger from the snowplow coming into his road from his left. The Appellate Division majority called attention.to Goodwin v. State of New York (298 N. Y. 873) where claimant was forced by an approaching automobile to drive onto a shoulder lower than the paved road and in trying to get back onto the pavement lost control and shot across the road into a tree. Groodwin had a little more reason to go onto the shoulder, perhaps, than our driver McCauley but McCauley had reason enough and, furthermore, McCauley could not know he was going onto the shoulder which had been plowed level with the pavement.

We know that it is a normal, automatic reaction of a driver to swerve away from an object so approaching his car, especially when visibility is poor. The Appellate Division majority correctly said that McCauley would not have been justified in slamming on his brakes or in performing any other reckless maneuver but that pulling off onto the shoulder away from the snowplow was a reasonable thing to do, even though it turned out afterwards that the snowplow did not drive over onto McCauley’s lane. The Appellate Division majority held further that after getting onto the shoulder McCauley was not required by law to stop his car and that he acted reasonably in slowly proceeding on and slowly turning back onto the highway. The majority held that McCauley was not negligent at all. It found that the State was negligent in leaving the shoulder on the south side of Route 3 lower than the pavement and was negligent, also, in the way the posts or rails on the other side were installed and maintained. On that side of the road the bank was quite steep, as the Appellate Division pointed out, and the posts were spaced too far apart, with 10.3 feet spacing instead of 6.3 feet as provided by the plans which the State itself had prepared for protecting this area. There was uncontradicted evidence by an engineer that the posts were not set according to reasonable engineering practice. The Appellate Division majority said that, because of the steep drop and the deep waters beyond, this was a particularly dangerous place requiring appropriate protective installations. On this point the court cited Garrow v. State of New York (294 N. Y. 741), a much weaker case for liability than the present one. The Qarrow litigation arose out of an unwitnessed accident where a girl bicyclist went over the low parapet of a bridge and the courts held the State liable for lack of a suitable guardrail on the parapet.

Two of the Appellate Division Justices wrote dissenting opinions. One dissenting Justice thought that McCauley’s speed of about 30 to 35 miles an hour as he approached the scene was too high under the circumstances, that there was no emergency requiring Tn'm to go onto the shoulder, that the right-hand shoulder was not negligently maintained, and that the possibility of a car skidding across the road from one side to the other was so remote that the State was not required to anticipate it. He thought that McCauley’s own negligence was the sole proximate cause. The other dissenting Justice agreed that there was no emergency. However, he found that, while the driver’s going onto the shoulder would not have justified dismissing the claims, nevertheless the whole fact picture of this accident was such as was not reasonably to be anticipated or foreseen.

As to where the weight of evidence lies, there is no infallible rule or test. But the way in which the accident happened is clear and undisputed and we see no proof of any real or causative negligence on the part of this driver. He seems to have been driving quite cautiously. As to the State’s causative fault, we see that the highway surface and shoulders had been put or left in a dangerous state and there was no adequate or safe barrier on the opposite slope to prevent a car going in the river. The real question, therefore, is as to whether this accident was foreseeable or, putting it another way, whether the State’s negligent construction or design on the opposite slope plus its negligence as to leaving the road surface in an icy, slick condition with an obscured condition of depressed shoulder surface was shown by the weight of the evidence to have been a proximate cause of this accident. We answer in the affirmative. This comparatively narrow highway had been so plowed as to produce an icy sheet, and left unsanded. Pushing the snow off the shoulders left the bounds of the pavement unmarked. It was within the bounds of reasonable anticipation that an ordinary skid would send a car across the road and down the opposite slope between the widely spaced guardposts. The barrier on the opposite or northerly side of the road must have been put there to protect, not cars going west, but cars going east as was McCauley’s. The layout was such that it would be most unlikely that a car traveling west would slide down that slope. The Appellate Division was therefore justified in finding that the guardrails were so negligently located and maintained as to create a danger and “ were a part of the cause of the disaster ”. Barriers must furnish reasonable protection for travel generally ’ ” (Countryman v. State of New York, 251 App. Div. 509, 512, affd. 277 N. Y. 586).

The judgments should be affirmed, with costs.

Judgments reversed, etc.


text:
    The People of the State of New York, Appellant, v. Howard B. Wakeman and Robert J. McNulty, Respondents.
    Argued June 6, 1960;
    decided July 8, 1960.

