author: Van Voorhis, J. (dissenting).

text:
    Ramon Soto, an Infant, by Gertrude Soto, His Guardian ad Litem, Appellant, v. City of New York, Respondent.
    Argued January 5, 1961;
    decided January 20, 1961.

      Charles 8. Phillips for appellant.

      Charles H. Tenney, Corporation Counsel (Victor J. Herwit& and Benjamin B. Kaplan of counsel), for respondent.
   Judgment reversed and a new trial granted, with costs to abide the event, upon the ground that the allegations of the complaint, the bill of particulars, and the opening statement of plaintiff’s counsel, if established by credible proof, would make out a prima facie case sufficient for submission to the jury. (Bowers v. City Bank Farmers Trust Co., 282 N. Y. 442, 446; Collentine v. City of New York, 279 N. Y. 119, 124.)

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

Van Voorhis, J. (dissenting).

Plaintiff is limited by his bill of particulars, and the opening of counsel shows that nothing more is asserted. The trial court held that all of the facts which were alleged or claimed to exist did not constitute a cause of action. This ruling, unanimously affirmed by the Appellate Division, was clearly correct. The roof of this apartment building was not set aside for the common use of tenants nor as an adjunct to the demised premises. On the contrary, plaintiff’s-counsel stated in his opening that children were warned not to go up there. The fact that defendant may have known that children played on the roof in spite of what it could do to prevent them does not alter the infant plaintiff’s status as a licensee. He was on the roof for his own purposes only (Simmons v. Poughkeepsie Sav. Bank, 255 App. Div. 887, affd. 282 N. Y. 626; Walker v. Bachman, 268 N. Y. 294, 296-297; Vaughan v. Transit Development Co., 222 N. Y. 79, 82; Lo Casto v. Long Is. R. R. Co., 6 N Y 2d 470, 474; Carbone v. Mackchil Realty Co., 296 N. Y. 154, 158; Molnar v. Slattery Contr, Co., 8 A D 2d 95, 98).

The cases cited in the majority memorandum do not hold that a question of fact is presented concerning whether the infant plaintiff was an invitee on the roof, and are readily distinguishable. This was not in a public park as in Collentine v. City of New York (279 N. Y. 119) on a structure which, although not part of the park facilities, was immediately adjacent to such facilities with no line of demarcation between it and the playground proper. Here no janitor in defendant’s employ, dressed as a cowboy, invited the children on the roof three or four times a week to see him do whip and lariat tricks and hear him play the guitar, as happened in Bowers v. City Bank Farmers Trust Co. (282 N. Y. 442). The United States Court of Appeals, Second Circuit, four years ago interpreted the New York law in Avlon v. Greencha Holding Corp. (239 F. 2d 616) in accordance with the ruling of the courts below herein. In dismissing a complaint for personal injuries resulting from the collapse of an iron grating or platform affixed to the outside of a building, where the plaintiff was a cook employed by a tenant, it was held that he lacked the status of an invitee rather than a bare licensee notwithstanding evidence that he and other employees as well as patrons of the cafeteria occasionally used this dSntside platform and stairway to the observation of the president of the defendant owner. The following quotation is pertinent from the opinion by Judge Swan concurred in by Judge Learned Hand (p. 618): “It seems to us that Judge Pound’s gloss upon the distinction between ‘ invitee ’ and ‘ licensee ’ in Vaughan v. Transit Development Co., 222 N. Y. 79, 82, 118 N. E. 219, still stands: Long-continued acquiescence in such use does not become an invitation. The law does not penalize good nature or indifference nor does permission ripen into right. ’ See discussion in Carbone v. Mackchil Realty Corp., 296 N. Y. 154, 158, 159, 71 N. E. 2d 447. The supposed departures from the rule as to the effect of acquiescence disappear upon analysis of the facts.” The opinion in Avion distinguished Bowers v. City Bank Farmers Trust Co. (supra) by pointing out that the janitor frequently entertained the children on the roof by performing as a cowboy at a location which the tenants used habitually as a place to dry clothes. As recently as Carbone v. Mackchil Realty Corp. (296 N. Y. 154, 156, supra), the leading case of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301) was said never to have been questioned in the Court of Appeals (Lefler v. Pennsylvania R. R., 203 Misc. 887).

Appellant charges respondent with negligence in allowing a door to be open leading to the roof. The conviction of the owner of a multiple dwelling of misdemeanor-manslaughter was •affirmed in People v. Nelson (309 N. Y. 231) for the reason that the escape hatch to the roof was fastened, resulting in death from fire. It is conceded here that the opening through which the plaintiff reached the roof could not have been locked without violating the law (Multiple Dwelling Law, § 233, subds. 2, 6; §§ 104, 147). The only way of keeping children from the roof would have been to have locked or bolted this door so that they could not have opened it. It is said that children might not have discovered how to open this fire exit if the door had been fastened on the inside with movable bolts or hooks (not locked). This is pure speculation. Any child who was not half-witted would have been likely to discover how to unlatch and open a door that was not locked. It cannot be assumed that children or other occupants of the building would know how to open this door to escape to the roof in case of fire, but would be unable to understand how to pass through the same exit if they wanted to play. The only way by which this condition could have been prevented would have been for defendant to have kept a guard on duty day and night to have prevented these children from going upon the roof. That is more than reasonable, care required.

