Volume 298 — New York Reports

I. Tbe 1927 document was intended to modify tbe 1926 trust indenture. II. Tbe trust indenture could not be modified, extended or enlarged without tbe written consent of all persons beneficially interested in tbe trust as required by section 23 of tbe Personal Property Law. (Schoellkopf v. Marine Trust Go., 267 N. Y. 358; Graham v. Manufacturers Nat. Bank, 261 App. Div. 46; Cram v. Walker, 173 App.

I. The installment payments made by petitioner and credited to its purchase option for the period from Decembe'r 10, 1934, to July 1, 1940, are not subject to tax. An agreement which imposes an unconditional obligation to pay for tangible personal property with the right or option in the obligor to become the owner of such property upon full compliance with the terms of the contract is a conditional sale agreement.

Defendants have been and are doing business in the State of New York within the meaning of section 229-b of the Civil Practice Act. {Yeckes-Eichenbaum, Inc., v. McCarthy, 290 N. Y. 437; Chaplin v. Selmick, 293 N. Y. 529; Taum v. Susquehanna Goal Co., 220 N. Y. 259; Holser v. Dodge Bros., 233 N. Y. 216; Cochran Box & Mfg. Co. v. Monroe Binder Bd. Co., 197 App. Div. 221, 232 N. Y. 503; Society Milion Athena, Inc., v. National Bank of Greece, 166 Mise. 190, 254 App. Div. 728.)

I. The County Court alone has statutory authority to grant a ferry franchise. The attempted exercise of such jurisdiction by the board of trustees of Ocean Beach is a nullity. (Mayor v. Starin, 106 N. Y. 1; Power v. Village of Athens, 99 N. Y. 592; People v. New York & S. I. Ferry Go., 68, N. Y. 71; Holmes Elec. Protective Go. y. Armstrong, 97 Mise. 184; Matter of City of New York [Piers Old Nos. 8-11], 228 N. Y. 140; Benson v. Mayor, 10 Barb. 223; Matter of Pierce, 185 App.

I. The pleadings and affidavits read on the motion for summary judgment establish respondent’s liability. (Settle v. Van Evrea, 49 N. Y. 280; Roth-bard v. Aver ell, 59 N. Y. S. 73; Twentieth Century Assn. v. W aid-man, 294 N. Y. 571; American Historical Soc. v. Glenn, 248 N. Y. 445.) II. The courts should not legislate. (Matter of Hering v. Clement, 196 N. Y. 218; Noel Associates v. Merrill, 184 Mise. 646; People ex rel.

<p>I. The New Opera Company was organized and operated as an exempt organization — education was its sole purpose. (Matter of Mergentime, 129 App. Div. 367,195 N. Y. 572; Matter of Moses, 138 App. Div. 525; Matter of Hackett, 133 Mise. 768; Matter of Rockefeller, 177 App. Div. 786; Matter of Mendelsohn, 262 App. Div. 605, 295 N. Y. 691; People ex rel. Doctors Hospital, Inc., v. Sexton, 267 App. Div. 736.) II. The decision of the Appellate Division and of the Unemployment Insurance Appeal Board should be reversed and the exemption granted.</p> <p>I. The legislative and administrative history of the educational ” exemption in the New York Unemployment Insurance Act and in cognate Federal and State statutes demonstrates that a nonprofit organization for the performance of opera is “ educational ”. (Matter of Lazarus [Corsi], 268 App. Div. 547, 294 N. Y. 613; People ex rel. Mosbacher v. Graves, 254 App. Div. 438; Lipstein v. Provident Loan Soc., 154 App. Div. 732; Bellegarde v. Union Bag & Paper Co., 90 App. Div. 577; Matter of Van Wagenen, 170 Mise. 820; Matter of Brief eld, 168 Mise. 370; Matter of Moses, 138 App. Div. 525.) II. The term “ educational ” has been uniformly construed in cognate Federal and State statutes to include the inculcation of music appreciation and the promotion of the musical arts. •(Matter of Mergentime, 129 App. Div. 367, 195 N. Y. 572; Matter of Moses, 138 App. Div. 525; Matter of Arnot, 145 App. Div. 708, 203-N. Y. 627; Matter ’of Abbe, 135 Mise. 22; Matter of Eastman School of Music, 31 New York St. Dept. Rep. 91; Pouch v. Prudential Ins. Go., 204 N. Y. 281; Lipstein v. Provident Loan Soc., 154 App. Div. 732.) III. Administrative and legislative action in New York since the passage of Unemployment Insurance Law established and reaffirmed the proposition that the nonprofit presentation of opera is “ educational ” within the meaning of that act. (Orinoco Realty Go. v. Bandler, 233 N. Y. 24; Matter of Gilmore v. Preferred Accident Ins. Go., 283 N. Y. 92; Boehm v. Commissioner of Internal Revenue, 326 U. S. 287; Eelvering v. Winmill, 305 U. S. 79.) IY. The constricted scope given to the term “ educational ” by the Appellate Division and the Appeal Board contravenes the established meaning of the term and thwarts the legislative purpose the educational exemption. (Matter of Mergentime, 129 App. Div. 367,195 N. Y. 572; Matter of Moses, 138 App. Div. 525; Matter of Arnot, 145 App. Div. 708, 203 N.. Y. 627; Matter of Packard, 223 App. Div. 491, 251 N. Y. 543; Matter of Buffalo Turn Verein v. Reuling, 155 Mise. 797.) V. The exemption should be construed to carry out its liberal purpose. (United States v. Proprietors of Social Law Library, 102 F. 2d 481; Roche’s Beach, Inc., v. Commissioner of Internal Revenue, 96 P. 2d 776; Bohemian Gymnastic Assn. Sohol of City of.N. Y. v. Higgins, 147 P. 2d 774.)</p> <p>I. Appellant was not organized for exclusively educational purposes. (Matter of De Peyster, 210 N. Y. 216; Matter of Beekman, 232 N. Y. 365; Matter of Mohawk Mills Assn., Inc., 260 App. Div. 433.) II. Appellant is not operated for exclusively educational purposes. (Matter of Peoples Theatres, Inc., 266 App. Div. 694; Matter of Smith [Brooklyn Bar Assn.], 266 App. Div. 1038, 292 N. Y. 593; Matter of Henry [American Kennel Club], 269 App. Div. 1; Matter of Mohawk Mills Assn., Inc., 260 App. Div. 433.)</p>

Action against defendant Sells as an individual could only be maintained because of an affirmative act done by him outside the scope of his authority causing injury to the plaintiff. No such act is alleged directly or inferentially. The complaint fails to state a cause of action against him. (Gould v. Booth, 66 N. Y. 62; Greco v. Levy, 282 N. Y. 575; Murray v. Usher, 117 N. Y. 542; Christianson v. Breen, 288 N. Y. 435.)

<p>I. In order to impose liability for negligence only the initial injury need be foreseen. (Pearlman v. Garrod Shoe Co., 276 N. Y. 172; Milks v. Mclver, 264 N. Y. 267; McCahill v. New York Transp. Co., 201 N. Y. 221; Welch v. Enright, 257 App. Div. 685; Lang v. Stadium Purchasing Corp., 216 App. Div. 558.) II. The Appellate Division erred in holding as a matter of law that infection cannot be foreseen as a result of a small wound. (Adlavn v. Konvalinka, 291 Y. 40; Pearlman v. Garrod Shoe Co., 276 N. Y. 172; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; Busch v. Interborough R. T. Co., 187 N. Y. 388; Rich v. New York C. & II. R. R. Co., 87 N. Y. 382; Cox v. Mason, 89 App. Div. 219.) III. The Appellate Division erred in holding that an object or situation cannot, as a matter of law, be “ inherently dangerous,” simply because it is apparently capable of inflicting only a small initial wound. (Prokopowics v. 11 West 42nd Street, Inc., 289 N. Y. 35Ó; Pearlman v. Garrod Shoe Co., 276 N. Y. 172; Smith v. Peerless Glass Co., 259 N. Y. 292; MacPherson v. Buick Motor Co., 217 N. Y. 382; Hordern v. Salvation Army, 199 N. Y. 233; Pickard v. Woolworth Co., 280 N. Y. 816.) IY. The “ inherently dangerous ” test has been abandoned as a means of determining the liability of a remote vendor. (Langridge v. Levey, 2 M. & W. 519; Winterbottom v. Wright, 10 M. & W. 108; Donoghue v. Stevenson [1932], A. C. 562; Mayor of Albany v. Cunliff, 2 N. Y. 165; Thomas v. Winchester, 6 N. Y. 397; Huset v. Case Threshing Mach. Co., 120 P. 865; MacPherson v. Buick Motor Co., 217 N. Y. 382; Carter v. Yardley & Co., 319 Mass. 92.)</p> <p>The complaint was properly dismissed. (MacPherson v. Buick Motor Co., 217 N. Y. 382; Genesee Co. Patrons Fire Relief Assn. v. Sonneborn Sons, 263 N. Y. 463; Smith v. Peerless Glass Co., 259 N. Y. 292; Noone v. Perlberg, Inc., 268 App. Div. 149, 294 N. Y. 680; Field v. Empire Case Goods Co., 179 App. Div. 253; Liedeker v.’Sears, Roebuck'& Co., 249 App. Div. 835, 274 N. Y. 631; Boyd v. American Can Co., 249 App. Div. 644, 274 N. Y. 526; Jaroniec v. Hasselbarth, Inc., 223 App. Div. 182; Pickard v. Woolworth Co., 280 N. Y. 816; State v. é Sons, 79 Md. 514; Flaccomio v. Eysink, 129 Md. 367; State v. Consolidated Gas Co., 146 Md. 390; Bounds v. Phillips, 166 Md. 151.)</p>

I. A separation agreement which relieves the husband from his liability to support his wife for reasons other than marital misconduct is void. (Querse v. Querse, 290 N. Y. 13; Matter of Rhinelander, 290 N. Y. 31; Kyff v. Kyff, 286 N. Y. 71; Jackson v. Jackson, 290-N. Y. 512; Tirrell v. Tirrell, 232 N. Y. 224; Dworkin v. Dworkin, 247 App. Div. 213; Goldman v. Goldman, 282 N. Y. 296; Garlock v. Garlock, 279 Y. 337; Leeds v. Leeds, 265 App.