      Louis J. Lefkowitz, Attorney-General (James W. Misslbeck and Edwyn Silbering of counsel), for appellant.

      Harris B. Steinberg and Barbara A. Lindemann for Howard B. Wakeman, respondent.

      Herman J. McCarthy for Robert J. McNulty, respondent.
   Orders affirmed; no opinion.

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


text:
    In the Matter of the Construction of the Trust Created by Arthur H. Myers. Barbara N. Gibson, Individually and as Guardian ad Litem for Kenneth M. Gibson and Others, Infants, et al., Appellants; Bank of New York, as Trustee of the Trust Created by Arthur H. Myers, et al., Respondents.
    Argued May 23, 1960;
    decided July 8, 1960.

      Henry Cassorte Smith, Frederick R. Van Vechten, Peter S. Heller and James F. Downey for appellants.

      Archibald A. Patterson, Harris B. Steinberg and Barbara A. Lindemann for Nancy M. Lodge and Bruce H. Myers, respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the trust fund; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Lawrence Denmark, Appellant.
    Argued May 26, 1960;
    decided July 8, 1960.

      Charles C. Parlin, Jr., and Anthony F. Marra for appellant. Frank S. Hogan, District Attorney (Lawrence K. Feitell and Richard G. Denser of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the Claim of Anna Von Der Lin, Appellant, against 635 Park Ave. Corp. et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued May 26, 1960;
    decided July 8, 1960.

      Harry S. Thau for appellant.

      Leonard J. Linden for 635 Park Ave. Corp. and Federal Insurance Co., respondents.
   Order affirmed upon the memorandum decision of the Appellate Division, without costs. No opinion.

Concur: Chief Judge Desmond and Judges Fuld, Van Voorhis and Burke. Judges Dye and Froessel dissent and vote to reverse upon the ground that there is substantial evidence in the record to support the board’s finding "that claimant sustained an industrial accident (Matter of Kehoe v. London Guar. & Acc. Ins. Co., 303 N. Y. 973; Matter of Sleator v. National City Bank, 309 N. Y. 708; Matter of Brancato v. Cowper Co., 282 App. Div. 752, motion for leave to appeal denied 306 N. Y. 979; Matter of Sawatzki v. Friedman, 4 A D 2d 907, motion for leave to appeal denied 3 N Y 2d 710; Matter of Pauson v. Manger Vanderbilt Hotel, 7 A D 2d 686, motion for leave to appeal denied 5 N Y 2d 710). Taking no part: Judge Foster.


text:
    Frederick Proctor, an Infant, by John A. Proctor, His Guardian ad Litem, et al., Appellants, v. Town of Colonie, Respondent. Bernice L. Rivenberg, an Infant, by Charles Rivenberg, Her Guardian ad Litem, et al., Appellants, v. Town oe Colonie, Respondent.
    Argued June 10, 1960;
    decided July 8, 1960.

      E. Stewart Jones, W. Joseph Shanley and Donald L. Shanley for appellants.

      Robert P. Heywood, Town Attorney (John W. Tahner of counsel), for respondent.
   In each action: Judgment affirmed, without costs; no opinion.

Concur: Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster. Chief Judge Desmond dissents and votes to reverse and to grant a new trial as to defendant town upon the ground that a prima facie case was made out against it on this record.


text:
    The People of the State of New York, Appellant, v. Briddie Costello, Also Known as Bridget Costello, Respondent.
    Argued June 7, 1960;
    decided July 8, 1960.

      Edward S. Silver, District Attorney (William I. Siegel, David Diamond and Raymond J. Scanlan of counsel), for appellant.

      Robert P. Whelan for respondent.
   Order reversed and the order of the Magistrates’ Court of the City of New York reinstated upon the ground that an application in the nature of coram nobis is not available (People v. Sadness, 300 N. Y. 69, 73-74). No opinion.

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


text:
    Madison 52nd Corporation, Appellant, v. Nat Luxenberg, Respondent.
    Argued May 24, 1960;
    decided July 8, 1960.

      J. F. Gillis and Jerome Weinstein for appellant.

      Louis Gruss for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Edward Kumm, Appellant.
    Argued May 27, 1960;
    decided July 8, 1960.

      Lauren D. Rachlin for appellant.