The judgment appealed from should be affirmed.

Judgment reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Mary A. Leotta, Individually and as Administratrix of the Estate of Alfred R. Leotta, Deceased, Appellant-Respondent, v. Joseph E. Plessinger, Defendant, Harry B. Hole, Respondent-Appellant, and Riggs Dairy Express, Inc., Respondent. Ellen Axtell, Appellant-Respondent, v. Joseph E. Plessinger, Defendant, Harvey B. Hole, Respondent-Appellant, and Riggs Dairy Express, Inc., Respondent. Vida Axtell, Appellant-Respondent, v. Joseph E. Plessinger, Defendant, Harvey B. Hole, Respondent-Appellant, and Riggs Dairy Express, Inc., Respondent.
    Submitted January 16, 1961;
    decided January 20, 1961.


text:
    The People of the State of New York, Appellant, v. Abbott Maintenance Corporation, Defendant, and Instalment Department, Inc., Respondent.
    Submitted January 16, 1961;
    decided January 20, 1961.
    Reported below, 11 A D 2d 136.
   Motion for an adjournment of the argument granted and case set down for argument during the February, 1961 session of the Court of Appeals.


text:
    The People of the State of New York, Appellant, v. Juan Bonano, Respondent.
    Argued January 17, 1961;
    decided February 23, 1961.

      Isidore Dollinger, District Attorney (Bertram R. Gelfand and Walter E. Dillon of counsel), for appellant.

      Otto F. Fusco for respondent.

      Frank 8. Hogan and R. Marshall Witten for District Attorneys’ Association of the State of New York, amicus curiae.

   Order affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Richard McGuinness, Appellant.
    Argued January 19, 1961;
    decided February 23, 1961.

      Nathan A. Bork for appellant.

      Arthur A. Darrigrand, District Attorney (J. Stuart Fero of counsel), for respondent.
   Order reversed and the matter remitted to the Oneida County Court for a new hearing for the reasons stated in the dissenting opinion of the Appellate Division. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Jacob Berger, Appellant.
    Argued January 10, 1961;
    decided February 23, 1961.

      Maurice Edelbaum for appellant.

      Frank S. Hogan, District Attorney (Harold Boland Shapiro of counsel), for respondent.
   Order reversed and the matter remitted to the Court of General Sessions of the County of New York for a trial of defendant’s allegations of abandonment by counsel and coercion in the procurement of his confession and plea of guilty. No opinion.

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


text:
    In the Matter of the Arbitration between Burns Bros. et al., Appellants, and James F. McGuire, as President of Coal, Gasoline, Fuel Oil Teamsters, Chauffeurs, Oil Burner Installation, Maintenance, Servicemen and Helpers of New York City & Vicinity, Local Union No. 553, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al., Respondents.
    Submitted January 20, 1961;
    decided February 23, 1961.

      Sidney 0. Raphael and Leo M. Drachsler for appellants.

      Samuel J. Cohen and Benjamin H. Shieber for respondents.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis, Burke and Foster. Judge Fuld dissents and votes to reverse upon the dissenting opinion in the Appellate Division.


text:
    The People of the State of New York, Respondent, v. Robert Fish, Appellant.
    Argued February 20, 1961;
    decided February 23, 1961.

      Robert D. Schneider for appellant.

      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for respondent.
   Order reversed and the case remanded to the Appellate Division for reinstatement of the appeal to be heard upon the original papers (People v. Borum, 8 N Y 2d 177; People v. Garcia, 8 N Y 2d 1143). On such reinstated appeal appellant will be entitled either to have a copy of the original papers or to assignment of counsel (People v. Kalan, 2 N Y 2d 278; People v. Breslin, 4 N Y 2d 73). No opinion.

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


text:
    The People of the State of New York, Respondent, v. Lila Duarte, Appellant.
    Submitted January 17, 1961;
    decided February 23, 1961.

      Anthony J. di Buono for appellant.

      Frank 8. Hogan, District Attorney (Peter J. O’Connor and Richard G. Denser of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frances E. Kelly, Appellant.
    Argued January 18, 1961;
    decided February 23, 1961.

      Abe Both for appellant.

      Carman F. Ball, District Attorney (Edward J. Marschner of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Mayer Zuckerman, Appellant.
    Argued January 18, 1961;
    decided February 23, 1961.

      Richard B. Schwartz for appellant.

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

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


text:
    Hoy H. Porter, Doing Business as Porter & Tracy, Appellant, v. Samfred Realty Corporation, Respondent.
    Argued January 13, 1961;
    decided February 23, 1961.

      Charles E. Nichols for appellant.

      Joseph J. Casey for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Vincent Mogavero, Appellant.
    Argued January 17, 1961;
    decided February 23, 1961.

      Bruce 0. Becker for appellant.

