text:
    Frances Nash, Individually and as Executrix of Edward M. Nash, Deceased, Respondent, v. Max Frank, Individually and as Executor of Louis B. Frank, Deceased, et al., Appellants, et al., Defendant.
    Argued March 11, 1959;
    decided May 28, 1959.

      Joseph M. Callahan, Robert Jay Philips and Joseph A. Doran for appellants.

      Orrin G. Judd, Sydney D. Robins, Jacob Goodman and Earle K. Moore for respondent.
   Judgment affirmed, with costs; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Spartan Coat, Apron, Towel and Linen Supply Co., Inc., Appellant, v. Louis Simon, Individually and as Secretary-Treasurer of the Amalgamated Laundry Workers Joint Board, Amalgamated Clothing Workers of America, Respondent.
    Argued April 15, 1959;
    decided May 28, 1959.

      Gerard Tore for appellant.

      Jacob Sheinkman and Clifford D. Beznicek for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld; Fróessed, Van Voorhis and Btjrke.


author: Per Curiam.

text:
    Ralph Moon, Appellant, v. Henry D. Finkle, Respondent.
    Argued March 9, 1959;
    decided May 28, 1959.

      George M. Gunderson for appellant.

      J. Robert LaPann for respondent.
   Per Curiam.

There is evidence here to support a jury determination both (1) that -the accident to the plaintiff fell within the compass of the Workmen’s Compensation Law ¡and hence prevented him from bringing an action at law for damages against his fellow employee, and (2) that the defendant was not negligent or that, if he was, the plaintiff was guilty of contributory negligence. The trial court was, therefore, fully justified in submitting these issues to the jury and, as indicated, their verdict finds support in the record under either hypothesis.

Our disposition, it should be remarked, does not foreclose any right which the plaintiff may have under the Workmen’s Compensation Law. It does not, in other words, preclude him from seeking compensation, and proceeding before the Workmen’s Compensation Board, provided, of course, that he has otherwise complied with the requirements of the Workmen’s Compensation Law (e.g., § 18).

The judgment appealed from should be affirmed, with costs.

Judges Desmond, Dye, Fuld, Fboessel and Bubke concur in Per Curiam opinion; Judge Yak Yooehis concurs upon the ground that no cause of action in common-law negligence has been established as matter of law; Chief Judge Cokway taking no part.

Judgment affirmed.


text:
    Joseph Mook et al., Appellants, v. Samuel S. Berger et al., Respondents.
    Argued April 6, 1959;
    decided May 28, 1959.

      Jay Leo Rothschild for appellants.

      David I. Shivits for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. John O’Toole, True Name, Joseph O’Toole, Respondent. The People of the State of New York, Appellant, v. Victor Silverman, Respondent.
    Argued March 12, 1959;
    decided May 28, 1959.

      Edward 8. Silver, District Attorney (William I. Siegel and David Diamond of counsel), for appellant.
    No appearance for respondents.
   Orders reversed and information reinstated. Treating the disposition of these cases by the Court of Special Sessions as a dismissal of the informations upon the opening statement of the prosecutor, as supplemented by the statements of defense counsel, the trial court had no right to dismiss the informations and should have proceeded to trial. No opinion.

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


text:
    Madeline M. Tunnell, Respondent, v. Albury K. Tunnell, Doing Business as Tunnell-Wong Co. and Sun Sash Co., Appellant.
    Argued March 10, 1959;
    decided May 28, 1959.

      A. E. Waisman and P. B. Waisman for appellant.

      Myron J. Greene and Martin Greene for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of H. A. Johnson Co., Inc., Appellant, against Lawrence E. Gerosa, as Comptroller of the City of New York, Respondent.
    Argued April 14, 1959;
    decided May 28, 1959.

      Thomas W. Kelly and Charles T. Hall for appellant.

      Charles H. Tenney, Corporation Counsel (Isidore Friedman, Stanley Buchsbaum and Herbert S. Taten of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Hughes, Appellant.
    Argued April 15, 1959;
    decided May 28, 1959.

      John I. O’Day and Edward K. O’Shea for appellant.

      Carman F. Ball, District Attorney (Robert A. Burrell of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Howard Gooch, Appellant, v. Ronald Shapiro et al., Respondents. (Action No. 1.) Jane Holinko et al., Appellants, v. Ronald Shapiro, Respondent. (Action No. 2.) Adam Orzuchowski, Appellant, v. Ronald Shapiro, Respondent. (Action No. 3.)
    Submitted May 25, 1959;
    decided May 28, 1959.
   Motion by appellant Orzuchowski for leave to prosecute appeal as a poor person and for assignment of counsel granted and Norman C. Harlowe, Esq., of 320 Broadway, New York City, assigned as counsel to appellant Orzuchowski on the appeal herein.


text:
    William F. Kunze, Appellant, v. Joshua W. Jones, Respondent.
    Submitted May 11, 1959;
    decided May 28, 1959.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless, within 20 days, appellant serves and files the required undertaking on appeal and pays $10 costs, in which events motion denied.


text:
    In the Matter of Edward H. Innet et al., Constituting the Town Board of the Town of Greenburgh, et al., Respondents, against Julian Liberman et al., Constituting the Zoning Board of Appeals of the Town of Greenburgh, Respondents, and Bobandal Realties, Inc., Respondent-Appellant. In the Matter of Don P. Wallach et al., Respondents, against Julian Liberman et al., Constituting the Zoning Board of Appeals of the Town of Greenburgh, Respondents, and Bobandal Realties, Inc., Respondent-Appellant.
    Argued March 11, 1959;
    decided May 28, 1959.

      Anthony Curreri, Jacob B. Ward and Sol D. Greenstein for appellant.

      Charles J. Costabell for Edward H. Innet et al., constituting the Town Board of the Town of G-reenburgh, respondents.

      Edward J. Freeman, Malcom Wilson and Mizell Wilson, Jr., for individual respondents.
   Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of National Bureau of Casualty Underwriters, its Members, Individually and as an Association, and its New York Subscribers for Automobile Liability Insurance, Respondents, against Superintendent of Insurance of the State of New York, Appellant. In the Matter of Mutual Insurance Rating Bureau, its Members, Individually and as an Association, and its New York Subscribers for Automobile Liability Insurance, Respondents, against Superintendent of Insurance of the State of New York, Appellant.
    Submitted May 18, 1959;
    decided May 28, 1959.

      Watters $ Donovan, and Cleary, Gottlieb, Friendly & Hamilton, for motion.

      Louis J. Lefhowite, Attorney-General (Samuel A. Hirshowits of counsel), opposed.
   Motion granted, order of the Appellate Division reversed, and the proceedings remitted to Special Term with directions to dismiss the petitions upon the ground that the issues are moot. (See Wilmerding v. O’Dwyer, 297 N. Y. 664.)


text:
    In the Matter of Lew Wallace, nee Louis Goldberg, Appellant, against State of New York Insurance Department, Respondent.
    Submitted May 18, 1959;
    decided May 28, 1959.

      Louis J. Leficowits, Attorney-General (George K. Bernstein of counsel), for motion.

      Lew Wallace, nee Louis Goldberg, in person, opposed.
   Motion granted and appeal dismissed upon the ground that there are questions involved other than the validity of a statutory provision under the Constitution of the State or of the United States (N. Y. Const., art. VI, § 7, subd. [2]; Civ. Prac. Act, § 588, subd. 4).


text:
    Ralph E. Marson, Appellant-Respondent, v. Gloria S. Marson, Respondent, and William S. Darrow, Appellant.
    Submitted May 25, 1959;
    decided May 28, 1959.

      Ralph E. Marson, in person, for motion to dismiss appeal of defendant Darrow, and opposed to cross motion.

      William L. Barrow, in person, opposed to motion to dismiss appeal and for motion to include his notice of appeal in record.
   Motion granted and appeal dismissed, with costs and $10 costs of motion unless, within 10 days, defendant Darrow serves and files the required undertaking on appeal and pays $10 costs, in which events motion denied.

Cross motion denied.


text:
    Gilbert R. Papp, Plaintiff, v. Jackson Manufacturing Company, Respondent, and Fireproof Products Co., Inc., Appellant. Fireproof Products Co., Inc., Third-Party Plaintiff, v. Pearson Brothers, Inc., Third-Party Defendant.
    Submitted May 21, 1959;
    decided May 28, 1959.

      Abraham B. Fuss for motion.

      Frederick M. Garfield and Harold M. Harkavy opposed.
   Motion granted.


text:
    The People of the State of New York, Respondent, v. Clarence Brown, Appellant.
    Submitted May 11, 1959;
    decided May 28, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Richard E. Bolton of 5 Pine Street, Albany, N. Y., assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Edward Goree, Appellant.
    Submitted May 25, 1959;
    decided May 28, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.

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


text:
    The People of the State of New York, Respondent, v. Herbert Jackson, Appellant.
    Submitted May 25, 1959;
    decided May 28, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.

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


text:
    The People of the State of New York, Respondent, v. Maureen MacDonnell, Appellant.
    Submitted May 25, 1959;
    decided May 28, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Miss Florence M, Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.

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


text:
    The People of the State of New York, Respondent, v. George Perez and John Mangi, Appellants.
    Submitted May 11, 1959;
    decided May 28, 1959.
   Motion to haye appeal heard upon the original record and for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellants on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Walter Raymond Smart, Appellant.
    Submitted May 11, 1959;
    decided May 28, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Miss Florence M, Kelley of 10Q 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. Morris Weiss, Appellant.
    Submitted May 25, 1959;
    decided May 28, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.