I. Plaintiff was entitled to requested charge “ that in a death case such as this, the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.” (Frate v. State of New 7orle, 245 App. Div. 442; McBride v. Brady, 234 App. Div. 882.) It Plaintiff was entitled to have the trial court charge that the defendant’s motorman was an interested witness. (Fox v. Manhattan Ry.

Insertion of the words “ self-destruction while sane or insane ” violates the statute. (Insurance Law, § 101; § 155, subd. 2, par. [b]; Shipman v. Protected Some Circle, 174 N. Y. 398; Van Zandt v. Mutual Benefit Life Ins. Co., 55 N. Y. 169; Meacham v. New York State Mut. Benefit Assn., 120 N. Y. 237; Matter of Delinousha v. National Biscuit Co., 248 N. Y. 93; De Cogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 232; Bakker v. Aetna Life Ins.

The injury did not arise out of and in the course of employment but was solely the result of horseplay. (Matter of DeFilippis v. Falkenberg, 170 App. Div. 153, 219 N. Y. 581; Matter of Griffin v. Roberson & Son, 176 App. Div. 6; Matter of Still-wagon v. Callan Bros., Inc., 183 App. Div. 141, 224 N. Y. 714; Matter of Frost v. Franklin Mfg. Go., 204 App. Div. 700, 236 N. Y. 649; Plouffe v. American Hard Rubber Go., 211 App. Div. 298; Matter of Rauh v. Western Union Tel.

I. Section 61-b of the General Corporation Law as applied to this case, deprives both the plaintiff and her corporation, Barium, of their property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States and sections 1 and 6 of article I of the Constitution of the State of New York.

I. Section 21 of the Park Department Regulations on its face contravenes the due process clause of the Fourteenth Amendment to the Constitution of the United States and is therefore void. (Gitlow v. New York, 268 U. S. 652; Near v. Minnesota, 283 U. S. 697; Cantwell v. Connecticut, 310 U. S. 296; Lovell v. Griffin, 303 U. S. 444; Hague v. C. I. 0., 307 U. S. 496.) II.

MotioN to dismiss appeal renewed. (See 297 N. Y. 961.) The order of annulment appealed from does not finally determine the proceeding and consequently this appeal does not lie.

<p>I. The trial court erred in refusing to dismiss the complaint at the end of the plaintiffs’ case or at the close of the entire case. (Schick v. Fleischhauer, 26 App. Div. 210; Kushes v. Ginsberg, 99 App. Div. 417,188 N. Y. G30; Boden v. Scholtz, 101 App. Div. 1; Cuttings v. Goetz, 256 N. Y. 287; Kosior v. Pomrinse, 249 App. Div. 196; Scudero v. Campbell, 288 N. Y. 328; Lafayette v. Weaver, 92 Ind. 477, Manderschild v. Dubuque, 29 la. 73; Perkins v. Bice, 187 Mass. 28; Readman v. Conway, 126 Mass. 374; Bruszacynaska v. Ruby, 267 App. Div. 539.; Rosenberg v. Kings Co. Sav. Bank, 270 App. Div. 904; Citron v. Kapner, 271 App. Div. v. Mont</p> <p>I. A prima facie case was established by plaintiffs and no error was committed by the trial court in denying the motions to dismiss. (City of New Yorh v. Third Ave. By. Co., 294 N. Y. 238; Abrams v. Manhattan Dial Mfg. Co., 190 Mise. 106; Fritz v. Commonwealth Finance Corp., 123 Mise. 280,213 App. Div. 814, 241N. Y. 587; Sendero v. Campbell, 288 N. Y. 328; Antonsen v. Bay Ridge Sav. Bank, 292 N. Y. 143; Rosenberg v. Kings Co. Sav. Bank, 270 App. Div. 904; Citron v. Kapner, 271 App. Div. 932; Reische v. Montgomery, 273 App. Div. 824.) II. The trial court committed no error in the charge with respect to the credibility of the witnesses and the interest of defendant’s witnesses. (Fredella v. Prudential Ins. Co., 258 App. Div. 232.)</p>

<p>I. The judgment in favor of plaintiff Greenman should not have been reversed. (Hoefling v. Board of Education, 120 App. Div. 545; Stetson v. Board of Education, 165 App. Div. 476, 218 N. Y. 301; Matter of Kearns v. Board of Education, 279 N. Y. 61.) II. The board had no power to make so-called full time temporary appointments to positions not specified in the schedules. (Dexter v. Board of Higher Education, 293 N. Y. 39.) III. The Kearns case (279 N. Y. 61) is inapplicable. (Matter of Fornara v. Schroeder, 261N. Y. 363; Matter of Sandford v. Finegan, 276 N. Y. 70; Matter of Cook v. Kern, 278 N. Y. 195; Matter of Kern, 280 N. Y. 659; Matter of Bohr v. Kenn-gott, 288 N. Y. 97; Matter of Bicker v. Hempstead, 290 N. Y. 1; Morrall v. County of Monroe, 271 N. Y. 48; Matter of New York, L. & W. B. B. Co., 98 N. Y. 447; Matter of Malloy, 278 N. Y. 429 ; Banbury v. Bubinstein, 297 N. Y. 510.)</p> <p>I. Plaintiffs Kessler and Man-tell were appointed to positions otlier than that of clerical assistant and were not entitled to the salary provided for clerical assistants in the filed salary schedules. The board had the power to create new positions, appoint the plaintiffs thereto, and fix salaries therefor without regard to its filed schedules, since such new positions were not enumerated in the filed salary schedules. (Matter of Putnam v. Marshall, 286 N. Y. 485; Matter of Lederman v. Tead, 39 N. Y. S. 2d 420; Matter of Carr v. Kern, 279 N. Y. 42; Story v. Craig, 231 N. Y. 33; Matter of Kearns v. Board of Education, 279 N. 7. 61; Stetson v. Board of Education, 165 App. Div. 476; 218 N. Y. 301; People ex rel. Schau v. McWilliams, 185 N. Y. 92; People ex rel. Perrine v. Connolly, 217 N. Y. 570.) II. In any event, after the reclassification of the plaintiffs into the competitive class, effective January 1⅜ 1940, they could lawfully receive only the salary of the positions into which they were reclassified or were promoted after competitive examination. (Matter of Kearns v. Board of Education, 279 N. Y. 61; Matter of Becher v. Eisner, 277 Y. 143; People ex rel. McClelland v. Roberts, 148 N. Y. 360; Matter of Kay v. Board of Higher Education, 173 Mise. 943; Dodge v. Board of Education, 302 IT. S. 74; People ex rel. Perrine v. Connolly, 217 N. Y. 570; O’Malley v. Board of Education, 160 App. Div. 261; Matter of Flanagan v. McGoldriclc, 272 App. Div. 1008.) III. The Appellate Division properly decided upon uncontro-verted documentary evidence that the Board of Higher Education never appointed the plaintiff Greenman as a clerical assistant. Miss G-reenman is hot entitled to the classification and salary of a clerical assistant merely because she performed clerical work while holding appointments as tutor and fellow. (Matter of McArdle v. Board of Higher Education, 181 Mise. 766; New City Employees’ Retirement System v. Eliot, 267 N. Y. 193; Matter of Trilling v. Board of Higher Education, 190 Mise. 52; Matter of McManus, 64 N. Y. St. Dept. Rep. 99; Hoefling v. Board of Education, 120 App. Div. 545.)</p>

I. Sales of individual copies of a book containing libelous material are not republications within the meaning of the Statute of Limitations. (Hartmann v. Time, Inc., 64 F. Supp. 671.) II. The “ single publication ” rule is clearly accepted law in New York. (Fried, Mendelson & Go. v. Halstead, Ltd., 203 App. Div. 113; Wolf son v. Syracuse Newspapers, Inc., 254 App.

I. There was no gift of the money involved. (Matter of Van Alstyne, 207 N. Y. 298; Matter of Green, 247 App. Div. 540; Bidden v. Thrall, 125 N. Y. 572.) II. Appellant’s title to the East Eiver Savings Bank account became complete and absolute by delivery to her by her mother of the passbook. (Matter of Totten, 179 N. Y. 112; Matter of Rosso, 146 Mise. 746; Davlin v. Title Qua/r. & Trust Co., 229 App. Div. 269.) III.

<p>The persons entitled to the intestate property of plaintiff are beneficially interested in the trust. (Whitte-more v. The Equitable Trust Co., 250 N. Y. 298; Schoellkopf v. Marine Trust Co., 267 N. Y. 358; Engel v. Guaranty Trust Co., 280 N. Y. 43; Matter of Scholtz v. Central Hanover Bank & Trust Co., 295 N. Y. 488; Doctor v. Hughes, 225 N. Y. 305; Julier v. Central Hanover Bank & Trust Co., 272 App. Div. 598.)</p> <p>The grantor has reserved to herself a reversion and the trust is revocable on her direction and consent alone. (Personal Property Law, § 23; Doctor v. Hughes, 225 N. Y. 305; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134; Fish v. Chemical Bank & Trust Co., 270 App. Div. 251; Matter of Gordon v. Chemical Bank & Trust Co., 272 App. Div. </p>

I. Tbe Mexican mail order divorce is a nullity and defendant is not estopped from questioning its validity. (Fischer v. Fischer, 254 N. T. 463; Maloney v. Maloney, 288 Y. 532; Btohes v. Btohes, 198 N. Y. 301; McGullen v. McGullen, 162 App. Div. 599; Earle v. Earle, 141 App.