      William H. Earl, District Attorney (Robert K. Duerr of counsel), for respondent.
   Judgment reversed, the information dismissed and the fine remitted upon the ground that the People did not establish the guilt of defendant beyond a reasonable doubt. We pass upon no other question. No opinion.

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


text:
    The People of the State of New York, Respondent, v. John Mulherin, Appellant.
    Submitted June 8, 1960;
    decided July 8, 1960.

      Sylvan D. Freeman and Ruth Schoonmaker for appellant.

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

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


text:
    The People of the State of New York ex rel. Costenze P. Valenti, Respondent, against John J. McCloskey, as Sheriff of the City of New York and/or Warden of the New York County Civil Jail, Respondent, and Commission of Investigation of the State of New York, Appellant.
    Argued June 9, 1960;
    decided July 8, 1960.

      Eliot H. Lumbard, Peter J. McQuillan and Nathan Skolnik for Commission of Investigation of the State of New York, appellant.

      Gilbert S. Rosenthal and A. J. Jaffe for respondent.
   Order affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Fuld, Froessel, Van Voorhis and Foster. Judges Dye and Burke dissent and vote to reverse and to reinstate the order of Special Term upon the ground that the relator’s answers, superficially at least, were not false on their face but were, in fact and effect, so carefully contrived and so lacking in substance as to amount to a refusal to answer, since the net effect of the interrogation was to leave the Commission of Investigation without any useful or material information not already known concerning the so-called Apalaehin meeting (cf. People ex rel. Valenti v. McCloskey, 6 N Y 2d 390).


text:
    The People of the State of New York, Appellant, v. Michael Arthur Welt, Respondent.
    Argued June 10, 1960;
    decided July 8, 1960.

      Manuel W. Levine, District Attorney (Joseph I. Heneghan of counsel), for appellant.

      Leo F. McGinity for respondent.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Lawrence Granskofski, Respondent, against Duncan Whitehead, as Director of the Buffalo State Hospital, Appellant.
    Argued June 6, 1960;
    decided July 8, 1960.

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

      Leon I. Schulgasser for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Frank Bratt et al., Appellants, v. Midland Asphalt Corporation, Respondent.
    Argued May 24, 1960;
    decided July 8, 1960.

      John L. Goodell for appellants.

      J. Edmund De Castro, Jr., for respondent.
   Judgment reversed and a new trial granted, with costs to abide the event, upon the ground that the evidence in this case created a question of fact as to the nature of the relationship between defendant-respondent and defendant trucker. It, therefore, was error for the trial court to charge that defendant trucker was an independent contractor as a matter of law (Johnson v. B. T. K. Petroleum Co., 289 N. Y. 101). No opinion.

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


text:
    185 Lexington Holding Corp., Appellant, v. Aaron Holman, as Trustee under the Will of W. Forbes Morgan, Deceased, Respondent.
    Argued June 9, 1969;
    decided July 8, 1960.

      John R. Davison for appellant.

      Samuel Gottlieb and Bernard Beitel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Roberto Graziani et al., Appellants, against Thomas E. Rohan et al., Constituting the State Liquor Authority, Respondents.
    Argued June 9, 1960;
    decided July 8, 1960.

      Monroe I. Katcher, II, and Marc Hermelin for appellants.

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

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


text:
    Edward L. Korycka, Plaintiff-Appellant, v. S. A. Healy Company, Defendant-Respondent and Third-Party Plaintiff-Appellant. Thomas Adair Contracting Corp., Third-Party Defendant-Respondent.
    Argued May 26, 1960;
    decided July 8, 1960.

      Samuel Harris Cohen and Benjamin H. Siff for plaintiff-appellant.

      Norman C. Mendes, John A. Bergmann and John J. Tarpey for S. A. Healy Company, respondent and third-party plaintiff-appellant.

      William F. McNulty for Thomas Adair Contracting Corp., third-party defendant-respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Alice Toomey, as Administratrix of the Estate of Thomas P. Toomey, Deceased, Respondent, v. New York City Transit Authority, Appellant.
    Argued June 7, 1960;
    decided July 8, 1960.

      Daniel T. Scannell, Helen R. Cassidy and Abraham Satran for appellant.

