author: Per Curiam.

text:
    Hugh A. Duffy et al., Appellants, v. Owen A. Mandeville, Inc., et al., Respondents.
    Argued May 5, 1958;
    decided June 25, 1958.

      James Dempsey, William C. Mattison, Thomas Grimes and Bartholomew A. Moynahan for appellants.

      Patrick E. Gibbons for Owen A. Mandeville, Inc., respondent.

      Henry J. Smith for William S. Malarick, respondent.
   Per Curiam.

Questions of fact are presented by the evidence concerning which defendant or both had possession and control of the premises where plaintiff wife fell at the time of her injury, whether either of the defendants or both of them be chargeable with negligence and whether plaintiff Susanna J. Duffy was free from contributory negligence.

The judgments appealed from should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Hugh Morgan, Jr., et al., Copartners Doing Business under the Name of Duer, Strong & Whitehead, Respondents, v. Aristotle S. Onassis, Appellant, et al., Defendant.
    Argued May 13, 1958;
    decided June 25, 1958.

      Francis X. Nestor for appellant.

      Emerson F. Davis and Charles R. Van de Walls for respondents.
   Per Curiam.

The recovery in this action is not based on any contract between plaintiffs and defendant-appellant, Onassis, nor any situation analogous to that presented in Flamm. v. Noble (296 JST. Y. 262). Plaintiffs’ cause of action is based on a lien for professional services rendered not to Onassis but to their own client, which has been held to cover settlement funds in the hands of Onassis. Plaintiffs’ client, H. P. Drewry, S. A. R. L., was brought into the action as a necessary party (Oishei v. Pennsylvania R. R. Co., 101 App. Div. 473), which is primarily liable for the recovery insofar as Onassis is concerned. Consequently Onassis could not pay the lawyers for his adversary, H. P. Drewry, S. A. R. L., until the entry of a judgment binding on H. P. Drewry, S. A. R. L., which occurred April 9, 1956. The judgment appealed from should be modified so as to eliminate interest accruing prior to that date. Section 480 of the Civil Practice Act does not apply to this situation. Costs of the appeal are allowed to the defendant-appellant.

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

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


text:
    J. Bradford Millet, Respondent, v. Millard M. Slocum et al., a Copartnership Doing Business as Slocum-Dickson Clinic, Appellants.
    Argued April 28, 1958;
    decided June 25, 1958.

      Hugh R. Jones and Arthur W. Evans for appellants.

      Salvador J. Capecelatro and Roger H. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Babylon Milk & Cream Co., Inc., Respondent-Appellant, against George M. Bragalini et al., Constituting the New York State Tax Commission, Appellants-Respondents.
    Argued May 13, 1958;
    decided June 25, 1958.

      Louis J. Lefhowitz, Attorney-General (Paxton Blair, Robert W. Bush and Edward Siegfried of counsel), for appellants-respondents.

      Peter Campbell Brown, Corporation Counsel (Stanley Buchsbaum and Solomon Portnow of counsel), for City of New York, amicus curice, in support of appellants-respondents ’ position..

      Harry Rosenberg for respondent-appellant.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of Eleanor G. Taylor et al., as Executrices of Fletcher Goodwill, Deceased Trustee, and of Mary C. Dow, as Surviving Trustee, and Eleanor G. Taylor et al., Surviving Executrices of Alberta G. D. Goodwill, Deceased Trustee, under the Will of Charles M. Dow, Deceased. Helen D. Lundquist et al., Appellants; Mary C. Dow, as Trustee, et al., Respondents.
    Argued May 1, 1958;
    decided June 25, 1958.

      Hugh McM. Russ and Victor T. Fuzak for Helen D. Lundquist and others, appellants.

      Clarence G. Pickard for Eleanor G. Taylor and another, appellants.

      Louis A. Pepper, Walter H. Edson and Clarence G. Pickard for Eleanor G. Taylor and another, executrices, respondents.

      Alton R. Erickson for Mary C. Dow, trustee, respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the trust. No opinion.

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


text:
    In the Matter of the Town of Lewiston et al., Appellants, against State Board of Equalization and Assessment et al., Respondents.
    Argued May 8, 1958;
    decided June 25, 1958.

      Hugh B. Chace, Jr., for appellants.

      Clarence W. Greenwald, Corporation Counsel (Ralph A. Boniello of counsel), for City of Niagara Falls, respondent.

      Louis J. Lefkowitz, Attorney-General (Edward J. Grogan, Jr., Paxton Blair and Milton Alpert of counsel), for State Board of Equalization and Assessment, respondent.
   Order affirmed, without costs; no opinion.

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


author: Desmond, J. (dissenting).

text:
    Veronica T. Hyland et al., as Administrators C. T. A. of the Estate of James W. Gerard, Deceased, et al., Appellants, v. Regina D. Auspitzer, as Executrix of Richard G. Auspitzer, Deceased, et al., Respondents.
    Argued May 5, 1958;
    decided June 25, 1958.

      Henry Cohen, David Slock, Daniel M. Sandomire and Edgar M. Rubin for appellants.

      Francis B. Delehanty, Jr., and Harold H. Corbin for Regina D. Auspitzer, respondent.

      Thomas F. Lynch for United States Steel Corporation and another, respondents.
   Judgment affirmed, with costs.

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

Desmond, J. (dissenting).

This record, as I read it, proves beyond dispute that Auspitzer breached a fiduciary duty to Gerard and the Daly estate by failing to disclose that he was to receive from defendant United States Steel Corporation for his Schloetter stock a price per share much higher than Gerard and the Daly estate were to get. Up to the time of the final purchase by United States Steel Corporation of these three blocks of stock, Auspitzer continued to act for and advise the two other stockholders, all the while concealing his agreement to sell his shares at a far higher price. The findings below that Auspitzer stood in no fiduciary or confidential relationship to the other Schloetter stockholders are contrary to the facts and wrong as matter of law. He owed the other two stockholders (not as such but because he was their trusted agent) the same duty as would a broker, that is, to get as high a price as possible and in this connection to make full disclosure of his own activities and relationships (Wendt v. Fischer, 243 N. Y. 439, 443; Byrne v. Barrett, 268 N. Y. 199, 207). As to the liability of defendant United States Steel Corporation, it is a necessary conclusion of fact on this record that this defendant knew of Auspitzer’s relationship to his fellow stockholders and of his concealment of his own sale and of the terms thereof. Therefore, this defendant, also, is liable for the breach of fiduciary duty.

The judgment should be reversed, with costs in all courts, and the action remitted to Special Term for further proceedings in accordance with this opinion.

Judgment affirmed.


text:
    In the Matter of Lawrence R. Bailey, Appellant, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued August 7, 1958;
    decided August 7, 1958.

      Lawrence R. Bailey, in person, and Percy E. Sutton for Lawrence R. Bailey, appellant.

      Moses Z. Yam for respondent.
   Order affirmed; no opinion.

Concur: Judges Desmond, Dye, Van Voorhis, Burke, Bergan *, MacAffer * and Taylor .

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Chief Judge Conway and Judges Fold and Froessed.


text:
    In the Matter of Renee B. Fisher et al., Appellants, against Board of Elections of the City of New York et al., Respondents. (Bloom-Bannigan-Cincotta Democratic Petition.) In the Matter of Renee B. Fisher et al., Appellants, against Board of Elections of the City of New York et al., Respondents. (Bloom-Cincotta-Gleason Democratic Petition.) In the Matter of Milton Fisher, Appellant, against Board of Elections of the City of New York et al., Respondents. (Bannigan-Cincotta Liberal Petition.)
    Argued August 7, 1958;
    decided August 7, 1958.

      Ernest Walton and Herman V. Traub for appellants.

      George Rosling, Harold L. Fisher and Neil M. Lieblich for respondents.
   Order affirmed; no opinion.

Concur: Judges Desmond, Dye, Van Voorhis, Burke, Bergan *, MacAffer * and Taylor .

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Chief Judge Conway and Judges Fuld and Froessel.


text:
    In the Matter of A. Paul Goldblum, Appellant-Respondent, against James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents, and Thomas A. Duffy et al., Respondents-Appellants.
    Argued August 7, 1958;
    decided August 7, 1958.

      A. Paul Goldblum, appellant-respondent in person.

      Benj. J. Jacobson and Charles Margett for respondents-appellants.
   Order of the Appellate Division modified, insofar as it holds the designating petitions void in part for failure to designate candidates for County Committeemen separately by sexes, and as to that question order reversed and proceeding dismissed and, as so modified, order in all other respects affirmed. We hold that the form of these petitions meets the requirements of section 12 of the Election Law since they adequately disclose which candidates are male and which are female only. No opinion.

Concur: Judges Desmond, Dye, Van Voorhis, Burke, Bergan #, MacAeeer * and Taylor .

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Chief Judge Conway and Judges Fold and Froessed.


text:
    In the Matter of Nye N. Sussman et al., Appellants, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued August 7, 1958;
    decided August 7, 1958.

      Morris Weissberg and Reuben J. Aronson for appellants.

      Lewis Abrahams for Betty Schupler, respondent.
   Order affirmed; no opinion.