I. The preliminary proof was clearly insufficient to warrant the admission of the dying declaration in evidence. (People v. Mikulec, 207 App. Div. 505, 240 N. Y. 573; People v. Sarzano, 212 N. Y. 231; People v. Falletto, 202 N. Y. 494; People v. Bichen, 242 App. Div. 106.) II. The trial court erroneously submitted the question of the “ statement’s ” admissibility to the jury as a question of fact.

I. Irrespective of the validity or invalidity of plaintiff’s copyright, defendant’s agreement to pay royalties in respect of a period prior to termination of the license is enforcible. There was no failure of consideration because in fa.ct defendant received everything for which it bargained, irrespective of the validity of the copyright, and enjoyed substantial benefits under the contract. (Marston v. Swett, 66 N. Y. 206; Hyatt v. Bale Tile Mfg.

I. As a matter of law, the evidence was insufficient to sustain a finding that appellant was guilty beyond a reasonable doubt. II. The court below erred in its application of the statutes involved. (People v. Glassman, 255 App. Div. 997; People v. Razezicz, 206 N. Y. 249; People v. Fitzgerald, 156 N. Y. 253.) III. The court below erred in construing the Penal Law so as to make criminal the possession of a tool or household utensil.

I. The claim against the New York Hospital is barred because of the failure of the claimant to file such claim within two years prior to February 10, 1942, the date of disablement. (Matter of Twonko Y. Rome Brass & Copper Co., 224 N. Y. 263; Matter of Lissow v. Mabbett Motors, Inc., 279 N. Y. 585; Matter of Duquette v. General Elec. Co., 257 App. Div. 881; Matter of Casale v. Rockioood & Co., 259 App. Div. 767.) II.

I. The statute and regulations are unconstitutional in that they deprive school owners, parents, teachers, children and others of liberty, and citizens of privileges and immunities, secured by the Fourteenth Amendment and by the principles of the First Amednment of the Federal Constitution, and of rights and liberty secured by sections 1 and 6 of article I of the New York Constitution; and in that, thereby and otherwise, they threaten to deprive plaintiff and others of…

I. The 1944 amendment to section 61 of the General Corporation Law has no retroactive application to actions instituted prior to its enactment and therefore the judgment of the lower court dismissing the plaintiffs’ derivative action instituted two years prior to the enactment of the amendment was erroneous.

I. As construed by the court below and applied in the judgment appealed from, article 84 of the Civil Practice Act violates the due process clause of the Fourteenth Amendment to the United States Constitution and the due process and trial by jury guaranteed by the New York State Constitution. (Finsilver, Still & Moss v. Goldberg, Maas & Go., 253 N. Y. 382; Schaf-ran & Fimhel, Inc., v. Lowenstein & Sons, Inc., 280 N. Y. 164.) II.

I. The criminal offense of obtaining money by false pretenses cannot he predicated false statement of intention to perform a future act, a promise not meant to be fulfilled. Hence, upon the record, defendant’s conviction cannot stand as a conviction for larceny by false pretenses. (People v. Blanchard, .90 N. T. 314; People v. Bothstein, 180 N. Y. 148; Chaplin v. United States, 157 P. 2d 697; People ex rel. Gellis v. Sheriff, 251 N. Y. 33; People v. Sloane, 254 App.

I. A proceeding by habeas corpus is the proper remedy for one circumstanced as is relator. (People ex rel. Marcley v. Lawes, 254 N. Y. 249; People ex rel. Sloane v. Lawes, 255 N. Y. 112; People ex rel. Garollo v. Brophy, 294 N. Y. 540; People ex rel. Newman v. Foster, 297 N. Y. 27; People ex rel. Milton v. Jackson, 297 N. Y. 708; People ex rel. Mueciolo v. Snyder, 295 N. Y. 866; People ex rel. Romano v. Brophy, 280 N. Y. 181; People ex rel.

<p>I. Respondents’ concept of “ record ”, as applied in this case, is basically illegal. (Matter of Bloat v. Board of Education, 274 N. Y. 367; Matter of Bridgman v. Kern, 257 App. Div. 420, 282 N. Y. 375; Hurley v. Board of Education, 270 N. Y. 275; Ciaccia v. Board of Education, 271 N. Y. 336; Matter of FinTc v. Finegan, 270 N. Y. 356; People ex rel. Steele v. McGuire, 139 App. Div. 680; Matter of Cowen v. Beavy, 283 N. Y. 232.) II. It was illegal for respondents to inquire of the principals whether they recommended the petitioner, with what degree of fervor they did so, and whether they would be “ happy ” to have him appointed as a first assistant in their respective schools. III. Respondents’1 determination is illegal because it expresses an ultimate conclusion unsupported by findings of fact. (Matter of Wood v. Board of Education, 267 App. Div. 959; Matter of Perpente v. Moss, 293 N. Y. 325; Matter of Scudder v. O’Connell, 272 App. Div. 251.) IY. It was illegal for respondents to adjudge petitioner’s “ record ” “ insufficiently meritorious ” on the ground that teaching was of “ secondary interest ” to petitioner and that there was a “ conflict of his out of school activities with his school activities.” Y. It was illegal for respondents to adjudge petitioner’s “record” “insufficiently meritorious” on the ground: (a) That petitioner was wanting in “ the high standard of maturity required in a position of this type ”; or (b) that petitioner was of “ uncooperative attitude * * * extremely selfish point of view ”, etc., or (c) of adverse reaction to the petitioner’s words or demeanor at the “ hearing ” on May 22, 1946. (Matter of Fink v. Finegan, 270 N. Y. 356; Matter of Bridgman v. Kern, 257 App. Div. 420, 282 N. Y. 375.) VI. If respondents’ determination rests on a cumulation of grounds or considerations, it is illegal and falls if any one or more of the grounds or considerations is legally or factually unsupportable. (People ex rel. Gilson y. Gibbons, 231 N. Y. 171; Polin v. Kaplan, 257 N. Y. 277; Gompers v. Bucks Stove & Range Go., 221 U. S. 418; Weibert v. Hanan, 202 N. Y. 328; Wurtsman v. Kalinowski, 233 App. Div. 187; Jefferson v. New York Elevated R. R. Go., 132 N. Y. 483; Starbird v. Barrons, 43 N. Y. 200; People v. Alex, 265 N. Y. 192.)</p> <p>I. Tbe action of the board of examiners in denying a license to petitioner because of insufficiently meritorious record was not arbitrary, capricious or taken in bad faith.. Under such circumstances the. court may not substitute its judgment for that of the board. (Matter of Valenti v. Board of Education, N. Y. L. J., Jan. 26, 1943, p. 349, 266 App. Div. 757; Matter of Steger v. Board of Education, 171 Mise. 195, 260 App. Div. 1003 ; Matter of Larkin Go. v. Schwab, 242 N. Y. Matter of Garow v. Board of Education, 272 N. Y. 341; People ex rel. McClelland v. Roberts, 148 N. Y. 360; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435; Matter of Becker v. Eisner, 277 N. Y. 143; Matter of Beck v. Finegan, 164 Mise. 334, 254 App. Div. 110; Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Davis v. Wiener, 260 App. Div. 127, 285 N. Y. 537; People ex rel. Leary v. Knox, 166 N. Y. 444; Matter of Sloat v. Board of Education, 274 N. Y. 367.) II. Judicial review of ratings in civil service examinations is limited to a determination whether the ratings complained of violated some statute or were essentially arbitrary. (People ex rel. Buckley v. Roosevelt, 19 App. Div. 431; Matter of Allaire v. Knox, 62 App. Div. 29, 168 N. Y. 642; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; People ex rel. Caridi v. Creelman, 150 App. Div. 746; Matter of Allen v. Finegan, 254 App. Div. 858, 278 N. Y. 737.)</p>

I. The trial court erred in allowing proof of asserted false pretenses and representations which were not in any way alleged or set forth in the indictment. (Penal Law, § 1290; L. 1942, ch. 732, § 2; as amd. by L. 1943, ch. 224.) II. The trial court’s charge was erroneous and highly prejudicial. (C. J., Summary of Evidence, § 1170, p. 713; Minner v. United States, 57 P. 2d 506; People v. Wolf, 183 N. Y. 464; People v. Thomas, 240 App.

