arbitrary rule in New York

1982As stated by Judge Laughlin in Hernandez v Brookdale Mills ( 194 App Div 369, 381 ): “[W]hen the principal is known to the person dealing with the agent and it is understood by both parties that the contract is negotiated for the principal, the courts should not close their eyes to the manner in which such contracts are constantly negotiated and by the application of an arbitrary rule hold that a contract intended and understood to be that of the principal personally binds the agent, who had no intention of pledging his personal credit, and binds the principal as well, so that the party dealin

1961In Hernandez v. Brookdale Mills ( 194 App. Div. 369 ), the court stated at page 381: “ when the principal is known to the person dealing with the agent and it is understood by both parties that the contract is negotiated for the principal, the courts should not close their eyes to the manner in which such contracts are constantly negotiated and by the application of an arbitrary rule hold that a contract intended and understood to be that of the prinicipal personally binds the agent, who had no intention of pledging his personal credit, and binds the principal as well, so that the party dealin

1879This rule prevails in the construction of statutes: (Sedg. on Stat. Cons., 225, note; Gyger's Estate, 65 Penn., 311 ; Hamilton v. Steamboat R.J.

1878This rule prevails in the construction of statutes (Sedgwick on Stat. Con. 225, note ; Gyer’s Estate, 65 Penn. 311 ; Hamilton v. Steamboat R.

2016Requiring all analysts to testify at trials involving DNA evidence — at least in large metropolitan areas — would wreak havoc on the criminal justice system and forensic evidence laboratories like OCME (see 567 US at —, 132 S Ct at 2228 ).

1990By reducing the noninstitutionalized spouse’s resources to a presumptive Medical Assistance level, as here, the State has applied an arbitrary standard of need vis-á-vis the institutionalized spouse’s income, when the Federal regulation would, in this context, appear to provide for a factual determination as to the reasonableness of the noninstitutionalized spouse’s needs (compare, Herweg v Ray, 455 US 265 ; Schweiker v Gray Panthers, 453 US 34 ; cf., Manfredi v Maher, 435 F Supp 1106 ).

1990By reducing the noninstitutionalized spouse’s resources to a presumptive Medical Assistance level, as here, the State has applied an arbitrary standard of need vis-á-vis the institutionalized spouse’s income, when the Federal regulation would, in this context, appear to provide for a factual determination as to the reasonableness of the noninstitutionalized spouse’s needs (compare, Herweg v Ray, 455 US 265 ; Schweiker v Gray Panthers, 453 US 34 ; cf., Manfredi v Maher, 435 F Supp 1106 ).

1990By reducing the noninstitutionalized spouse’s resources to a presumptive Medical Assistance level, as here, the State has applied an arbitrary standard of need vis-á-vis the institutionalized spouse’s income, when the Federal regulation would, in this context, appear to provide for a factual determination as to the reasonableness of the noninstitutionalized spouse’s needs (compare, Herweg v Ray, 455 US 265 ; Schweiker v Gray Panthers, 453 US 34 ; cf., Manfredi v Maher, 435 F Supp 1106 ).

1990It may also be considered that neither the Federal statutes nor regulations can reasonably be interpreted to allow or authorize complete divestment of resources to become eligible for Medicaid benefits (Lerner v Division of Family Servs., 70 Wis 670, 235 NW2d 478 [1975]).

1985(Matter of White v Melton, 60 AD2d 1000 ; Matter of Donahue v Tofany, 33 AD2d 590, 591 .) The purpose of the two-hour limitation is to impose an arbitrary standard of relevance on chemical test results sought to be used by the People as a basis for incriminating a defendant.

1985(Matter of White v Melton, 60 AD2d 1000 ; Matter of Donahue v Tofany, 33 AD2d 590, 591 .) The purpose of the two-hour limitation is to impose an arbitrary standard of relevance on chemical test results sought to be used by the People as a basis for incriminating a defendant.

1975Rep 299) and has become "the source of * * * much trouble to the courts.” (Prosser, Torts [4th ed], § 39, p 213.) Nevertheless, it is still accepted and applied in our courts, provided: "(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of plaintiff.” (Id., at p 214.) The doctrine is not an arbitrary rule but, "rather a common-sense appraisal of the probative v

1964The Administrative Code does not provide for the waiting period set forth in section 33 (subd. d, par. [1]) and a regulation which would provide such a waiting period “ is repugnant to the statute and lays down a legislative fiat rather than a policy.” (Matter of Florell Equities v. Weaver, 5 Misc 2d 97, 98 , affd. 2 A D 2d 542, affd. 2 N Y 2d 982.) “ Contrary to the statutory intent, the challenged regulation attempts to impose an arbitrary standard that would preclude both bona fide and suspect applications for adjustments ” (Matter of Florell Equities v. Weaver , 2 A D 2d 542, 543-544).