Concur: Judges Desmond, Dye, Van Voorhis, Burke, Bergan*, MacAffer* and Taylor.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Chief Judge Conway and Judges Fund and Froessel.


text:
    In the Matter of George E. Decker, Appellant, against Alexander E. Harris et al., Respondents.
    Argued August 7, 1958;
    decided August 7, 1958.

      Robert K. Story, Jr., and Carmine A. Ventiera for appellant.

      Charles L. Kellar and Viron K. Jones for Alexander E. Harris and others, respondents.
   Order affirmed; no opinion.

Concur: Judges Desmond, Dye, Van Voorhis, Burke, Bergan *, MacAffer * and Taylor.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Chief Judge Conway and Judges Fuiio and Froessel.


text:
    In the Matter of Neville B. Lake, Appellant, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued August 7, 1958;
    decided August 7, 1958.

      Lawrence B. Bailey and Jeff L. Greenup for appellant.

      Moses Z. Yam for J. Foster Phillips, respondent.
   Order affirmed; no opinion.

Concur: Judges Desmond, Dye, Van Voorhis, Burke, Bergan *, MacAeeer * and Taylor .

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Chief Judge Conway and Judges Fund and Froessbl.


text:
    In the Matter of Aaron L. Greenfeld, Respondent, against James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents, and Irving I. Geller et al., Appellants.
    Argued August 7, 1958;
    decided August 7, 1958.

      Irving I. Getter, in person, and William A. Kummer for Irving I. G-eller, appellant.

      Abraham J. Gellinoff, Nelson Kantor and Richard T. Levy for Aaron L. Greenfeld, respondent.
   Order affirmed; no opinion.

Concur: Judges Desmond, Dye, Van Voorhis, Burice, MacAffer * and Taylor*. Taking no part: Judge Bergan.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Chief Judge Conway and Judges Fund and Froesseo.


text:
    The People of the State of New York, Respondent, v. John Michael Bevilacqua, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the October, 1958, session of the Court1 of Appeals.


text:
    The People of the State of New York, Appellant, v. George F. Blake, Respondent.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the October, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. John G. Broady, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and ease set down for argument during the November, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Harold Davidson, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and ease set down for argument during the November, 1958, session of the Court of Appeals.

Motion to have appeal heard upon the original record and for assignment of counsel granted and Richard Henry Pershan, Esq., of 15 Broad Street, New York City, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Donald E. De Groat and Peter M. Ferraro, Appellants.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion to have appeal heard upon the original typewritten record and typewritten additional papers and briefs and for enlargement of time granted and case set down for argument during the November, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. William J. Fitzgerald et al., Appellants.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the October, 1958, session of the Court of Appeals,


text:
    The People of the State of New York, Appellant, v. Henry Freudenberg, Respondent.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and ease set down for argument during the October, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Aaron Glubo, Seymour Exelberth, Robert B. Epstein and Atlantic Sewing Stores, Inc., Appellants.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the October, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Saul Greenberg, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the November, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. Harry Gross, Respondent.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the November, 1958, session of the Court of Appeals.

Motion to have appeal heard upon the record on appeal now on file in the Court of Appeals in the case of People ex rel. Kern v. Silberglitt [4 N Y 2d 59] together with the required number of copies of the additional papers granted.


text:
    The People of the State of New York, Respondent, v. Thomas J. Higgins, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for a further enlargement of time granted and case set down for argument during the November, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Gladys Irrizari, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the October, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Oscar Johnson, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the November, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Frederick Liebenthal, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the October, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Eddie Marks, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the November, 1958, session of the Court of Appeals.

Motion to have appeal heard upon the original record, the required number of copies of typewritten additional papers and briefs and for assignment of counsel granted and Miss Florence M. Kelley, of 100 Centre Street, New York City, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Grace Merrill, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the November, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Charles L. Mault, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the November, 1958, session of the Court of Appeals.

Motion to have appeal heard upon the original record together with eight typewritten copies of the additional papers and briefs granted.


text:
    The People of the State of New York, Respondent, v. James Peck, Ralph Di Gia, George Willoughby, Hollis Wyman, Jr., Tom Rick, Robert Gilmore, Marcus Cohen, Dale Brothington, Albert Uhrie, Patricia Daw and Elizabeth Quigley, Appellants. The People of the State of New York, Respondent, v. Abraham J. Muste, Kent Larrabee, Eileen Fantino, Ralph Di Gia, Henry J. Maiden, Bayard Rustin, Helen Russell, Mary Ann McCoy, Edith Horwitz, Patricia Rusk, James Peck, Robert Fisher, Hugh Corbin, Jackson Maclow, Dale Brothington, Andrew Osgood, Michael Kovalak and Henry Babcock, Appellants.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and eases set down for argument during the last week of the November, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. George Ornstein, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and ease set down for argument during the November, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Alfred E. Stone, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for 'argument during the October, 1958, session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. Peter Variano, Respondent.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and case set down for argument during the January, 1959, session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Walter Williams, Appellant.
    Submitted October 6, 1958;
    decided October 7, 1958.
   Motion for enlargement of time granted and ease set down for argument during the October, 1958, session of the Court of Appeals.


text:
    In the Matter of the Application of Nathan Abramowitz for Reinstatement to the Bar.
    Submitted October 6, 1958;
    decided October 9, 1958.

      Leonard Feldman for motion.

      Frank H. Gordon, for Association of Bar of City of New York, opposed.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Accounting of Chase Manhattan Bank, as Trustee under an Indenture between Mabel H. Duell and Others, Appellant. Anna B. Mackenzie et al., Respondents.
    Submitted October 6, 1958;
    decided October 9, 1958.

      Daniel G. Tenny, Jr., and Robert Bruce Orr for motion.

      Thomas J. Whalen and Pliny W. Williamson opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Regina Levy, Appellant, v. Fireman’s Fund Indemnity Company, Respondent.
    Submitted October 6, 1958;
    decided October 9, 1958.

      Lyman Stansky for motion.

      John J. Kennelly opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that this court lacks jurisdiction to entertain it (Civ. Prac. Act, § 589, subd. 1, par. [b]).


text:
    Robert Moore, Respondent, v. City of Yonkers, Appellant.
    Submitted October 6, 1958;
    decided October 9, 1958.

      J. Raymond Hannon, Corporation Counsel (William F. Cauley, Jr., of counsel), for motion.

      William A. Walsh and William A. Walsh, Jr., opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Joseph Hughes, Appellant.
    Submitted October 6, 1958;
    decided October 9, 1958.
   Application for assignment of counsel granted and John I. 0 ’Day, Esq., Liberty Bank Building, Buffalo, New York; and Edward K. O’Shea, Esq., Waibridge Building/ Buffalo; New' York, assigned as counsel to defendant on the appeal herein.

Motion for enlargement of time granted and casé set' down for argument during the January, 1959, session.of the Court of Appeals. -


text:
    James A. Suffridge, as President of Retail Clerks International Association, AFL-CIO, et al., Respondents, v. Louis Lasky, Individually and as an Officer, et al., Appellants, et al., Defendants.
    Submitted October 6, 1958;
    decided October 9, 1958.

      Samuel P. Shapiro and Murray A. Frank for motion.

      Stephen C. Vladeck, Sylvan H. Elias and Arthur L. Galub opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Frank C. Termini, as Receiver of Property of Bion Exhibits, Inc., Respondent,, v. John Arthur Exhibitions, Inc., Appellant, et al., Defendant.
    Submitted October 6, 1958;
    decided October 9, 1958.
   Motion for leave to appeal dismissed upon the ground that at the present time there is no judgment entered from which an appeal may be properly taken.


text:
    The People of the State of New York, Respondent, v. Edward Eckwerth, Appellant.
    Submitted October 6, 1958;
    decided October 9, 1958.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning November 17, 1958 fixed for the execution of the death sentence. [See 4 N Y 2d 811.]

Motion for a stay of execution of the death sentence herein dismissed upon the ground that this court has no power to grant such a stay.


text:
    The People of the State of New York, Respondent, v. Virgil Richardson, Appellant.
    Submitted October 6, 1958;
    decided October 9, 1958.
   Motion for an order pursuant to section 503 of the Code of Criminal Procedure granted and the week beginning November 17, 1958 fixed for the execution of the death sentence. [See 4 N Y 2d 224.]


text:
    In the Matter of Harold A. Jerry, Jr., Appellant-Respondent, against Howard P. Barber et al., Constituting the Board of Elections of Chemung County, et al., Respondents, and Harry K. Morton, Respondent-Appellant.
    Argued October 8, 1958;
    decided October 16, 1958.

      Harold A. Jerry, Jr., appellant-respondent in person.