<p>I. The reversal by the Appellate Division on the basis of the weight of evidence was without authority in law. (Ruggiero v. Liberty Mut. Ins. Co., N. T. L. J., Oct. 21, 1947; Hust v. Moore-McCormack Lines, 1947 AMC 1089; Pariser v. City of New York, 146 F. 2d 431; Southern Ry. Co. v. Bennett, 233 U. S. 80; Herencia v. Gusman, 219 U. S. 44; Parsons v. Bedford, 3 Pet. [U. S.] 433; Slocum v. New York Life Ins. Co., 228 TJ. S. 364; Johnson v. DierJce Lumber & Coal Co., 130 P. 2d 115; Minneapolis & St. Louis B. B. Co. v. Winters, 242 IT. ,S. 353; Davis v. Schwartz, 155 U. S. 631; United States v. United Shoe Mach. Co., 247 IT. S. 32; Barlow v. Pan Atlantic S. S. Corp., 101 F. 2d 697.) II. The weight of evidence in a maritime tort case is a matter of substantive law to be determined by the trier of the facts and consequently it is not a subject of review by an appellate court. {Howard v. Louisiana & A. By. Co., 49 F. 2d 571; Baltimore & Ohio B. B. Co. v. Groeger, 266 IT. S. 521; Fairmount Glass Works v. Cub Fork Coal Co., 287 IT. S. 474.) I'll. The facts constituted negligence, irrespective of whether a mistake of judgment was the proximate cause. {The Governor, 230 F. 857; The Iroquois, 194 IT. S. 240; The Svaeland, 132 F. 932; The C. S. Holmes, 237 F. 785; Morris v. United States, 3 F. 2d 588; The M. E. LucJcenback, 174 F. 265; Cortes v. Baltimore Insular Line, 287 IT. S. 367; The Point Fermin, 70 F. 2d 602;.Stevens v. B. O’Brien & Co., 62 F. 2d 632; North Alaska Salmon Co. v. Larsen, 220 F. 93; Biley v. Agwilines, Inc., 296 N. Y. 402; Kuhn v. City of New York, 274 N. Y. 118.) IV. Where the disease is caused or aggravated by service on the vessel, and the time is definitely fixed by medical experts as to when the best cure possible would be attained, then the seaman is entitled to a sum which would reasonably compensate him until he attains the best cure possible. {Bey v. Colonial Nav. Co., 116 F. 2d 580; Cortes v. Baltimore Insular Line, 287 IT. S. 367; Morris v. United States, 3 F: 2d 588; The Korea Maru, 254 F. 397; Cresci v. Standard Fisheries, 7 F. 2d 378.)</p> <p>I. The Appellate Division has full power and authority to review questions involving maritime law and correctly dismissed plaintiff’s suit for failure to prove a cause of action under any law. {Baltimore & Carolina Line, Inc., v. Bedman, 295 IT. S. 654.) II. The Appellate Division had full power to set the verdict aside and order a new trial on the ground that it was against the weight of evidence. There is no Federal law which precludes the exercise of such power. {John v. Paullin, 231 IT. S. 583; Herb v. Pitcairn, 324 IT. S. 117; Mahnich v. Southern S. S. Co., 321 IT. S. 96; Stokes v. United States, 144 F. 2d 82.) III. Plaintiff failed to prove that any act or omission of the ship’s personnel caused his tuberculosis or that defendant failed to proper and timely medical treatment. The Appellate Division correctly dismissed the complaint because of lack of evidence. (De Zon v. American President Lines, Ltd., 318 U. S. 660; Barlow v. Pan Atlantic 8. 8. Corp., 101 P. 2d 697; The Van Der Duyn, 261 F. 887; Willey v. AlasJca Packers’ Assn., 18 F. 2d 8.) IV. Plaintiff failed to prove any right to future maintenance under the doctrine established by the United States Supreme Court, and the Appellate Division correctly held that there was no evidence to support a verdict for maintenance. (Calmar 8. 8. Corp. v. Taylor, 303 U. S. 525; Lindgren v. Shepard 8. 8. Co., 108 F. 2d 806; Harden v. Gordon, 11 Fed. Cas. No. 6047; Reed v. Canfield, 20 Fed. Cas. No. 11641; The Boulter No. 2, 241 F. 831; Marshall v. International Mercantile Marine Co., 39 F. 2d 551; Stewart v. United States, 25 F. 2d 869; Stokes v. United States, 144 F. 2d 82; Bailey v. City of New York, 153 F. 2d 427; The Pochasset, 295 F. 6; The Saguache, 112 F. 2d 482.)</p>

<p>I. Tbe transactions alleged in tbe counterclaims were illegal and contrary to public policy. (Sirkin v. Fourteenth St. Store, 124 App. Div. 384; Matter of McNally, 252 App. Div. 550; Matter of Browning, 176 Mise. 308.) II. Tbe illegality of the agreements as pleaded precludes resort to tbe courts by tbe parties thereto, whether such resort be for tbe purpose of enforcing performance of tbe agreements or for tbe purpose of recovering back performance already rendered. (Tates v. Foot, 12 Johns. 1; Ruckman v. Pitcher, 1 N. Y. 392; Knowlton v. Congress & Empire Spring Co., 57 N. Y. 518; Perkins v. Savage, 15 Wend. 412; Staples v. Gould, 9 N. Y. 520; Sharp v. Wright, 35 Barb. 236; Haynes v. Rudd, 102 N. Y. 372; Union Exchange Nat. Bank v. Joseph, 231 N. Y. 250; Daimouth v. Bennett, 15 Barb. 541.) III. Tbe exception to tbe rule that no cause of action can arise from an illegal transaction — which exception is said to permit recovery by a principal from bis agent of moneys entrusted to tbe agent for an illegal purpose but not yet expended by tbe agent for that purpose — is not recognized in this State, and, in any event, is not applicable to this case. {Yates v. Foot, 12 Johns. 1; Staples v. Gould, 9 N. Y. 520; Leonard v. Poole, 114 N. Y. 371; Kearney v. Webb, 278 Ill. 17; Smith v. Blachley, 188 Pa. 550; Haynes v. Rudd, 102 N. Y. 372; Union Exchange Nat. Bank v. Joseph, 231 N. Y. 250; Daimouth v. Bennett, 15 Barb. 541; Baldwin v. Potter, 46 Yt. 42; Rolfe v. Delmar, 30 Robt. 80; Negley v. Devlin, 12 Abb. Prac. [N. S.] 210; De Oroot v. Van Duser, 20 Wend. 390; Holmcm v. Johnson, Cowp. 343.)</p> <p>Defendant in Ms counterclaim properly demands that plaintiffs, bis agents, retnrn bis fnnds beld by plaintiffs regardless of illegality of tbe proposed transaction. (Leonard v. Poole, 114 T. 371; Murray v. Vanderbilt, 39 Barb. 140; Morgan v. Groff, 4 Barb. 524; Gilbert v. American Sur. Go., 121 F. 499; Kearney v. Webb, 278 Ill.'17; Evans v. City of Trenton, 24 N. J. L, 764; Norton v. Blink, 39 Obio St. 145; Smith v. Blachley, 188 Pa. 550; School Dist. No. 39 v. Casey, 243 Ill. App. 434.) '</p>

I. The City Court, Criminal Branch, retained jurisdiction of the charge of leaving the scene of an accident in violation of subdivision 5-a of section 70 of the Vehicle and Traffic Law and no authority existed for the consideration of that charge before the grand jury hearing evidence of the charge of criminal negligence resulting in the death of an individual in violation of section 1053-a of the Penal Law. (Charter of City of Rochester, §§ 474, 479.) II.

I. The Industrial Commissioner properly denied the application for a refund since the interest and penalties were not “ erroneously collected.” (Matter of Fox Lane Corp. v. Loughman, 225 App. Div. 417; Matter of Gramott Corp. v. Graves, 255 App. Div. 255, 280 N. Y. 588; People ex rel. Westbrook-Buff alo, Inc., v. State Tax Comm., 257 App. Div. 705; Matter of Siegel, 262 App. Div. 789.) II.

I. Defendants’ insurance policy contained an express warranty that the plaintiffs would employ a competent watchman who would make frequent inspection of the bilges of the vessel, etc. No such watchman was provided. (Gary v. Home Ins. Go., 199 App. Div. 122, 235 N. Y. 296; Shamrock Towing Go. v. American Ins. Go., 9 F. 2d 57; Ripley v. Aetna Ins. Go., 30 N. Y. 136; United States Gypsum Go. v. Insurance Go. of North America, 19 P. Supp. 767; First Nat.

<p>Claimant failed to establish an occupational disease within the Workmen’s Compensation Law. (Goldberg v. 954 Marcy Corp., 276 Y. 313; Matter of Nielsen v. Fireman’s Fund Ind. Co., 239 App. Div. 239.)</p> <p>The disability of claimant was due to an occupational disease. (Goldberg v. 954 Marcy Corp., 276 N. Y. 313; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Mason v. Y. W. C. A. of City of New York, 271 App. Div. 1042, 297 N. Y. 1037; Matter of Peloso v. D’Alessio Bros., 272 App.- Div. 984, 298 N. Y. 582; Matter of Gaites v. Society for Prevention of Cruelty to Children, 277 N. Y. 534; Matter of Wakefield v. World-Telegram, 274 N. Y. 517; Matter of Levy v. World-Telegram Corp., 285 N. Y. 533; Matter of Char-basian v. Regina Novelty Corp., 257 App. Div. 1097; Matter of Wickham v. Glenside Woolen Mills, 252 N. Y. 11; Matter of Hughes v. Trustees of St. Patrick’s Cathedral, 245 3NT. Y. 201; Matter of Lepow v. Lepow Knitting Mills, Inc., 288 N. Y. 377.)</p>

I. The case was properly presented to the jury as a question of fact and the verdict of the jury was amply supported by the evidence. II. When the defendant erected the new dam, it created a condition which detracted from the safety of a traveler on the highway and, therefore, it created and maintained a nuisance. (Klepper v. Seymour House Corp., 246 N. Y. 85; Tremblay v. Harmony Mills, 171 N. Y. 598; Beck v. Garter, 68 N. Y. 283; Taylor v. City of Albany, 239 App.

