converse rule in New York

1930The distinction is ably pointed out by the learned court in Smith v. Dotterweich {supra) where it is said: “ The case of Jamestown Business College Assn. v. Allen {supra) is a salient illustration of the converse of this rule.

1920This brings the present case within the rule laid down in Smith v. Dotterweich ( 200 N. Y. 299 ) as follows (at p. 305): “ When the oral testimony goes directly to the question whether there is a written contract or not, it is always competent; but when the effect of the oral testimony is to establish the existence of a written contract, which it is designed to contradict or change by parol, then the spoken word must yield to the written compact.” The court distinguished that case from the Jamestown case, saying (at p. 306): “ The case of Jamestown Business College Assn. v. Allen (supra) is a

1930The distinction is ably pointed out by the learned court in Smith v. Dotterweich {supra) where it is said: “ The case of Jamestown Business College Assn. v. Allen {supra) is a salient illustration of the converse of this rule.

1926The case of Smith v. Dotterweich ( 200 N. Y. 299 ) holds that proof of a conditiqnal delivery is a well-recognized exception to the parol evidence rule but the *161 learned judge who wrote the opinion clearly stated the distinction applicable hereto when he said (p. 306): “ The case of Jamestown Business College Assn. v. Allen is a salient illustration of the converse of this rule.

1912Co . ( 195 N.Y. 273 ) where the converse of the rule was applied because it appeared that the losses sought to be recovered were the uncertain and fluctuating increment of capital invested, although in each of the two latter cases the business was comparatively small.

1912Co. ( 195 N. Y. 273 ) where the converse of the rule was applied because it appeared that the losses sought to be recovered were the uncertain and fluctuating increment of capital -invested, although in each of the two latter cases the business was comparatively small.

2014By agreeing to this language in both the third and the fifth amendments, the parties effectively agreed that time was of the essence (see Parker Hannifin Corp. v North Sound Properties, 2013 WL 1932109 , *6, 2013 US Dist LEXIS 67026 , *16-19 [SD NY, May 8, 2013, No. 10 CV 6359 (MHD)]; Cooper-Rutter Assoc., 193 AD2d at 945 ; cf. Lusker v Tannen, 90 AD2d 118, 124 [1st Dept 1982] [general rule is that in an executory contract, time is of the essence unless the parties state a contrary intent, although in real estate contracts, courts follow the converse rule that time is not of the essence unless

1996NOTES [*] The converse of this rule, as we recognized in Letterlough , is that a condition of probation that is fundamentally rehabilitative will be upheld notwithstanding incidental punitive or deterrent effects ( 86 NY2d, at 264-265 , supra ).

1996The converse of this rule, as we recognized in Letterlough , is that a condition of probation that is fundamentally rehabilitative will be upheld notwithstanding incidental punitive or deterrent effects ( 86 NY2d, at 264-265 , supra).

1992(Strickland v Washington, supra, 466 US, at 689 ; United States v Cronic, 466 US 648, 658 [1984]; see, People v Rivera, 71 NY2d 705, 709 [1988].) The converse presumption is compelled where the defendant has not been represented by "counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice.” (Cuyler v Sullivan, 446 US 335, 343 [1980]; Gideon v Wainwright, 372 US 335 , 344 [1963]; see, United States v Cronic, supra, at 659.) Only a person educated, tested and duly admitted to practice as an attorney may be presumed to have provided such counsel.

1992(Strickland v Washington, supra, 466 US, at 689 ; United States v Cronic, 466 US 648, 658 [1984]; see, People v Rivera, 71 NY2d 705, 709 [1988].) The converse presumption is compelled where the defendant has not been represented by "counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice.” (Cuyler v Sullivan, 446 US 335, 343 [1980]; Gideon v Wainwright, 372 US 335 , 344 [1963]; see, United States v Cronic, supra, at 659.) Only a person educated, tested and duly admitted to practice as an attorney may be presumed to have provided such counsel.

1989In a complementary view of this situation, it is also significant that factual or evidentiary interdependence of offenses is a discretionary feature which a sentencing court may, and indeed should, weigh in determining whether to forebear the legal and authorized consecutive sentence in favor of a concurrent one where warranted in a given set of individualized circumstances (People v Baker, 27 AD2d 269, 274 , affd 19 NY2d 982 , supra).

1989In a complementary view of this situation, it is also significant that factual or evidentiary interdependence of offenses is a discretionary feature which a sentencing court may, and indeed should, weigh in determining whether to forebear the legal and authorized consecutive sentence in favor of a concurrent one where warranted in a given set of individualized circumstances (People v Baker, 27 AD2d 269, 274 , affd 19 NY2d 982 , supra).