      Harry K. Morton, in person, and Albert E. Hollis for Harry K. Morton, respondent-appellant.
    Reargued October 24, 1958;
    decided October 24, 1958.
   Order, insofar as it declares Harry K. Morton to be the Republican nominee for the office of State Senator for the 49th Senatorial District, reversed and the matter remitted to Special Term for entry of an order granting the relief prayed for in the petition. Upon inspection of the primary ballots passed on in the Appellate Division, we hold that, in 3 instances, ballots marked for Harry K. Morton were not void by reason of identifying marks as found in the Appellate Division and should have been counted for him, and that, in 143 instances, ballots marked for Harry K. Morton and ruled as valid in Special Term and affirmed in the Appellate Division were wholly void due to marks thereon other than a cross X mark in a voting square or circle and should not have been counted for said Harry K. Morton (Election Law, § 212, rule 1). In other respects, we agree with the findings of the Appellate Division. Accordingly, we rule that Harold A. Jerry, Jr., having received a majority of 131 of all votes cast, is the nominee of the Republican party for the office of State Senator, 49th District. Our inspection of the additional ballots submitted by the parties, with our permission, does not change that result. No opinion.

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

Motion for reargument granted.

Upon reargument, we adhere to previous decision of October 16, 1958. We have examined the 8 additional ballots now challenged by respondent Morton and not submitted to the Appellate Division and find that ballots numbered 37, 38, 39 and 278 were void, and ballots numbered 296, 299 and 466 were blank as to appellant Jerry, and that ballot numbered 232 is valid as found by the courts below. These ballots, as well as the additional ballots challenged by respondent Morton and not passed on in the Appellate Division and which we considered on the main argument, do not change our original holding that appellant Harold A. Jerry, Jr., is the Republican nominee for the office of State Senator for the 49th Senatorial District. No opinion.

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


text:
    Louis Pasternack, Appellant, v. Irving Diamond et al., as Trustees of the Luggage Workers Union Retirement Fund, Respondents.
    Argued October 6, 1958;
    decided October 16, 1958.

      Jay A. Gaines and Arthur A. Grutman for appellant.

      Isadore Katz and Elias Lieberman for respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Feoessel, Van Vooehis and Bubke.


text:
    In the Matter of Frank A. Perfetti, Respondent, against Edward T. Nehill et al., Constituting the Board of Elections of the County of Rensselaer, et al., Appellants.
    Argued October 8, 1958;
    decided October 16, 1958.

      Wilford A. Le Forestier for Augustine F. Coyne, appellant.

      Edward M. Murray 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 John T. McManus et al., Respondents, against Carmine G. DeSapio, as Secretary of State, et al., Appellants.
    Argued October 24, 1958;
    decided October 24, 1958.

      Abraham J. Gellinoff for appellants.

      David M. Freedman and Morris Zuckman for respondents.
   Order affirmed; no opinion.

Concur: Chief Judge Conway and Judges Dye, Fuld, Froessel and Van Voorhis. Judges Burke and McGivern dissent and vote to reverse upon the authority of Matter of Anderson v. Power (1 A D 2d 603, affd. 1 N Y 2d 868), Matter of Marcatante v. Lundy (4 A D 2d 883, revd. on dissenting-memorandum below 3 N Y 2d 913), Matter of Warsoff v. Cohen (289 N. Y. 108), Matter of Connors v. Messina (308 N. Y. 877), and Matter of Bailey v. Power (5 N Y 2d 746).

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


text:
    The People of the State of New York ex rel. Ralph Freccia, Jr., Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.

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

      Ralph Freccia, Jr., in person, opposed.
   Motion granted and appeal dismissed upon the ground that an appeal to this court does not lie as of right (Civ. Prac. Act, § 588, subd. 1).


text:
    David Broser, as Administrator of the Estate of Laurie J. Broser, Deceased, an Infant, Appellant, v. Bernard Sternbach et al., Respondents.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to have appeal heard upon the original record together with the required number of copies of typewritten additional papers and briefs granted.

Motion by respondents Turner for leave to submit a typewritten brief on the appeal herein granted.


text:
    Michael Balestrieri, Respondent, v. Anna Povolny, Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.

      August Zolotorofe for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    John Calabria, Appellant, v. Edward Wukowitz, Respondent, et al., Defendant.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion for an extension of time within which to file the return on appeal herein denied and case set down for argument during the November, 1958, session of the Court of Appeals.


text:
    City of Albany, Appellant, v. Coplin Yaras, Respondent, et al., Defendants.
    Submitted October 14, 1958;
    decided October 16, 1958.
   Motion by appellant for a stay pending the hearing and determination of the appeal granted and case set down for argument during the last week of the November, 1958, session of the Court of Appeals. Appellant is directed to serve and file the record and brief on or before October 27,1958.


text:
    Louise De Leon, as Successor Committee of the Person and Property of Louis Kuhn, Appellant, v. Corbetta Construction Company, Inc., et al., Respondents, et al., Defendant.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division and the required number of copies of printed additional papers and for an extension of time to file said records until 30 days after the date of the order herein granted.


text:
    In the Matter of Richard Edde, Appellant, against Columbia University in the City of New York, Respondent.
    Argued October 6, 1958;
    decided October 16, 1958.

      Edward D. Burns, John A. Kiser and Martin Fogelman for motion to dismiss appeal.

      Richard Edde, in person, opposed.
   Motion for leave to prosecute appeal as a poor person granted.

Motion to dismiss appeal denied with leave to renew upon the argument.


text:
    Meta Enslein, Respondent-Appellant, v. Hudson & Manhattan Railroad Company, Appellant-Respondent, and Peelle Company, Appellant, et al., Defendant.
    Argued October 14, 1958;
    decided October 16, 1958.

      Joseph Fennelly, Jr., and William F. McNulty for motions.

      Benjamin H. Siff opposed.
   Motions granted and appeal dismissed upon the ground that plaintiff is not a party aggrieved within the meaning of section 557 of the Civil Practice Act.


text:
    Gasoff Realty Corp., Respondent, v. Dick Pavo, Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Walter N. Smith, agent for appellant, for motion.
    No one opposed.
   Motion denied. On the court’s own motion appeal dismissed for nonfinality.


text:
    Jaime Gonzales, Appellant-Respondent, v. Colonial Trust Company, Respondent-Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Sidney R. Warren and Borris M. Komar for motion.

      Arthur J. Marangelo for cross motion.
   Motion and cross motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Philip A. Guibord, Appellant, v. Jean Guibord, Also Known as Jean Parker, et al., Respondents.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion for reargument of motion to vacate the order of this court dated January 7, 1958 [see 4 N Y 2d 777] dismissing the appeal herein denied, with $10 costs.


text:
    Alice M. Kelly, Appellant, v. Paul Wasserman, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Stephen A. Wise for motions.

      Lewis G. Gaines opposed.
   Motion for a stay of the eviction of appellant from the premises pending the hearing and determination of the appeal herein granted to the extent that respondent is stayed from the execution and enforcement of the judgment of the Supreme Court, Kings County, affirmed by the judgment of the Appellate Division, Second Department, entered on or about July 21, 1958, upon the condition that appellant refrain from committing waste upon the premises in question, with leave to respondent to apply to the Chief Judge or an Associate Judge of the Court of Appeals to vacate the stay should the Department of Housing and Buildings, after being advised of the pendency of this appeal and this stay, cause the commencement of any criminal or civil action against respondent because of the violation in question.

Motion by appellant for leave to prosecute appeal as a poor person granted and case set down for argument during the November, 1958 session of the Court of Appeals.


text:
    Norman La Porte et al., Appellants, v. State of New York, Respondent.
    (Claim No. 33115.)
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion unless, within 10 days from the date of this order, appellants serve and file the required undertaking on appeal and pay $10 costs, in which events motion denied.


text:
    Delbert Lyndsley et al., Appellants, v. Loyal Order of the Moose No. 1382, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion for leave to prosecute appeal as poor persons granted.


text:
    Arlene Marcus, an Infant, by Her Guardian ad Litem, Samuel B. Marcus, Respondent, v. London & Lancashire Indemnity Company of America, Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Harold Weiss for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Leonard Marmet, Appellant, v. Edwin D. Rankins, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion unless, within 10 days, appellant serves and files an undertaking on appeal and pays $10 costs and, within 20 days, files the return on appeal, in which events motion denied.


text:
    In the Matter of Conrad L. Berke, Appellant, against Joseph Schechter et al., Constituting the City Civil Service Commission of the City of New York, Respondents.
    Submitted October 6, 1958;
    decided October 16, 1958
   Motion to have appeal heard upon three copies of the record before the Appellate Division and the required number of typewritten additional papers and seven typewritten briefs granted.


text:
    In the Matter of Leroy Douglas, Appellant, against New York State Thruway Authority, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to have appeal heard upon six copies of the record before the Appellate Division and the required number of copies of printed additional papers granted.


text:
    In the Matter of the Industrial Commissioner of the State of New York, Respondent, against National Plastikwear Fashions, Inc., Judgment Debtor, and Harry I. Greene, Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion for reargument of motion for leave to appeal, etc., granted to the extent that the decision of this court dated January 16, 1958 (4 N Y 2d 715) is hereby amended to read: “ Motion for leave to appeal denied (Civ. Prac. Act, § 589, subd. 2) motion otherwise denied.


text:
    In the Matter of Theodore Landau, Respondent, against Seminole Oil & Gas Corporation, Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion for leave to appeal and for a stay granted.


text:
    In the Matter of New York State Labor Relations Board, Appellant, against Paul B. Budoff, Doing Business as Sullivan County Wood Products Company, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Philip Feldblum and George E. Moehringer for motion for leave to appeal.