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


text:
    A. Elaine Rose et al., Appellants, v. Benjamin Brenner et al., Respondents.
    Submitted May 18, 1959;
    decided May 28, 1959.

      Harry J. Coman and Robert L. Collins for motion.

      Maurice Shire and Lawless $ Lynch for respondents, not opposed.
   Motion denied and appeal dismissed upon the ground that the order sought to he appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Sheila Murphy et al., Infants, by Mae Murphy, Their Guardian ad Litem, et al., Appellants, v. George Kitrinos et al., Respondents.
    Argued February 26, 1959;
    decided May 29, 1959.

      Emanuel N. Frankel for appellants.

      John M. Johnston and Casper B. Ughetta for Cecil C'orlett, respondent.

      Charles M. Mattingly, Jr,, Howard M. Lester and Emile Z. Berman for Philip Warren and Diaper Service Brooklyn & Queens Oorp,, respondents.
    Ho appearance for George Kitrinos, respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Grace Strevell, Appellant, v. Louise F. Mink, Defendant, and Leland Filkins et al., Respondents.
    Argued April 15, 1959;
    decided May 29, 1959.

      Ernest B. Morris, J. Vanderbilt Straub and John J. Clyne for appellant.

      Philip G. Coffey, Jr., for respondents.
   Judgment affirmed, with costs.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Van Voorhis and Burke. Judge Froessel dissents and votes to modify upon the ground that relief cannot be granted where the complaint has been dismissed.


text:
    William Foster, Appellant, v. City of New York, Respondent, et al., Defendants.
    Argued March 10, 1959;
    decided May 29, 1959.

      Bernard Meyerson and Seymour Epstein for appellant.

      Charles H. Tenney, Corporation Counsel (John A. Murray and Seymour B. Quel of counsel), for respondent.
   Judgment reversed and a new trial granted, with costs to abide the event, upon the ground that plaintiff established a prima facie case in negligence. No opinion.

Concur: Chief Judge Conway and Judges Dye, Fund and Froessel. Judges Desmond, Van Voorhis and Burke dissent and vote to affirm upon the ground that the undisputed proof as to the physical facts, including photographs submitted by both parties, established that the depression in the sidewalk was too slight to constitute a trap.


text:
    The People of the State of New York, Respondent, v. Daniel John Mancini and Robert Ralph Romano, Appellants.
    Argued April 16, 1959;
    decided May 29, 1959.

      Nancy Carley for Daniel John Mancini, appellant.

      Joseph Lonardo for Robert Ralph Romano, appellant.

      Frank D. O’Connor, District Attorney (Morton Greenspan of counsel), for respondent.
   Judgments affirmed under section 542 of the Code of Criminal Procedure. Although it was error for the prosecutor to attempt to establish that the bill of particulars furnished by the defense pursuant to section 295-? of the Code of Criminal Procedure required a defendant to produce the alibi witnesses named therein at the trial and to cross-examine a defendant regarding his failure to call such witnesses, such conduct was not prejudicial in light of the proof adduced. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Abraham Chait, Appellant.
    Argued April 16, 1959;
    decided May 29, 1959.

      Maurice Edelbaum and Chester E. Kleinberg for appellant.

      Frank 8. Hogan, District Attorney (H. Richard Uviller and Richard G. Denser of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of Lake Placid Club, Inc., Appellant, against Charles Abrams, Individually and as Chairman of the New York State Commission Against Discrimination, et al., Respondents.
    Argued March 9, 1959;
    decided May 29, 1959.

      Ernest B. Morris for appellant.

      Henry Spits and Solomon J. Heifets for Charles Abrams, individually and as Chairman of the New York State Commission Against Discrimination, respondent.

      Sol Babkin, Paul Hartman and Arnold Forster for Blanche I. Lubow, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Richard Lehrer, Appellant, against Walter G. Michaelis et al., Constituting the Board of Zoning Appeals of the Town of Hempstead, Respondents, and Margaret Lehrer, Intervenor-Respondent.
    Submitted April 8, 1959;
    decided May 29, 1959.

      John F. Coffey for appellant.

      John A. Morhous and B. Thomas Pantano for respondents.
    No appearance for intervenor-respondent.
   Order affirmed, with costs; no opinion.

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


author: Froessel, J. (dissenting).

text:
    In the Matter of Local 824, International Longshoremen’s Association (Ind.), Appellant, against Waterfront Commission of New York Harbor, Respondent. In the Matter of John Bowers, Appellant, against Waterfront Commission of New York Harbor, Respondent.
    Argued April 8, 1959;
    decided May 29, 1959.

      Henry A. Lowenberg and Sydney Hyman for appellants.

      William P. Sirignano, Irving Malchman and J eróme J. Klied for respondent.
   Appeals dismissed, without costs, upon the ground that the asserted constitutional questions are not directly involved in the decision appealed from (Civ. Prac. Act, § 588, subd. 1, par. [a]).

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

Froessel, J. (dissenting).

I do not think we should dismiss these appeals on the ground that the subpoenas were effective whether or not section 8 of the Waterfront Commission Act is constitutional, and that hence a constitutional question is not directly involved. Whether or not the commission had to rely upon section 8 to issue these subpoenas, the fact is that it did so rely upon section 8, and the very purpose of the investigation Was to determine ‘ ‘ whether the aforesaid Section 8 of the Waterfront Commission Act was being violated The affidavit of the official who authorized the investigation relied squarely on section 8 as authority for invoking the broad investigatory powers of the commission. He stated that section 8 was enacted * in order to eliminate some of the evil conditions on the waterfront ”, and that ‘ ‘ In order to execute the mandate of the Waterfront Commission Act that it eliminate the evil conditions to have existed on the waterfront, the Waterfront Commission is clothed with broad investigatory powers ’ ’.

If section 8 is unconstitutional, then it seems to me that the subpoenas issued to determine whether section 8 was being violated must also fall. I do not think the investigating powers of the commission can be justified out of the context of the particular evil being investigated. These powers were conferred to aid in the elimination of particular evils, and their exercise must be judged in the context of the particular evil being investigated. Here, the powers were invoked specifically to determine whether section 8 was being violated and, if section 8 is invalid, there is no basis to support the particular exercise of the investigatory powers. If 'section 8 falls so must the subpoenas fall, and hence I feel that a constitutional question is directly involved.

The motion to dismiss the appeals should be denied.

Appeals dismissed, etc.


text:
    In the Matter of 1200 Tenant Corp., Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued April 15, 1959;
    decided May 29, 1959.

      Oscar L. Tucker and Jerome L. Greene for appellant.

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

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


text:
    In the Matter of the Accounting of Hanover Bank, as Trustee of Charles F. Hoffman, Deceased, Respondent. Frances W. Alexion, Individually, and as Executrix of Charles W. Dayton, Deceased, et al., Appellants-Respondents; Willard S. Avery et al., Respondents-Appellants, et al., Respondents.
    Argued April 17, 1959;
    decided May 29, 1959.

      Francis A. McGrath, Edward D. Burns, Martin Fogelman and William J. O’Shea, Jr., for appellants-respondents.

      Logan Fulrath, in person, and Charles J. Buchner for Logan Fulrath, as ancillary administrator of the estate of Joseph L. Bourdette, deceased, and as ancillary executor of Rosalie A. Avery, deceased, respondents-appellants.

      Alfred W. Bergren and Robert S. Dornon for Hanover Bank, as executor of Inez H. Spagnola, deceased, respondent-appellant.

      Arthur J. X. Hines for Hanover Bank, as trustee under the will of Charles F. Hoffman, deceased, respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the trusts; no opinion.

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


text:
    Harry Greenfield, Individually and on Behalf of Clermont Cravat Company, Inc., Appellant-Respondent, v. Harry B. Denner et al., Respondents-Appellants, et al., Defendant.
    Argued April 7, 1959;
    decided May 29, 1959.

      Joseph Calderon for appellant-respondent.

      George TrosTt for Harry B. Denner and Irving Mehler, respondents-appellants.

      Isidor Schlesinger and Samuel Bushwick for Sidney Nitchun, Meyer A. Berkowitz and Mason Neckwear Go., Inc., respondents-appellants.
   Orders of Appellate Division reversed and those of Special Term reinstated, as follows: The first cause of action is dismissed for the reasons set forth in the dissenting opinion in the Appellate Division; the defense of laches and estoppel is stricken from the amended answers to the second cause of action upon the ground that it is insufficient in law. Questions certified Nos. 1 and 4 answered in the negative; questions Nos. 2 and 3 not answered. No opinion.

Concur: Judges Desmond, Dye, Fuld and Van Voorhis. Chief Judge Conway and Judges Froessel and Burke dissent and vote to affirm the order of the Appellate Division holding the first cause of action sufficient.


text:
    Arthur L. Holdeman, for Himself and Others Similarly Situated, Plaintiff-Respondent, v. International Organization of Masters, Mates and Pilots, Inc., et al., Defendants-Appellants.
    Argued April 13, 1959;
    decided May 29, 1959.

      Marvin Schwartz and Betty H. Olchin for defendants-appellants.

      John B. Harold for plaintiff-respondent.
   Order affirmed, without costs; no opinion. Motion for a stay denied.

Concur: Chief Judge Conway and Judges Desmond, Dye, • Fuld, Fbobssel, Van Voobhis and Btjbke.


text:
    In the Matter of the Board of Education of Union Free School District No. 3 of the Town of Oyster Bay, Nassau County, et al., Appellants, against James E. Allen, Jr., as Commissioner of Education of the State of New York, Respondent.
    Argued March 13, 1959;
    decided May 29, 1959.

      Henry Root Stern, Jr., and George C. Pratt for appellants.