      Wallace J. Stakel, District Attorney (Ernest M. Fou/nd of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Howard George Ruhlman, Appellant.
    Argued January 17, 1961;
    decided February 23, 1961.

      David M. Yellen for appellant.

      Wallace J. Stakel, District Attorney (Stephen B. Hughes of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Ruth Waldorf, Respondent, v. Tolein Sorbo, Defendant, and Bradford Peck, Appellant. Paul Waldorf, Respondent, v. Tolein Sorbo, Defendant, and Bradford Peck, Appellant.
    Argued January 6, 1961;
    decided February 23, 1961.

      B. Waldron Hersberg and F. E. Lehner for defendant-appellant.

      William E. J. Connor, Morris Millman and John G. Connor for plaintiffs-respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Bertha Carlson, Appellant, v. Costan Corp., et al., Respondents. Costan Corp., Third-Party Plaintiff-Appellant, v. Barton, Inc., Third-Party Defendant-Respondent.
    Argued January 18, 1961;
    decided February 23, 1961.

      Alfred 8. Julien, Marie M. Lambert and David G. Lubell for appellant.

      Richard E. Shandell, Edward A. Shandell and Joseph J. Brophy for defendants-respondents and third-party plaintiff-appellant.

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

Concur: Judges Dye, Fuld, Froessel, Yak Yoorhis and Burke. Chief Judge Desmond and Judge Foster dissent and vote to reverse upon the ground that, within the reasonable meaning of the statute (Labor Law, § 315, subd. 2), the place where the accident occurred was in a “ tenant-factory building ”.


text:
    In the Matter of Dorothy B. Leyendecker, as Executrix of Clarence N. Leyendecker, Deceased, Respondent, v. State Tax Commission, Appellant.
    Argued January 11, 1961;
    decided February 23, 1961.

      Louis J. Lefkowitz, Attorney-General (Edwin B. Oberwager and Paxton Blair of counsel), for appellant.

      Montague Gasper and Charles J. Nehrbas for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Feoessel, Van Vooehis, Bueke and Foster.


text:
    In the Matter of the Estate of Gothlieb Kittelberger, Deceased. Gladys Judd et al., Appellants; Central Trust Company of Rochester, as Executor and Trustee under the Will of Gothlieb Kittelberger, Deceased, et al., Respondents.
    Argued January 11, 1961;
    decided February 23, 1961.

      David M. Levy and Bernard M. Dogal for Gladys Judd and others, appellants.

      Edwin Williams and David M. Levy for Lora Martin and others, appellants.

      Arthur VD, Chamberlain, special guardian, appellant in person.

      George J. Bkivington and William C. Combs for Frank D. Bertch, respondent.

      J. Emmett O’Brien for Webaco Oil Company, Inc., respondent.

      Howard M. Woods, David M. Gray and Philip M. Liebschutz for Central Trust Company of Rochester, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Salvatore Amodeo, Respondent, v. New York City Transit Authority, Appellant.
    Submitted February 20, 1961;
    decided February 23, 1961.
    Reported below, 10 A D 2d 982.
   Motion for a preference denied.


text:
    Carmen Battalla, an Infant, by Her Guardian ad Litem, Carmen Battalla, Appellant, v. State of New York, Respondent.
    (Claim No. 35621.)
    Submitted February 20, 1961;
    decided February 23, 1961.
    Reported below, 11 A D 2d 613.
   Motion to dismiss appeal [for failure to perfect the appeal pursuant to section 593 of the Civil Practice Act] denied.


text:
    In the Matter of the Probate of the Will of Monroe L. Dix, Deceased. Elynor M. Dix et al., Appellants; David C. Anchin, Respondent. In the Matter of the Probate of the Will of Monroe L. Dix, Deceased. Rose Selby et al., Appellants; Chemical Corn Exchange Bank, as Temporary Administrator of Monroe L. Drx, Deceased, Respondent.
    Submitted February 20, 1961;
    decided February 23, 1961.
    Reported below, 11 A D 2d 555 (14).

      George J. Hirsch for motion.

      David M. Potts and James E. Brearton opposed.
   Motion dismissed upon the ground'that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution (Matter of Watson, 239 N. Y. 506; Matter of Shonts, 229 N. Y. 374, 378).


text:
    In the Matter of David Karp, Appellant, v. William S. Hults, as Commissioner of Motor Vehicles of the State of New York, Respondent.
    Submitted February 20, 1961;
    decided February 23, 1961.
    Reported below, 12 A D 2d 718.

      George H. Rosen for motion for stay and opposed to motion to dismiss appeal.

      Louis J. Lefkowitz, Attorney-General (Philip J. Fitzgerald of counsel), opposed to motion for stay and for motion to dismiss appeal.
   Motion for stay granted and case set down for argument during the March, 1961 session of the Court of Appeals.

Motion to dismiss the appeal denied.


text:
    In the Matter of Merriewold Club, Inc., Respondent, v. Public Service Commission of the State of New York et al., Appellants, and Regina Caldwell et al., Intervenors-Appellants.
    Argued February 20, 1961;
    decided February 23, 1961.
    Reported below, 10 A D 2d 521.