      Maurice Lavner and Bernard H. Fitzpatrick opposed.
   Motion for leave to appeal granted.

Cross motion to dismiss application for leave to appeal denied.


text:
    In the Matter of the Arbitration between Leonard A. Pisciotta, Appellant, and Newspaper Enterprises, Inc., Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to vacate the order of this court dated May 16, 1958 granting a stay [4 N Y 2d 959] granted. Since the appeal herein was withdrawn by appellant for the asserted reason that the issues before the court had become moot, the stay previously granted fell with the appeal and no longer has any force or effect.


text:
    In the Matter of Ramon Serra, by His Attorneys, Seymour Ostrow and Another, Appellant. Adelaida Bayron, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Seymour Ostrow and Aaron J. Jaffee for motion.

      Daniel V. Sullivan, District Attorney (Walter E. Dillon of counsel), opposed.
   Motion dismissed upon the ground that no appeal lies to this court from the order of the Appellate Division.


text:
    In the Matter of the Claim of John Sirico, Respondent, against Mastro Transit Mix Corp. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Bernard F. Farley for motion.

      Louis J. Lefkowitz, Attorney-General (Roy Wiedersum of counsel), opposed.
    . Samuel Brill opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the papers were not served within the time fixed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    George Mendes, Appellant, v. Caristo Construction Corp., Respondent, et al., Defendant. Caristo Construction Corp., Third-Party Plaintiff-Appellant, v. Artistic Bronze Tablet Co., Inc., Third-Party Defendant-Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to have appeal heard upon the printed copies of the record before the Appellate Division together with the required number,of typewritten copies of the additional papers granted.


text:
    Sheila Murphy et al., Infants, by Mae Murphy, Their Guardian ad Litem et al., Appellants, v. George Kitrinos et al., Respondents.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion for leave to prosecute appeal as poor persons and for assignment of counsel granted and Emanuel 1ST. Frankel, Esq., of 150 Broadway, New York City, assigned as counsel to appellants on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Loretta Anderson, Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to dispense with printing of the record and brief on the appeal herein granted.


text:
    The People of the State of New York, Respondent, v. Thomas Frye, William A. Wynn, Ralph Dawkins and Jackson Turner, Jr., Appellants.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion by appellant Ralph Dawkins for reargument denied. [See 4 N Y 2d 967.]

Motion by appellant Ralph Dawkins 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.: The defendant asserted that he was deprived of his right to a fair trial under the Fourteenth Amendment. The Court of Appeals held that the rights of defendant under the Fourteenth Amendment had not been violated or denied. [See 4 N Y 2d 967.] Motion by appellant Jackson Turner, Jr., for reargument denied. [See 4 N Y 2d 967.]

Motion by appellant Jackson Turner, Jr., to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, viz.: The defendant asserted that he was deprived of his rights under the Fourteenth Amendment in that he was not allowed access to counsel when questioned by the police on his arrest and in that negroes were excluded from the trial jury. The Court of Appeals held that the rights of defendant under the Fourteenth Amendment had not been violated or denied. [See 4 N Y 2d 967.]

Motion by appellant Jackson Turner, Jr., for a stay of execution of the death sentence dismissed upon the ground that this court is without power to grant a stay (see Code Crim. Pro., §495). [See 4 N Y 2d 967.]


text:
    The People of the State of New York, Respondent, v. Aaron Glubo, Seymour Exelberth, Robert B. Epstein and Atlantic Sewing Stores, Inc., Appellants.
    Submitted October 14, 1958;
    decided October 16, 1958.
   Motion for a further enlargement of time granted and case set down for argument during the November, 1958 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Eugene Warren, Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to have appeal heard upon the original record, for assignment of counsel and for an extension of time to October 25,1958 to file the record on appeal granted and Henry L. King, Esq., of 15 Broad Street, New York City, assigned as counsel to defendant on the appeal herein.

Motion for enlargement of time granted and case set down for argument during the November, 1958 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Walter Williams, Appellant.
    Submitted October 14, 1958;
    decided October 16, 1958.
   Motion for a further enlargement of time granted and case set down for argument during the November, 1958 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Abie Zuckerman, Appellant.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division granted.


text:
    The People of the State of New York ex rel. James Hadley, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.

      James Hadley, in person, for motion.

      Louis J. Leflcoivitz, Attorney-General (William 8. Elder, Jr., of counsel), opposed.
   Motion dismissed upon the ground that the papers were not served within the time fixed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    The People of the State of New York ex rel. John Rapacki, Appellant, against Walter B. Martin, as Warden of Attica Prison, et al., Respondents.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to have appeal heard upon the original record together with the required number of copies of the additional papers granted.


text:
    The People of the State of New York ex rel. Willie H. Reid, Appellant, against Herman J. Ruthazer, as Warden of the City Prison of the City and County of New York, Respondent. The People of the State of New York, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion for a further extension of time granted and case set down for argument during the November, 1958 session of the Court of- Appeals, the record and brief to be filed no later than October 25,1958.


text:
    The People of the State of New York ex rel. George Harry Schaap, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.

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

      Frank B. Bell opposed.
   Motion granted and appeal dismissed upon the ground that no substantial constitutional question is presented.


text:
    Prudential Westchester Corp., Appellant, v. Matilde Tomasino, Respondent.
    Submitted October 6, 1958;
    decided October 16, 1958.
   Motion to dispense with the printing of certain exhibits in the record on appeal herein granted.


text:
    Walter N. Smith et al., Appellants, v. Robert Wagner, as Mayor of the City of New York et al., Respondents.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Walter N. Smith, in person, for motion.

      Peter Campbell Brown, Corporation Counsel (Seymour B. Quel and Benjamin Offner of counsel), opposed.
   Motion denied. On the court’s own motion, appeal dismissed for nonfinality.


text:
    In the Matter of Alwyn H. Wild, Appellant, against Crier Bartol et al., Respondents.
    Submitted October 6, 1958;
    decided October 16, 1958.

      Emily Marx for motion.

      Frank H. McFadden and Abraham J. Hirschsprung opposed.
   Motion for leave to appeal and for related relief made while motion was pending in the Appellate Division for permission to appeal to this court, dismissed as premature (N. Y. Const., art. VI, § 7, subd. [6]; Civ. Prac. Act, § 589, subd. 3, par. [a]).


text:
    The People of the State of New York, Respondent, v. Ferdinand Baumgart, Appellant.
    Submitted October 6, 1958;
    decided October 17, 1958.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Millard J. Noonan, Esq., of Batavia, New York, assigned as counsel to appellant on the appeal herein.

Motion for enlargement of time granted and case set down for argument during the November, 1958 session of the Court of Appeals.


text:
    A. L. Russell, Inc., Appellant, v. City of New York et al., Respondents. New Era Lithograph Company, Inc., Appellant, v. City of New York et al., Respondents. New Era Letter Co., Inc., Appellant, et al., Plaintiffs, v. City of New York et al., Respondents. Ada Lewis et al., as Executors and Trustees of Harry J. Lewis, Deceased, Appellants, v. City of New York et al., Respondents. Bar Press, Inc., Appellant, v. City of New York et al., Respondents. Wisdom Press, Inc., Appellant, v. City of New York et al., Respondents. O’Sullivan Linotype Composition Co., Inc., Appellant, v. City of New York et al., Respondents. Greenleigh Printing Co., Inc., Appellant, v. City of New York et al., Respondents. American Mica Works Corp., Appellant, v. City of New York et al., Respondents. Theodore P. Harding et al., Doing Business as Harding & Harding, Appellants, v. City of New York et al., Respondents. General Printed Products Corp., Appellant, v. City of New York et al., Respondents. Olaf Ravndal, as Treasurer of American Express Company, Appellant, v. City of New York, Defendant, and Cayuga Construction Corporation, Respondent. New York Testing Laboratories, Inc., Appellant, v. Cayuga Construction Corporation, Respondent.
    Argued May 15, 1958;
    decided October 16, 1958.

      Benjamin H. Siff and Harry A. Gair for appellants.

      William F. McNulty, Orlando J. Budser and Charles B. McNamee for Cayuga Construction Corporation, respondent.

      Peter Campbell Brown, Corporation Counsel (Morgan N. Lipton, Seymour B. Quel and Edward A. Doberman of counsel), for City of New York, respondent.
   In each action: Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Helen Arthur et al., Appellants, against Arthur Smith, as Building Inspector of the Town of Islip, et al., Respondents.
    Submitted October 14, 1958;
    decided November 6, 1958.

      Jay A. Gilman for motion.
    No one opposed.
   Motion dismissed upon the ground that the papers were not served within the time prescribed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    In the Matter of the Appointment of a Committee of the Person and Property of Jack Goldberg, an Alleged Incompetent Person. Sylvia Cantor, Appellant; Sidney Levitt, Intervenor-Appellant; Solomon Z. Ferziger, as Special Guardian of the Incompetent, Jack Goldberg, et al., Respondents.
    Submitted November 5, 1958;
    decided November 6, 1958.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division together with the required number of copies of printed additional papers granted.