      Charles A. Brind, Jr., John P. Jehu, Elisabeth M. Eastman and George B. Farrington for respondent.

      Newton Millham for Board of Education of Union Free School District No. 4 of Town of Oyster Bay, amicus curies.

   Order affirmed, without costs.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld and Burke. Judge Froessel dissents in the following opinion in which Judge Van Voorhis concurs.

Froessel, J. (dissenting).

I dissent and vote to reverse and remit the matter to Special Term for a trial of the issues of fact raised by the pleadings and exhibits attached thereto. Whether the order of centralization was arbitrary and capricious and failed to comply with the terms of the enabling statute (Education Law, § 1801, subd. 2) may not be decided on the record presently before us (Civ. Prac. Act, § 1295; Matter of Mandle v. Brown, 5 N Y 2d 51, 65).

I note at the outset that we are not dealing here with the provisions of section 310 of the Education Law rendering certain determinations of the Commissioner of Education ‘ ‘ final and conclusive ” (cf. Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127, decided May 28, 1959). These provisions have no application to the Commissioner’s order laying out a central school district under article 37.

In Matter of Board of Educ. of Bethlehem Union Free School Dist. v. Wilson (303 N. Y. 107), we held that the Commissioner’s order of centralization was not arbitrary and capricious. There was no trial of issues of fact in that case, since the record before us revealed sufficient justification for the order. The Commissioner there placed particular reliance on the fact that the so-called Master Plan for School District Reorganization had recommended the organization of a central school district along virtually the same lines as the Commissioner’s order (Report of Joint Legislative Committee on the State Educational System, N. Y. Legis. Doc., 1947, No. 25, p. 22; see, e.g., Record on Appeal in Bethlehem case, ff. 277-279, Resp. Brief, pp. 14—15). Thirteen of the 18 school districts recommended by the Master Plan for containment in the centralized district were included in the Commissioner’s centralization order.

In sustaining the order in that case, Special Term wrote (196 Misc. 239, 244): ‘ ‘ Considerable research and investigation were done by that committee, numerous hearings which were attended by interested persons were held in various parts of the State and the result evolved was such master plan [see Committee Report, supra, p. 16]. "While the commissioner was not required to abide by the findings of that committee, it impresses me that his adoption of its plan in laying out the central school district involved here is a very cogent argument against caprice and arbitrary action on his part.” Our court in its opinion (p. 115) was similarly impressed with the fact that the Commissioner had followed the Master Plan, stating this as the first in a list of circumstances demonstrating the reasonableness of the Commissioner’s determination.

The answer of the Commissioner in the instant case and the exhibits thereto attached contain no such supporting factual material. The answer by way of defense simply states very generally the powers of the Commissioner under the Education Law (pars. 17th and 19th), repeats the language of subdivision 2 of section 1801 giving him the power to order centralization (par. 18th), alleges that his action was not arbitrary (par. 20th), and, finally, that “ Returned herewith and made a part hereof are the following exhibits: ” (1) petition signed by 419 of the 463 qualified voters in appellant District No. 3 (Brookville) objecting to the inclusion of such district in the centralization; (2) petitions of voters of the other two districts requesting centralization; (3) the order laying out the central school district; (4) “Studies made by respondent ” in laying out the district.

The “ studies ” referred to in the answer, at least in ■part the products of a so-called study group of representatives of the Locust Valley and Bay side districts which met in Albany on September 13 and 14, 1956, consisted of the following:

1. A financial plan with estimated expenditures including the payments of principal and interest on a $1,700,000 bond issue (for the construction of a junior-senior high school), which plan contained the qualification “ that the estimates contained in this study are based on many variables, changes in any one of which may materially alter the validity of the estimates made.”
2. An admittedly tentative transportation cost survey with a strong recommendation “ that a detailed survey be made after centralisation”. (Emphasis supplied.)
3. An instructional program planning sheet and projected estimates of the number of pupils anticipated for the future elementary and secondary program but with no breakdown whatever as to the number of pupils from the Brookville district who would attend the secondary schools.

The final “ study ” was a memorandum dated March 14,1957, from the Chief of the Bureau of Rural Administrative Services to the Assistant Commissioner recommending approval of the establishment of a central school district. This memorandum included the following statements:

“Master Plan
The Master Plan approved a centralisation for the Oyster Bay area. This proposal involves about half of the original a rea. Post-war growth in Nassau County has made it advisable to alter the recommendations for this area.
* * *

Studies

The matter of centralization has been under consideration in this area for several years. Recommendations for reorganization were made by the Nassau County School Study Committee in 1951 [not otherwise identified, referred to, quoted from or described]. The Department study was undertaken in September, 1956.

Petitions and Surveys

[Statement that there was strong support for the centralization in Locust Valley and Bayville and strong opposition in Brookville] # * * The Brookville district appears to be a reasonable part of the area of the proposal. There appears to be no valid reason why Brookville should not be included with Locust Valley and Bayville in an area suitable for the organisation of a central school district.” (Emphasis supplied.)

The statement in this recommendation, which was approved and became the basis for the Commissioner’s order, purporting to rely in part upon a recommendation in the Master Plan, is totally unsupported by an examination of that document. Indeed, the plan expressly declares at page 467 of the aforesaid Joint Legislative Committee Report that the three Union Free School Districts here involved were among those districts ‘1 LEFT FOR FURTHER STUDY AMD FUTURE DETERMINATION ’ ’. It ÍS noteworthy that no mention whatever is made of the Master Plan in the Commissioner’s brief in this court. This is in marked contrast to the Bethlehem case (supra) where the Commissioner placed great reliance, as did the court in sustaining him, on the recommendation of the Master Plan.

In making their determination, the draftsmen of the Legislative Plan, who spent four years in its creation, considered the following factors as significant (Committee Report, supra, p. 15) :

“ 1. The educational needs of each area.
a. The number of pupils to be educated.
b. The kind of education to be provided.
2. The amount of wealth available for tax purposes for
the support of an educational program in terms of need.
3. The school transportation program.
a. The topography of each area.
b. The location of highways.
c. The kind of transportation facilities available.
d. The time element in the transportation of school children.
4. The social and economic status of each area.
5. The school building facilities.
a. The maximum use of the present school buildings.
b. The minimum building program in future organization.
6. The problems peculiar to each area.”

What indication is there in the instant case that the Commissioner has adequately considered all of these factors? Surely the court should not be content with the mere assertion in his brief that ‘ ‘ the Commissioner as usual has used meticulous care in the preparation for his final issuance of the order * * * ”, and the erroneous statement that since “ Special Term and the Appellate Division have been unanimous in upholding the Commissioner of Education’s order”, “It would seem, therefore, that this issue is not before this Court ’ ’.

The taxpayers (some of whom are parties here) of the appellant school district will be required by the order of centralization to make substantial contributions—because of the district’s assessed valuation—to the construction of a high school for the principal benefit of the citizens of the two other districts (since very few of their own children attend public high school), while at the same time they will continue to be responsible for paying off—unassisted — a bonded indebtedness of almost a half million dollars. Surely the district and its taxpayers are entitled to know the justification for this burden in plainer terms than offered in the conclusory statements of the respondent. The court, too, is entitled to know the factual basis for the respondent’s determination. Otherwise the review for arbitrariness provided for in an article 78 proceeding such as this is made utterly meaningless.

The order appealed from should be reversed and the matter remitted to Special Term for further proceedings.

Order affirmed.


text:
    Ametco, Ltd., Appellant, v. Koitcho Beltchev et al., Respondents.
    Submitted May 25, 1959;
    decided May 29, 1959.

      Anthony B. Gataldo for motion.

      Nicholas jR. Doman opposed.
   Motion granted upon the conditions that appellant, within 10 days, files the return on appeal and pays $50 costs; otherwise motion denied.


text:
    Eugene F. Dunn et al., Respondents, v. City of New York et al., Appellants.
    Submitted May 25, 1959;
    decided May 29, 1959.
   Motion for an order precluding appellants from filing a brief on the appeal herein denied upon condition that such brief be served and filed before August 1, 1959.


text:
    56-70 58th Street Holding Corp., Appellant, v. Fedders-Quigan Corporation, Respondent.
    Submitted May 11, 1959;
    decided May 29, 1959.
   Motion for reargument granted to the extent of allowing reargument of the question concerning tenant’s alleged waiver of its right to demand timely compliance by landlord. [See 5 N Y 2d 557.]


text:
    In the Matter of the Commission of Investigation of the State of New York, Respondent, against Carmine Lombardozzi and Costenze Peter Valenti, Appellants.
    Submitted May 25, 1959;
    decided May 29, 1959.
   Motion to amend remittitur granted. Beturn of the remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein, on behalf of appellant Lombardozzi, there were presented and necessarily passed upon the foEowing questions, viz.: (1) Whether the procedure whereby this appeEant was committed violated the due process clause of the Fourteenth Amendment to the United States Constitution; (2) whether the privileges and rights of this appeEant not to be compeEed to incriminate himself under the Fifth Amendment to the United States Constitution were improperly inf ringed; and (3) whether the over-aE effects of the proceedings violated the due process clause of the Fourteenth Amendment to the United States Constitution and the Fifth and Eighth Amendments to the United States Constitution. This court held that the rights and privileges of this appeEant under the United States Constitution were not infringed or violated. [See 5 N Y 2d 1026.]


text:
    In the Matter of Saul Wanetick et al., Doing Business as Aldus Wine & Liquor Store, Respondents, against State Liquor Authority, Appellant.
    Submitted May 19, 1959;
    decided May 29, 1959.

      Monroe 7. Katcher, II, for motion.