      Benjamin H. Siff for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of the Estate of Charles Schanzer, Deceased. Ida Schanzer, Respondent-Appellant; Alfred E. Herz, Appellant-Respondent.
    Argued June 9, I960;
    decided July 8, 1960.

      Homer I. Harris for appellant-respondent.

      Herman Wollitzer and Julius Gilman for respondent-appellant.
   Order affirmed, without costs; no opinion.

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


text:
    Rose Colontino et al., Respondents, v. United States Fidelity and Guaranty Company, Appellant.
    Argued May 18, 1960;
    decided July 8, 1960.

      James M. Gilleran and John J. O’Connor .for appellant.

      Esther K. Benton for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Wells Plaza Corp. et al., Appellants. Industrial Commissioner of the State of New York, Respondent; New York Hotel Trades Council, AFL-CIO, IntervenorRespondent.
    Argued June 10, 1960;
    decided July 8, 1960.

      Charles W. Merritt and Jack P. Jefferies for appellants.

      Louis J. Lefkowitz, Attorney-General (Jerome Lefkowitz and Paxton Blair of counsel), for respondent.

      Samuel Harris Cohen, Julia C. Algase, Sol Bogen, Ira Drogin and Jean Taylor for intervenor-respondent.

      Edward C. Maguire for New York State AFL-CIO, amicus curiæ.

   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Burke and Foster. Judge Van Voorhis dissents and votes to reverse upon the ground that the Board of Standards and Appeals had power to act and acted correctly under section 110 of the Labor Law.


text:
    In the Matter of Louis I. Nash, Appellant, against Gay Apparel Corporation et al., Respondents. Louis I. Nash, Respondent, v. Gay Apparel Corporation, Appellant.
    Argued June 8, 1960 ;
    decided July 8, 1960.

      Joseph M. Callahan, Henry S. Miller and F. W. Dietmar Schaefer for Louis I. Nash, appellant and respondent.

      Raphael H. Weissman and Edward J. Mallin for Gay Apparel Corporation and others, respondents, and Gay Apparel Corporation, appellant.
   Upon the appeal from the order: Order modified, without costs, by providing that the petition be dismissed as academic without ruling upon title to the stock. No opinion.

Upon the appeal from the judgment: Judgment affirmed, with costs. No opinion.

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


text:
    In the Matter of Page Airways, Inc., Appellant, against Town Board of the Town of Chili, Monroe County, et al., Respondents.
    Argued June 7, 1960;
    decided July 8, 1960.

      Henry W. Williams, Jr., for appellant.

      Daniel F. Fitzgerald, Jr., for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Noorollah Bakhshandeh, Appellant, v. American Cyanamid Company, Respondent.
    Argued May 25, 1960;
    decided July 8, 1960.

      Samuel M. Lane and Arthur S. Olick for appellant.

      James V. Hayes, Theodore S. Hope and Thomas J. Garrity for respondent.
   Judgment affirmed, with costs; no opinion.

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


author: Van Voorhis, J. (dissenting).

text:
    City of Buffalo, Respondent-Appellant, v. Ferry-Woodlawn Realty Company, Inc., et al., Appellants-Respondents, et al., Defendants.
    Argued June 8, 1960;
    decided July 8, 1960.

      Frank G. Raichle, James O. Moore and Arnold Weiss for appellants-respondents.

      Anthony Manguso, Corporation Counsel, for respondent-appellant.
   Order of the Appellate Division, insofar as it affirms Special Term’s denial of defendants’ motion with respect to their special appearance, affirmed, without costs. Question certified, insofar as it relates to this part of defendants’ appeal, answered in the affirmative. Order of the Appellate Division denying plaintiff’s motion to dismiss the appeal and order of the Appellate Division affirming preliminary order of condemnation reversed and the matters remitted to the Appellate Division for further proceedings in accordance with the following memorandum: In this condemnation proceeding, both plaintiff city and defendants appeal by permission of the Appellate Division upon certified questions. Since no appeal lies to the Appellate Division from the preliminary order of condemnation (see, e.g., Yaras v. City of Albany, 2 N Y 2d 844, affg. 1 A D 2d 989; City of Buffalo v. Hayman, 283 App. Div. 1010, motion for leave to appeal dismissed 307 N. Y. 685), the order of the Appellate Division, denying plaintiff’s motion to dismiss the appeal taken by defendants to that court from Special Term’s order granting such preliminary arder of condemnation, should be, on plaintiff’s appeal, reversed, without costs, the matter remitted to the Appellate Division with directions to dismiss said appeal and the question certified answered in the negative. And, in view of this disposition, on the appeal by defendants from the order of the AppeEate Division, the order, insofar as it affirms Special Term’s preliminary order of condemnation, must likewise be reversed and remitted for dismissal. The question certified, insofar as it relates to this part of defendants’ appeal, should not be answered. Question certified on plaintiff’s appeal answered in the negative. Question certified on defendants’ appeal not otherwise answered.