Motion by appellant to dismiss appeal of intervenor-appellant. Appeal withdrawn by stipulation.


text:
    Betty Myers, Appellant, v. John Myers, Respondent.
    Submitted October 6, 1958;
    decided November 6, 1958.

      Frank Delaney for motion for substitution.

      Telford Taylor opposed to motion for substitution.

      Telford Taylor, Kenneth Simon, Frank Delaney, Jacob H. Hersog and John F. O’Brien for motion for leave to appeal.

      Louis Goldstein, Jacob Gerstein, William G. Mulligan and Sandra W. Jacobson opposed to motion for leave to appeal.
   Motion for leave to appeal denied.

Motion for an order of substitution granted without prejudice to or interference with any lien which the attorneys, for whom substitution is being made, have upon the papers of the client in this or any other cause and upon the cause of action or the proceeds thereof.


text:
    Pierino Pasquale, Plaintiff, v. Babcock, Hinds & Underwood, Inc., Defendant and Third-Party Plaintiff-Respondent; Pasquale Construction Co., Inc., Third-Party Defendant-Appellant, et al., Third-Party Defendants.
    Submitted November 5, 1958;
    decided November 6, 1958.

      Conrad E. Stearns for motion.

      George L. Ingalls and Richard B. Long opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Louis Battice, Appellant.
    Submitted November 5, 1958;
    decided November 6, 1958.
   Motion to have appeal heard upon typewritten copies of the record and briefs granted.


text:
    The People of the State of New York ex rel. John Branton, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent. The People of the State of New York, Respondent.
    Submitted October 6, 1958;
    decided November 6, 1958.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Donald L. Brush, Esq., of Herkimer, New York, assigned as counsel to relator on the appeal herein.


text:
    The People of the State of New York ex rel. Harlow J. Fraden, Appellant, against John F. McNeill, as Director of the Matteawan State Hospital, Respondent.
    Submitted November 5, 1858;
    decided November 6, 1958.

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

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


text:
    Joseph Rae, Respondent, v. Sutbros Realty Corp. et al., Appellants.
    Submitted October 6, 1958;
    decided November 6, 1958.

      Bernard Meyerson and Harold L. Turk for motion.

      Arthur Karger opposed,
   Motion denied.


text:
    Marion J. Stafford, Respondent-Appellant, v. William F. Stafford, Jr., Appellant-Respondent.
    Submitted November 5, 1958;
    decided November 6, 1958.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division together with the required number of copies of printed additional papers granted.


text:
    Lena Thibault, as Committee of the Person and Property of Loretta Slater, an Incompetent, as Administratrix of the Estate of Bernard Slater, Deceased, Appellant, v. City of New York, Respondent, et al., Defendants. City of New York, Third-Party Plaintiff-Appellant, v. Broadway Maintenance Corporation et al., Third-Party Defendants-Respondents.
    Submitted October 14, 1958;
    decided November 6, 1958.

      Joseph Bothbard for motion to appeal as poor person.

      Charles H. Tenney, Corporation Counsel (Seymour B. Quel of counsel), for City of New York.
    No one opposed.
   Motion for leave to prosecute appeal as a poor person granted.

Application by City of New York to include its notice of cross appeal in the record on appeal to be filed by appellant granted.


text:
    The People of the State of New York, Respondent, v. Ralph W. Hamm, Appellant.
    Argued October 7, 1958;
    decided November 13, 1958.

      Louis J. Castellano, Jr., for appellant.

      Frank A. Gulotta, District Attorney (Donald X. Clavin of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Juan Torres, Appellant.
    Argued October 14, 1958;
    decided November 13, 1958.

      John J. Donahue and Florence M. Kelley for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Harry Fields, Appellant.
    Argued October 9, 1958;
    decided November 13, 1958.

      Frederick Weinberger for appellant.

      Frank S. Hogan, District Attorney (H. Richard Uviller and Charles W. Manning of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Corbetta Construction Co., Inc., et al., Respondents, against George M. Bragalini et al., Constituting the Tax Commission of the State of New York, Appellants.
    Argued October 8, 1958;
    decided November 13, 1958.

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

      George W. Scapolito for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Milton J. Kristt, Individually and as a Representative of All Beneficiaries under a Deed of Trust, Dated December 28, 1943, Appellant, v. John J. Whelan et al., as Trustees under a Deed of Trust, Dated December 28, 1943, et al., Respondents.
    Argued October 14, 1958;
    decided November 13, 1958.

      Maurice Fixel and Sidney A. Rose for appellant.

      Francis S. Bensel and W. Frederick Knecht for respondents.
   Judgment affirmed, Avith costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ft:ld, Froessel, Van Voorhis and Bi:rke.


text:
    The People of the State of New York ex rel. Paul Kelly, Respondent, v. Stephen L. Grahich, Appellant.
    Argued October 17, 1958;
    decided November 13, 1958.

      E. Stewart Jones for appellant.

      Alex Wiltse, Jr., District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    Crown Worsted Mills, Inc., Respondent, v. Nathan L. Sheinman et al., Appelants.
    Argued October 15, 1958;
    decided November 13, 1958.

      Harold I. Meyerson and Irving L. Weinberger for appellants.

      John R. Brook, Stuart H. Johnson, Jr., and Clifford B. Storms for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Edgar Murdaugh, Appellant.
    Argued October 16, 1958;
    decided November 13, 1958.

      Benjamin Groberg 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, Froessel, Van Voorhis and Burke.


text:
    In the Matter of Joseph J. Corcoran, Appellant, against New York State Liquor Authority et al., Respondents.
    Submitted October 8, 1958;
    decided November 13, 1958.

      Thomas O’Rourhe Gallagher for appellant.

      John J. Hyland and Oscar A. Bloustein for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Mary E. Force, Appellant.
    Argued October 9, 1958;
    decided November 13, 1958.

      Adolph I. King and Rudolph J. Kraus for appellant.

      Fred A. Dickinson, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    Jules Verlaque, Respondent, v. Frank Weldon, Appellant. Frank Weldon, Plaintiff, v. Jules Verlaque, Defendant.
    Argued October 6, 1958;
    decided November 13, 1958.

      John M. Cunneeñ for appellant.

      Harold M. Edwards for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Malcolm Christian, Appellant, v. Village of Herkimer, Respondent.
    Argued October 8, 1958;
    decided November 13, 1958.

      Phillip T. Young and Andrew J. Moore for appellant.

      Philip D. O’Donnell for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Froessel, Van Voorhis and Burke ; Judge Fuld dissents and votes to reverse for the reasons stated by Presiding Justice McCurn in his dissenting opinion in the Appellate Division.


text:
    The People of the State of New York, Respondent, v. Etheridge Goodfellow, Appellant.
    Argued October 10, 1958;
    decided November 13, 1958.

      David B. Alford for appellant.

      T. Paul Kane, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the Claim of Barbara Alexander, on Behalf of Herself and Minor Children, Appellant, against United Newspaper Magazine Corporation et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued October 15, 1958;
    decided November 13, 1958.

      Abraham Markhoff and Robert N. Van Benthuysen for appellant.

      F. Walter Bliss for United Newspaper Magazine Corporation and another, respondents.
   Application by appellant to withdraw her stipulation for order absolute granted. Order affirmed, with costs. No opinion.

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


text:
    Arbie R. Miles et al., Individually and as Deacons, Trustees and Members of Ebenezer Baptist Church, Inc., et al., Respondents, v. Anderson W. Wilson, Individually and as Pastor of Ebenezer Baptist Church, Inc., Appellant.
    Argued October 7, 1958;
    decided November 13, 1958.

      Melvel W. Snitow and Sydney Snitow for appellant.

      Solomon Z. Ferziger and Bernard Meyerson for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Ftjld, Froessel, Van Vookeiis and Bxjrke.


text:
    Bache & Co., Respondent, v. Max Grossman, Appellant, and M. Mac Schwebel et al., Respondents.
    Argued October 6, 1958;
    decided November 13, 1958.

      Richard Steel and Milton Berger for appellant.

      M. Mac Schwebel, in person, and David Marcus for M. Mac Schwebel and another, respondents.
   Judgment affirmed, with costs to defendants-respondents; no opinion.

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


text:
    In the Matter of Norman V. Carry, Appellant, against John Domino et al., Constituting the Board of Trustees of the Village of Depew, Respondents.
    Argued October 8, 1958;
    decided November 13, 1958.

      Harry A. Kulowsld, Adelbert Fleischmann and John B. Walsh for appellant.

      Thaddeus J. Piusienski for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    New York, Susquehanna and Western Railroad Company, Appellant, v. Central Railroad Company of New Jersey et al., Respondents.
    Argued October 10, 1958;
    decided November 13, 1958.

      Leon Leighton for appellant.

      Richard J. Lally for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Manuel Formoso, Appellant, against Stephen P. Kennedy, as Commissioner of Police of the City of New York, Respondent.
    Argued October 16, 1958;
    decided November 13, 1958.

      Charles Haydon for appellant.