      Oscar A. Blousiein opposed.
   Motion dismissed as academic.


text:
    The People of the State of New York, Respondent, v. Charles Glinton.
    Submitted May 21, 1959;
    decided May 29, 1959.
   Motion for assignment of counsel granted and Joseph Aron-stein, Esq., of 1650 Broadway, New York City, Miss Nancy Carley, 73-14 37th Road, Jackson Heights, New York, and Eugene Kinckle Jones, Jr., Esq., of 225 Broadway, New York City, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Leroy Keith, Appellant.
    Submitted May 25, 1959;
    decided May 29, 1959.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning Monday, June 29, 1959, fixed for the execution of the death sentence. [See 5 N Y 2d 1037.]


text:
    The People of the State of New York, Appellant, v. John O’Neill, Respondent.
    Submitted May 25, 1959;
    decided May 29, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Donald Schwer, Appellant.
    Submitted May 25, 1959;
    decided May 29, 1959.
   Motion to have the appeal heard upon legible typewritten copies of the record and legible typewritten briefs granted.


text:
    George S. Juba, Appellant, v. General Builders Supply Corp., Respondent, et al., Defendant.
    Decided May 29, 1959.
   Reargument ordered during the first week of the next session of the Court of Appeals. The court desires to hear argument, and will receive briefs, on the question whether the making of a compensation award to plaintiff operated as an assignment of any third-party cause of action plaintiff may have had or whether an assignment is effected only upon payment of compensation (Workmen’s Compensation Law, § 29.)


text:
    The People of the State of New York, Respondent, v. Willard H. Phillips, Appellant.
    Submitted June 25, 1959;
    decided June 25, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, as follows: Appellant contended that his alleged confessions were not voluntarily given; that they were coerced; that they were submitted to the jury without proper instructions; that he was detained for an unreasonable time without arraignment, during which time the alleged confessions were taken, and that such actions constituted denial of due process of law under the Fourteenth Amendment. The Court of Appeals held that appellant was not denied due process under the Fourteenth Amendment. [See 6 N Y 2d 788.]


text:
    The People of the State of New York, Respondent, v. Louis Battice, Appellant.
    Submitted May 25, 1959;
    decided June 25, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Whether defendant’s plea of guilty was coerced by court-assigned counsel thereby depriving him of due process of law under the Fourteenth Amendment. The Court of Appeals held that there was in fact no coercion and no denial of any constitutional right of said defendant. [See 5 N Y 2d 946.]


text:
    Leo J. Brown, Respondent, v. State of New York, Appellant.
    (Claim No. 32609.)
    Argued March 12, 1959;
    decided July 8, 1959.

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

      Bussell J. Danieu for respondent.
   Judgment of Appellate Division reversed and that of the Court of Claims reinstated, with costs in this court and in the Appellate Division, upon the ground that the preponderance of the credible evidence supports a finding that claimant was guilty of contributory negligence in driving his motor vehicle. No opinion.

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


text:
    In the Matter of Realty Management, Inc., Appellant, against Robert C. Weaver, as State Rent Administrator, Respondent, and Warren Ackerman et al., Intervenors-Respondents.
    Argued May 14, 1959;
    decided July 8, 1959.

      Orrin G. Judd, Robert S. Fougner, Christopher J. Taylor and Eugene J. Morris for appellant.

      Jacob B. Ward and Nathan Heller for respondent.

      Lewis M. Isaacs, Jr., and Murray Schwartz for intervenorstespondents.
   Appeal dismissed, without costs. Application, treated as a motion for leave to appeal, denied.


text:
    In the Matter of the Estate of Charles S. Folsom, Deceased. Mary Kennelly et al., Appellants-Respondents; Thomas D. Austin et al., Respondents-Appellants; Walter R. Keefe, as Administrator of the Estate of Anna Grimes, Deceased, et al., Respondents. In the Matter of the Estate of Charles S. Folsom, Deceased. T. Francis Reidy et al., Appellants-Respondents; Sarah S. Day et al., Respondents-Appellants; Attorney-General of the State of New York et al., Respondents.
    Argued April 9, 1959;
    decided July 8, 1959.

      Kenneth G. Quencer and Joseph F. O’Handley for appellants-respondents in the first above-entitled proceeding.

      Thomas D. Austin, Stephen J. Masse and Francis J. Murphy for respondents-appellants in the first above-entitled proceeding.

      Arthur F. Gaynor and Charles H. Griffiths for Walter R. Keefe and others, respondents, in the first above-entitled proceeding.

      Louis J. Lefkowits, Attorney-General (Daniel M. Cohen, Paxton Blair and Julius Greenfield of counsel), for respondent in the first above-entitled proceeding.

      Thomas D. Austin, in person, and Francis J. Murphy and Stephen J. Masse for appellants-respondents in the second above-entitled proceeding.

      Joseph F. O’Handley and Emil R. An/mmsiato for respondents-appellants in the second above-entitled proceeding.

      Louis J. Lefkowits, Attorney-General (Daniel M. Cohen, Paxton Blair and Kenneth D. Shearer of counsel), in person, in the second above-entitled proceeding.
    No appearance for Colby M. Austin and others, respondents, in the second above-entitled proceeding.
   In the first above-entitled proceeding: Order affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate. No opinion.

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

In the second above-entitled proceeding: Order affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate. No opinion.

Concur: Judges Desmond, Dye, Fuld, Van Voorhis and Burke. Chief Judge Conway and Judge Froessel dissent and vote to modify by striking from the third decretal paragraph of the Surrogate’s decree the words “but have no effect” and substituting therefor the word ‘ ‘ and ’ ’, and, as so modified, vote to affirm.


text:
    The People of the State of New York, Respondent, v. John Valentino, Appellant.
    Argued April 16, 1959;
    decided July 8, 1959.

      Bernard L. Sanoff and Florence M. Kelley for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Pete Pollock, Appellant.
    Argued February 26, 1959;
    decided July 8, 1959.

      Martin Basen, James A. Carney and I. Jack Dresnick for appellant.

      Daniel V. Sullivan, District Attorney (Albert A. Blinder and Walter E. Dillon of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Herbert Tumen, Appellant.
    Argued May 11, 1959;
    decided July 8, 1959.

      Harris B. Steinberg for appellant.

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

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


text:
    R. H. Levine, as Assignee of Atwater Live Poultry Co., Inc., Appellant, v. Thomas Bornstein, Respondent.
    Argued May 20, 1959;
    decided July 8, 1959.

      Raphael H. Weissman and Richard C. Weissman for appellant.

      Copal Mints for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Eddie Massey, Respondent.
    Argued May 21, 1959;
    decided July 8, 1959.

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

      Jawn A. Sandifer for respondent.

      Emanuel Redfield for New York Civil Liberties Union, amicus curiae.

   Order affirmed; no opinion.

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


text:
    Joan Contini et al., Appellants, v. Howard A. Randall, Respondent.
    Argued May 11, 1959;
    decided July 8, 1959.

      M. Benjamin Baron for appellants.

      John M. Cunneen for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Julia D. Ryan, Appellant, v. City of New York, Respondent.
    Argued May 21, 1959;
    decided July 8, 1959,

      Philip J. O’Brien and John G. Coleman for appellant.

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

Concur: Judges Desmond, Dye, Fuld, Froessel and Van Voorhis. Chief Judge Conway dissents and votes to reverse and to order a new trial upon the ground that plaintiff clearly established a prima facie case and the jury found the facts in her favor (Kye v. Murray, 293 N. Y. 897). It was, therefore, not within the competency of the Appellate Division under our Constitution to find the facts to the contrary and to dismiss the complaint. Taking no part: Judge Burke.


text:
    The People of the State of New York, Respondent, v. Gunnar Lundstedt, Appellant.
    Argued May 28, 1959;
    decided July 8, 1959.

      Alexander W. Kramer for appellant.

      John P. Cohalan, Jr., District Attorney (Harold Ashare of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Kopper’s Chocolate Specialty Co., Inc., Appellant, v. David Kopper Candy Corporation, Respondent, et al., Defendant.
    Argued May 14, 1959;
    decided July 8, 1959.

      Maurice Knapp and Charles Segal for appellant.
    No appearance for respondent.
   Judgment afirmed, with costs; no opinion.

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


text:
    Graceland Corp., Respondent, v. Consolidated Laundries Corporation, Appellant.
    Argued May 25, 1959;
    decided July 8, 1959.

      Myron P. Gordon, Jacob J. Budner and Chester E. Kleinberg for appellant.

      Stanley Law Sab el for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of North American Holding Corp., Respondent, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants.
    Argued May 20, 1959;
    decided July 8, 1959.

      Charles E. Tenney, Corporation Counsel (Alfred Weinstein, Seymour B. Quel and Joseph Entel of counsel), for appellant.

      William A. Lamb, Charles Lamb and Loretta A. Conway for respondent.
   Order affirmed, with costs; no opinion.

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


author: Van Voorhis, J. (dissenting).

text:
    Betty L. Mueller, an Infant, by Her Guardian ad Litem, Oscar Mueller, Respondent, et al., Plaintiff, v. Juda Teichner, Doing Business as Bronx Siphon Supply Company, Appellant, et al., Defendants.
    Argued April 13, 1959;
    decided July 8, 1959.

      Clarence E. Mellen and Frederich Mellor for appellant.

      Bernard Meyer son, Harry H. Lipsig and Sidney Newmcm for respondent.
   Judgment affirmed, with costs.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld and Burke. Judge Van Voorhis dissents in the following opinion in which Judge Froessel concurs.

Van Voorhis, J. (dissenting).

