spirit rule in New York

1978EPTL 7-1.5 on the divesting of trust property provides in subdivision (d): "The beneficiary of an express trust to receive the income from property and apply it to the use of or pay it to any person is not precluded by anything contained in this section from transferring or assigning any part or all of such income to or for the benefit of persons whom the beneficiary is legally obligated to support.” (Italics supplied.) Where there was an assignment of trust income for support of wife and children and circumstances under which a trust provided against alienation, the Court of Appeals held in M

1963(See, e.g., Wetmore v. Wetmore, 149 N. Y. 520 ; Matter of Sand v. Beach, 270 N. Y. 281, 285-286 .) And, it follows from this, an assignment of trust income for the support of wife and children, far from violating the policy or the spirit of the rule, actually tends to effect its purpose.” Although this statement, standing by itself, might appear as an absolute and unconditional validation of assignments within the family unit, the decision went on to say that in a case in Avhieh the assignment of trust income left the beneficiary without sufficient means for his own support, or in a case where

1969(Matter of Sand v. Beach, 270 N. Y. 281 .) The assignment herein for the benefit of the wife and children is consonant with the spirit of the rule and in effect supports its purpose.

1963(See, e.g., Wetmore v. Wetmore, 149 N. Y. 520 ; Matter of Sand v. Beach, 270 N. Y. 281, 285-286 .) And, it follows from this, an assignment of trust income for the support of wife and children, far from violating the policy or the spirit of the rule, actually tends to effect its purpose.” Although this statement, standing by itself, might appear as an absolute and unconditional validation of assignments within the family unit, the decision went on to say that in a case in Avhieh the assignment of trust income left the beneficiary without sufficient means for his own support, or in a case where

1914I think it would not be within the spirit of the rule in equity, that its application should be made to depend, not upon the fact of a consideration for the promise being shown to have existed and to have been performed, but upon the question whether, when specific performance by the donor is claimed, the use has not compensated the donee and relieved the donor’s obligation.” After quoting from Freeman v. Freeman (supra), the opinion continues: “It was said by Parker, J., in Lobdell v. Lobdell ( 36 N. Y. at page 331 ): ‘ If the promisee, on the faith of the promise, does some act, or enters in

1914I think it *324 would not be within.the spirit of the rule in equity that its application should be made to depend, not upon the fact of a consideration for the promise being shown to have existed and to have been performed, but upon the question whether, when specific .performance by the donor is claimed, the use has not compensated the donee and relieved the donor’s obligation.” After quoting from Freeman v. Freeman (supra) the opinion continues: “ It was said by Parker, J., in Lobdell v. Lobdell (36 N. Y. at page 331): 1If the promisee, on the faith of the promise, does some act, or enters

1967(See Matter of Littauer, 285 App. Div. 95, 98 , motion for leave to appeal den. 308 N. Y. 1052 ; Matter of Yard, 116 Misc. 19 ; Matter of Bellamore, 27 Misc 2d 118 ; see, also, Griswold, Spendthrift Trusts [2d ed.], § 338; Restatement, Trusts, 2d, § 157, comment g.) ” In order to carry out the intent and purpose of the separation agreement to provide a certain percentage of the beneficiary’s income for his former wife, the court directs the beneficiary to execute an assignment in accordance with the request contained in the petition.

1963(See Matter of Littauer, 285 App. Div. 95, 98 , motion for leave to appeal den. 308 N. Y. 1052 ; Matter of Yard, 116 Misc. 19 ; Matter of Bellamore, 27 Misc 2d 118 ; see, also, Griswold, Spendthrift Trusts [2d ed.], § 338; Restatement, Trusts, 2d, § 157, comment g.) In point of fact, the courts have gone so far as to uphold the wife’s right to an involuntary transfer of future income for her support from the husband’s spendthrift trust.

1967(See Matter of Littauer, 285 App. Div. 95, 98 , motion for leave to appeal den. 308 N. Y. 1052 ; Matter of Yard, 116 Misc. 19 ; Matter of Bellamore, 27 Misc 2d 118 ; see, also, Griswold, Spendthrift Trusts [2d ed.], § 338; Restatement, Trusts, 2d, § 157, comment g.) ” In order to carry out the intent and purpose of the separation agreement to provide a certain percentage of the beneficiary’s income for his former wife, the court directs the beneficiary to execute an assignment in accordance with the request contained in the petition.