      Homer H. Breland for motion.

      Kent H. Brown, Cameron F. MacBae, Benjamin A. Gilman and Kenneth L. Lawlor opposed.
   Motion denied.


text:
    In the Matter of the Arbitration between Milliken Woolens, Inc., et al., Appellants, and Weber Knit Sportswear, Inc., Respondent.
    Submitted February 20, 1961;
    decided February 23, 1961.
    Reported below, 11 A D 2d 166.
   Motion to preclude respondent from serving and filing a brief on the appeal herein denied.


text:
    In the Matter of the Accounting of the Public Administrator of the County of New York, as Administrator of the Estate of Harry Pasialis, Deceased, Respondent. Paul Anayannis, Appellant; Henry E. Coleman, Respondent.
    Submitted February 20, 1961;
    decided February 23, 1961.
    Reported below, 12 A D 2d 739.

      William J. Rapp for motion.

      Joseph T. Arenson and Henry E. Coleman, in person, 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. Harry Lanza, Appellant.
    Submitted February 20, 1961;
    decided February 23, 1961.
    Reported below, 10 A D 2d 315.

      ■Frank 8. Hogan, District Attorney (Richard G. Denser of counsel), for motion and opposed to cross motion.

      Michael P. Direnso opposed to motion and for cross motion.
   Motion denied.

Cross motion granted and case set down for argument during the March, 1961 session of the Court of Appeals.


text:
    Julia Polley, as Administratrix of the Estate of Abe Polley, Deceased, Appellant, v. Stanley Polley, Respondent.
    Submitted February 20, 1961;
    decided February 23, 1961.

      Reported below, 11 A D 2d 121.

      John M. Gunneen for motion and opposed to cross motion.

      Robert D. Levin opposed to motion and for cross motion.
   Motion denied.

Cross motion granted and Harry H. Lipsig, Esq., 100 Church Street, New York City, substituted in the place and stead of Milton Schilback, Esq., 35 East 9th Street, New York City, as counsel to appellant on the appeal herein.


text:
    Margaret Sterns, Respondent, v. Ernest Stevans, Appellant.
    Submitted February 20, 1961;
    decided February 23, 1961.

      Frank B. Gass 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:
    Sherry Shuffman, Respondent, v. Frederick Shuffman, Appellant.
    Submitted February 20, 1961;
    decided February 23, 1961.
    Reported below, 10 A D 2d 936.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless appellant serves and files the additional papers on appeal by March 1, 1961, his brief, if any, by March 8,1961, and pays $10 costs, in which events motion denied. Case set down for argument during the second week of the March, 1961 session of the Court of Appeals.


text:
    Opgal, Inc., et al., Respondents, and Press Wireless, Inc., et al., Intervening Plaintiffs-Respondents, v. John J. Burns et al., Constituting the Town Board of the Town of Oyster Bay, Appellants.
    Submitted February 20, 1961;
    decided February 23, 1961.
   Motion to amend remittitur denied. This court held that the zoning ordinance as applied to plaintiffs ’ property was violative of the due process clauses of both the New York State Constitution and the Fourteenth Amendment of the Constitution of the United States. [See 9 N Y 2d 659.]


text:
    The People of the State of New York, Respondent, v. Walker Stigler, Appellant.
    Argued January 19, 1961;
    decided March 2, 1961.

      Samuel Bader for appellant.

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
   Judgment affirmed. The court’s charge was erroneous insofar as it instructed the jury that the confession could be rejected as involuntary only if found to have been obtained by threats or force or fear induced by the persons who actually received the confession, but, where, as here, defendant has denied making any confession or admission, the instruction was irrelevant and could not have been prejudicial. No claim was made by defendant at the trial that he was induced to confess by reason of any such threats or fears. No opinion.

Concur: Chief Judge- Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster. Judge Froessel concurs in result under section 542 of the Code of Criminal Procedure.


text:
    In the Matter of Broadway Maintenance Corp., Appellant, v. Jacob Grumet et al., Constituting the Temporary Commission of Investigation of the State of New York, Respondents.
    Argued February 23, 1961;
    decided March 2, 1961.

      Herman L. Weisman, Herbert F. Roth, Joseph Liff and Harold S. Lasar for appellant.

      Whitney North Seymour, Jr., Harold Baer, Jr., and Victor A. Cocossiello for respondents.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Claim of Rose Mantell, Respondent, v. Ohrbach's, Inc., et al., Appellants. Workmen's Compensation Board, Respondent.
    Submitted February 20, 1961;
    decided March 2, 1961.

      Albert P. Thill for"appellants.

      Louis J. Lefkowitz, Attorney-General (Boy Wiedersum, Paxton Blair and Henriette Frieder of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs to respondent Workmen’s Compensation Board; no opinion.