<p>I. The crime of assault, second degree, was proven beyond a reasonable doubt. (People v. Tomlins, 213 N. Y. 240; People v. Fransone, 211 N. Y. 284; People v. Taylor, 177 N. Y. 237; People v. Bosino, 168 App. Div. 920; People v. Kennedy, 159 N. Y. 346; People v. Constantino, 153 N. Y. 24; People v. Johnson, 139 N. Y. 358; People v. Martin, 77 App. Div. 396, 175 N. Y. 315.) II. Defendants Potskowski and Capuano committed the crime of assault in the second degree. (People v. Bytel, 284 N. Y. 242.) III. Defendant LaDue committed the crime of assault in the second degree. (People v. Martin, 77 App. Div. 396, 175 N. Y. 315; People v. Vollero, 108 Mise. 635; People v. Steppello, 235 App. Div. 240.) IV. The verdict of the Essex County Court, convicting all defendants of assault in the second degree, should he reinstated and the respective sentences of the Essex County Judge should be upheld.</p> <p>I. As to defendant LaDue, the evidence was clearly insufficient. (Tagg v. Senner, 277 N. Y. 692; People ex rel. Hirschberg v. Orange County Court, 271 N. Y. 151; Sackheim v. Pigueron, 215 N. Y. 62.) II. The evidence was legally insufficient as to defendants Pots-kowski and Capuano. (People v. Watkins, 23 App. Div. 253; People v. Strewl, 246 App. Div. 400; People v. Galbo, 218 N. Y. 283; People v. Owens, 148 N. Y. 648; People v. Ledwon, 153 N. Y. 10; People v. Gluck, 188 N. Y. 167; People v. Farmer, 196 N. Y. 65; People v. Cashin, 259 N. Y. 434; People v. Deschessere, 69 App. Div. 217.) III. Defendants Potskowski and Capuano committed the crime of assault in the third degree. (People v. Gerdvine, 210 N. Y. 184; People v. Van Zandt, 224 N. Y. 354; People v„ Cummings, 274 N. Y. 336; People v. Qaynor, 33 App. Div. 98.) IV. The judgment of the Appellate Division was right and should in all things he affirmed. (People v. Samuels, 292 N. Y. 632; People v. Allen, 266 App. Div. 670; People v. McDermott, 267 App. Div. 968.)</p>

I. The damages sustained by plaintiff as a result of the accident are within the coverage of the policy issued by defendant. The provisions of the policy and those of the indorsement are not repugnant or mutually exclusive. (Thompson-Starrett Co. v. American Mut. Liability Ins'. Co., 276 N. Y. 266; Poel v. Brunswich-Balke-Collender Co., 216 N. Y. 310; Hartol Products Cor The policy in express terms did not cover the use of the truck at the time of the accident.

I. The trial court erred in refusing to charge that the plaintiff’s contributory negligence was not a defense where violation of a statute was concerned. (Karpeles v. Heine, 227 N. T. 74; Ur go v. Coles & Co., 226 App. Div. 610; Smith v. Variety Iron Steel Works Co., 147 App. Div. 242, 208 N. Y. 543; Stern v. Great Island Corp., 250 App. Div. 115; Pollard v. Trivia Bldg. Corp., 291 N. Y. 19; Weber v. State of New York, 53 N. Y. S. 2d 598.) II.

I. The accident occurred at Washington Square Park, which is a public park, established and maintained by defendant City of New York, and over which it had and maintained exclusive and undivided supervision and control. The accident and plaintiff’s resulting injuries were caused by a defective condition in one of the pathways in the park. II.

<p>The admission in evidence of the alleged confession of defendant was illegal and in violation of defendant’s constitutional rights under the United States and New York State Constitutions. (Pierce v. Creecy, 210 U. S. 387; People v. Alex, 265 N. Y. 192; People v. Mummiani, 258 N. Y. 394; People v. Valletutti, 297 N. Y. 226; People v. Barboto, 254 N. Y. 170; People v. Weiner, 248 N. Y. 118.)</p> <p>I. Appellant Rosenberg’s guilt was not established beyond a reasonable doubt. II. The trial court erred in refusing to charge that the testimony as to the alleged confession by appellant was not direct evidence of the commission of the crime by him, and in refusing to charge concerning the law of circumstantial evidence. (Pease v. Smith, 61 N. Y. 477; People v. Conroy, 287 N. Y. 201; State v. Griger, 46 S. W. 2d 537 [Mo.]; State v. Huff, 184 S. W. 2d 447 [Mo.]; 1917D L. R. A. 591; 40 A. L. R. 566; C. J. S., Criminal Law, § 816, p. 1422; Damas v. People, 62 Col. 418; Mitchell v. People, 76 Col. 346; Ghisum v. State, 50 S. W. 2d 321.)</p> <p>I. Guilt was established beyond a reasonable doubt. II. Bretagna’s confession was properly received in evidence. (People v. Mummiani, 258 N. Y. 394; People v. Lonergan, 294 N. Y. 942, 972, 326 U. S. 772.) III. The refusal to charge on the subject of circumstantial evidence was proper. (Sullivan v. United States, 32 P. 2d 992; Ossendorf v. United States, 272 F. 257; Mitchell v. People, 76 Col. 346; Moore v.- State, 193 Ga. 877; People v. Costello, 320 Ill. 79; Evans v. State, 199 Ind. 55; Long v. State, 77 Okla. Cr. 174; Commontvealth v. Blanchard, 345 Pa. 289; Hill v. State, 133 Tex. Cr. Rep. 92; People v. Almodovar, 291 N. Y. 628; People v. roy, 287 N. Y. 201.)</p>

<p>I. The Appellate Division was in error both on the law and on the facts. (Matter of Greenfield v. Moses, 169 Mise. 389, 257 App. Div. 809; Matter of Jones v. Wilcox, 80 App. Div. 167; Matter of Bchadler v. Graves, 258 App. Div. 451, 282 N. T. 716; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Bridgman v. Gosse, 157 Mise. 8, 246 App. Div. 632, 271N. Y. 535; Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256.) II. The very nature of respondent’s job required that he keep himself acquainted with the procedures adopted by the Workmen’s Compensation Board and he may not justify his failure to acquaint himself with one such procedure for over two years because he was not personally handed a copy of the procedure by his superior officers. III. At most only a preponderance of evidence is required even in the case of removal of a veteran and that has been met in the case at bar. (Matter of Miller v. Kttng, 291 N. Y. 65; Matter of Laurence v. Gaffney, 272 App. Div. 609.) IY. There is direct evidence, including respondent’s own admissions, that.the memorandum was delivered to him and that he had knowledge of its contents, to overcome respondent’s denial.</p> <p>I. The records and exhibits failed to disclose sufficient evidence that would appeal to a person of reasonable mind to sustain the charges, nor was there substantial evidence or that quantum of proof which would satisfy any fair-minded person of the employee’s guilt. {People ex rel. Western Union Tel. Co. v. Public Service Comm., 192 App. Div. 748, 230 N. Y. 95; Salmon v. Rochester & Lake Ontario Water Co., 120 Mise. 131; Matter of Bender v. Board of Regents, 262 App. Div. 627.) II. The charges were at most trivial or technical, showing a mere error of judgment without bad faith or evil purpose. (Matter of Griffin v. Thompson, 202 N. Y. 104.)</p>

Tbe trial court erred in bolding that statements made by one defendant in tbe presence of tbe other defendant were binding upon both and could be received in evidence.

<p>I. The provisions of the city rent law (Administrative Code, § XJ41-7.0) are not applicable to the instant case where a final order was granted and a warrant issued prior to September 17, 1947, the effective date of the law. (Matter of v. McLaughlin, 297 N. Y. 419; People ex rel. Ragland Realty Go. v. Fagan, 194 App. Div. 185, 230 N. Y. 653; Matter of Mounting & Finishing Go. v. McGoldrick, 294 N. Y. 104; Red Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1.) II. By virtue of the provisions of section 1446 of the Civil Practice Act, the Appellate Division, in affirming the orders of the Appellate Term, may not grant a further stay of execution of the warrant in the absence of an injunction suit for such relief. III. There is no legal requirement for the service of a thirty-day notice upon tenant as a condition precedent to the institution of dispossess proceedings. (Beal Property Law, § 232-a; Stern v. Equitable Trust Go., 208 App. Div. 13, 238 N. Y. 267; Klipack v. Raymar Novelties, Inc., 273 App. Div. 54; 1239 Madison Ave. Corp. v. Neuiburger, 208 App. Div. 87; Lewittes & Sons v. Spiel-marm, 190 Mise. 35; Shelton Bldg. Corp. v. Baggett, 188 Mise. 709; Curtin v. Porter, 133 Mise. 707; 130 West 57 Corp. v. Hyman, 188 Mise. 92; Eecht Co. v. Kuerner, 188 Mise. 519; Tripodi v. Rudershausen, 186 Mise. 363.)</p> <p>I. This proceeding was still pending on the effective date of the New York City Bent Control-. Law because the warrant to dispossess had not been executed and the tenant was still in possession of the apartment. Accordingly, this proceeding came within the express provision of those laws prohibiting evictions in “ pending ” proceedings. The Appellate Division properly stayed execution of the warrant. (Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Wegman v. Childs, 41 N. Y. 159; Mulstein Co. v. City of New York, 213 N. Y. 308; People ex rel. Rayland Realty Co. v. Pagan, 194 App. Div. 185, 230 N. Y. 653; Matter of Cohen v. Starke, 269 App. Div. 256; People ex rel. H. D. H. Realty Corp. v. Murphy, 194 App. Div. 530, 230 N. Y. 654; Manhattan Co. v. Commissioner, 297 U. S. 129; Miller v. United States, 294 U. S. 435; Dun &. Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Socony-Vacuum Oil Co. v. City of New York, 247 App. Div. 163,272 N. Y. 668.) II. The landlord’s failure to serve a thirty-day notice to quit required a dismissal of the petition. The term of the lease having expired in 1946, the tenancy was thereafter of indefinite duration, and a notice to quit was necessary under section 232-a of the Beal Property Law. (Witherbee, Sherman & Co. v. Wykes, 159 App. Div. 24; Lamed v. Hudson, 60 N. Y. 102; Reeder v. Sayre, 70 N. Y. 180; People ex rel. Botsford v. Darling, 47 N. Y. 666; Pugsley v Aikin, 11 N. Y. 494; Eungerford v. Wagoner, 5 App. Div. 590; Hand v. Knaul, 116 Mise. 714; Banks v. Garter, 7 Daly 417; Anderson v. Prindle, 23 Wend. 616; Stern v. Equitable Trust Go., 238 N. Y. 267.)</p>