1963(See Matter of Littauer, 285 App. Div. 95, 98 , motion for leave to appeal den. 308 N. Y. 1052 ; Matter of Yard, 116 Misc. 19 ; Matter of Bellamore, 27 Misc 2d 118 ; see, also, Griswold, Spendthrift Trusts [2d ed.], § 338; Restatement, Trusts, 2d, § 157, comment g.) In point of fact, the courts have gone so far as to uphold the wife’s right to an involuntary transfer of future income for her support from the husband’s spendthrift trust.

1967(See Matter of Littauer, 285 App. Div. 95, 98 , motion for leave to appeal den. 308 N. Y. 1052 ; Matter of Yard, 116 Misc. 19 ; Matter of Bellamore, 27 Misc 2d 118 ; see, also, Griswold, Spendthrift Trusts [2d ed.], § 338; Restatement, Trusts, 2d, § 157, comment g.) ” In order to carry out the intent and purpose of the separation agreement to provide a certain percentage of the beneficiary’s income for his former wife, the court directs the beneficiary to execute an assignment in accordance with the request contained in the petition.

1963(See Matter of Littauer, 285 App. Div. 95, 98 , motion for leave to appeal den. 308 N. Y. 1052 ; Matter of Yard, 116 Misc. 19 ; Matter of Bellamore, 27 Misc 2d 118 ; see, also, Griswold, Spendthrift Trusts [2d ed.], § 338; Restatement, Trusts, 2d, § 157, comment g.) In point of fact, the courts have gone so far as to uphold the wife’s right to an involuntary transfer of future income for her support from the husband’s spendthrift trust.

1916Such an apportionment would fall within the spirit of the rule adopted in Fargo v. Squiers (supra).

1916Such an apportionment would fall within the spirit of the rule adopted in Fargo v. Squiers (supra,).

1916With respect to the contention that an unlawful suspension may result under the power to appoint to further uses, given under the will to Mrs. Porter, the testator’s daughter, it is sufficient to refer to Hillen v. Iselin ( 144 N. Y. 365 ), which is direct authority for the proposition that such a power does not offend the statute against perpetuities.

1916With respect to the contention that an unlawful suspension may result under the power to appoint to further uses, given under the will to Mrs. Porter, the testator’s daughter, it is sufficient to refer to Hillen v. Iselin ( 144 N. Y. 365 ), which is direct authority for the proposition that such a power does not offend the statute against perpetuities.

1914In enforcing such a promise, equity aims at preventing a fraud upon the donee and regards the case as taken out of the operation of the statute by the part performance. ” In Miller v. Ball ( 64 N. Y. 286 ) Judge Earl used this language: “ The principle upon which courts of equity hold that part performance- is sufficient is, that a party who has permitted another to perform acts on the faith of an agreement shall not be allowed to insist that the agreement is invalid because it was not in writing, and that he is entitled to treat those acts as if the agreement in compliance with which they wer

1914In enforcing such a promise, equity aims at' preventing a fraud upon the donee and regards the case as taken out Of the operation of the statute by the part performance.” In Miller v. Ball ( 64 N. Y. 286, 291 ) Judge Earl used this language: ‘ ‘ The principle upon which courts of equity hold that part performance is sufficient is, that a party who has permitted another to perform acts on the faith of an agreement shall not be allowed to insist that the agreement is invalid because it was not in writing, and that he is entitled to treat those acts as if the agreement in compliance with which th

1989Further, neither the letter nor the spirit of the rule enunciated in Payton v New York ( 445 US 573 ) was violated here, where the police directed the defendant, through his girlfriend, to leave his apartment (see, People v Minley, 68 NY2d 952 ).

1989Further, neither the letter nor the spirit of the rule enunciated in Payton v New York ( 445 US 573 ) was violated here, where the police directed the defendant, through his girlfriend, to leave his apartment (see, People v Minley, 68 NY2d 952 ).

1987It is well settled that a codefendant’s confession may be introduced at a joint trial without violating the spirit of the rule in Bruton v United States (supra), where the implicated defendant himself has made a confession close enough to the codefendant’s with respect to the material facts of the crime charged to make the possibility of prejudice so negligible that the end result would be the same without the codefendant’s statement.

