laid down rule in New York

1908Co., 59 Hun, 424, 426 , which was an action for malicious prosecution, the court laid down the rule “'that the possession by a person of property recently stolen raises a presumption of guilt which may be considered by a jury, and, in the absence of explanation by such person, authorizes it to infer a criminal connection with its acquisition (People v. Weldon, 111 N. Y. 569 ).” The plaintiff testified: “ Coming down to the 28th of October 1904, the day of my arrest, I went to the Erie Railroad Company that morning at the Chambers Street dock.

1908People v. Weldon, 111 N. Y. 569 , 19 N. E. 279 .” The plaintiff testified: “Coming down to the 28th of October, 1904, the day of my arrest, I went to the Erie Railroad Company that morning at the Chambers street dock.

2006The Court recognized that the owner may be considered interested, but there were no grounds on which to discredit his testimony, and so the presumption of permission was overcome. 3 *178 Similarly, in Barrett v McNulty ( 27 NY2d 928 [1970]), there was uncontradicted evidence that the driver had no permission to operate the vehicle; he had pleaded guilty to theft of the vehicle, and, most critically, there was no competent evidence from which permission could be inferred.

1978THE BRUTON RULE AS MODIFIED BY MCNEIL In Bruton v United States ( 391 US 123 ), the court laid down the rule that the right of a defendant to confrontation under the Sixth Amendment to the United States Constitution was violated by the admission upon trial of a codefendant’s extrajudicial statement which implicated the defendant, since he had no opportunity to cross-examine the maker of the statement.

1969In Ressler v. Druck ( 40 Misc 2d 654, 655-656 ), a ease decided by me, I had occasion to make observation of the following: “ It has been held that a stipulation of settlement is a contract in itself [Citing authoritative cases].

1968“It seems clear that so long as he conducts the business he is doing this in every respect individually and not as the representative of the estate. ’ ’ In Blood v. Kane ( 130 N. Y. 514 ) the court laid down the rule that the fiduciary duty would run only to the creditors in cases where the legal representative is the sole beneficiary.

1964Confining the problem to constructive knoAvledge of a defect of the Avindow frame in a noncontrolled part of the building, as to which there is no common use, I note that in Tkach v. Montefiore Hosp. ( 289 N. Y. 387 ) the court laid down a rule which relates constructive notice to the right of entry in a ease where a lease was in effect, saying at page 390: “We see no reason why the rule # * * should not be available here to charge the landlord with constructive notice of defects in all those parts of the building into which, by authority of the written lease, he may enter. ’ ’ But in the case

1960In April of 1959, in San Diego Unions v. Garmon ( 359 U. S. 236 ), the court laid down the rule that even where activity of a labor union was only “ arguably ” within the compass of the National Labor Relations Act, a State court was deprived of jurisdiction even if the defendant’s conduct constituted a tort under State law.

1959At page 116 the court laid down the rule which in our judgment determines this appeal: “ Since at the time of the accident in the present case Bolton, an independent contractor, was in no sense under defendant’s guidance or control; since all business relationships between them were at an end, to be resumed, if at all, only by a subsequent consent or agreement between them; and since at such time Bolton was far away from where he had completed his work for defendant and was not engaged in any transportation project for defendant, it would be neither logical nor reasonable to cast liability for

1959Lines v. Smith ( 246 F. 2d 86 ) is not a departure from the rule of Costello v. Smith ( 179 F. 2d 715 , supra) and is distinguishable from the case at bar upon its facts for it did not involve a true single trip lease.

1959Lines v. Smith ( 246 F. 2d 86 ) is not a departure from the rule of Costello v. Smith ( 179 F. 2d 715 , supra) and is distinguishable from the case at bar upon its facts for it did not involve a true single trip lease.