<p>I. Plaintiff, an administrator appointed by the Probate Court of Michigan, does not have legal capacity to sue in the courts of New York. (Helme v. Buckelew, 229 N. Y. 363; Wikoff v. Hirschel, 258 N. Y. 28; Baldwin v. Powell, 294 N. Y. 130, 840; Maysville St. B. B. & Transfer Co. v. Marvin, 59 F. 91; Lichtenstern v. Augusta-Aiken By. Corf., 165 App. Div. 270; Loucks v. Standard Oil Co., 224 N. Y. 99; Slater v. Mexican Nat. B. B. Co., 194 U. S. 120; Moore v. Mitchell, 281 U. S. 18; Furst v. Fargason Co., 287 F. 306; Aleksiak v. Lehigh Valley B. B. Co., 245 App. Div. 722; Hopper Hopper, 125 N. Y. 400; Cooper v. American Airlines, Inc., 57 F. Supp. 329.) II. Plaintiff, under the provisions of the' Michigan statute, sues on behalf of the estate generally and not as trustee. (Baldwin v. Powell, 294 N. Y. 130.)</p> <p>I. A foreign administrator in a wrongful death action may sue in our courts as statutory trustee without obtaining ancillary letters. (Cooper v. American Airlines, Inc., 149 F. 2d 355; Graham v. Douglas Aircraft Co., 188 Mise. 1043; Pearson v. Norfolk & Western By Co., 286 F. 429; Wilson v. Tootle, 55 F. 211; Dematti v. Missouri-Kansas, 345 Mo. 1136; Kerr v. Basham, 62 S. D. 300; Ghilain v. Couture, 84 N. H. 48; Knight v. Moline, E. M. 'S W. By. Co., 160 Iowa 160; Connor v. N. T., N. H. & H. B. B. Co., 28 R. I. 560; Boulden v. Pennsylvania B. B. Co., 205 Pa. 264.) II. Plaintiff is a statutory trustee under Michigan law. The proceeds of any recovery belong to the next of kin and in no event are they subject to claims of creditors of the estate of the deceased. (Matter of Venneman. 286 Mich. 368: Michigan Judicature Act, ch. 266. § 27.712; 23 Mich. Stats. Ann., § 27.3178 [185], suhds. [4], [6] ; Baldwin v. Powell, 294 N. Y. 130; Davis v. New York Central & Hudson Riv. R. R. Co., 233 N. Y. 242; Rufner v. City of Traverse City, 296 Mich. 204.) III. Since creditors’ rights are not involved, the general rule requiring ancillary administration in this State does not apply. (Toronto Gen. Trust Co. v. Chicago, Burlington & Quincy R. R. Co., 123 N. Y. 37; Petersen v. Chemical Bank, 32 N. Y. 21; Parsons v. Lyman, 20 N. Y. 103; Doolittle v. Lewis, 7 Johns. Ch. 45; Taylor v. Syme, 162 N. Y. 513; Hastings v. Byllesby & Co., 286 N. Y. 468; Shipman v. Treadwell, 200 N. Y. 472; Stone v. Penn Yan, Keuka Park & Branchport Ry., 197 N. Y. 279; Howarth v. Angle, 162 N. Y. 179; Stoddard v. Lum, 159 N. Y. 265; Matter of Waite, 99 N. Y. 433; Dayton v. Borst, 31 N. Y. 435.)</p>

I. The payments alleged in the indictment were not made for the performance or omission of an official act nor were they made to a public officer: hence they did not constitute crimes. (People v. McKane, 143 N. Y. 455.) II. The trial court committed reversible error in instructing the jury that the receipt of the moneys by the shipping business owner consummated the commission of the crime. (People v. Katz, 290 N. Y. 361; People v. Waller, 198 N. Y. 329.) III.

<p>I. The Appellate Division invaded the province of the jury in reversing the judgment of the trial court entered upon a jury’s verdict, upon the stated ground that there was no proof of a causal connection between the breaking of the rope ” and plaintiff’s injury and in dismissing the complaint upon the ground that “ the accident was not one within reasonable range of anticipation (Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Carr v. City of New York, 281 N. Y. 469; Maguire v. Barrett, 223 N. Y. 49.) II. The Appellate Division invaded the province of the jury in deciding as a matter of law that there was no liability proved against the defendant by the plaintiff in this action. (Palsgraf v. Long Island R. R. Co., 222 App. Div. 166, 248 N. Y. 339; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; Casper sen v. La Sala Bros., 253 N. Y., 491; Indermaur v. Barnes, [1866] L. R. 1 C. P. 274, L. R. 2 O. P. 311; Matter of Polemis & Furness, Withy & Co., [1921] 3 K. B. 560; Sullivan v. Central Hanover Bank & Trust Co., 294 N. Y. 497; Peck v. Weil, 231 App. Div. 670, 235 App. Div. 601, 259 N. Y. 540; Alpert v. Day, 241 App. Div. 604, 264 N. Y. 643; McGlone v. Angus, Inc., 248 N. Y. 197; O ’Neill v. City of Port Jervis, 253 N. Y. 423.) III. The Appellate Division erred in holding that plaintiff must show by direct evidence that the cause of his fall was the breaking of the rope. (Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193; Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Tortora v. State of New York, 269 N. Y. 167.)</p> <p>I. There can be no legal liability for an accident such as this, which, upon the admitted and undisputed facts, was so rare, unexpected, and unusual that no reasonable person could fairly say that defendant, in the exercise of reasonable care, should have anticipated its occurrence. (Sweeney v. Rosell, 31 Mise. 640; Dugan v. American Transfer Co., 160 App. Div. 11; Paul v. Consolidated Fireworks Co., 212 N. Y. 117; Cronin v. American Linen Co., 147 F. 755; Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306; Burns v. Old Sterling Iron & Mining Co., 188 N. Y. 175.) II. Plaintiff failed to establish a prima facie case sufficient to warrant submission to the jury of the question of whether the breaking of the alleged defective valve cord was what caused plaintiff to fall from his employer’s truck. (White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Scharff v. Jackson, 216 N. Y. 598; Wolf v. Kaufmann, 227 App. Div. 281; Bourcheix v. Willow Brook Dairy, Inc., 268 N. Y. 1; Buppert v. Brooklyn Heights B. B. Co., 154 90; Buback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Slater v. Barnes, 241 N. Y. 284; Dillon v. Bockaway Beach Hosp., 284 N. Y. 176.) III. Plaintiff failed to establish a prima facie case sufficient to warrant submission to tbe jury of the question of whether plaintiff was free from contributory negligence. (Lyon v. Socony-Vacuum Oil Co., 268 App. Div. 788; Fillis v. Wahlig, 267 App. Div. 781; Owen v. Westchester Country Club, Inc., 264 App. Div. 796, 289 N. Y. 819; Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240; Deane v. City of Buffalo, 42 App. Div. 205; Fetch v. Allen, 98 Mass. 572.)</p>