1987(People v Safian, 46 NY2d 181, 188 [1978], cited in People v Berzups, 49 NY2d 417, 425 [1980].) As the Court of Appeals explained in Berzups (supra, at 425 ): "The justification for this exception is that separate confessions, without being mirror images of one another, may yet be so duplicative in their description of the.crucial facts that the one of the nontestifying codefendant may be of no measurable consequence in the face of the overwhelming and largely uncontroverted evidence contained in the interlocking confession of the defendant himself (Brown v United States, 411 US 223 ; Schneble

1987(People v Safian, 46 NY2d 181, 188 [1978], cited in People v Berzups, 49 NY2d 417, 425 [1980].) As the Court of Appeals explained in Berzups (supra, at 425 ): "The justification for this exception is that separate confessions, without being mirror images of one another, may yet be so duplicative in their description of the.crucial facts that the one of the nontestifying codefendant may be of no measurable consequence in the face of the overwhelming and largely uncontroverted evidence contained in the interlocking confession of the defendant himself (Brown v United States, 411 US 223 ; Schneble

1987(People v Safian, 46 NY2d 181, 188 [1978], cited in People v Berzups, 49 NY2d 417, 425 [1980].) As the Court of Appeals explained in Berzups (supra, at 425 ): "The justification for this exception is that separate confessions, without being mirror images of one another, may yet be so duplicative in their description of the.crucial facts that the one of the nontestifying codefendant may be of no measurable consequence in the face of the overwhelming and largely uncontroverted evidence contained in the interlocking confession of the defendant himself (Brown v United States, 411 US 223 ; Schneble

1980Furthermore, his reenactment of the questioning before the Grand Jury constituted a subtle form of unsworn evidence which substantially blurred the line between Ferrara as an advocate and as a witness. 2 Although the evidence against defendant was substantial, we do not consider the error to be harmless (see People v Swanson, 278 App Div 846 ; cf. People v Mangine, 73 AD2d 816 ).

1980Furthermore, his reenactment of the questioning before the Grand Jury constituted a subtle form of unsworn evidence which substantially blurred the line between Ferrara as an advocate and as a witness. 2 Although the evidence against defendant was substantial, we do not consider the error to be harmless (see People v Swanson, 278 App Div 846 ; cf. People v Mangine, 73 AD2d 816 ).

1978EPTL 7-1.5 on the divesting of trust property provides in subdivision (d): "The beneficiary of an express trust to receive the income from property and apply it to the use of or pay it to any person is not precluded by anything contained in this section from transferring or assigning any part or all of such income to or for the benefit of persons whom the beneficiary is legally obligated to support.” (Italics supplied.) Where there was an assignment of trust income for support of wife and children and circumstances under which a trust provided against alienation, the Court of Appeals held in M

1978EPTL 7-1.5 on the divesting of trust property provides in subdivision (d): "The beneficiary of an express trust to receive the income from property and apply it to the use of or pay it to any person is not precluded by anything contained in this section from transferring or assigning any part or all of such income to or for the benefit of persons whom the beneficiary is legally obligated to support.” (Italics supplied.) Where there was an assignment of trust income for support of wife and children and circumstances under which a trust provided against alienation, the Court of Appeals held in M

1978EPTL 7-1.5 on the divesting of trust property provides in subdivision (d): "The beneficiary of an express trust to receive the income from property and apply it to the use of or pay it to any person is not precluded by anything contained in this section from transferring or assigning any part or all of such income to or for the benefit of persons whom the beneficiary is legally obligated to support.” (Italics supplied.) Where there was an assignment of trust income for support of wife and children and circumstances under which a trust provided against alienation, the Court of Appeals held in M

1978EPTL 7-1.5 on the divesting of trust property provides in subdivision (d): "The beneficiary of an express trust to receive the income from property and apply it to the use of or pay it to any person is not precluded by anything contained in this section from transferring or assigning any part or all of such income to or for the benefit of persons whom the beneficiary is legally obligated to support.” (Italics supplied.) Where there was an assignment of trust income for support of wife and children and circumstances under which a trust provided against alienation, the Court of Appeals held in M

1977To support his flawed syllogism plaintiff quotes an inner quotation from the Wein case: "As was stated by the 1938 Subcommittee on Taxation and Finance of the Constitutional Convention Committee: 'The spirit of the clause implied that the State must not have two or more budgetary deficits in succession’ ” ( 39 NY2d 136, 149 , supra).

1969Decision should not rest on the individual reaction of the judge or bench in question. ‘ ‘ The importance of observing the spirit of this rule cannot be overestimated, for, while justice in a given case may be worked out by a decision of the court according to the notions of right which govern the individual judge or body of judges comprising the court, the mischief which will finally result may be almost incalculable under our system which makes a deci sion in one case a precedent for decisions in all future cases which are akin to it in the essential facts. ’’ (Roberson v. Rochester Folding

1966An extension to include the circumstances present in this case — absence from the jurisdiction and refusal to testify, claiming the privilege against self incrimination- — -does not violate the spirit of the exception; accordingly, we conclude that the proffered evidence, though hearsay in form, should be admissible as constituting declarations against interest (see Tompkins, supra, p. 264 ).