1982(See Weber v State of New York, 53 NYS2d 598 , 600.) We believe a proper interpretation of section 240, giving due consideration to the overriding legislative intent and purpose to protect workingmen in dangerous jobs (see Sarnoff v Charles Schad, Inc., 22 NY2d 180,185-186 , and case cited; Rocha v State of New York, 77 Misc 2d 290, 296-298 , affd 45 AD2d 633, 635 ; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 91, 92, 95, 96), and construing and harmonizing the statute in the light thereof (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 97, 98, 240, p 414), does not limit use of safe

1982(See Weber v State of New York, 53 NYS2d 598 , 600.) We believe a proper interpretation of section 240, giving due consideration to the overriding legislative intent and purpose to protect workingmen in dangerous jobs (see Sarnoff v Charles Schad, Inc., 22 NY2d 180,185-186 , and case cited; Rocha v State of New York, 77 Misc 2d 290, 296-298 , affd 45 AD2d 633, 635 ; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 91, 92, 95, 96), and construing and harmonizing the statute in the light thereof (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 97, 98, 240, p 414), does not limit use of safe

1982(See Weber v State of New York, 53 NYS2d 598 , 600.) We believe a proper interpretation of section 240, giving due consideration to the overriding legislative intent and purpose to protect workingmen in dangerous jobs (see Sarnoff v Charles Schad, Inc., 22 NY2d 180,185-186 , and case cited; Rocha v State of New York, 77 Misc 2d 290, 296-298 , affd 45 AD2d 633, 635 ; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 91, 92, 95, 96), and construing and harmonizing the statute in the light thereof (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 97, 98, 240, p 414), does not limit use of safe

1982(See Weber v State of New York, 53 NYS2d 598 , 600.) We believe a proper interpretation of section 240, giving due consideration to the overriding legislative intent and purpose to protect workingmen in dangerous jobs (see Sarnoff v Charles Schad, Inc., 22 NY2d 180,185-186 , and case cited; Rocha v State of New York, 77 Misc 2d 290, 296-298 , affd 45 AD2d 633, 635 ; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 91, 92, 95, 96), and construing and harmonizing the statute in the light thereof (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 97, 98, 240, p 414), does not limit use of safe

1979Obviously inapplicable here is the converse principle — that an invalidly obtained prior confession may require exclusion of a subsequent validly taken one (see People v Valerius, 31 NY2d 51, 55 ).

1979Simply stated, once the police have illegally caused a defendant to "let the cat out of the bag”, statements he makes afterward, no matter the safeguards the police employ as to these, may be found as a matter of fact to stem from the initial illegality (see, e.g., People v Chapple, 38 NY2d 112, 115 ; People v Stephen J.

1976The converse of this principle was applied in Brick v Cohn-Hall-Marx Co. ( 276 NY 259, 264 ), which held that an action for royalties was subject to the contract Statute of Limitations, not that of fraud-from-date-of-discovery, since there contract, and not tort, was the "reality, and the essence”.

1976So ingrained and seemingly imbedded was this doctrine that in Sosnow v Paul (supra), an action against architects, the parties agreed ("rightly or wrongly” said the court in Paver) that the three-year malpractice statute was applicable, and they confined themselves to the issue of whether the action accrued on completion of services or on discovery of defect.

1973Hilliker v. Pierce, 64 Misc. 627 ; Matter of Dexter Sulphate Pulp & Paper Co. v. Shaver, 183 Misc. 275 [water supply]; People ex rel.

1973However, the converse of that requirement is that a taxpayer, upon payment of appropriate charges, may demand that his property be served by the sewer system (cf. Barr v. Algon Realty Corp., 166 Misc. 177, 183 , affd. 255 App. Div. 869 , mot. for lv. to app. den. 280 N. Y. 849 ; and see People ex rel.

1973However, the converse of that requirement is that a taxpayer, upon payment of appropriate charges, may demand that his property be served by the sewer system (cf. Barr v. Algon Realty Corp., 166 Misc. 177, 183 , affd. 255 App. Div. 869 , mot. for lv. to app. den. 280 N. Y. 849 ; and see People ex rel.

1973Hilliker v. Pierce, 64 Misc. 627 ; Matter of Dexter Sulphate Pulp & Paper Co. v. Shaver, 183 Misc. 275 [water supply]; People ex rel.

1946(Borough Const. Co. v. City of New York, 200 N. Y. 149, 156 ; Faber v. City of New York, 222 N. Y. 255, 261 ; Gearty v. Mayor, etc., of New York, 171 N. Y. 61, 72 .) If such a distinction is required to be made here the converse of the rule in Dunham v. Eastings Pavement Go. {supra) ought to be applicable.

1946(Sorrentino v. Sorrentino, 248 N. Y. 626 ; Cannon v. Cannon, 287 N. Y. 425 .) The converse of this rule,has not yet been declared as the law of this State, so far as a search of the reported decisions discloses.

1946(Borough Const. Co. v. City of New York, 200 N. Y. 149, 156 ; Faber v. City of New York, 222 N. Y. 255, 261 ; Gearty v. Mayor, etc., of New York, 171 N. Y. 61, 72 .) If such a distinction is required to be made here the converse of the rule in Dunham v. Eastings Pavement Go. {supra) ought to be applicable.

1946A dictum to that effect, however, is found in Lo Galbo v. Lo Galbo ( 138 Misc. 485, 487 ).