      Charles H. Tenney, Corporation Counsel (Leon A. Fischel and Seymour B. Quel of counsel), for respondent.
   Order affirmed, without costs. We agree with the Appellate Division that petitioner was separated from service, that is, “ dropped from the rolls ” of the Police Department, solely because of his resignation. It was, as the Appellate Division noted, petitioner’s right not to resign and to compel a trial of any pending charges. If, as he claims, he was fraudulently induced to resign, he may apply to respondent Police Commissioner to withdraw his resignation and on such an application the circumstances of the resignation and the merits of the charges then pending against him may be inquired into. 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. Stanley J. Bailey, Jr., Appellant.
    Argued October 9, 1958;
    decided November 13, 1958.

      John E. Leach for appellant.

      John F. Dwyer, District Attorney (Robert A. Burrell 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, Plaintiff, v. David Gordon and David Gordon & Company, Defendants. George A. Berkowitz, Appellant; Ronald D. Saypol, Respondent.
    Argued October 7, 1958;
    decided November 13, 1958.

      George A. Berkowitz, appellant in person.

      Osmond K. Fraenkel and Thomas M. Aron for respondent.
   Order affirmed, with costs. Motion to dismiss appeal, renewed upon the argument, denied. No opinion.

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


text:
    Dan H. Elkind, Respondent, v. City of New Rochelle, Appellant.
    Argued October 8, 1958;
    decided November 13, 1958.

      Murray C. Fuerst, Corporation Counsel (Maxwell E. Charat of counsel), for appellant.

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

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


text:
    Dennis J. Davidson et al., Appellants, v. Fireman’s Fund Indemnity Company, Respondent.
    Argued October 9, 1958;
    decided November 13, 1958.

      Mordecai Konowitz, for appellants.

      William C. Mattison, John J. Kennelly and Mario Matthew Cuomo for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fitld, Froessel, Van Voort-its and Burke.


text:
    The People of the State of New York, Respondent, v. William J. Fitzgerald, Carl B. Golden, John Fornabla, Raymond P. Stewart, Henry Meyer, Robert W. Monholand, Robert E. Kirby, Edward Maher and Robert E. Bowen, Appellants.
    Argued October 16, 1958;
    decided November 13, 1958.

      Addison B. Scoville, Stuart Riedel and Ludwig S. Mlott for appellants.

      Daniel V. Sullivan, District Attorney (Walter E. Dillon of counsel), for respondent.
   Judgments reversed and the complaints dismissed upon the ground that the People did not establish the guilt of defendants beyond a reasonable doubt. No opinion.

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


text:
    In the Matter of William (Bill) Atkinson et al., Bespondents. Samuel R. Rosenbaum et al., Appellants.
    Argued March 27, 1958;
    decided November 13, 1958.

      F. W. E. Adams and Donald W. Smith for Samuel R. Rosenbaum, appellant.

      Emanuel L. Gordon for George V. Clancy, as Treasurer of the American Federation of Musicians of the United States and Canada, appellant.

      Abraham K. Weber and Jules N. Bloch for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    S. Cremona & Co., Inc., Respondent, v. Charles L. Dell et al., Appellants.
    Submitted November 5, 1958;
    decided November 13, 1958.

      Joseph E. Deady for motion.

      John D. D’Apice opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. (See, also, Civ. Prac. Act, § 589, subd. 1, par. [b]; N. Y. Const., art. VI, § 7, subd. [7],; Seabrook v. Seabrook, 3 N Y 2d 986.)


text:
    Elkar Realty Corp., Appellant, v. Mitsuye T. Kamada, Doing Business as Tsuruya Restaurant, Respondent.
    Submitted November 5, 1958;
    decided November 13, 1958.

      Milton J. Freundlich and Joseph R. Apfel for motion.

      Jack Newton Lerner opposed.
   Motion dismissed, with $10 costs, upon the ground that. the order sought to be appealed from is not appealable by permission of the Court of Appeals (Civ. Prac. Act, §. 589, subd. 1, par. [b]; N. Y. Const., art. VT, § 7, subd. [7]; Seabrook v. Seabrook, 3 N Y 2d 986).


text:
    First Bank and Trust Company of South Bend, Respondent, v. Francis Small et al., Individually and as Copartners Doing Business under the Name of Barrow, Wade, Cuthrie & Company, Appellants.
    Submitted November 5, 1958;
    decided November 13, 1958.

      William Power Maloney, John A. Garrity, Saul Levy and George G. D’Amato for motion.

      Barney B. Fensterstock, Harry Zalkin, Sherwin A. Rodin and Frederick B. Sussmann opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the motion in the Appellate Division for leave to appeal to the Court of Appeals was not timely made. (See, e.g., Howe v. Howe, 304 N. Y. 737.)


text:
    In the Matter of the Intermediate Accounting of Gerald Fitz-Gerald, as Trustee under the Will of Alexander Morten, Deceased. In the Matter of the Accounting of Marjory Morten, as Trustee under the Will of Alexander Morten, Deceased. Marjory Morten et al., Appellants; Gerald Fitz-Gerald et al., Respondents.
    Submitted November 10, 1958;
    decided November 13, 1958.

      William Hoppen for motion and in opposition to cross motion.

      Chambers, Clare & Gibson, Harper & Matthews, George B. Fargis, Maurice A. Taub, O’Connor and Murphy, and John G. Magan, in opposition to motion and for cross motion.
   Motion dismissed.

Cross motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the appealable paper was the order of the Appellate Division of July 11, 1958, and not the order entered in the Surrogate’s Court (Civ. Prac. Act, § 591, subd. 2, as amd. by L. 1953, ch. 417; see Matter of Noble, 2 N Y 2d 725) and that the time to appeal from such order of the Appellate Division has expired (Civ. Prac. Act, § 592, subd. 1).


text:
    In the Matter of the Application of Herman C. Pollack for Reinstatement as a Member of the Bar of the State of New York.
    Submitted November 5, 1958;
    decided November 13, 1958.

      Herman Pollack, in person, and Lyon Boston for motion.

      Frank H. Gordon for Association of Bar of City of New York, opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Loretta Anderson, Appellant.
    Submitted November 5, 1958;
    decided November 13, 1958.
   Motion for enlargement of time granted and case set down for argument during the November, 1958 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Woodrow Miller, Appellant.
    Submitted November 5, 1958;
    decided November 13, 1958.
   Motion for enlargement of time granted and case set down for argument during’the January, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. James Peck, Ralph Di Gia, George Willoughby, Hollis Wyman, Jr., Tom Rick, Robert Gilmore, Marcus Cohen, Dale Brothington, Albert Uhrie, Patricia Daw and Elizabeth Quigley, Appellants. The People of the State of New York, Respondent, v. Abraham J. Muste, Kent Larrabee, Eileen Fantino, Ralph Di Gia, Henry J. Maiden, Bayard Rustin, Helen Russell, Mary Ann McCoy, Edith Horwitz, Patricia Rusk, James Peck, Robert Fisher, Hugh Corbin, Jackson Maclow, Dale Brothington, Andrew Osgood, Michael Kovalak and Henry Babcock, Appellants.
    Submitted November 5, 1958;
    decided November 13, 1958.
   Motion for a further enlargement of time granted and canes set down for argument during the January, 1959 session of the Court of Appeals.

Motion to have both appeals heard upon the printed record in People v. Peck granted.


text:
    The People of the State of New York, Respondent, v. Willard H. Phillips, Appellant.
    Submitted November 10, 1958;
    decided November 13, 1958.
   Motion for assignment of counsel granted and Henry W. Schober, Esq., of 150 Old Country Road, Mineóla, New York, and Frank A. Fritz, Jr., Esq., of 120 Broadway, New York City, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Roland Chester Pitts, Appellant.
    Submitted November 10, 1958;
    decided November 13, 1958.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Howard V. Burke, Esq., M. & T. Building, Buffalo, New York, assigned as counsel to defendant on the appeal herein.

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


text:
    The People of the State of New York, Respondent, v. Abie Zuckerman, Appellant.
    Submitted November 5, 1958;
    decided November 13, 1958.
   Motion for enlargement of time granted and case set down for argument during the January, 1959 session of the Court of Appeals.


text:
    The People of the State of New York ex rel. Robert Louis Lozzi, Respondent, against Edward M. Fay, as Warden of Green Haven Prison, Defendant. The People of the State of New York, Appellant.
    Submitted November 5, 1958;
    decided November 13, 1958.
   Motion for leave to submit typewritten briefs on the appeal herein granted.


text:
    The People of the State of New York ex rel. Kenneth O. Van Slyke, Appellant, against Walter M. Wallack, as Warden of Wallkill Prison, Respondent.
    Submitted October 6, 1958;
    decided November 13, 1958.

      Kenneth O. Van Slyke, in person, for motion.

      Arthur W. Wilson, District Attorney (Charles A. McNett of counsel), opposed.
   Motion denied upon the ground that an appeal does not lie as of right.


text:
    John F. Casey, Appellant, v. New York Central Railroad Company, Respondent.
    Argued November 7, 1958;
    decided November 20, 1958.

      Sidney J. Loeb and Irving Payson Zinbarg for appellant.