<p>I. The Board of Appeals has no original on an application for a variance. (Matter of Mamaroneck Commodore, Inc., v. Bayly, 233 App. Div. 741, 260 N. Y. 528; Dotvsey y. Village of Kensington, 257 N. Y. 221; Matter of Von Elm v. Zoning Bd. of Appeals of Hempstead, 258 App. Div. 989; Kaufman v. City of Glen Cove, 180 Mise. 349, 266 App. Div, 870; Matter of Thomas v. Board of Standards & Appeals, 290 N. Y. 109; Matter of Sanders v. Davidson, 258 App. Div. 1058, 284 N. Y. 780; Sun Oil Go. v. MacAuley, R. I. 206.) II. In any event the board of appeals exceeded its statutory power by attempting to review legislative general rules. (Matter of Otto v. Steinhilber, 282 N. Y. 71; People ex rel. Arverne Bay Gonstr. Go. v. Murdoch, 247 App. Div. 889, 271 N. Y. 631; Arverne Bay Gonstr. Co. v. Thatcher, 253 App. Div. 285, 278 N. Y. 222; Matter of Sloane v. Walsh, 245 N. Y. 208; Matter of New Yorh Water Service Gorp. v. Wafer Power & Control Comm., 283 N. Y. 23; Matter of Levy v. Board of Standards .Appeals, 267 N. Y. 347; Matter of Joyce v. Dobson, 255 App. Div. 348; Matter of Mamaronech Commodore, Inc., v. Bayly, 233 App. Div. 741, 260 N. Y. 528; Matter of Y. W. PL. Assn. v. Board of Standards & Appeals, 266 N. Y. 270.) III. In any event a variance must rest upon unnecessary and undue hardship peculiar to a particular piece of property. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of New Yorh Water Service Corp. v. Water Power Control Comm., 283 N. Y. 23; Matter of Collins v. Béhañi, 285 Y. 187; Matter of Steers, Inc., v. Bembaugh, 259 App. Div. 908, 284 N. Y. 621; Matter of Aberdeen Garage, Inc., v. Murdoch, 257 App. Div. 645.)</p> <p>I. The purpose of zoning regulations is to stabilize property uses in a community. (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Devaney v. Board of Zoning Appeals, 132 Conn. 537; Matter of Stubbe v. Adamson, 220 N. Y. 459; People ex rel. Kannensohn Holding Corp. v. Walsh, 120. Mise. 467.) II. The power to vary the terms of an ordinance must be exercised sparingly. (Prusih v. Board of Appeals, 262 Mass. 451; Matter of Holy Sepulchre Cemetery v. Board of Appeals, Greece, 271 App. Div. 33.) III. None of the necessary conditions is met in the case at bar. (Matter of Otto v. Steinhil-ber, 282 N. Y. 71; Matter of Aberdeen Garage, Inc., v. Murdoch, 257 App. Div. 645.) IV. “ Unnecessary hardship ” is no justification for granting a variance if the hardship is self-imposed. (Matter of Holy Sepulchre Cemetery v. Board of Appeals, Greece, 271 App. Div. 33; People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280; Matter of Aberdeen Garage, Inc., v. Murdoch, 257 App. Div. 645; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Matter of Prusik, 262 Mass. 451.)</p> <p>I. The zoning board of appeals has original jurisdiction to entertain an application for a variance, and preliminary application therefor to the building inspector is not necessary. (Broys v Toivn of Hempstead, 272 3; Matter of Holy Sepulchre Cemetery v. Board of Appeals, Greece, 271 App. Div. 33; Matter of Underhill v. Board of Appeals of Town of Oyster Bay, 72 N. Y. S. 2d 588, 273 App. Div. 788, 297 N. Y. 937; Matter of Donegan v. Griffin, 270 App. Div. 937; Matter of Sanders v. Davidson, 258 App. Div. 1058, 284 N. Y. 780; Matter of Mamaronech Commodore, Inc., v. Bayly, 233 App. Div. 741, 260 N. Y. 528; People ex rel. Kannensohn Holding Corp. v. Walsh, 120 Mise. 467.) II. The vendee under an executory contract to purchase land may apply for a variance as a “ person aggrieved ” within the meaning of subdivision 2 of section 267 of the Town Law. (Matter of Nagaven Realties, Inc., v. Banzhof, 149 Mise. 361; People v. De Goode, 203 App. Div. 35; Epstein v. Gluckin, 233 N. Y. 490; People ex rel. Parry v. Walsh, 121 Mise. 631; Booth v. Cleveland Mill Co., 74 N. Y. 15; Patterson v. Guardian Trust Co., 144 App. Div. 863; People ex rel. Bingham Operating Corp. v. Eyrich, 265 App. Div. 562; People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280.) The facts established by the record and those found by the board, as stated in its decision and return, warranted the granting of the variance. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; People ex rel. IIudson-Harlem Co. v. Walker, 282 N. Y. 400; People ex rel. Werner v. Walsh, 212 App. Div. 635.) IY. The land cannot yield a reasonable return if used only for a purpose allowed in the zone. V. The plight of the owner is due to unique circumstances and not to general. conditions in the neighborhood. (Matter of Hopkins v. Board of Appeals, Rochester, 179 Mise. 325; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73.) YI. The use to be authorized by the variance will not alter the essential character of the locality. YII. The zoning board of appeals had power to grant a special exception in this case, and as the record supports such action by the board, this court may affirm on that ground, even if it should consider the case insufficient for the grant of a variance. (Building Zone Ordinance, § 18, subd. C; Matter of Thomas v. Board of Standards & Appeals, 290 N. Y. 109.)</p> <p>I. The board has the power to grant variances in a use district. II. The decision of the board of zoning appeals is presumptively correct. (Bove v. Doimer-Hanna Colee Corp., 142 Mise. 329, 236 App. Div. 37; Morgan v. City of Binghamton, 102 N. Y. 500; Ulmer Park Realty Co. v. City of New York, 270 App. Div. 1044; Matter of Wulfsohn v. Burden, 241 N. Y. 289; Matter of Joyce v. Dohson, 255 App. Div. 348; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519; Matter of Y. W. H. Assn. v. Board of Standards & Appeals, 266 N. Y. People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280; People ex rel. Hudson-Harlem Co. v. Walker, 282 N. Y. 400.)</p>

I. The Appellate Division’s increase of substantially 20% over its own decision for the preceding tax year was an erroneous projection into real estate value of the 20% increase in business value reflected by the successive sales prices of $3,000,000 and $3,600,000. No other evidence in the record can account for the Appellate Division’s modification. (People ex rel. Hotel St. George Corp. v. Lilly, 45 N. T. S. 2d 599, 268 App. Div. 830, 293 N. T. 898; People ex rel.

I. The State’s responsibility is measured by the same rules of law applicable to private individuals and corporations. II. The State’s failure to comply with the safety standards it enacted and promulgated by statute and industrial code was the proximate cause of claimant’s injuries. (Johnson v. Johnson, 249 App. Div. 859; Boss v. Delaware, Lackawanna & Western B. B. Co., 231 N. Y. 335; Stewart v. Ferguson, 164 N. Y. 553; Coleman v. Buggles-Bobinson Co., 159 App.

<p>I. The rent control act (L. 1945, ch. 314) does not apply to the City of New York. (Kahlen v. State of New York, 223 N. Y. 383; Weitsner v. Stitchman, 271 App. Div. 255, 296 N. Y. 907; United States v. Petty Motor Co., 327 U. S. 372; United States v. General Motors Gorp., 323 TJ. S. 373.) II. If such lease is subject to tbe emergency rent legislation, tbe reasonable rent formula adopted by tbe Appellate Division is correct. (Matter of Belmar Operating Corp. [Boffer], 272 App. Div. 766, 297 N. Y. 609; People ex rel. Gil-mour v. Hyde, 89 N. Y. 11; Matter of New York and Brooklyn Bridge, 72 N. Y. 527; Matter of Fifth Madison Corp. [N. Y. Tel. Co.], 272 App. Div. 766, 297 N. Y. 155; Matter of Sirbo Holdings Inc. [Krapp], 274 App. Div. 129; Kvas, Inc., v. Associated Press, 299 U. S. 269.) III. Two important items bave been erroneously omitted in tbe calculation; if restored, tbe rent provided for by tbe lease need not be disturbed.</p> <p>I. Tbe Business Rent Control Law (L. 1945, cb. 314) is applicable to tbe space occupied by tbe city, and tbe provisions of that statute govern tbe amount of rent to which tbe landlord is entitled. (Twentieth Century Associates v. Waldman, 294 N. Y. 571; Matter of Janis Bealty Co. [City of N. Y.], N. Y. L. J., May 26, 1948, p. 1969; Matter of Crown St. Garage, Inc. [City of N. Y.], N. Y. L. J., April 6,1948, p. 1265.) II. Since tbe total emergency rent plus tbe nonrental income exceeded tbe gross allowable income, tbe landlord was not entitled to a fixation of rent in excess of tbe city’s emergency rent. (Matter of Fifth Madison Corp. [A. Y. Tel. Co.], 272 App. Div. 766; Schack v. Handel, 271 App. Div. 1; Matter of Michel [Lerner], 185 Mise. 876; Matter of Frankel [Hatters’ Oakhide Boxes], 269 App. Div. 531; Matter of Zellner [Brooklyn Trust Co.], 70 N. Y. S. 2d 114, 273 App. Div. 906.) III. Tbe rent to be paid by tbe city, as fixed by tbe Appellate Division, was based on an erroneous computation, and exceeds tbe fair and reasonable proportion of tbe gross rentals. Tbe trial court’s finding that tbe city’s emergency rent is fair and reasonable is in accord with tbe weight of evidence. (Matter of Fifth Madison Corp. [A. Y. Tel. Co.], 297 N. Y. 155; Harrington v. Harrington, 290 N. Y. 126; Pirman v. Confer, 273 N. Y. 357; York Mtge. Corp. v. Clotar Constr. Corp., 254 N. Y. 128.)</p>

I. The trial court found as a fact that ‘ ‘ the plaintiff is a fit and proper person to have custody of the issue of the marriage.” There was no finding that defendant was a fit and proper person to have custody of these children, and it is significant that defendant submitted no request for the court to find that she was. II. Defendant’s conduct and code prove that she is an unworthy and unfit guardian of her daughters. (People ex rel. Wright v. Gerow, 136 App.

I. The determination of the Municipal Civil Service Commission must be reversed if it is arbitrary, capricious, or unreasonable. II. Answer A is the best answer, as a matter of law and of fact. (Matter of Fink v. Finegan, 270 N. Y. 356.) III. Answer D is incorrect, according to defendants’ own statements. IV. At the very least, the question should he stricken from the examination. (Matter of Blumenthal v. Morton, 273 App.

I. The judgment debtor’s renunciation of his legacy to defeat his creditor after the receiver’s title had attached and in violation of the restraining orders and the Debtor and Creditor Law of this State, was void and ineffective. (Albany Hosp. v. Albany Guardian Soc., 214 N. Y. 435; Matter of Waring, 293 N. Y. 186; Burritt v. Silliman, 13 N. Y. 93; Matter of Mahlstedt, 140 Mise. 245,-234 App. Div. 891; Matter of Matthiessen, 175 Mise. 466; Matter of Merritt, 155 App.

I. Plaintiff established no cause of action against the defendant fireworks company as a corporation because that corporation was not connected in any way with the transaction involved. (Schmedes v. Deffaa, 153 App.