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


text:
    In the Matter of the Intermediate Accounting of Stevenson E. Ward, Jr., et al., as Trustees of the Trust under the Will of May S. Ward, Deceased, Respondents. James A. Ward et al., Respondents; Morris E. Lasker, as Special Guardian for Anne Ward, an Infant, Respondent; Thomas F. Croake, as Special Guardian for Grace Ward and Others, Infants, Appellant.
    Argued January 17, 1961;
    decided March 2, 1961.

      Thomas F. Groake, appellant in person.

      Morns. E. Lasker, in person, for Morris E. Lasker, as Special Guardian for Anne Ward, respondent.

      Thomas K. O’Brien and Herbert C. Pents for James A. Ward et al., respondents.

      Thomas B. Gilchrist and Thomas B. Gilchrist, Jr., for trustees, respondents.
   Order affirmed upon the prevailing opinion in the Appellate Division, with costs to all parties appearing separately and filing separate briefs, payable out of the trust.

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

Van Voorhis, J. (dissenting).

Section 115 of the Domestic Relations Law,. respecting the effect of adoption of children, contains a paragraph stating: “ As respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the foster child is not deemed the child of the foster parent so as to defeat the rights of remaindermen,” This expresses the time-honored rule. It was thus characterized by Surrogate Frankbnthaler in Matter of Charles (200 Misc. 452, 460, affd. 279 App. Div. 741, affd. 304 N. Y. 776): “ Where, however, there is a gift over in the absence of children the adversity of interest which exists is not betweén natural children and those by adoption or the latter and intestate distributees but between adopted children and specified remainder-men chosen by the testator himself. In that case, the fourth paragraph of section 115 of the Domestic Relations Law, is directly applicable (Matter of Leask [197 N. Y. 193], supra; Matter of Hopkins [102 App. Div. 458], supra). To allow adopted children to participate in the assets under those circumstances it must be demonstrated that the testator intended a result contrary to that prescribed by statute and intended to include such children within the gift (Matter of Leask, supra). There must be an affirmative showing not of an intention to use the word ‘ children ’ in its general signification but of a positive intention to permit adopted children to take to the exclusion of named remaindermen. Where such remaindermen are selected by the testator himself, the Legislature has assumed that such persons would be preferred by the testator over adoptees. Counsel contend that to allow adopted children to share the appointive assets in this estate would defeat such rights and is thus circumscribed by the statute.”

In the present instance, the will creating the trust provides expressly that, upon the death of the life beneficiary (child of the testatrix), the corpus shall be distributed among the lawful issue of such child. There is no statement in the instrument indicating or even implying that adopted grandchildren are to be included. Neither does this case involve adoption to the knowledge of the testatrix prior to the creation of the trust as in Matter of Upjohn (304 N. Y. 366). The mere circumstance that a testatrix is quoted as having looked with favor upon the adoption of children by childless couples is not sufficient, in my judgment, to overcome the effect of section 115 of the Domestic Relations Law.

For this reason, the order appealed from should be modified so as to direct payment of the remainder as provided by the will exclusive of the child adopted after testatrix’ death.

Order affirmed, etc.


author: Per Curiam.

text:
    Gerhard F. Beckhusen, Appellant, v. E. P. Lawson Company, Respondent.
    Argued January 18, 1961;
    decided March 2, 1961.

      Bennett E. Aron and Harry Zeitlan for appellant.

      Paul A. Crouch, George 8. Pickwick and George J. Conway for respondent.
   Per Curiam.

We are of the opinion that the jury had the right to find that defendant’s design of the guillotine-type paper-cutting machine in such a manner as to permit the access doors to interfere with the safety mechanism, without at least warning the operator of the hazard foreseeable by it, was negligence, and that the negligent design of this dangerous instrumentality was the proximate cause of plaintiff’s injury. It was, therefore, iTnnp.RfiRsa.ry for plaintiff to show precisely how or why the door opened.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

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

Judgment reversed, etc.


text:
    In the Matter of the Claim of Mary Vaughn, Appellant, v. Bushwick Iron & Steel et al., Respondents. Workmen's Compensation Board, Respondent.
    Submitted February 23, 1961;
    decided March 2, 1961.

      Louis Bloch for appellant.

      George J. Mayes, Morris N. Lissauer and Charles G. Tierney for respondents.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fttld, Feoessel, Van Voorhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. Frank Haskell, Appellant.
    Submitted February 21, 1961;
    decided March 2, 1961.

      Frank P. Della Posta for appellant.

      Edwin G. O’Connor, District Attorney (George W. Holt of counsel), for respondent.
   Per Curiam.

We find the information sufficient; however, the failure of the court to inform the defendant of his rights under section 58 of the Code of Criminal Procedure requires reversal. The requirements of the section are mandatory and not merely directory, and are not waived by defendant’s plea of guilty.

The judgment should be reversed and the case remitted to the trial court for further proceedings.

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

Judgment reversed and matter remitted to the Court of Special Sessions of the Town of Villenova for further proceedings in accordance with the opinion herein.


text:
    The People of the State of New York, Appellant, v. John Hulsen and James Weber, Respondents.
    Argued January 4, 1961;
    decided March 2, 1961.