      Lillian E. Cuff 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 the Arbitration between Delma Engineering Corp., Respondent, and K & L Construction Co., Appellant.
    Argued October 8, 1958;
    decided November 20, 1958.

      Irving Levine for appellant.

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

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


text:
    Fleetash Realty Company, Inc., Appellant, v. Mount Vernon Contracting Corp. et al., Respondents.
    Argued November 5, 1958;
    decided November 20, 1958.

      Robert Lee Moore and Ernest G. Allen for appellant.

      Walter B. Solinger, II, for Mount Vernon Contracting Corp., respondent.
   Judgment affirmed, with costs to respondent Mount Vernon Contracting Corp.; no opinion.

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


text:
    Rusy-Bohm Post No. 411, American Legion, Inc., of Islip, Suffolk County, Appellant, v. Islip Enterprises, Respondent.
    Argued October 9, 1958;
    decided November 20, 1958.

      Leonard D. Wexler and Henry G. Wenzel, III, for appellant.

      Alexander W. Kramer for respondent.
   Judgment affirmed, with costs; no opinion.

‘ ' Concur: Chief Judge Conway and Judges Desmond, Dye, Fulü, Froessel, Van Voorhis and Burke.


text:
    The People of the State of New York, Respondent, v. Alfred E. Stone, Appellant.
    Argued October 16, 1958;
    decided November 20, 1958.

      John W. Condon, Jr., and Grace Marie Ange for appellant.

      John F. Dwyer, District Attorney (Leonard Finhelstein of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Gertrude Berger, Appellant, v. Samuel Johnson et al., Respondents.
    Argued November 5, 1958;
    decided November 20, 1958.

      Richard D. Grossman and Lionel O. Grossman for motion.

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


text:
    George Bereswill, Respondent, v. Philip A. Yablon et al., Appellants, et al., Defendant.
    Submitted November 17, 1958;
    decided November 20, 1958.
   Motion denied.


text:
    City of Albany, Appellant, v. Coplin Yabas, Respondent, et al., Defendants.
    Submitted November 17, 1958;
    decided November 20, 1958.
   Motion for leave to have appeal heard at a later session of this court granted on consent and case set down for argument during the January, 1959 session of the Court of Appeals.

Motion to preclude respondent from filing a brief denied.


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.
    Submitted November 5, 1958;
    decided November 20, 1958.

      Robert S. Dillworth for motion.

      Charles E. Tenney, Corporation Counsel (Alfred Weinstein of counsel), opposed.

      Murray Stockman, Jacob I. Isaacs and Robert E. Bidwell for intervenors-respondents, opposed.
   Motion denied upon the ground that nonconstitutional questions may be argued, along with the constitutional issues, when the appeal is taken as of right under paragraph (a) of subdivision 1 of section 588 of the Civil Practice Act; ‘


text:
    The People of the State of New York, Respondent, v. George Cizike, Appellant.
    Submitted November 5, 1958;
    decided November 20, 1958.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Kenneth' S. MacAffer, Jr., Esq., 90 State Street, Albany, New York, assigned as counsel to defendant on the appeal herein. ... .;


text:
    The People of the State of New York, Respondent, v. William R. Calderon, Appellant.
    Submitted October 6, 1958;
    decided November 20, 1958.
   Motion for leave to prosecute appeal upon the original record- and for assignment of counsel granted and John T. De Graft, Jr., Esq., 90 State Street, Albany, New York, assigned as counsel to defendant on the appeal herein.

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


text:
    The People of the State of New York, Respondent, v. Thomas G. Daniel, Appellant.
    Submitted October 6, 1958;
    decided November 20, 1958.
   Application for assignment of counsel granted and Henry W. Schober, Esq., of 150 Old Country Road, Mineóla, New York, assigned as counsel to defendant on the appeal herein.


text:
    The People of the State of New York ex rel. James Francis Hughes, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent. The People of the State of New York, Respondent.
    Submitted October 6, 1958;
    decided November 20, 1958.
   Application for leave to prosecute appeal as a poor person and for assignment of counsel granted and Paul E. Cheeseman, Esq., 90 State Street, Albany, New York, assigned as counsel to relator on the appeal herein.


text:
    Ethel H. Thomas, Respondent, v. Jamaica Buses, Inc., et al., Appellants.
    Argued October 9, 1958;
    decided November 21, 1958.

      Burton S. Cooper, Bernard Shatzkin and Howard Stamer for appellants.

      Charles Margett and H. Stuart Klopper for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Froessel and Burke. Judges Fuld and Van Voorhis dissent and vote to reverse upon the ground that the negligence asserted was neither proved by plaintiff nor found by the trial court.


text:
    Nina Northup, an Infant, by Carlton E. Northup, Her Guardian ad Litem, Respondent-Appellant, v. Gilbert Gage, Respondent, and Robert Ulmer, Appellant. Carlton E. Northup, Respondent-Appellant, v. Gilbert Gage, Respondent, and Robert Ulmer, Appellant.
    Argued November 6, 1958;
    decided November 21, 1958.

      William J. McDonald for appellant.

      Thomas Croucher for respondents-appellants.

      Richard H. Conners for respondent.
   Judgments affirmed, with costs to plaintiffs payable by defendant Ulmer and with costs to defendant Gage payable by plaintiffs; no opinion.

Concur: Chief Judge Conway and Judges" Desmond, Fuld, Froessel and Burke. Judges Dye and Van Voorhis dissent and vote to reverse and to dismiss the complaint against defendant Ulmer upon the ground that as a matter of law the accident resulted solely from the negligence of defendant Gage.


text:
    Bela Varga, Individually and as President of the National Hungarian Government, on Behalf of Himself and All Those Beneficiaries of the National Hungarian Trust Fund Similarly Situated, Appellant, v. Credit Suisse, Respondent.
    Argued October 16, 1958;
    decided November 21, 1958.

      Michael M. Platzman for appellant.

      William Eldred Jackson and Rebecca M. Cutler for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Michael Bevilacqua, Appellant.
    Argued October 14, 1958;
    decided November 21, 1958.

      John S. Hall and Dominich Viscardi for appellant.

      Daniel T. Manning, District Attorney, for respondent.
   Judgments reversed and information dismissed upon the ground that the People did not establish the guilt of defendant beyond a reasonable doubt. We pass upon no other question. No opinion.

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


text:
    In the Matter of Industrial Commissioner or the State of New York, Respondent, against National Plastikwear Fashions, Inc., Judgment Debtor, and Harry I. Greene, Appellant.
    Submitted November 17, 1958;
    decided November 21, 1958.

      Edwin W. Tucker for motion.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair of counsel), opposed.
   Motion denied.


text:
    The People of the State of New York, Appellant, v. Carmine Alfonso, Respondent. The People of the State of New York, Appellant, v. Andrew Alfonso, Respondent.
    Submitted January 5, 1959;
    decided January 6, 1959.
   Motion for enlargement of time granted and cases set down for argument during the January, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Albert Altruda, Appellant.
    Submitted January 5, 1950;
    decided January 6, 1959.
   Motion for enlargement of time granted and case set down for argument during the January, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Nelson Cassell, Appellant.
    Submitted January 5, 1959;
    decided January 6, 1959.
   Motion for enlargement of time granted and case set down for argument during the January, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Edwin Duryea, Appellant.
    Submitted January 5, 1959;
    decided January 6, 1959.
   Motion for enlargement of time granted and case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Joseph Hughes, Appellant.
    Submitted January 5, 1959;
    decided January 6, 1959.
   Motion for enlargement of time granted and case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Mario Lalli, Victor Lalli, Claude Greek and Akthoky Alba, Appellants.
    Submitted January 5, 1959;
    decided January 6, 1959.
   Motion for enlargement of time granted and case set down for argument during the January, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Willard H. Phillips, Appellant.
    Submitted January 5, 1959;
    decided January 6, 1959.
   Motion for enlargement of time granted and case set down for argument during the February, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Enrico Porcaro, Appellant.
    Submitted January 5, 1959;
    decided January 6, 1959.
   Motion for enlargement of time granted and case set down for argument during the January, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Charles L. Mault, Appellant.
    Argued November 13, 1958;
    decided January 8, 1959.

      John J. Costello for appellant.

      Arthur W. Wilson, District Attorney (John L. Butz of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Eugene Warren, Appellant.
    Argued November 13, 1958;
    decided January 8, 1959.

      Henry L. King for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Ferdinand Baumgart, Appellant.
    Argued November 20, 1958;
    decided January 8, 1959.

      Millard J. Noonan for appellant.

      William E. Earl, District Attorney (John E. O’Donnell of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Matthew J. Langert, Appellant, against Charles H. Tenney, as Commissioner of Investigation of the City of New York, Respondent.
    Argued November 6, 1958;
    decided January 8, 1959.

      Edwin E. Roberts for appellant.

      Charles E. Tenney, Corporation Counsel (Edward A. Doberman and Seymour B. Quel of counsel), for respondent.
   Appeal dismissed, without costs, upon the ground that the order does not finally determine a special proceeding within the meaning of the Constitution (Matter of Attorney-General, 155 N. Y. 441). 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. Frederick Liebenthal, Appellant.
    Argued October 16, 1958;
    decided January 8, 1959.