The judgment of the Appellate Division goes beyond anything held in MacPherson v. Buick Motor Co. (217 N. Y. 382), Smith v. Peerless Glass Co. (259 N. Y. 292), or other cases cited by respondent. In the MacPherson case, as the majority opinion says, the manufacturer of an automobile put it on the market as a finished assembled product under the well-known trade name of the manufacturer. In the Smith case, where a bottle exploded, the manufacturer was held liable for negligence in the manufacture of a defective bottle, but the court held that no case had been made out as matter of law against the bottler. Although a new trial was granted, this could only have been to give the plaintiff an opportunity to get more evidence for the court said (p. 298) There was no proof that this defendant was negligent.” In that case the bottler had bought bottles under a guarantee by the maker, and had tested several sample bottles before filling them. No bottle thus tested had broken.

It is not clear that even the bottler could be held on the instant record, under Smith v. Peerless Co. (supra). This appellant was not the bottler. He was not the manufacturer. The finished product was not assembled by him nor placed upon the market under his name. He merely made and inserted tubes or siphons which were not defective, and had no causal relation to the explosion of the bottle.

It is true that appellant bought these bottles from the manufacturer and sold them to defendant Wolk along with the tubes or siphons. That, it seems, does not render appellant liable in negligence more than would be the case with any middleman who buys and sells merchandise or equipment which is afterwards put upon the market by some one else. Neither the MacPherson case nor the Smith case subjects every trader in merchandise or equipment to tort liability to the general public.

These soda bottles were manufactured by defendant Glenshaw Glass Company. Appellant bought them from Glenshaw and sold them with the tubes or siphons to defendant Wolk. The bottles were filled with seltzer by defendant Home Siphon Filling Corp., which stacked and stored them in its plant where defendant Wolk picked them up for delivery to his customers under Wolk’s trade name.

Glenshaw, Wolk and Home Siphon Filling Corp. settled this action insofar as it was brought against them. They comprised the manufacturer, the bottler and the assembler who launched the bottles into the stream of commerce in their completed state under his trade name. The litigation continued against appellant alone.

No one would have thought that appellant could have been held liable if he had sold and delivered the glass tubes or siphons to Wolk without the bottles. If Wolk had bought the bottles from Glenshaw, appellant could not have been held because he made it possible for Wolk to put them on the market by supplying the tubes and siphons. We do not understand how the hare cireumstance that appellant bought these bottles and sold them to Wolk with the glass tubes or siphons is enough to render him liable to the public for defects in the bottles. If appellant had bought and sold the bottles to Wolk without inserting the siphons, he might have been subject to breach of implied warranty at the instance of Wolk, but he could under no circumstances have been liable to the public for negligence under the principle of Mac-Pherson v. Buick Motor Co. The bottles were seltzer bottles. Appellant, if he had merely bought and sold them as middleman, would have known that they were ultimately destined to be sold to the public. If he is to be held on the theory that he knew that the bottles would ultimately be sold to the public, his equipping them with tubes or siphons is not an element of liability. The judgment now being affirmed would seem to signify that any middleman who buys and sells merchandise or equipment, knowing (as every middleman does) that it is destined to be assembled by some one else with other goods or equipment and eventually placed upon the market, becomes liable in tort in event that the future reveals that there were defects in the merchandise or equipment when it passed through his hands. We doubt that it is the intention of the court to go so far. If appellant had not bought and sold these bottles, or if appellant had not inserted glass tubes or siphons therein, it is probable that no cause of action against appellant would be held to have been maintained. What we are unable to perceive is how the insertion of tubes or siphons, which had nothing to do with the explosion, can involve appellant in liability any more than though as middleman he had simply bought and sold the bottles. The distinction from the MacPherson and Peerless cases is that here appellant was neither the manufacturer nor the assembler of the finished product, which was not sold to the public on his name or reputation. He simply performed, and performed satisfactorily, one operation in the course of the preparation of the soda bottles for their final market and bought and sold the bottles to the eventual vendor who had them filled and sold to the public. The operation which he performed had nothing to do with the accident, it did not apprise him that the bottles would eventually be filled with soda and sold to consumers which was already apparent, nor was it his responsibility to inspect the bottles before selling them to Wolk. Actually he did inspect them by visual examination against a blue light to see if they had any cracks, but he has been held Hable by the trial court and the Appellate Division for not having used a polariseope, which the manufacturer, bottler and assembler of the finished product might well have used, but Avhich (as it seems to us) was uncalled for on the part of a middleman who bought and sold empty bottles. No decision which we have seen goes so far as to hold that everyone is liable in tort to the general public who has had any contact with the preparation of a product for the market, which is not assembled by him nor sold under his name or reputation, unless the accident has resulted from negligence in the performance of his function as the product passes through his hands. Merely buying and selHng some of the ingredients that go to make up the finished product is not enough. Adding some ingredient that is unrelated to the accident is not enough. Otherwise the MacPherson doctrine would be stretched so as to hold liable in negligence for the collapse of a wheel not only the Buick Motor Company and the manufacturer of the wheel, but also the manufacturer of the automobile body, the supplier of the automotive electrical equipment and even the paint or lacquer on the car. The automobile could not have been operated without all of these appurtenances, but it would be unwarranted to impose liability on all of these suppliers because they failed to inspect the wheels.

The complaint should be dismissed against appellant or, in the absence of an appropriate motion to dismiss the complaint, a new trial should be granted on account of errors in the charge with respect to this aspect of the case.

Judgment affirmed.


text:
    Albert C. Stengel, Respondent, v. Louis’ Cafeteria, Inc., Appellant.
    Argued May 13, 1959;
    decided July 8, 1959.

      Harold J. Tillou for appellant.

      Paul H. Reid, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anne McDonough, as Administratrix of the Estate of Robert M. McDonough, Deceased, Appellant, v. H. Melville Brush et al., Doing Business as Municipal Machinery Company, et al., Defendants, and Nassau Trotting Association, Inc., et al., Respondents.
    Argued May 29, 1959;
    decided July 8, 1959.

      Leo F. McGinity for appellant.

      William F. McNulty and Walter F. Doyle for respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Conwat and Judges Desmond, Dye, Fttld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of the Claim of Patrick Keane et al., Respondents. Bethlehem Steel Company (Shipbuilding Division), Appellant; Isador Lubin, as Industrial Commissioner, Respondent.
    Argued May 26, 1959;
    decided July 8, 1959.

      John D. Calhoun, Bruce Bromley, John H. Morse, Daniel G. Collins and John F. Hunt, Jr., for appellant.

      Max Grossman and Herman A. Gray for Patrick Keane and others, respondents.
    No appearance for Isador Lubin, Industrial Commissioner, respondent.
   Order affirmed, with costs to claimants-respondents; no opinion.

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


text:
    Byron Van Tuyl, by Marcia Van Tuyl, His Guardian ad Litem, Respondent, v. State of New York, Appellant. Robert Van Tuyl, Jr., by Marcia Van Tuyl, His Guardian ad Litem, Respondent, v. State of New York, Appellant. Catherine Van Tuyl, by Marcia Van Tuyl, Her Guardian ad Litem, Respondent, v. State of New York, Appellant. Marcia Van Tuyl, Respondent, v. State of New York, Appellant. Robert Cowles, as Administrator of the Estate of Robert R. Cowles, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 32846.)
    (Claim No. 32847.)
    (Claim No. 32848.)
    (Claim No. 32849.)
    (Claim No. 32876).
    Argued May 13, 1959;
    decided July 8, 1959.

      Louis J. Lefhowits, Attorney-General (Jean li. MoGoy and Paxton Blair of counsel), for appellant.

      William F. Fitzpatrick for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    In the Matter of Construction of the Will of Sarah M. Carlin, Deceased. Roy Long et al., Respondents; Walter T. Carlin, Appellant.
    Argued May 22, 1959;
    decided July 8, 1959.

      John G. Putnam, Jr., J. Milford Newman and Albert B. Mugel for appellant.

      William J. Person for respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate; no opinion.

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


author: Chief Judge Conwat (dissenting).

text:
    Josephine Zubas, Appellant, v. Edwin J. Coffey, Doing Business as Coffey Funeral Home, et al., Respondents.
    Argued May 15, 1959;
    decided July 8, 1959.

      Thomas Grimes, Louis Bierfass and James Dempsey for appellant.

      William T. Gallagher for respondent.
   Judgment affirmed, without costs.

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

Chief Judge Conwat (dissenting).

On April 6,1956 Josephine Zubas, the plaintiff, went with her son, Stanley Zubas, to defendants ’ funeral parlor to pay their respects to a deceased friend. They arrived between 7:30 and 8:00 p.m. when it was dark. The funeral home which is located in Tarrytown has a large semicircular driveway with a porte-cochere at the front door. There is no parking lot as such. As one faces the premises from the street, the right-hand, or entrance part of the driveway, divides. Part of the driveway swings around to the left under the portecochere, and then continues back toward the street. The other part of the driveway continues straight along defendants’ property line to a garage at the right rear of the funeral home. Running parallel to this right-hand part of the driveway is the driveway of defendants ’ neighbor. Between the two driveways, which are both paved with blacktop, is a retaining wall about 18 inches wide across the top which was painted white and which was built by the defendants. On defendants’ side, the wall is somewhere between 2 and 6 inches high, the height varying with the witnesses. However, the neighboring driveway is on a lower level and runs more or less downhill on a different plane. Thus, although the wall is somewhere between 2 and 6 inches high on defendants ’ side, there is a drop on the other side which increases from about 14 inches to over 4 feet.