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

Van Voorhis, J. (dissenting).

By the order of the Brie County Special Term entered April 28, 1960, jurisdictional objections of defendants-appellants were disposed of, erroneously in some respects, in my opinion, and a ‘ ‘ preHminary order of condemnation ’ ’ was included in one paragraph without aEowing opportunity to defendants-appellants to interpose an answer contesting the authority of plaintiff to institute and conduct this condemnation proceeding for the purpose asserted. By section 237-a of the Civil Practice Act defendants were authorized to interpose a special appearance in raising their objections to jurisdiction, and it is expressly provided that: ‘ ‘ 4. After a motion made pursuant to this section has been denied, the defendant may Etigate the action on the merits without being deemed to have waived his objection to the court’s jurisdiction over his person.” Instead of complying with this mandatory provision, Special Term (as just stated) assumed to grant an order of condemnation as part of its order overruling the jurisdictional objections. The erroneous basis for doing this was that defendants had not made a general appearance. To have made a general appearance would have waived the special appearance, and it was to obviate the need for doing this that section 237-a of the Civil Practice Act was adopted. Neither is it any justification for the procedure adopted that the return date had passed. Defendants were not obliged to interpose a general appearance until the jurisdictional objections had been decided. When they were decided it was by the order now before this court, which granted the order of condemnation in the same breath by which it overruled the jurisdictional objections. In objecting to this procedure, defendants were not obliged to submit their answer on the merits in advance of the time provided therefor both by the Buffalo Charter and the Condemnation Law, nor to present excuses for default since they were never in default. They were entitled to answer under the law and to have whatever issues were to be raised confronted directly and decided on the merits. The delay of which the city complains might have been considerably shortened and the proceeding expedited if this essential stage in the condemnation proceeding had been met and decided instead of being by-passed.

Much of the argument of the appeals by defendants and by the city on questions certified by the Appellate Division has concerned procedure. It is contended that these orders are not appealable. Although an interlocutory judgment of condemnation entered under section 13 of the Condemnation Law or the corresponding provision of the City Charter is not appeal-able except on an appeal from the final order, this nonappealability is limited to it and does not extend to other intermediate orders or judgments in the proceeding (City of Albany v. Yaras, 6 N Y 2d 749). Insofar as the order denied defendants’ motion addressed to jurisdiction of person or subject matter or to the sufficiency of the petition, it was clearly appealable (Matter of Thomson, 86 Hun 405, affd. 147 N. Y. 701; Matter of City of Rochester, 102 App. Div. 99). The paragraph in the order upholding the right to condemn was entirely gratuitous and being part of the order is reviewable along with the paragraphs overruling the jurisdictional objections on which it was exclusively based. In Erie County Water Auth. v. Western N. Y. Water Co. (281 App. Div. 1070) it was said: “ The attack upon the petition having been made before the joinder of issue, and upon the ground, inter alia, that the County Court was without jurisdiction of the subject matter, we think that the order, although intermediate in character, is appealable, notwithstanding the provisions of section 19 of the Condemnation Law.”

Consequently, in my view, the denial by the Appellate Division in this case of the city’s motion to dismiss this portion of defendants’ appeal was correct and should be affirmed on the city’s appeal.

On defendants’ appeal, in my judgment, the order should be reversed insofar as it overrules the objection that the city failed to negotiate with the owners of the property prior to the institution of the proceeding. This the city did not do, or did in so perfunctory a manner as not to amount to negotiation. Prior negotiation is a time-honored practice in condemnation, well established as a condition precedent by the decided cases as well as by section 74 of the General Municipal Law and is required to be alleged in petitions for condemnation by subdivision 5 of section 4 of the Condemnation Law. Nothing in the Buffalo City Charter dispenses with this requirement, and it was expressly directed by the resolution of the City Council purporting to authorize the institution of this condemnation proceeding. The order appealed from should be modified by sustaining this objection by defendants-appellants to the sufficiency of the condemnation petition.