      M. Arthur Hammer for appellant.

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

Concur: Chief Judge Conway and Judges Desmond, Dye, Froessel and Burke. Judges Fuld and Van Voorhis dissent and vote to dismiss the complaint upon the ground that there was no evidence to establish solicitation upon the part of defendant as required by the statute.


text:
    Anna Hekand, Appellant, v. Morris Stockhammer et al., Respondents.
    Argued November 10, 1958;
    decided January 8, 1959.

      Norman Bard for appellant.

      Solomon Boneparfh for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    Anne Hersh, Appellant, v. Herbert Hersh, Respondent.
    Submitted November 18, 1958;
    decided January 8, 1959.

      Maurice Abrams for appellant.

      Leon B. Ginsburg for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Loretta Anderson, Appellant.
    Argued November 21, 1958;
    decided January 8, 1959.

      Joseph E. Einhorn for appellant.

      George N. Meyl, District Attorney (Condon A. Lyons of counsel), for respondent.
   Judgments reversed and information dismissed upon the ground that the People failed to establish the guilt of defendant beyond a reasonable doubt. No opinion.

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


text:
    In the Matter of Richard Edde, Appellant, against Columbia University in the City of New York, Respondent.
    Argued November 19, 1958;
    decided January 8, 1959.

      Richard Edde, appellant in person.

      Edward D. Burns, John A. Kiser and Martin Eogelman for respondent.
   Appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. (Civ. Prac. Act, § 588, isubd. 1, par. [a].) No opinion.

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


text:
    Renol Holding Corp., as Assignee of Radice Construction Corp., Appellant, v. Samuel M. Goodman et al., Respondents.
    Argued November 18, 1958;
    decided January 8, 1959.

      Isaac Rubin, Joseph E. Muson and Milton D. Jacobs for appellant.

      Paul L. Ross for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jean Gross et al., Respondents, et al., Plaintiffs, v. Harriet Lewis et al., Appellants.
    Argued November 10, 1958;
    decided January 8, 1959.

      Thomas Rattigan for appellants.

      Mortimer Cole for respondents.
   Judgment reversed and complaint dismissed, without cost upon the ground that respondents failed to establish the actioi able negligence asserted as a matter of law. No opinion.

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


text:
    Selma Bohlig, as Administratrix of the Estate of Frederick Bohlig, Deceased, Appellant, v. Karl Schmitt et al. Respondents.
    Argued November 17, 1958;
    decided January 8, 1959.

      Benjamin H. Siff and Charles Kramer for appellant.

      Joseph Fennelly, William S. O’Connor and Paul D. Carrigg for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    Gustav Erbe, Jr., Individually and as Executor and Trustee under the Will of Gustav Erbe, Deceased, et al., Appellants, v. Lincoln Rochester Trust Company, Individually and as Executor and Trustee under the Will of Gustav Erbe, Deceased, et al., Respondent.
    Argued November 10, 1958;
    decided January 8, 1959.

      Matthew J. Shevlin and Harold G. Hutchens for appellants.

      William H. Morris and Leonard S. Zartman for Lincoln Rochester Trust Company, respondent.
   Per Curiam.

Our determination that the action, relief requested, rights and interests affected, and issue®, set forth in the complaint differed from the prior proceedings before the Surrogate of Monroe County precludes the assertion of the defense of res judicata under -any circumstances. (Erbe v. Lincoln Rochester Trust Co., 3 N Y 2d 321.) As we previously held, the complaint states a cause of action in actual fraud. It follows, -therefore-, that the motion to strike paragraph 43 of the answer setting forth the defense as to certain allegations in the complaint should have been granted in accordance with our previous ruling.

The order of the- Appellate Division should be reversed and the motion to strike should be granted.

Chief Judge Conway 'and Judge® Desmond, Dye, Fuld, Froessel 'and Burke concur in Per Curiam opinion; Judge Van Voorhis dissents and vote® to affirm.

Order reversed, with costs in all courts, and appellants’ motion to strike the partial defense (res judicata) contained in paragraph “ 43 ” of the answer herein granted.


text:
    The People of the State of New York ex rel. Willie H. Reid, Appellant, against Herman J. Ruthazer, as Warden of the City Prison of the City and County of New York, Respondent. The People of the State of New York, Respondent.
    Argued November 10, 1958;
    decided January 8, 1959.

      Milton H. Friedman for appellant.

      Frank S. Hogan, District Attorney (Charles W. Manning and H. Richard Uviller of counsel), for respondents.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Robert Louis Lozzi, Respondent, against Edward M. Fay, as Warden of Green Haven Prison, Defendant. The People of the State of New York, Appellant.
    Argued November 14, 1958;
    decided January 8, 1959.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair and Allen N. Smiley of counsel), for appellant.

      Morton N. Wekstein for respondent.
   Order affirmed; no opinion.

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


text:
    Alfred G. Eisenbraun, Appellant, v. City of New York, Respondent, et al., Defendants.
    Argued November 17, 1958;
    decided January 8, 1959.

      Bernard Meyerson and Herman E. Hoberman for appellant.

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

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


text:
    Paul Ginsburg, Appellant, v. Hearst Publishing Company, Inc., et al., Respondents.
    Argued November 6, 1958;
    decided January 8, 1959.

      Leonard Feldman for appellant.

      Lawrence V. Brock, Charles Henry and Joseph C. Hagan for respondents.
   Judgment affirmed, with costs, on the condition provided for in the Appellate Division order, that is, that respondents within ten days accept service of process or appear in a Pennsylvania action and waive the Statute of Limitations, etc. No opinion.

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


text:
    Edythe Williams, Appellant, v. Melvin Williams, Respondent.
    Argued November 13, 1958;
    decided January 8, 1959.

      Bernard Wreschner and Walter J. Boyles for appellant.

      Fred Noz for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Grandview Construction Corporation, Plaintiff, v. Mariano Lepore, Doing Business as Albany Cement Finishing Company et al., Defendants. (Action No. 1.) Mariano Lepore, Doing Business as Albany Cement Finishing Company, Respondent, v. Grandview Construction Corporation, Appellant. (Action No. 2.)
    Argued November 5, 1958;
    decided January 8, 1959.

      Walter B. Soling er, II, for appellant.

      Franklin P. Gavin and James H. Doran 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 Voobhis and Burke.


text:
    The People of the State of New York ex rel. John Rapacki, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Argued November 21, 1958;
    decided January 8, 1959.

      Hayden H. Dadd for appellant.

      Louis J. Lefkowitz, Attorney-General (J. Bruce MacDonald and Paxton Blair 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 Peter E. Going, Appellant, against Stephen P. Kennedy, as Police Commissioner of the City of New York et al., Respondents.
    Argued November 17, 1958;
    decided January 8, 1959.

      Samuel Resnicoff for appellant.

      Charles E. Tenney, Corporation Counsel (Anthony Curreri, Seymour B. Quel and Arthur E. Geisler of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Harry Rosenzweig, Appellant, v. Leon Salkind, Respondent.
    Argued November 6, 1958;
    decided January 8, 1959.

      Morris C. Kimmel and Abraham Rudolph for appellant.

      Murray Koenig and Morton Greenspan for respondent.
   Judgment affirmed, with costs ; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Grace Merrill, Appellant.
    Argued November 6, 1958;
    decided January 8, 1959.

      William B. McDonald for appellant.

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

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


text:
    In the Matter of Ella M. Barry, Appellant, against Andrew W. Mulrain, as Treasurer and Trustee of the Relief and Pension Fund of the Department of Street Cleaning of the City of New York, Respondent.
    Argued November 17, 1958;
    decided January 8, 1959.

      Samuel Resnicoff for appellant.

      Charles H. Tenney, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Saul Greenberg and George Ornstein, Appellants.
    Argued November 18, 1958;
    decided January 8, 1959.

      I. Ben Greenman for Saul Greenberg, appellant.

      Ambrose V. McCall., Jr., and Richard G. Mullan for George Ornstein, appellant.

      Frank S. Hogan, District Attorney (William Rand, Jr., and Richard G. Denzer of counsel), for respondent.
   Judgments - affirmed; no opinion.

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


text:
    Sam Mintz, Respondent, v. Philip Greenberg e.t al., Individually and as Executors of Wilhelm Greenberg, Deceased, et al., Defendants; Mary Noval, Respondent, and Charlotte Smith, Appellant.
    Argued November 11, 1958;
    decided January 8, 1959.

      Raphael H. Weissman for appellant.

      Frank Leavitt and Morris Cornman for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Patrick J. Beglane, Appellant, v. Carlson Hoisting & Machinery Co., Inc., Respondent, et al., Defendant; Carlson Hoisting & Machinery Co., Inc., Third-Party Plaintiff, v. James King & Son, Inc., Third-Party Defendant.
    Argued November 7, 1958;
    decided January 8, 1959.

      Paul O’Dwyer and Howard N. Meyer for appellant.

      Lillian E. Cuff and Hobart B. Marvin for respondent.
   Judgment affirmed, with costs; no opinion.

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