fixed standard in New York

1963It rests ‘ on the presumed intention of the owner of the property and on the maxim that equity regards as done what ought to be done.’ (Rockland-Roekport Lime Co. v. Leary, 203 N. Y. 469, 480 .) The conversion, if any, takes place only when it is the duty of the contracting party to act.

1937It rests “ on the presumed intention of the owner of the property and on the maxim that equity regards as done what ought to be done.” (Rockland-Rockport Lime Co. v. Leary, 203 N. Y. 469, 480 .) The conversion, if any, takes place only when it is the duty of the contracting party to act.

1914Matter of Wilcox, 125 App. Div. 152 ; Collier v. Munn, 41 N. Y. 143 .

1905Collier v. Munn, 41 N. Y. 143 ; Wagstaff v. Lowerre, 3 Abb.

2012Nonetheless, the Hayes Court, in a domestic violence case, concluded it is error to apply a fixed rule that requires trial courts to limit cross-examination “to the mere existence of defendant’s prior convictions where prior crimes are similar to the pending charges” ( 97 NY2d at 208 ).

1996Labor Law § 220, in content, structure and purpose confirms that a proceeding such as this, brought by the Commissioner of Labor to enforce the statutory and constitutional mandate, has as its overriding goal the vindication of a public interest rather than just to provide a forum in a particular case for the adjudication of a claimed personal statutory right, as in Mills v County of Monroe (supra) (see also, Board of Educ. v New York State Div. of Human Rights [Arluck], 44 NY2d 902 , 904, rearg denied 45 NY2d 838 ; Matter of Board of Educ. [Wager Constr.

1988Hosp. v Axelrod, 103 AD2d 509, 510-511 ).

1988Even were we to accept the argument that the Department could refuse to consider revised information not corroborated by the first forms filed, we conclude that the requirement of corroboration is a fixed principle which the Department regularly applied without reference to other facts and circumstances (see, Matter of Connell v Regan, 114 AD2d 273, 275 ; Matter of Fox Mem.

1986However, a fixed standard which is applied without regard to other relevant facts and circumstances constitutes a rule or regulation which must be filed with the Department of State to be valid (NY Const, art IV, § 8; Matter of Roman Catholic Diocese v New York State Dept. of Health, 66 NY2d 948, 951 ; Long Is.

1985The agency may, of course, elect to proceed on a case-by-case analysis of the facts and circumstances surrounding the particular issues to be determined (see, Village of Herkimer v Axelrod, 88 AD2d 704, 706 , affd 58 NY2d 1069 ), but the record in this case leaves no room for doubt that DOH employed a fixed standard — a rigid numerical formula.

1985Having concluded that the grounds relied upon by DOH include an improper fixed standard, we cannot sustain the determination by substituting proper grounds which do not include the fixed standard (Matter of Parkmed Assoc. v New York State Tax Commn., 60 NY2d 935, 936 ).

1985The agency may, of course, elect to proceed on a case-by-case analysis of the facts and circumstances surrounding the particular issues to be determined (see, Village of Herkimer v Axelrod, 88 AD2d 704, 706 , affd 58 NY2d 1069 ), but the record in this case leaves no room for doubt that DOH employed a fixed standard — a rigid numerical formula.

1979In our view, such a policy establishes a general course of operation to be effective for the future and, accordingly, comes within the rule or regulation filing requirement of the Constitution (NY Const, art IV, § 8; see Executive Law, § 101-a, subd 1, par b; § 102; People v Cull, 10 NY2d 123, 127 ; Matter of Sturman v Ingraham, 52 AD2d 882 ).

1979In light of the trenchant rationale of Brinegar ( 338 US 160 , supra) it might well be concluded that probable cause is a variable, not a fixed test, and permits consideration of the intrusion as compared or contrasted with the need in a particular situation.

1979This is provided, however, that the police officer can focus upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion” (Terry v Ohio, 392 US 1, 21 ; accord Matter of Kwok T, 43 NY2d 213, 218 ; People v Sobotker, 43 NY2d 559 ; People v De Bour, 40 NY2d 210, 215-217 ; CPL 140.50).

1979In our view, such a policy establishes a general course of operation to be effective for the future and, accordingly, comes within the rule or regulation filing requirement of the Constitution (NY Const, art IV, § 8; see Executive Law, § 101-a, subd 1, par b; § 102; People v Cull, 10 NY2d 123, 127 ; Matter of Sturman v Ingraham, 52 AD2d 882 ).

1979The rejection of the traditional rule was made in Babcock v Jackson ( 12 NY2d 473 ).

1979This is provided, however, that the police officer can focus upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion” (Terry v Ohio, 392 US 1, 21 ; accord Matter of Kwok T, 43 NY2d 213, 218 ; People v Sobotker, 43 NY2d 559 ; People v De Bour, 40 NY2d 210, 215-217 ; CPL 140.50).