As plaintiff entered the driveway as a passenger in her son Stanley’s automobile, there were a number of automobiles already parked in the driveway. Stanley came to a halt behind the last automobile on the right side of the driveway and about 2y2 to 3 feet from the retaining wall. Plaintiff alighted from the right side and walked around toward the right front of the automobile. She then told her son that he was parked too far from the wall for the safety of the car and told him to pull it in closer. She turned, facing Stanley as he was backing up, i.e., facing the street, stepped on the wall which is about 18 inches wide and only between 2 and 6 inches high on her side, and immediately fell into the driveway on the other side, sustaining severe injuries.

There was a trial before a jury which found for the plaintiff. However, the Appellate Division reversed the judgment on the law and the facts, with one Justice dissenting, and also dismissed the complaint. They also stated that, in any event, they would have granted a new trial on the ground that the verdict was against the weight of the evidence.

Thus, the issue before our court is whether plaintiff has made out a prima facie case, and plaintiff is, of course, entitled to every favorable inference which can be drawn from the facts (Stein v. Palisi, 308 N. Y. 293; Sagorsky v. Malyon, 307 N. Y. 584). The Appellate Division disagreed with the court and jury below in two particulars. That is, the Appellate Division found (1) that the scene of the accident was sufficiently illuminated for the plaintiff to see the drop and also (2) that defendants could not reasonably foresee that persons would stand on the wall thus exposing themselves to the drop on the other side. In our consideration of these issues, we must bear in mind, as we have observed in Sadowski v. Long Is. R. R. Co. (292 N. Y. 448, 455), that:11 Essentially, what is negligence in a given case is a question of fact. Each case depends upon its own peculiar circumstances. Decisions in other actions in which damages are sought for personal injuries furnish no criterion or guide for determination of what is or is not negligence in a particular case involving its own peculiar facts and circumstances. Under circumstances existing in one case the ordinary care required might not be the same as that required under other circumstances. Negligence arises from breach of duty and is relative to time, place and circumstance. * * * Ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect

We note at the outset that defendants neither seek to distinguish their various liabilities nor do they question plaintiff’s status as a business invitee. In relation to the issue of proper illumination, it is undisputed that there was a big tree between the scene of the accident and the nearest street lamp. Moreover, the only proof that the next closest street lamp contributed any illumination is contained in an affirmative answer by a foreman of the Tarrytown Highway Department made in response to a leading question as to whether that bulb would put any illumination on defendants’ driveway. The lighting provided by defendants on the grounds proper consisted in a light in the ceiling of the porte-cochere which light was partially blocked and which was 40 feet from the scene of the accident, and in a light on the garage at the end of the driveway which was hundreds of feet away from the scene. It is claimed that some light was shed by a brightly lighted A & P store across the street but that store is not directly across the street but is further up the block. In addition, defendants maintained no lights on the driveway itself. Nor can it be contended that sufficient illumination was provided by the lights of Stanley’s automobile particularly since he only had his parking lights on at the time of the accident. Neither is it controlling that the plaintiff recognized an acquaintance passing by on the street shortly after the accident. It is well within the common experience of juries that one in a dark place can readily see objects that are close to illumination. And juries may certainly draw upon such common experience in their deliberations. (See Shaw v. Tague, 257 N. Y. 193; Benson v. Dean, 232 N. Y. 52, 56.)

In addition to the foregoing, there is substantial evidence in favor of the plaintiff. For example, the plaintiff, although she is an elderly woman with difficulties with the English language, made it quite clear in her testimony that it was dark and that she was not aware of the disparity in height between the sides of the wall. Plaintiff also testified that she thought that everything was on the same level, and plaintiff’s theory is that the improper lighting caused an illusion induced by the similarity in color of the two driveways that both were on the same level. There is enough evidence here for a jury to decide whether defendants ’ premises presented a ‘ ‘ deceptive appearance of safety ” based on such an illusion of levelness. (See Bloch v. Shattuck Co., 2 AD 2d 20, 21-22.) Furthermore, the evidence presents many other factual considerations, outstanding among which is the indisputable fact that there is a big tree between the street lamp and the wall. Hence, it follows that we cannot say that the place was sufficiently illuminated as a matter of law. For the same reason, we cannot say that this plaintiff was able to see the danger as a matter of law. The jury found that she did not as a matter of fact.

Nor can we say that the plaintiff was contributorily negligent or had assumed any risk as a matter of law. Plaintiff’s proof presents a place which appears safe at first glance. This is not a plaintiff who chose, as in Orcutt v. Pomonok Country Club (2 A D 2d 961, motion for leave to appeal denied 3 N Y 2d 773), to wander in a strange, dark place full of hidden dangers but rather one who stood on an innocent looking boundary wall which was only about the height of a curbstone on her side, presumably to stay off the driveway while her son was moving the automobile closer to the wall.

The Appellate Division was also in error in holding that it was not within the range of reasonable foreseeability that one would stand on the wall and, through mishap, fall into the neighboring driveway. That was a finding of fact. There were cars parked on the right side of the defendants’ driveway when the plaintiff entered the premises, and defendants did not have any other parking facilities. Hence, the wall and the drop beyond it were on the passenger side of vehicles in a place where one could reasonably expect passengers to alight. In fact, defendant Edwin Coffey admitted on cross-examination that he had previously seen people getting out of automobiles in the vicinity of the retaining wall. Such automobiles might be parked so close to the wall, which on defendants ’ side is about the height of a curbstone, that passengers would step on the wall to get around the automobiles to go toward defendants’ funeral home. Or pedestrians might step on the wall to avoid incoming automobiles. A false step in either case would cause grave injuries. Thus, there was clear proof that defendants were able to foresee danger and that they had a duty to see that proper safeguards, including signs or proper illumination, were provided for this plaintiff whose standing as a business invitee is unquestioned. Accordingly, the plaintiff made out a prima facie case and the Appellate Division had no power to dismiss the complaint.

The judgment of the Appellate Division should be reversed and a new trial granted.

Judgment affirmed.


text:
    Robert E. Perin, Appellant, v. Mardine Realty Co., Inc., et al., Respondents.
    Argued April 9, 1959;
    decided July 8, 1959.

      George'J. Malivosky for appellant.

      William T. Gallagher for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Van Voorhis and Burke. Judge Froessel dissents and votes to reverse upon the ground that the complaint states facts sufficient to constitutes a cause of action.


text:
    The People of the State of New York, Appellant, v. Henry Cipolla, Respondent.
    Argued May 18, 1959;
    decided July 8, 1959.

      Julian Hanley, District Attorney, for appellant.

      Hayden H. Dadd for respondent.
   Per Curiam.

The Trial Judge charged the jury that on the second count in the indictment (sodomy in the first degree) it could convict the defendant of sodomy in the second degree. No exception was taken to that instruction. The jury convicted the defendant of sodomy in the second degree. On appeal, the Appellate Division held that the crime of sodomy in the second degree is not included within the crime of sodomy in the first degree and that, therefore, the Trial Judge erred in his charge. That court went on to hold that the prohibition against double jeopardy prevented a retrial of defendant for the crime of sodomy in the first degree. Accordingly, the Appellate Division reversed the judgment of conviction and dismissed the indictment.

No exception having been taken to the charge, no error of law was preserved for review in the Appellate Division and, so, that court lacked the power to dismiss the indictment (Code Crim. Pro., § 420-a). In the absence of an exception, the limit of the Appellate Division’s power was to order a new trial in the interests of justice (Code Crim. Pro., § 527; People v. Cohen 5 N Y 2d 282).

The order of the Appellate Division insofar as it dismisses the indictment should be reversed and a new trial ordered on the second count which charges the defendant with sodomy in the first degree.

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

Order of Appellate Division, insofar as it dismisses the indictment, reversed and a new trial ordered on the second count of said indictment.


text:
    Harry Lazar, on Behalf of Himself and of All Other Creditors, Appellant, v. Towne House Restaurant Corp., et al., Respondents, et al., Defendants.
    Argued April 7, 1959;
    decided July 8, 1959.

      Benjamin Levitas for appellant.

      Harold L. Fisher and Joseph Slavin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ralph E. Marson, Appellant-Respondent, v. Gloria S. Marson, Respondent, and William L. Darrow, Appellant.
    Argued May 15, 1959;
    decided July 8, 1959.

      Louis Jay Brecher and Ralph E, Marson, in person, for appellant-respondent.

      William L. Barrow, appellant in person and for Gloria S. Marson, respondent.
   Judgment affirmed, without costs, This affirmance leaves open and undecided the question as to what, if any, will be the rights of the plaintiff if he fully complies with the separation agreement and the wife is in default as to the child custody provisions thereof. No opinion.

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


text:
    In the Matter of the Accounting of Kamila A. Adomoski, as Executrix of Thomas Adamoski, Deceased, Appellant. Catherine Swachey et al., Respondents.
    Argued May 25, 1959;
    decided July 8, 1959.

      Raymond Rebecchi for appellant.

      Charles Liss and Rosauro Gomes for Catherine Swachey, respondent.

      Philip Olan for Stanley Adamoski, respondent.
   Order modified by reducing the amount of the Swachey claim from $1,875 to $45 (Personal Property Law, § 31, subd. 7) and, as so modified, affirmed, without costs to any party. No opinion.

Concur: Judges Desmond, Dye, Fuld, Van Voorhis and Burke. Chief Judge Conway and Judge Froessel dissent and vote to affirm upon the ground that the Statute of Frauds was not pleaded (see Civ. Prac. Act, § 242).


text:
    The People of the State of New York, Respondent, v. James William Smith, Also Known as John R. Wesley, Appellant.
    Argued May 11, 1959;
    decided July 8, 1959.