1961Spade v. Lynn & Boston Railroad, 168 Mass. 285, 288 .

1961Co. ( 151 N. Y. 107 ), Mr. Justice Holmes described it as “ an arbitrary exception, based upon a notion of what is practicable, that prevents a recovery for visible illness resulting from nervous shock alone.

1961(See Azzarello v. Richards, 198 Misc. 723 ; Royal Ind. Co. v. Corn, 162 N. Y.

1961In Foltis, Inc. v. City of New York ( 287 N. Y. 108, 115 ) the court defined the words res ipsa loquitur: “ The doctrine of res ipsa loquitur is not an arbitrary rule.

1958Under the circumstances in this ease, the ruling that the petitioner must have 15% cash in the property, to obtain the relief sought before the Administrator, is arbitrary, capricious and unreasonable (Matter of Lese v. Temporary State Mousing Rent Comm., 15 Misc 2d 143 ).

1957(Matter of Jacobs, 176 Misc. 639 , affd. 263 App. Div. 829 ; Matter of Andriola, 160 Misc. 775 ; Matter of Montgomery, 153 Misc. 419 .) Since Marie Borros, Inc. v. Borros Bros, (supra) examinations before trial have been granted in many instances where the burden of proof was on the party to be examined.

1957(Matter of Jacobs, 176 Misc. 639 , affd. 263 App. Div. 829 ; Matter of Andriola, 160 Misc. 775 ; Matter of Montgomery, 153 Misc. 419 .) Since Marie Borros, Inc. v. Borros Bros, (supra) examinations before trial have been granted in many instances where the burden of proof was on the party to be examined.

1957(Matter of Jacobs, 176 Misc. 639 , affd. 263 App. Div. 829 ; Matter of Andriola, 160 Misc. 775 ; Matter of Montgomery, 153 Misc. 419 .) Since Marie Borros, Inc. v. Borros Bros, (supra) examinations before trial have been granted in many instances where the burden of proof was on the party to be examined.

1957(Matter of Jacobs, 176 Misc. 639 , affd. 263 App. Div. 829 ; Matter of Andriola, 160 Misc. 775 ; Matter of Montgomery, 153 Misc. 419 .) Since Marie Borros, Inc. v. Borros Bros, (supra) examinations before trial have been granted in many instances where the burden of proof was on the party to be examined.

1957(Matter of Jacobs, 176 Misc. 639 , affd. 263 App. Div. 829 ; Matter of Andriola, 160 Misc. 775 ; Matter of Montgomery, 153 Misc. 419 .) Since Marie Borros, Inc. v. Borros Bros, (supra) examinations before trial have been granted in many instances where the burden of proof was on the party to be examined.

1948Attorney’s fees may be allowed by statute, but while not rare, its allowance is not usual (cf. Copyright Law, § 40 [U. S. Code, tit. 17, § 40]; General Corporation Law, § 61-a, now embodied in § 64) and the power to deny interest or damages by way of interest from a recovery includes the power to deny attorney’s fees as an item of recovery, even retroactively (cf. Yeiser v. Dysart, 267 U. S. 540, 541 ; Calhoun v. Massie, 253 U. S. 170 ).

1948Attorney’s fees may be allowed by statute, but while not rare, its allowance is not usual (cf. Copyright Law, § 40 [U. S. Code, tit. 17, § 40]; General Corporation Law, § 61-a, now embodied in § 64) and the power to deny interest or damages by way of interest from a recovery includes the power to deny attorney’s fees as an item of recovery, even retroactively (cf. Yeiser v. Dysart, 267 U. S. 540, 541 ; Calhoun v. Massie, 253 U. S. 170 ).

1948It may be an arbitrary rule of the common law, but it is a rule, nevertheless, that the expense of carrying on a lawsuit is not an item of compensation to the prevailing party (Oelrichs v. Spain, 15 Wall. [U. S.] 211; Miss Susan, Inc. v. Enterprise & Century Undergarment Co., 270 App. Div. 747 , affd. 297 N. Y. 512 ; 1 Sedgwick on Damages [9th ed.], § 229).

1948It may be an arbitrary rule of the common law, but it is a rule, nevertheless, that the expense of carrying on a lawsuit is not an item of compensation to the prevailing party (Oelrichs v. Spain, 15 Wall. [U. S.] 211; Miss Susan, Inc. v. Enterprise & Century Undergarment Co., 270 App. Div. 747 , affd. 297 N. Y. 512 ; 1 Sedgwick on Damages [9th ed.], § 229).

1937(Rhode Island Hospital Trust Co. v. Doughton, 270 U. S. 69 , and similar authorities.) This argument as to subdivision 9 is somewhat collateral, as that section was not applied by the Commission, the tax being computed on the entire capital, that subdivision applying only to a tax computed on the part of the capital stock which by its terms is allocated to New York State.