In any event, the order should be modified by eliminating the paragraph directing condemnation to proceed summarily upon the denial of defendants ’ motion to dismiss the petition, and by substituting a paragraph allowing defendants to answer as required by section 237-a of the Civil Practice Act, in order to accord to them the unquestioned right to a day in court on whatever issues may be raised in accordance with sections 9, 11 and 13 of the Condemnation Law and section 376 of the Charter of the City of Buffalo.

Ordered accordingly.


text:
    William A. Brennan, Appellant, v. Mersey & Hudson Wharfage Corporation, Respondent.
    Submitted June 10, 1960;
    decided July 8, 1960.

      Kermit Gitenstein for appellant.

      Thomas K. Roche and Eugene C. Brugger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sam H. Lipson, as Receiver of Mr. Hamburg-Bronx Corp., Respondent, v. H. M. R. Enterprises, Inc., Appellant, et al., Defendants.
    Argued June 7, 1960;
    decided July 8, 1960.

      William J. Greer for appellant.

      Francis J. Duffy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward C. Klee, Appellant, v. Robert F. Wagner et al., Respondents, et al., Defendant.
    Argued May 17, 1960;
    decided July 8, 1960.

      Morris Shapiro for appellant.

      Charles H. Tenney, Corporation Counsel (Benjamin Offner and Seymour B. Quel of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant-Respondent, v. Louis Von Cseh, Respondent-Appellant.
    Argued June 7, 1960;
    decided July 8, 1960.

      Frank S. Hogan, District Attorney (H. Richard Uviller and Richard G. Denzer of counsel), for appellant-respondent.

      Harris B. Steinberg, Jack M. Steingart and Barbara A. Lindemann for respondent-appellant.
   Order and judgment affirmed; no opinion.

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


author: Froessel, J. (dissenting).

text:
    In the Matter of the Arbitration between George F. Driscoll Company et al., Appellants, and New York City Housing Authority, Respondent.
    Argued June 6, 1960;
    decided July 8, 1960.

      Pallister Hamilton Feely for appellants.

      Paul W. Hessel, Irving Wise and James P. Fitzsimmons for respondent.
   Order affirmed, with costs.

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

Froessel, J. (dissenting).

I agree with the dissenting Justices in the Appellate Division. "Whether a particular dispute is within the compass of an arbitration clause, i.e., whether the parties have contracted to arbitrate that dispute, is of course an issue of law to be resolved by the court. There is a related but far more limited concept that “ a bona fide dispute is not raised with regard to the interpretation of * * * an agreement if the tendered issue involves the meaning of a provision which is ‘ beyond dispute ’. Such an issue raises a question of law to be determined preliminarily by the court, even though the alleged dispute may fall within the literal language of the arbitration agreement.” (Matter of Sarle [Sperry Gyroscope Co.], 4 A D 2d 638, 641-642, and cases therein cited, affd. 4 N Y 2d 917; emphasis supplied.)

In the present case, the dispute as to petitioners’ right to additional compensation for the performance of certain excavation work is concededly within the compass of the arbitration clause, i.e., it is the type of dispute which the parties have agreed to resolve by arbitration. We are concerned solely with the narrowly circumscribed principle that the court will not compel parties to engage in an idle act by ordering them to arbitrate an issue, the answer to which is ‘ ‘ beyond dispute ’ ’, This latter principle must be applied with the greatest restraint and caution, lest we completely emasculate arbitration clauses, and displace the forum selected by the parties for the resolution of their disputes.

It is contended that only rock and concrete excavation which involved drilling or blasting was to constitute extra work requiring adjustment of the contract price. The “ question before us is not how we would decide the issue but whether there is any issue to decide ” (Matter of Spectrum Fabrics Corp. [Main St. Fashions], 285 App. Div. 710, 714, affd. 309 N. Y. 709; Matter of Uraga Dock Co. [Mediterranean & Oriental S. S. Corp.], 6 N Y 2d 773).