      Peter Duncan Purvis and Florence M. Kelley for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. James Albert Denton, Appellant.
    Argued May 12, 1959;
    decided July 8, 1959.

      Sol Horenstein for appellant.

      John P. Cohalan, Jr., District Attorney (Harold Ashare of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George Cizike, Appellant.
    Argued May 15, 1959;
    decided July 8, 1959.

      Kenneth 8. MacAffer, Jr., for appellant.

      Frank 8. Kogan, District Attorney (Charles W. Manning of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of Nadine Miller, by Her Guardian ad Litem Roslyn Miller, Appellant, against New York City Housing Authority, Respondent.
    Submitted May 14, 1959;
    decided July 8, 1959.

      Milton N. Redman for appellant.

      Alvin I. Goidel and Bernard Helfenstein for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Arbitration between James B. Carey, as President of International Union of Electrical, Radio and Machine Workers, AFL-CIO, Respondent, and Westinghouse Electric Corporation, Appellant.
    Argued April 8, 1959;
    decided July 8, 1959.

      John D. Calhoun and John F. Hunt, Jr., for appellant.

      I so,dore Katz for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Froessel and Burke. Judge Van Voorhis concurs with respect to the discrimination grievances, and the severance grievances in view of the absence of any opportunity to the employees involved for a hearing concerning their loyalty during the grievance proceedings; but dissents and votes to modify and to stay the arbitration with respect to the furlough grievances upon the ground that concerning them there is no arbitrable question.


text:
    The People of the State of New York, Appellant, v. Curtis Segura, Respondent.
    Argued May 26, 1959;
    decided July 8, 1959.

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

      John C. Gotimer for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of Philip Kohnberg et al., Appellants, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents, and Morton Pickman et al., Intervenors-Respondents.
    Argued May 19, 1959;
    decided July 8, 1959.

      Robert S. Dillworth and Richard Reiner for appellants.

      Charles H. Tenney, Corporation Counsel (Alfred Weinstein, Seymour B. Quel and Elias Low of counsel), for Board of Standards and Appeals of City of New York, respondent.

      Jacob I. Isaacs, Murray Stochman and Robert H. Bidwell for intervenors-respondents.
   Order affirmed, without costs.

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

Van Voorhis, J. (dissenting).

The use district exception created in this instance by the Board of Standards and Appeals is not based on practical difficulty or unnecessary hardship, nor on any tangible standard for the exercise of the board’s judgment. Subdivision (e) of section 7 of the Zoning Resolution, under which the board acted in this instance, purports to convey to the board the power to ‘ ‘ Permit, for a stated term of years, building and uses not in conformity with the requirements of the article and not otherwise specificially provided for in this section.”

If power under subdivision (e) of section 7 is validly granted to the Board of Standards and Appeals, any zoning ordinance or enabling act containing this provision does less than provide for the rule of law. A zoning ordinance or enabling act might as well state simply that uses shall be as directed by the board in the individual case. A comprehensive zoning plan, which has been held to be necessary to valid zoning, is undermined. It becomes unnecessary for an applicant for an exception to show that his property can be devoted to no profitable use consistent with the Zoning Resolution. Restraints on spot zoning are removed. Court review of zoning board decisions is all but eliminated, inasmuch as action by the Board of Standards and Appeals cannot be held to be arbitrary or capricious if subdivision (e) of section 7 frees the board from almost every standard with which it could be compelled to comply, and constitutes, in effect, a charter to it to act as it sees fit.

This is not a case where use districts are designated in zoning ordinances permitting gasoline filling stations only at such locations therein as are approved by a board. The special relationship which gasoline stations bear to the public safety may justify a limited discretion in the board. No question of public safety is involved here, however. It is merely coincidental that this happens to be a gasoline station. The board is not being limited to act with respect to a gasoline filling station in accordance with what will conduce to the public safety in a particular location. An alleged general power is invoked to make exceptions to uses of any kind that are prescribed by the Zoning Resolution. This ad hoc regulation is not confined to public safety factors connected with the storage or merchandising of inflammable fluids, but applies to any business, industry or use if the board approves it anywhere as in the public interest. Nor can its rectitude on this basis ever be drawn in question in a court of law.

Appellant challenges the validity of subdivision (e) of section 7 on the ground that the authority which it purports to confer upon the Board of Standards and Appeals amounts to an unconstitutional delegation of legislative power. This contention cannot be denied, in my opinion, without overturning the traditional view that legislative power is vested in the Senate and Assembly (N. Y. Const., art. Ill, § .1) and cannot be delegated except to be exercised in accordance with controlling standards of decision (Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187; Matter of Levine v. O’Connell, 275 App. Div. 217, affd. 300 N. Y. 658; Matter of Fink v. Cole, 302 N. Y. 216; Panama Refining Co. v. Ryan, 293 U. S. 388). Although a precise or specific formula is not required to be furnished “in a field where flexibility and the adaptation of the [legislative] policies to infinitely variable conditions constitute the essence of the program ” (Lichter v. United States, 334 U. S. 742, 785), the validity of such delegations of legislative power depends upon specifications of standards or guides in as detailed a fashion as is reasonably practicable in the light of the complexities of the field to be regulated (Matter of City of Utica v. Water Control Bd., 5 N Y 2d 164,169). In the case of zoning, more is required in the nature of standards or guides than that the Board of Standards and Appeals shall do what it deems best for the municipality.

The order appealed from should be reversed and the determination of the Board of Standards and Appeals annulled in granting this variance pursuant to subdivision (e) of section 7 of the Zoning Resolution.

Order affirmed.


text:
    In the Matter of Peter L. Burde, a Minor Child. Yvonne C. Dowsey, Respondent; Minola C. Smith, Appellant.
    Argued May 26, 1959;
    decided July 8, 1959.

      Benjamin Heller and Lawrence X. Dalton for appellant.

      D. George Paston and Sidney H. Kitay for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Hilda M. Cardy, Respondent, v. Vernon G. Cardy, Appellant.
    Argued May 27, 1959;
    decided July 8, 1959.

      Lester Kissel and Herschel E. Sparlcs, Jr., for appellant.

      Robert E. Maxwell and Edmund G. Burlce for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Claim of Lillian Robinson, Respondent, against First National City Bank of New York et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued May 14, 1959;
    decided July 8, 1959.

      F. Walter Bliss for appellants.

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

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


text:
    Martial Des Roches et al., Respondents, v. Cambridge Mutual Fire Insurance Company et al., Appellants.
    Argued May 19, 1959;
    decided July 8, 1959.

      J. Frank Traynor for appellants.

      Edward B. Macomber and Thomas M. Hampson for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Arbitration between Wachusett Spinning Mills, Inc., Appellant, et al., Petitioners, and Blue Bird Silk Manufacturing Co., Inc., Respondent.
    Argued May 18, 1959;
    decided July 8, 1959.

      Aaron Rosen, Melvin Liebotvits and Donald L. Kreindler for appellant.

      Seymour H. Kligler and Michael L. Goldstein for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Alice M. Myers, Appellant.
    Argued April 14, 1959;
    decided July 8, 1959.

      Nathan A. Borhowshi and Raymond V. Wylegala for appellant.

      Carman F. Ball, District Attorney (Leonard F. Walentynowics of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Conway and Judges Dye, Fuld, Froessel and Van Voorhis. Judges Desmond and Burke dissent and vote to reverse and to grant a new trial upon the ground that the instructions of the court to the jury contained substantial errors which were sufficiently excepted to.


text:
    John Yarits, Respondent, v. Ray P. Tanner, Appellant.
    Argued May 28, 1959;
    decided July 8, 1959.

      Marshall D. Sweetbaum for appellant.

      Robert A. Dwyer and William H. Morris for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Cluett, Peabody & Co., Inc., Appellant, v. J. W. Mays, Inc., Respondent.
    Argued May 14, 1959;
    decided July 8, 1959.

      John F. Fooling, Jr., and Stephen Rachoio Kaye for appellant.

      Milton Kunen, Sidney A. Diamond, Cecilia H. Goets and Herman Schwarts for respondent.
   Judgment affirmed, with costs; no opinion. Motion to dismiss appeal denied.

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


text:
    In the Matter of Mutual Benefit Health and Accident Association, Respondent, against Leffert Holz, as Superintendent of Insurance of the State of New York, Appellant.
    Argued May 27, 1959;
    decided July 8, 1959.

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

      John P. Walsh, Thomas A. Harnett and Richard J. Barnes, for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    Anna M. Gardner, as Executrix of Percy Gardner, Deceased, Respondent, v. Frank Gerstein et al., Appellants.
    Argued May 12, 1959;
    decided July 8, 1959.

      Milton Pollock and Francis E. Koch for appellants.

      William Jacobs for respondent.
   Order affirmed, with costs. First question certified answered in the affirmative. Second question certified answered in the negative. No opinion.

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


text:
    In the Matter of New York Coffee & Sugar Exchange, Inc., Respondent, against Tax Commission of the City of New York, Appellant.
    Argued May 20, 1959;
    decided July 8, 1959.

      Charles H. Tenney, Corporation Counsel (Edith I. SpivacJc and Morris Handel of counsel), for appellant.

      A. F. Sachheim and Herman Goldman for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Alfonso Palma, Appellant.
    Argued May 12, 1959;
    decided July 8, 1959.

      David M. Markowitz for appellant.

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

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


text:
    In the Matter of Saratoga Harness Racing Association, Inc., Respondent, against New York State Labor Relations Board, Appellant.
    Argued May 27, 1959;
    decided July 8, 1959.

      Philip Feldblum and George E. Moehringer for appellant.

      John R. Davison, Ernest B. Morris and Robert E. Jones, 111, for respondent.
   Order affirmed; no opinion.