1979This is provided, however, that the police officer can focus upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion” (Terry v Ohio, 392 US 1, 21 ; accord Matter of Kwok T, 43 NY2d 213, 218 ; People v Sobotker, 43 NY2d 559 ; People v De Bour, 40 NY2d 210, 215-217 ; CPL 140.50).

1977It is a fixed principle of tort law that, "where a party’s negligence is directly responsible for physical injury to another, there is no question but that the injured party may recover both for the actual physical injury sustained and for the concomitant mental and emotional suffering which flow as a natural consequence of the wrongful act” (Howard v Lecher, 42 NY2d 109, 111 , supra).

1965The conclusion is that the remainder to charity is not sufficiently certain in monetary value as to qualify as a charitable deduction,(De Castro’s Estate v. Commissioner, 155 F. 2d 254 , cert. den. 329 U. S. 727 ; State St.

1965The power of invasion contained in this will is not a power restricted by a fixed standard (United States v. Powell, 307 F. 2d 821 ).

1965The conclusion is that the remainder to charity is not sufficiently certain in monetary value as to qualify as a charitable deduction,(De Castro’s Estate v. Commissioner, 155 F. 2d 254 , cert. den. 329 U. S. 727 ; State St.

1954This is the test and the fixed standard (Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185 ) ”.

1948But it does not follow that this service is worth the same in every case. * ‘ * * Life has a pecuniary value of variable quantity.’ Mortimer’s Est., 13 Pa. Dist. 51, 29 Pa. Co. 387. ‘ This state of affairs the law must recognize, that physicians should not have their services valued as you would commodities in trade by a fixed standard; what would be a proper charge for the same service to a man fully able to pay would be excessive to a man of limited means, and what would be willingly done for the indigent without thought of financial reward should be compensated for by one who can afford to

1948But it does not follow that this service is worth the same in every case. * ‘ * * Life has a pecuniary value of variable quantity.’ Mortimer’s Est., 13 Pa. Dist. 51, 29 Pa. Co. 387. ‘ This state of affairs the law must recognize, that physicians should not have their services valued as you would commodities in trade by a fixed standard; what would be a proper charge for the same service to a man fully able to pay would be excessive to a man of limited means, and what would be willingly done for the indigent without thought of financial reward should be compensated for by one who can afford to

1946A.).” In holding that the estate could not sustain such burden imposed upon it by law, the court said: ‘1 Under this will the extent to which the principal might be used was not restricted by a fixed standard based on the widow’s prior way of life.” In so holding, however, it is significant that the court emphasized the effect of the use of the word “ happiness ” and the express direction to the trustee to exercise its discretion “ with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.” An analysis of the de

1943Co. of N. Y. v. Polhemus, supra.) Such is the fixed doctrine of the common law.

1943The principle is applicable that “ The mere fact that the statute is retroactive does not bring it in conflict with the Federal Constitution. * * * Nor has a *431 person a vested interest in any rule of law entitling him to have the rule remain unaltered.” (Preston Co. v. Funkhouser, 261 N. Y. 140, 144 ; Munn v. Illinois, 94 U. S. 113 .) As already noted, the rules of administration heretofore set forth were tentatively stated and expressly recognized as subject to change.

1943The principle is applicable that “ The mere fact that the statute is retroactive does not bring it in conflict with the Federal Constitution. * * * Nor has a *431 person a vested interest in any rule of law entitling him to have the rule remain unaltered.” (Preston Co. v. Funkhouser, 261 N. Y. 140, 144 ; Munn v. Illinois, 94 U. S. 113 .) As already noted, the rules of administration heretofore set forth were tentatively stated and expressly recognized as subject to change.

1942A lawful delegation of rule-making power was made by the Legislature, within a fixed standard prescribed by it, to wit, “ safety of operation ” (Darweger v. Staats, 267 N. Y. 290, 306 ), to reach a manifest evil.

1933(Hersee v. Simpson, 154 N. Y. 496 ; Connelly v. O’Brien, 166 id. 406; Cammann v. Bailey, 210 id. 19; Matter of Russell, 168 id. 169; Matter of White, 213 App. Div. 82 .) It has long been recognized as a fixed rule of construction, never varied except when the contrary intent has been clearly expressed, that when a gift or devise in remainder is to a class, those answering the description or belonging to that class at the time the will takes effect are presumed to have been intended as the beneficiaries of the provision.

1933In Matter of White (supra) the court said: “ There must be a clear intention manifested by the will to make a different disposition of the property where the bequest is to heirs at law and next of kin to take it out of the rule that heirs at law and next of kin so described will be determined as referring to those who are such at the time of testator’s death.” This construction is not changed by the fact that members of the class designated as remaindermen may change by the death of some and the addition of others before the life estate intervening may have actually terminated.