      Louis J. Lefkowits, Attorney-General (Eclwyn Silberling and Jerome G. Ditore of counsel), for appellant.

      Herman J. McCarthy and Charles F. McGrath for respondents.
   In each action: Order affirmed; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Richard Wuest, Respondent.
    Argued January 17, 1961;
    decided March 2, 1961.

      Spencer O. Feldman, District Attorney, for appellant.

      Joe Schapiro for respondent.
   Order of the County Court reversed and the case remitted to that court upon the ground that at the time in question the defendant was in a public place. Since the order of reversal does not comply with section 543-a of the Code of Criminal Procedure in that it does not state whether its determination is upon the law or the facts or both, we must presume (§ 543-a, subd. 4) that it was upon the law alone- and, therefore, remit this appeal to the County Court for a determination of the questions of fact. (People v. Kruger, 302 N. Y. 447.) No opinion.

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


text:
    The People of the State of New York, Respondent, v. Morton Rowen, as Executor of Henrietta Rosen, Deceased, Appellant.
    Argued February 20, 1961;
    decided March 2, 1961.

      Morton Rowen, appellant in person.

      Charles H. Tenney, Corporation Counsel {John A. Murray and Seymour B. Quel of counsel), for respondent.
   Judgments reversed, the informations dismissed and the fines remitted (see People v. Broadway-Sheridan Arms, 300 N. Y. 559; People v. Frank, 8 N Y 2d 1049). No opinion.

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


text:
    The People of the State of New York, Respondent, v. James (“Jimmy”) Morello, Appellant.
    Argued January 9, 1961;
    decided March 2, 1961.

      Michael Lo Pinto for appellant.

      Louis M. Greenblott, District Attorney (Stephen Smyk of counsel), for respondent.
   Judgment and order affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, F'uld, Froessel, Van Voorhis, Burke and Foster.


text:
    In the Matter of Herbert H. Weitz, an Attorney, Appellant. Bronx County Bar Association, Respondent.
    Argued February 21, 1961;
    decided March 2, 1961.

      William Auerbach for appellant.

      Morris Lyman and Donald Diamond for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Mildred Ziegler, Appellant, v. Mannie Ziegler, Respondent.
    Submitted January 9, 1961;
    decided March 2, 1961.

      ■ Irving I. Erdheim and Fred Lichtblau for appellant.

      Emil K. Ellis, Jonas Ellis, Maurice Shire and Monte L. Morris for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Van Voobhis, Burke and Foster. Judge Froessel dissents and votes to reverse and to grant a new trial upon the dissenting opinion in the Appellate Division.


text:
    In the Matter of the Claim of Mary Gugliotto et al., Appellants, v. City of New York, Respondent.
    Argued February 27, 1961;
    decided March 2, 1961.

      Bernard Meyerson and Sybil Hart Kooper for appellants.

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

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


text:
    In the Matter of the Claim of Margaret Gorsky, Appellant, v. City of New York et al., Respondents, and Special Funds Conservation Committee, Respondent; Workmen’s Compensation Board, Respondent.
    Argued February 20, 1961;
    decided March 2, 1961.

      Stanley Sher for appellant.

      Charles H. Tenney, Corporation Counsel (Seymour B. Quel and Emanuel Tar gum of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Paul Urano, Appellant.
    Argued January 10, 1961;
    decided March 2, 1961.

      Stanley J. Reiben for appellant.

      Edward S. Silver, District Attorney (Aaron Nussbaum of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fxjld, Van Voorhis and Foster. Judges Froessel and Burke dissent and vote to reverse upon the ground that, when the jury acquitted defeiidant of robbery, they could not lawfully convict defendant of both grand larceny and assault inasmuch as their combination amounted to robbery. A new trial should be ordered.


text:
    Bernard Weisinger, Respondent, v. Bernard Berfond et al., Appellants, et al., Defendants.
    Argued January 12, 1961;
    decided March 2, 1961.

      Charles Wilson for Joseph Rae and others, appellants.

      Daniel Eisenberg for Bernard Berfond and others, appellants.

      Thomas Grimes for respondent.
   Judgment affirmed, with costs.

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

Van Voorhis, J. (dissenting).

Plaving filed a lis pendens tying up real property, áfter long and inexcusable delay in bringing the action to trial, and having defaulted in furnishing a bill of particulars in consequence whereof an order of preclusion had been entered preventing the introduction of vital testimony, the action was finally reached for trial. Denied a further adjournment, properly, as the Appellate Division has held, plaintiff abandoned the trial of the action. The defendants put in their proof and judgment was entered against plaintiff ‘< on the merits ”. On appeal by plaintiff the Appellate Division, while holding that the action was properly ordered to trial, eliminated the decision on the merits on the ground that dismissal on the merits was not permitted by law, citing Greenberg v. De Hart (4 N Y 2d 511); Mink v. Keim (291 N. Y. 300); Honsinger v. Union Carriage & Gear Co. (175 N. Y. 229); Harris v. Harris (246 App. Div. 667); Mintzer v. Loeb, Rhodes & Co. (10 A D 2d 27), saying: “ This rule also prevails where, as here, no counterclaim was pleaded and the defendants presented proof refuting the plaintiff’s claim and cause of action (Greenberg v. De Hart, supra).” The Trial Justice found that the object in withdrawing the action was to get out from under the order of preclusion, to start over again, and to file another lis pendens and prolong its effect. The Appellate Division assumed that what Special Term did would have been right except that the law is so inflexible as to render impossible dismissal on the merits.