1959At page 116 the court laid down the rule which in our judgment determines this appeal: “ Since at the time of the accident in the present case Bolton, an independent contractor, was in no sense under defendant’s guidance or control; since all business relationships between them were at an end, to be resumed, if at all, only by a subsequent consent or agreement between them; and since at such time Bolton was far away from where he had completed his work for defendant and was not engaged in any transportation project for defendant, it would be neither logical nor reasonable to cast liability for

1959At page 116 the court laid down the rule which in our judgment determines this appeal: “ Since at the time of the accident in the present case Bolton, an independent contractor, was in no sense under defendant’s guidance or control; since all business relationships between them were at an end, to be resumed, if at all, only by a subsequent consent or agreement between them; and since at such time Bolton was far away from where he had completed his work for defendant and was not engaged in any transportation project for defendant, it would be neither logical nor reasonable to cast liability for

1956The doctrine was succinctly stated in Weeks v. Rector of Trinity Church ( 56 App. Div. 195, 197 [1st Dept., 1900]) where the court laid down the rule: “ The rule of law is that when the obligation of performance by one party to a contract presupposes the doing of another act by the other party prior thereto, there arises an implied obligation of the second party to do the act which the performance of the contract necessarily involves.” (See, also, Genet v. Delaware & Hudson Canal Co., 136 N. Y. 593 [1893]; Wilson v. Mechanical Orguinette Co., 170 N. Y. 542 [1902]; Wigand v. Bachmann-Bechtel Br

1956Co., 222 N. Y. 272 [1918].) The principle was restated by Judge Cardozo in Wood v. Duff-Gordon ( 222 N. Y. 88, 91 [1917]) in which he reiterated the principle that a contract ‘ ‘ instinct with an obligation imperfectly expressed will not deter from its validity.” (See, also, 5 Williston on Contracts, § 1293.) The principle may be enunciated from the cases just cited that, when the supplying of information is a practical prerequisite to performance by a party to a contract, the duty to give the information will be implied, even though it is not expressed in the contract.

1956The doctrine was succinctly stated in Weeks v. Rector of Trinity Church ( 56 App. Div. 195, 197 [1st Dept., 1900]) where the court laid down the rule: “ The rule of law is that when the obligation of performance by one party to a contract presupposes the doing of another act by the other party prior thereto, there arises an implied obligation of the second party to do the act which the performance of the contract necessarily involves.” (See, also, Genet v. Delaware & Hudson Canal Co., 136 N. Y. 593 [1893]; Wilson v. Mechanical Orguinette Co., 170 N. Y. 542 [1902]; Wigand v. Bachmann-Bechtel Br

1956In the Hays case ( 252 N. Y. 266 , supra) this court laid down the rule as to fair reading in order to determine whether the writings applied to a plaintiff.

1951In Stone v. State of New York ( 138 N. Y. 124, 130 ), the court laid down the rule in a flood damage case caused by the giving way of a guard bank alongside an artificial channel that “ While it is possible that if the guard bank had been maintained in repair it would have confined the water to the new channel, the state was under no obligation to maintain it to protect land which would have been flooded to the same extent if the improvement had not been made.” (Emphasis supplied.) In Wegenast v. Ernst (8 Upper Canada Common Pleas Rep. 456), plaintiff sought to recover damages to his mill dam

1951(See Roberts v. Fulmer , 301 N.Y. 277, 281 ; Maher v. Randolph , 275 N.Y. 80, 84 ; Burns v. McCormick , 233 N.Y. 230, 234 ; Woolley v. Stewart , 222 N.Y. 347, 351 ; Young v. Ingalsbe , 208 N.Y. 503, 506 .) The statute's underlying purpose is to avoid the "peril of perjury and error * * * latent in the spoken promise" ( Burns v. McCormick , supra, 233 N.Y. 230, 234 ; see, also, Maher v. Randolph , supra, 275 N.Y. 80, 84 ), and that purpose can be effectuated only if the evidentiary acts relied upon are mutually "confirmatory" of the oral contract sought to be validated, and are done "upon the s

1951(See Roberts v. Fulmer , 301 N.Y. 277, 281 ; Maher v. Randolph , 275 N.Y. 80, 84 ; Burns v. McCormick , 233 N.Y. 230, 234 ; Woolley v. Stewart , 222 N.Y. 347, 351 ; Young v. Ingalsbe , 208 N.Y. 503, 506 .) The statute's underlying purpose is to avoid the "peril of perjury and error * * * latent in the spoken promise" ( Burns v. McCormick , supra, 233 N.Y. 230, 234 ; see, also, Maher v. Randolph , supra, 275 N.Y. 80, 84 ), and that purpose can be effectuated only if the evidentiary acts relied upon are mutually "confirmatory" of the oral contract sought to be validated, and are done "upon the s