The definition clause of the contract states that rock excavation is the kind that requires drilling or blasting. Subsequent provisions dealing with extra charges state, in substance, that such extra charges shall be paid for rock excavation in accordance with paragraphs which follow. One of the following paragraphs, (8), describes certain work for which extra compensation shall be paid and includes “large boulders or old concrete * * * encountered in excavating, and * * * found difficult or impossible to remove * * * as a whole ”. As to such concrete and boulders, it is provided that they shall be “ either line-drilled and wedged or otherwise displaced and removed ” (emphasis supplied). It may reasonably be argued that these later provisions, which are more specific in nature, are an exception to and controlling over the general definition clause, and authorize extra compensation when large boulders or old concrete are otherwise displaced and removed, that is, without blasting or drilling. Surely, the intention of the- parties, as manifested by these provisions of the contract, is not ‘ ‘ beyond dispute ’ ’.

I would reverse and remit the proceeding to Special Term, with a direction to enter an order compelling arbitration.

Order affirmed.


text:
    The People of the State of New York, Appellant, v. Vincent J. Squillante, Nunzio Squillante, and Bernard Adelstein, Respondents.
    Argued June 6, 1960;
    decided July 8, 1960.

      Manuel W. Levine, District Attorney (Henry P. Devine of counsel), for appellant.

      Sol Gelb, Nicholas Castellano and Chester E. Kleinberg for Vincent J. Squillante and Nunzio Squillante, respondents.

      Harry J. Halperin, Samuel L. Scholer, Shirley R. Levittan and Edward J. Neary for Bernard Adelstein, respondent.
   Orders affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fux-d and Foster. Judges Froessel, Van Voorhis and Burke dissent and vote to reverse in the following memorandum: The question of law before us is whether from any view of the testimony there was a question of fact regarding defendants’ guilt which should have been submitted to the jury and not disposed of by dismissal in the appellate court (People v. Bellows, 281 N. Y. 67, 73). Viewing the evidence in the light most favorable to the People, as we are obliged to do upon this appeal, we think that the jury could properly conclude that defendants were guilty of extortion, as charged in the indictment.


text:
    A. & J. Cianciulli Inc., Respondent, v. Town of Greenburgh, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.

      Paul Perreten, Town Attorney, and John W. Real for motion.

      Jerome Beaudrias opposed.
   Motion granted.


text:
    Lenore V. Beaumont, Appellant, v. Jean Beaumont, Respondent. Twenty-Two Eleven, Inc., Intervenor-Respondent.
    Submitted July 7, 1960;
    decided July 8, 1960.

      Dora Aberlin for motion.

      Samuel Suckow, Howard A. Rikoon and Benjamin Herdes opposed.
   Motion dismissed, with $10 costs, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of William Albertson, Respondent. Isador Lubin, as Industrial Commissioner, Appellant. In the Matter of Communist Party, U. S. A., et al., Respondents. Isador Lubin, as Industrial Commissioner, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following*: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, viz.: Whether section 3 of the Communist Control Act of 1954 may be construed as terminating the right of the employers respondents, Communist Party, U. S. A., and Communist Party of New York State, to be “ employers ” within the meaning of the New York Unemployment Insurance Law; whether, if so construed, section 3 of the Communist Control Act of 1954 is a bill of attainder or ex post facto law forbidden by article I (§ 9, cl. 3) of the United States Constitution, or violates the First Amendment or the due process clause of the Fourteenth Amendment to the United States Constitution, or is beyond the constitutional power of Congress to enact, and whether the action of appellant as Industrial Commissioner in suspending the registrations of the employers respondents as employers under the Unemployment Insurance Law denied them due process of law or the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution. The Court of Appeals held that section 3 of the Communist Control Act of 1954 as construed by it was constitutional, and that the action of the Industrial Commissioner in no way violated or deprived respondents of their constitutional rights. [See 8 N Y 2d 77.]


text:
    In the Matter of the Claim of Gertrude Goldman, Appellant, against White & Case et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion to have the appeal heard upon seven copies of the record before the Appellate Division granted.


text:
    In the Matter of the Claim of Thomas Mlodozeniec, Respondent, against Worthington Corporation et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Appellant contends that its rights to due process of law and the equal protection of the laws under the Fourteenth Amendment of the Constitution were denied. The Court of Appeals held that there was no such deprivation or denial. [See 8 N Y 2d 918.]


text:
    Michael M. Ben Ami et al., Infants, by Marcia Ben Ami Michel, Their Guardian ad Litem, Appellants, v. Yitshaq Ben Ami, Respondent.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion to amend remittitur denied. The children lack status to sue on the separation agreement. It is the wife and mother alone who has the right to bring suit on such separation agreement and she may enforce the promises which relate to the children as well as to herself, subject to defenses, if any. [See 8NY2d 885.]


text:
    The People of the State of New York, Respondent, v. Ella Barber, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Patrick Bartone, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.