This conception of the law seems to be erroneous. It has long been held that discontinuances cannot be had except on the merits, where the Special or Trial Term Justice so rules, where a defendant has obtained ‘1 rights in the action ’ ’ (Landsman v. Landsman, 278 App. Div. 214, 215). Although the usual situation of that kind is where a defendant has interposed a counterclaim, that is only one means whereby a defendant may have acquired rights in the action. The discussion by the Judicial Council which led to the repeal (L. 1953, eh. 113) of section 457 of the Civil Practice Act permitting voluntary nonsuits points out that, even before this statutory change and the adoption of rule 301, discontinuances were not permitted where substantial rights had accrued to a defendant such as where a motion had been granted or denied for change of place of trial, where a case had been removed from a lower court to a higher court, or other intermediate orders of substance had been made in the action. Discontinuance was denied without any counterclaim where, in a new action, the incontestable clause might have run on a life insurance policy (Grana v. Metropolitan Life Ins. Co., 237 App. Div. 54). An examination of those and other decisions, such as Jermyn v. Searling (139 App. Div. 116); Palmedo v. Walton Reporter Co. (112 Misc. 729, 733, affd. on opinion below 193 App. Div. 920); Kruger v. Persons (52 App. Div. 50); Carleton v. Darcy (75 N. Y. 375, 377); Frear v. Lewis (201 App. Div. 660); Bowe v. Knickerbocher Life Ins. Co. (27 Hun 312) shows that there is not an ironclad rule that in order to preclude a discontinuance there must be a counterclaim or some property claim by defendant in an action. The same rule now applies to voluntary nonsuits. Those are the usual examples of substantial rights in the action having accrued to the defendant, which may prevent discontinuances or dismissals against the defendants’ objection. There are many other instances where a court may properly deny a discontinuance or dismissal which is not upon the merits. Nothing in section 482 of the Civil Practice Act or rule 301 of the Rules of Civil Practice requires these appellants to be harassed in this manner by the plaintiff. Section 482 simply provides that a dismissal of a complaint or counterclaim before the close of the plaintiffs’ evidence does not prevent a new action for the same cause of action, unless the judgment expressly declares that it is rendered upon the merits as this judgment does. Rule 301 allows the exercise of such a discretion.

Especially in these days when Special Term procedure is sought to be curtailed where reasonably possible, it seems unnecessary to prevent Trial Justices from dismissing on the merits merely in order to enable the withdrawing party to multiply Special Term practice because he is dissatisfied with the way previous practice motions have been determined or is seeking some strategic advantage by delay.

The order of the Appellate Division should be reversed and that of the Special Term reinstated. "

Judgment affirmed.


text:
    In the Matter of John Camuglia, Appellant, v. Thomas F. Rohan et al., Constituting the New York State Liquor Authority, Respondents.
    Argued January 18, 1961;
    decided March 2, 1961.

      Jack Goodman and Michael Nardone for appellant.

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

Concur: Chief Judge Desmond and Judges Dye, Fuld and Foster. Judges Froessel, Van Voorhis and Burke dissent and vote to reverse upon the ground that the determination was purely subjective to the Authority and is not supported by substantial evidence.


text:
    Siegel & Hodges, a Partnership Composed of Al Siegel and John W. Hodges, Appellant, v. Edward Hodges, an Infant, by His Guardian ad Litem Annie S. Hodges, Respondent, et al., Defendant.
    Argued January 12, 1961;
    decided March 2, 1961.

      Irving Lemov for appellant.

      Norbert Ruttenberg and Edward Cherney for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fitld, Froessel, Van Voorhis and Foster. Judge Burke dissents in the following memorandum: The complaint states a cause of action for services performed but any recovery must be limited to the value of services rendered by Siegel alone. I do not think that Special Term and the majority are correct in holding that Siegel can bring an action in his individual capacity.


text:
    The People of the State of New York ex rel. Antony Corpolongo, Appellant, v. Jeremiah J. Donovan, as Warden of Brooklyn Branch House of Detention, Respondent, and People of the State of New York, Respondent.
    Argued January 18, 1961;
    decided March 2, 1961.

      Leo Louison for appellant.

      Louis J. Lefkowitz, Attorney-General (Joseph J. Bose and Paxton Blair of counsel), for respondents.
   Order affirmed upon the opinion in People ex rel. Clemente v. Warden of Auburn Prison (9 N Y 2d 216), decided herewith. No opinion.

Motion for a stay denied.

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


text:
    In the Matter of Twentieth Century-Fox Film Corporation, Appellant, v. Lawrence E. Gerosa, as Comptroller of the City of New York, Respondent.
    Argued January 12, 1961;
    decided March 2, 1961.