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


text:
    Columbia Broadcasting System, Inc., Appellant, v. Patrick A. McDonough, as President of Blueprint, Photostat and Photo Employees Union, Local 24910, AFL-CIO, et al., Respondents.
    Argued May 25, 1959;
    decided July 8, 1959.

      Emanuel Dannett, Herbert D. Schwartzman and Bernard Buchholz for appellant.

      Everett E. Lewis and Melvin Warshaw for respondents.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


text:
    Joseph Rae, Respondent, v. Sutbros Realty Corp., et al., Appellants.
    Argued May 27, 1959;
    decided July 8, 1959.

      Arthur Karger, Leo Kaplan and Alfred D. Jahr for appellants.

      Henry Cohen, Harold L. Turk, John MacCrate and Daniel M. Sandomire for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Abe Cooper-Syracuse, Inc., Respondent-Appellant, v. State of New York, Appellant-Respondent. (Action No. 1.) Abe Cooper-Syracuse, Inc., Respondent, v. State of New York, Appellant. (Action No. 2.)
    (Claim No. 33795.)
    (Claim No. 33861.)
    Argued May 21, 1959;
    decided July 8, 1959.

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

      Saul H. Alderman for respondent.
   In action No. 1: Judgment affirmed, without costs; no opinion.

In action No. 2: Judgment affirmed, with costs; no opinion.

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


text:
    Anna Feldman, as Executrix of Max Feldman, Deceased, Appellant, v. Irving Brodsky, Respondent.
    Argued January 12, 1959;
    decided July 8, 1959.

      David Fisher, Louis OTdn, David Gleiherman and Fred 1. Sonnenfeld for appellant.

      Monroe Goldwater and Harry Rodwin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Samuel Thorne, Formerly Samuel Thorne, Jr., et al., as Surviving Trustees of Trusts Created by Samuel Thorne, Respondents; Jonathan E. Thorne, an Infant, by His Guardian ad Litem, Eli H. Bronstein, Respondent-Appellant; Charles C. Montgomery, Jr., as Ancillary Administrator C. T. A. of the Estate of Joel W. Thorne, Jr., et al., Appellants-Respondents; United States of America et al., Respondents.
    Argued May 11, 1959;
    decided July 8, 1959.

      Sanford G. Missenfeld and Henry J. Plithin for Charles C. Montgomery, Jr., appellant-respondent.

      William T. Griffin, Herbert Burstein and Francis A. Booth for First Pennsylvania Banking and Trust Company, appellant-respondent.

      Eli H. Bronstein, guardian ad litem for Jonathan E. Thorne, an infant, respondent-appellant.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the principal of the trust; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Coppola, Appellant.
    Argued May 22, 1959;
    decided July 8, 1959.

      Jóseph Aronstein for appellant.

      Frank 8. Kogan, District Attorney (Charles W. Manning of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of Charles P. Cullen, as Treasurer of New York Fire Insurance Rating Organization, et al., Appellants, against Leffert Holz, as Superintendent of Insurance of the State of New York, et al., Respondents.
    Argued May 26, 1959;
    decided July 8, 1959.

      Abraham Kaplan, Charles P. Butler, George I. Gross and Richard Wolfe for appellants.

      Louis J. Lefkowits, Attorney-General (Samuel A. Hershowits, Paxton Blair and George K. Bernstein of counsel), for Superintendent of Insurance, respondent.

      Philip W. Haberman, Jr., Henry L. Moser, George H. Kline, Donald L. Schaffer and Marvin E. Frankel for Allstate Insurance Company, respondent.

      W. Perry Epes and Henry L. King for North American Companies, amicus curiae.

   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Bright Homes, Inc., Respondent, against Robert C. Weaver, as State Rent Administrator, Appellant.
    Argued May 21, 1959;
    decided July 8, 1959.

      Emory Gardiner and Nathan Heller for appellant.

      George E. Gasner for respondent.
   Order affirmed, with costs; no opinion.

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


author: Bubke, J. (dissenting).

text:
    The People of the State of New York, Appellant, v. Morgan D. Ryan, Respondent.
    Argued May 28, 1959;
    decided July 8, 1959.

      Bernard Tompkins, Special Assistant Attorney-General (Leonard E. Reisman, Robert Orseck and Wilfred R. Caron of counsel), for appellant.

      N. Le Van Raver and John E. Egan for respondent.
   Order affirmed.

Concur: Judges Dye, Field, Feoessel and Van Voobhis. Judge Bubke dissents in the following opinion in which Chief Judge Conway and Judge Desmond concur.

Bubke, J. (dissenting).

We consider in this companion case whether Ryan could be found guilty of contempt in respect to the answers given by him to the Grand Jury.

It follows that, since Ryan was properly subpoenaed and sworn and having been fully informed of his rights before the Grand Jury, and having expressed his awareness and understanding of his privilege, his interrogation thereafter was entirely proper (see dissenting opinion, People v. Steuding and Ryan [6 N Y 2d 214], decided herewith).

The answers which Ryan gave to the questions put to him on the occasion of his appearance before the Grand Jury on October 23, 1958 follow the classic pattern of adjudicated contumacious and contemptuous conduct in that they were vague, evasive, improbable and obviously untruthful (see People v. Saperstein, 2 N Y 2d 210; Matter of Grand Jury [Reardon], 278 App. Div. 206; Matter of Finkel v. McCook, 247 App. Div. 57, affd. 271 N. Y. 636; Matter of Kamell, 170 Misc. 868, 871).

The language used in oft-cited Matter of Finkel v. McCook (supra) is particularly pertinent and decisive: “If the commitment is to be upheld, it is to be upheld only on the conclusion that the petitioner had refused to answer legal and proper interrogatories. The statute uses the word ‘ refusal. ’ This does not mean, however, that any answer no matter how improbable, inconsistent, evasive, contradictory or obviously untruthful will forestall the summary action of the court. An ‘ answer ’ considered in relation to other answers of the same witness may be so absurd, deceptive and prevaricated to such an extent that it amounts to a refusal to answer. Mere lip service is not contemplated by the statute. To hold otherwise would be emphasizing form at the expense of substance.” (p. 62).

Further, Ryan’s blanket refusal to testify, under the circumstances, was in itself a flagrant contempt of the court and the Grand Jury.

It is well settled that the privilege cannot be asserted without cause, and certainly not in advance of questions, actually propounded to the witness. (See, e.g., Matter of Levy, 255 N. Y. 223; King v. Liotti, 190 Misc. 652, 672; Matter of Weiner, 183 Misc. 267; Radin v. Kornreich, 17 Misc 2d 860; Matter of Wilman Agency [Miller], 178 Misc. 549, affd. 264 App. Div. 850.)

Therefore, the order of the Appellate Division reversing the contempt conviction should be reversed and the order of the Supreme Court reinstated.

Order affirmed.


text:
    Ametco, Ltd., Appellant, v. Koitcho Beltchev et al., Respondents.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Nicholas B. Doman for motion.

      Anthony B. Cataldo opposed.
   Motion denied with leave to renew upon the argument.


text:
    Max Kaufman, Appellant, et al., Plaintiffs, v. Bette Zash, Individually and as Executrix of Rose Volin, Deceased, Respondent. Bette Zash, Respondent, v. Max Kaufman, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Edward G. Wolff for motion.

      S. Frederick Placer and Henry Gallop opposed.
   Motion denied, with $10 costs.


text:
    In the Matter of George Barone, Appellant. Waterfront Commission of New York Harbor, Respondent. In the Matter of Douglas Rago, Appellant. Waterfront Commission of New York Harbor, Respondent.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Gilbert 8. Rosenthal for motion.

      William P. Sirignano opposed.
   Motion granted and, pending the hearing and determination of the appeal herein, enforcement of the order of the Supreme Court, New York County, dated April 16, 1959 be and the same hereby is stayed.


text:
    In the Matter of Harry I. Greene, Appellant, against The People of the State of New York et al., Respondents.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Harry I. Greene, in person, for motion and opposed to cross motion.

      Louis J. Lefkowits, Attorney-General (William G. Ross of counsel), and Sidney Posner, in opposition to motion and for cross motions.
   Motion for a certificate that a constitutional question is involved on the appeal herein denied.

Cross motions to dismiss appeal granted and appeal dismissed upon the ground that a direct appeal to the Court of Appeals does not lie as of right (Civ. Prac. Act, § 588, subd. 4).


text:
    In the Matter of Charles Van Newkirk, Petitioner, against The People of the State of New York et al., Respondents.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Charles Van Newkirk, in person, for petition.
    No one opposed.
   Application dismissed upon the ground that the Court of Appeals lacks jurisdiction to entertain such an application (N. Y. Const., art. VI, § 7; Civ. Prac. Act, § 1232).


text:
    Marvin Odell et al., Appellants, v. Town of Carmel et al., Respondents.
    Submitted May 11, 1959;
    decided July 8, 1959.

      Howard A. Thomsen for motion.

      Joseph L. Burchetta and Joseph E. Sullivan opposed.
   Motion denied upon the ground that an appeal lies as of right.


text:
    James Carolan et al., Appellants, v. Sol Fieber et al., Respondents, et al., Defendant. City of New York, Respondent, v. James Carolan et al., Appellants.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for an extension of time within which to file the return on appeal and to serve copies of the record on appeal granted and appellants directed to file the return and to serve copies of the record within 30 days.


text:
    Eagle Contractors of Utica, Inc., Respondent, v. Margaret Black, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to have appeal heard upon a legible typewritten record and legible typewritten briefs and for an extension of time to file the record on appeal granted, the record to be filed no later than August 1, 1959.