Motion to have the appeal heard upon the original record and for assignment of counsel granted and Mario Matthew Cuomo, Esq., 32 Court Street, Brooklyn, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Dominic Clemente, Appellant. The People of the State of New York, Respondent-Appellant, v. Gerard J. Brinkman, Appellant-Respondent.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motions to amend remittiturs granted. Return of remittiturs requested and, when returned, they will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States as follows: Defendants Brinkman and Clemente contended that the length of the trial, the complexity and prolixity of the indictment, the conduct of the Trial Judge and prosecutor, the frequent delays, the unbearable conditions of the courtroom, the illness of jurors and other prejudicial conditions and circumstances not only deprived them of a speedy trial in violation of the Sixth Amendment, but also constituted the denial of their right to have counsel defend them under said amendment as well as a denial of due process of law under the Fourteenth Amendment of the Federal Constitution. The Court of Appeals held that defendants were not denied any of their constitutional rights. (See 8 N Y 2d 1.)


text:
    The People of the State of New York, Respondent, v. Anne Chopak, Appellant.
    Submitted July 7, I960;
    decided July 8, 1960.
   Motion for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Joseph Corbo, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion for reargument of motion to amend remittitur denied. [See 7 N Y 2d 990.]


text:
    The People of the State of New York, Respondent, v. Alberto L. De Lamela, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Norberto Diaz, Appellant.
    ■ Submitted July 7,1960;
    decided July 8, 1960.

   Motion to have the appeal heard upon the original record and typewritten briefs and for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Ralph Downs, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Defendant contended that his constitutional rights under the Fourteenth Amendment were violated when the trial court admitted into evidence voluntary statements made by defendant, after indictment, in the absence of counsel, to an assistant district attorney, F. B. I. agents and police officials. The Court of Appeals held that there was no such violation since defendant took the stand and voluntarily reiterated the statements. [See 8 N Y 2d 860.]


text:
    The People of the State of New York, Respondent, v. Carl Edelson, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Application to have the appeal heard upon the original record and for assignment of counsel granted and Edward K. O ’Shea, Esq., Walbridge Building, Buffalo, New York, assigned as counsel to appellant on the appeal herein. Case set down fonargument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Michael A. Garcia, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion to have the appeal heard upon the original record and for assignment of counsel granted and William Grace Crane, 405 Park Avenue, New York City, assigned as counsel to appellant on the appeal herein. Case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. George Hermann, True Name George Herrmann, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. William James, Alias James Williams, Appellant.
    Submitted June 6, 1960;
    decided July 8, 1960.

      Frank S. Hogan, District Attorney (Daniel J. Sullivan of counsel), for motion.
    No one opposed.
   Motion denied and William A. Argentiere, Esq., of Hornell, New York, is assigned as counsel to appellant on the appeal herein. The case is set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Joseph Lowen, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), for motion.

      Tobias A. Russo opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Respondent, v. James A. Mack, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Miguel A. Munoz, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion to have the appeal heard upon the original record and typewritten briefs and for assignment of counsel granted and Anthony F. Marra, Esq., 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.

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


text:
    The People of the State of New York, Respondent, v. James Noble, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Application for assignment of counsel granted and James 0. Moore, Esq., of 10 Lafayette Square Building, Buffalo, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v. Louis L. Olan, Respondent.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. Anthony Pavia, Respondent.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion for enlargement of time granted and case set down for argument during the October, 1960 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Anthony Peter Riela, Appellant.
    Submitted July 7, 1960;
    decided July 8, 1960.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will he amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States as follows: Defendant contended that the application in his ease of section 2447 of the Penal Law and section 618-a of the Code of Criminal Procedure violated his rights under the Fourteenth Amendment of the Federal Constitution. The Court of Appeals held that defendant’s rights under the Fourteenth Amendment were not violated. (See 7 N Y 2d 571.)