1951(See Roberts v. Fulmer , 301 N.Y. 277, 281 ; Maher v. Randolph , 275 N.Y. 80, 84 ; Burns v. McCormick , 233 N.Y. 230, 234 ; Woolley v. Stewart , 222 N.Y. 347, 351 ; Young v. Ingalsbe , 208 N.Y. 503, 506 .) The statute's underlying purpose is to avoid the "peril of perjury and error * * * latent in the spoken promise" ( Burns v. McCormick , supra, 233 N.Y. 230, 234 ; see, also, Maher v. Randolph , supra, 275 N.Y. 80, 84 ), and that purpose can be effectuated only if the evidentiary acts relied upon are mutually "confirmatory" of the oral contract sought to be validated, and are done "upon the s

1951(Shindler v. Houston, 1 N. Y. 261, 269 .) That pronouncement remains our guide, whether there is involved the sale of real or personal property.

1951Absent one of the validating acts specified, in other words, unless and until the statute has been satisfied in one of the ways enumerated, the oral agreement is unenforcible and "the defendant may withdraw without liability." (1 Williston on Sales [Rev. ed., 1948], § 73, p. 199.) Dispute early arose as to the precise nature of the requisite acts of part performance generally, and, more than a century ago, this court laid down the rule that the statute "is not satisfied with any thing but unequivocal acts of the parties" (emphasis supplied). ( Shindler v. Houston , 1 N.Y. 261, 269 .) That pron

1951(See Roberts v. Fulmer , 301 N.Y. 277, 281 ; Maher v. Randolph , 275 N.Y. 80, 84 ; Burns v. McCormick , 233 N.Y. 230, 234 ; Woolley v. Stewart , 222 N.Y. 347, 351 ; Young v. Ingalsbe , 208 N.Y. 503, 506 .) The statute's underlying purpose is to avoid the "peril of perjury and error * * * latent in the spoken promise" ( Burns v. McCormick , supra, 233 N.Y. 230, 234 ; see, also, Maher v. Randolph , supra, 275 N.Y. 80, 84 ), and that purpose can be effectuated only if the evidentiary acts relied upon are mutually "confirmatory" of the oral contract sought to be validated, and are done "upon the s

1946S., Associations, § 34, subd. b, p. 81.) In Lafond v. Deems ( 81 N. Y. 507 ), in which a fraternal organization was involved, the court laid down the rule in this language (p. 514): ‘ ‘ Courts should not, as a general rule, interfere with the contentions and quarrels of voluntary associations so long as the government is fairly and honestly administered, and those who have grievances should be required in the first instance to resort to the remedies for redress provided by their rules and regulations.

1946This had not been done in the case considered, and under the circumstances no action lies. ’ ’ The rule thus laid down by the Court of Appeals has been followed in numerous cases in our courts, among them Holt v. White ( 221 App. Div. 558 , affd. 248 N. Y. 613 , expulsion from a fraternal order); Andrews v. Local Union No. 13 Journeymen P., G. & S. ( 133 Misc. 899 , action by member of labor union to restrain a local from entering into contract fixing wages of members); Gray v. Ferris ( 230 App. Div. 416 , concerning action of athletic association in passing on eligibility of member to partici

1946This had not been done in the case considered, and under the circumstances no action lies. ’ ’ The rule thus laid down by the Court of Appeals has been followed in numerous cases in our courts, among them Holt v. White ( 221 App. Div. 558 , affd. 248 N. Y. 613 , expulsion from a fraternal order); Andrews v. Local Union No. 13 Journeymen P., G. & S. ( 133 Misc. 899 , action by member of labor union to restrain a local from entering into contract fixing wages of members); Gray v. Ferris ( 230 App. Div. 416 , concerning action of athletic association in passing on eligibility of member to partici