      William W. Owens and Anthony B. Kuklin for appellant.

      Charles H. Tenney, Corporation Counsel (Morris L. Ileath, Stanley Buchsbaum and Morris Jacobson of counsel), for respondent.
   Orders affirmed, with costs; no opinion.

Motion for an order requiring the inclusion of two Referees’ reports in the record on appeal denied.

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


text:
    In the Matter of Wilhelmine P. Meier, Deceased. Julia Stratton, Appellant; Ludwig Meier et al., Respondents.
    Submitted February 27, 1961;
    decided March 2, 1961.

      Robert Ealpern for motion.

      Robert J. Stratton opposed.
   Motion granted and appeal- dismissed upon the grounds that (1) the first order (dated Dec. 21,1960) appealed from does not finally determine the proceeding within the meaning of the Constitution, and (2) the sole question presented by the second order (dated Jan. 11,1961) appealed from involves a nonreviewable exercise of discretion. (See, e.g., Trapani v. Samuels, 3 N Y 2d 931; see, also, Moebus v. Tishman Co., 5 N Y 2d 945.)


text:
    John Molinari, Appellant, v. Garden Party House, Inc., Respondent.
    Submitted February 27, 1961;
    decided March 2, 1961.
    Reported below, 12 A D 2d 887.
   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, in which events motion denied.


text:
    Municipal Service Company, Appellant, v. Town of Colonie, Respondent.
    Submitted February 20, 1961;
    decided March 2, 1961.
    Reported below, 12 A D 2d 22.

      Carl 0. Olson for motion.

      John W. Tabner and Robert P. Heywood opposed.
   Motion dismissed upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and is, therefore, not covered by subdivision 2 of section 589 of the Civil Practice Act.


text:
    Robert F. Murphy, Respondent, v. Aaron E. Klein, Appellant.
    Submitted February 27, 1961;
    decided March 2, 1961.
    Reported below, 12 A D 2d 683.

      Aaron E. Klein, in person, for motion.
    No one 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 Bollettieri, Appellant.
    Submitted February 20, 1961;
    decided March 2, 1961.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, viz.: Defendant contended that his rights to due process under the Fourteenth Amendment were violated when the trial court denied his motion for a discharge of the jury panel and for an adjournment to permit defense counsel to establish that the State Police investigation of the prospective jurors was improperly conducted to the prejudice of defendant, and when the trial court denied his motion for a mistrial based on a line of questioning pursued by the prosecution in the cross-examination of the witness, Chapman A. Thomas. The Court of Appeals held that there was no violation of defendant’s rights. [See 9 N Y 2d 629.]


text:
    The People of the State of New York ex rel. "Anonymous", Appellant, v. Harry A. La Burt, Director of Creedmoor State Hospital, Respondent.
    Submitted February 27, 1961;
    decided March 2, 1961.
   Motion to have appeal heard upon the original record and typewritten briefs and for a preference granted and case set down for argument during the March, 1961 session of the Court of Appeals.


text:
    Joseph R. Clevenger, Appellant, v. Baker Voorhis & Co., Respondent, et al., Defendant.
    Submitted February 27, 1961;
    decided March 2, 1961.
    Reported below, 10 A D 2d 365.

      Joseph Rasch for motion.

      Joseph R. Clevenger, in person, opposed.
   Motion denied. Respondent may, within 10 days, file in this court a stipulation consenting to an order of reversal, without costs, in which event an order will be made reversing the judgment and remitting the matter to the Supreme Court.


text:
    In the Matter of the Arbitration between Dino De Laurentiis, Appellant, and Cinematografica de las Americas, S. A., et al., Respondents.
    Submitted February 20, 1961;
    decided March 2, 1961.
    Reported below, 12 A D 2d 467.

      Jacob W. Abraham and Edmund B. Hennefeld for motion.

      Murray Gartner and Richard H. Borow opposed.
   Motion for leave to appeal granted.

Motion for a stay pending the hearing and determination of the appeal herein granted upon the condition that neither petitioner-appellant nor any other party to the contract, if any, with which he is affiliated, shall change his or its status in the United States insofar as assets are concerned, other than in the ordinary course of business. Case set down for argument during the March, 1961 session of the Court of Appeals.


text:
    In the Matter of Thomas O. Spampinato, Appellant, v. General Public Loan Corp. et al., Respondents.
    Submitted February 27, 1961;
    decided March 2, 1961.

      Thomas 0. Spampinato, in person, for motion.
    No one opposed.
   Motion dismissed. On the court’s own motion appeal dismissed upon the ground there are questions involved other than the constitutional validity of a statute (N. Y. Const., art. VI, § 7, subd. [2]; Civ. Prac. Act, § 588, subd. 4).


text:
    Salvatore Amodeo, Respondent, v. New York City Transit Authority, Appellant.
    Argued February 28, 1961;
    decided March 23, 1961.

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

      Abraham Fishbein for respondent.
   Order affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts. No opinion.

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