<p>To compel arbitration, the contract therefor must be in writing. (Civ. Prac. Act, § 1449; Columbia Malting Co. v. Clausen-Flanagan Corp., 3 P. 2d 547; Matter of Tanenbaum Textile Co. v. Schlanger, 287 N. Y. 400.)</p> <p>I. The written purchase orders containing the arbitration clause are binding on appellant though not signed by it. (Newburger v. American Sur. Co., 242 Y. 134; Matter of Japan Cotton Trading Co. v. Farber, 233 App. Div. 354; Matter of Exeter Mfg. Co. v. Mar rus, 254 App. Div. 496.) II. The written purchase orders containing the arbitration clause were accepted by appellant and created valid agreements to arbitrate any disputes arising thereunder. (Matter of Tanen-baum Textile Co. v. Schlanger, 287 N. Y. 400; More v. New York Boivery Fire Ins. Co., 130 N. Y. 537; 1 Williston on Contracts [Rev. ed.], §§ 90A, 90B; Restatement, Contracts, p. 872; Matter of Exeter Mfg. Co. v. Marrus, 254 App. Div. 496; Matter of Japan Cotton Trading Co. v. Farber, 233 App. Div. 354.)</p>

<p>I. Article 4 of the Civil Service Law does not permit optional withdrawal from membership by an employee while he remains in the service of the State. II. Respondent validly acquired membership in the Retirement System in 1935.</p> <p>I. The law does not expressly or impliedly prohibit the withdrawal of an optional member of the Retirement System who subsequently qualifies for a pension under another State statute. II. The actuarial position of the Retirement System would not be adversely affected by the judgment below. III. Petitioner is not validly a member of the Retirement System.</p>

I. The Appellate Division was in error in refusing to pass upon the construction urged by the appellants. It was their duty, and it is the duty of the Court of Appeals to pass upon such construction. (Wilson v. Mechanical Orguinette Go., 170 N. T. 542; Matter of Davis, 149 N. Y. 539; Kelsey v. Western, 2 N. Y. 500; Matter of Winburn, 270 N. Y. 196; Groker v. Williamson, 208 N. Y. 480.) II.

<p>I. The appointment of two strangers, respondents Kelly and Fitzsimmons, as committee, was unauthorized and erroneous. (Matter of Lamoree, 32 Barb. 122; Matter of Rothman, 263 N. Y. 31; Matter of Cooper, 105 App. Div. 449; Matter of Diets, 247 App. Div. 366; Matter of More, 268 App. Div. 1055; Matter of Sariyan, 183 Mise. 701.) II. The allowances were improperly granted and are excessive. {Randall v. Packard, 142 N. Y. 47.)</p> <p>I. The appointment of respondents Kelly and Fitzsimmons as committee of the person and property of the incompetent was a proper exercise of the court’s discretion. {Matter of Rothman, 263 N. Y. 31; Matter of Foster, 230 App. Div. 730, 254 N. Y. 614; Matter of Owens, Ml How. Prae. 150; Matter of Pfleghar, 271 App. Div. 880.) II. The allowance to Joseph V. McKee, attorney for the petitioner, was properly granted. {Matter of Potts, 213 App. Div. 59, 241 N. Y. 593.)</p> <p>I. In view of the dissension between the members of the incompetent’s family, the court was authorized, in the exercise of its sound discretion, to select the present committee. (Matter of Quinby, 175 App. Div. 898.) II. The special guardian’s allowance as well as the other allowances were made by the court based on full affidavits of services. (Matter of Gurley, 161 Mise. 391; Matter of Mackenzie, 155 Mise. 822; Matter of Potts, 123 Mise. 346, 213 App. Div. 59, 241 N. Y. 593; Matter of Bielby, 91 Mise. 353; Matter of Ludwig, 112 Mise. 676; Matter of Milde-berger, 122 Mise. 743, 212 App. Div. 727, 241 N. Y. 528.)</p> <p>The statute places the primary responsibility for the payment of the commissioner’s compensation upon the petitioner personally. (Civ. Prac. Act, §§ 1369, 1373; Matter of Hammond, 125 App. Div. 865; Musco v. United Bur. Co., 196 N. Y. 459.)</p>

I. There was sufficient evidence in tbe case besides tbe testimony of accomplices to justify submitting tbe question of defendant guilt as to tbe crimes of accepting bribes as a public officer, taking unlawful fees as a public officer, and of tbe crime of conspiracy. (People v. Suffolk Contr. Co., 171 App. Div. 645.) II. There was sufficient evidence from non-accomplices which, tended to connect defendant Laman with the commission of the crime of conspiracy. III.

The undisputed facts show that claimant’s injuries did not arise out of and in the course of his employment and, consequently, that he is not entitled to recovei'y herein. (Matter of Heits v. Ruppert, 218 N. Y. 148; Matter of De Voe v. New York State Rys., 218 N. Y. 318; Matter of Kowalek v. New York Cons. R. R. Co., 229 N. Y. 489; Matter of Scott v. Whitehouse & Co., 280 N. Y. 742; Volk v. City of New York, 284 N. Y. 279; Matter of Ritbinstein v. Madison House Soc;, 239 App.

<p>I. The Appellate Division erred in holding that the action of the president in instituting this action is supported by the doctrine of prima facie authority. The authority to institute any action on behalf of the corporation is vested by law and agreement of the parties in plaintiff’s board of directors. (Mcllrath v. Waterbury & Sons Go., 193 App. Div. 491; McQuade v. Stoneham, 263 N. T. 323; Long Park, Inc., v. Trenton-New Brunswick Theatres Go., 297 N. Y. 174; People ex rel. Manice v. Powell, 201 N. Y. 194; United Copper Securities Go. v. Amalgamated Copper Co., 244 TJ. S. 261; Koral v. Savory, Inc., 276 N. Y. 215; Orr & Go. v. Fireman’s Fund Ins. Go., 141 Mise. 330; Central Opera House Realty Gorp. v. Verschleiser, N. Y. L. J., April 20,1946, p. 1548; American Water Works Co. of N. J. v. Vernier, 63 Hun. 632,18 N. Y. S. 379; Ashuelot Mfg. Go. v. Marsh, 1 Cush. 507 [Mass.]; Bridgeport Sav. Bank v. Eldridge, 28 Conn. 556; Jeanerette Rice $ Milling Go. v. Durocher, 123 La. 160.) II. The doctrine of prima facie or presumptive authority has no application in this case. (Powers v. Schlicht Heat, Light & Power Go., 23 App. Div. 380, 165 N. Y. 662; Schwartz v. United Merchants & Manufacturers, Inc., 72 P. 2d 256; Hardin v. Morgan Lithograph Go., 247 N. Y. 332; Holmes v. Willard, 125 N. Y. 75.) III. Even if it be assumed that the president of plaintiff corporation could have had presumptive authority to institute the action, that presumption has been conclusively rebutted. {Powers v. Schlicht Heat, Light S Power Co., 23 App. Div. 380, 165 N. Y. 662; Bussing v. Lowell Film Productions, Inc., 233 App. Div. 493, 259 N. Y. 593; Twyeffort v. Unexcelled Mfg. Co., 263 N. Y. 6; Oakes v. Cattaraugus Water Go., 143 N. Y. 430.) IV. The relationship between the directors opposing the action and defendants, and the bare assertion that this suit is vital to the corporate interest are no basis for the Appellate Division’s departure from clearly established principles of law. {Blaustein v. Pan American Petroleum & Transport Go., 263 App. Div. 97, 293 N. Y. 281; Koch v. Estes, 146 Mise. 249, 240 App. Div. 829, 264 N. Y. 480; J. G. F. Holding Gorp. v. General Gas & Elec. Gorp., 181 Mise. 283, 267 App. Div. 863; Espach v. Nassau & Suffolk Lighting Go., 293 N. Y. 463; Everett v. Phillips, 288 Y. 227; Stock Corporation Law, § 60; Matter of Automotive Manufacturers Assn., Inc., 120 Mise. 405.) V. The contention that this action is vital to the interests of plaintiff corporation provides no justification for the institution of this action. (Elblum Holdng Corp. v. Mints, 120 N. J. L. 604; Potter v. New York Infant Asylum, 44 Hun 367, 118 N. T. 684; Citizens Nat. Bank of Kingman v. Berry, 53 Kan. 696; Beebe v. Beebe, 64 N. J. L. 497.) VI. The existence of a deadlock in the board of directors creates no extraordinary powers in the corporate president. (Long Park, Inc., v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; Benmtendi v. Kenton Hotel, Inc., Y. 112; McQuade v. Stoneham, 263 N. Y. 323; Douglas Development Corp. v. Carillo, 64 N. Y. S. 2d. 747; Cogwill Land Co. v. Coughlan, 245 App. Div. 759; Koral v. Savory, Inc., 276 N. Y. 215; Earl v. Brewer, 248 App. Div. 314, 273 N. Y. 669; Pueblo of Santa Rosa v. Fall, 273 IJ. S. 315; Orr & Co. v. Fireman’s Fund Ins. Co., 141 Mise. 330.)</p> <p>I. Under the unusual circumDiv. 465; Pinh v. Title Guar. & Trust Go., 164 Mise. 128; Singer v. Carlisle, 26 N. Y. S. 2d 172, 261 App. Div. 897; Everett v. Phillips, 288 N. Y. 227; United Copper Securities Co. v. Amalgamated Copper Co., 244 U. S. 261; Koral v. Savory, Inc., 276 N. Y. 215; Munsonv. Syracuse, Geneva & Corning R. R. Co., 103 N. Y. 58; Billings v. Shorn, 209 N. Y. 265.)</p>

I. The trial court exceeded its authority by imposing sentence under section 1944 of the Penal Law seven years after sentencing appellant for the same act under section 1897 of the Penal Law. (Matter of Cedar v. Judges of Ct. of General Sessions, 240 App. Div. 182, 265 N. Y. 620; People v. Krumme, 161 Mise. 278; People v. Lohman, 2 Barb. 216, 1 N. Y. 379; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288; People ex rel.