satisfaction claim in New York

1913The defendant cannot get the property without discharging the lien, and the parties having made and delivered a valid instrument relating to property within the State, and the plaintiff seeking merely his equitable rights in the property, no good reason suggests itself why the court should not proceed to the foreclosure of the mortgage. “ It is a settled rule of law of this State,” say the court in Montgomery v. Boyd ( 78 App. Div. 64, 72 ), “that a domestic creditor of a non-resident decedent will not be compelled -to go to a foreign jurisdiction if there be property here which can be applied

1913The defendant cannot get the property without discharging the lien, and the parties having made and delivered a valid instrument relating to property within the State, and the plaintiff seeking merely his equitable rights in the property, no good reason suggests itself why the court should not proceed to the foreclosure of the mortgage. “ It is a settled rule of law of this State,” say the court in Montgomery v. Boyd ( 78 App. Div. 64, 72 ), “that a domestic creditor of a non-resident decedent will not be compelled to go to a foreign jurisdiction if there be property here which can be applied

2018In any event, the District Court's curative instructions to the jury, following which defense counsel did not object and did not request a mistrial, must be deemed to have corrected the error to the satisfaction of the defense ( see People v Heide , 84 NY2d 943, 944 [1994]; see also People v Letriz , 157 AD3d 966 , 966-967 [2018]; People v Choi , 137 AD3d 808 [2016]), and the jury is presumed to have followed the court's instructions ( see People v Mcmanus, 150 AD3d 762 , 763 [2017]).

2018In any event, the District Court's curative instructions to the jury, following which defense counsel did not object and did not request a mistrial, must be deemed to have corrected the error to the satisfaction of the defense ( see People v Heide , 84 NY2d 943, 944 [1994]; see also People v Letriz , 157 AD3d 966 , 966-967 [2018]; People v Choi , 137 AD3d 808 [2016]), and the jury is presumed to have followed the court's instructions ( see People v Mcmanus, 150 AD3d 762 , 763 [2017]).

2001In these circumstances respondents’ determination is supported by substantial evidence (Matter of Serrano v Popolizio, 183 AD2d 430 ).

1989There is no legal authority to support the proposition that a publishing contract containing a satisfaction clause is terminable at will, and indeed, the applicable cases hold to the contrary (Doubleday & Co. v Curtis, 763 F2d 495, cert dismissed 474 US 912 ; Zilg v Prentice-Hall, Inc., 717 F2d 671, cert denied 466 US 938 ; Baker v Chock Full O’Nuts Corp., 30 AD2d 329 ).

1989There is no legal authority to support the proposition that a publishing contract containing a satisfaction clause is terminable at will, and indeed, the applicable cases hold to the contrary (Doubleday & Co. v Curtis, 763 F2d 495, cert dismissed 474 US 912 ; Zilg v Prentice-Hall, Inc., 717 F2d 671, cert denied 466 US 938 ; Baker v Chock Full O’Nuts Corp., 30 AD2d 329 ).

1989There is no legal authority to support the proposition that a publishing contract containing a satisfaction clause is terminable at will, and indeed, the applicable cases hold to the contrary (Doubleday & Co. v Curtis, 763 F2d 495, cert dismissed 474 US 912 ; Zilg v Prentice-Hall, Inc., 717 F2d 671, cert denied 466 US 938 ; Baker v Chock Full O’Nuts Corp., 30 AD2d 329 ).

1988Arrangements were made, to the satisfaction of defense counsel, to have the defendant hear the proceedings in the room to which he was confined in addition to providing direct telephone communication with his attorney (see, People v Harris, 115 AD2d 619 ).

1959Assuming, however, that the illustration is adaptable to a case where the obligee intends to retain for his own use the proceeds received for the satisfaction of the claim, and taking note of the dictum in Hurley v. Southern Cal. Edison Co. ( 183 F. 2d 125 ), that it is fraud on the part of the debtor if he knows or has reason to know that the releasor intends to retain for Ms use the proceeds of a settlement, I cannot, however, subscribe to the view that such knowledge by the debtor is sufficient to constitute fraud, in the absence of any showing that the.releasor actually did retain said con

1959Respondent’s retaining lien must yield to the public policy of the State requiring the filing of wills of deceased persons.” (See, also, Matter of French, 202 Misc. 735 .) The respondent is directed to file the will in his possession within 10 days of the service of a copy of the order to be signed hereon.

1942(Kromer v. Heim, 75 N. Y. 574 ; Reilly v. Barrett, 220 N. Y. 170 ; Matter of Campbell, 256 App. Div. 693 .) Finally, defendant’s affidavit is bare of any facts or circumstances from which it can be found that the plaintiff ever abandoned her divorce action against defendant, or ever voluntarily relinquished any rights acquired by the service of process on defendant and Ms appearance therein, or ever intended to.

1942(Kromer v. Heim, 75 N. Y. 574 ; Reilly v. Barrett, 220 N. Y. 170 ; Matter of Campbell, 256 App. Div. 693 .) Finally, defendant’s affidavit is bare of any facts or circumstances from which it can be found that the plaintiff ever abandoned her divorce action against defendant, or ever voluntarily relinquished any rights acquired by the service of process on defendant and Ms appearance therein, or ever intended to.

1942(Kromer v. Heim, 75 N. Y. 574 ; Reilly v. Barrett, 220 N. Y. 170 ; Matter of Campbell, 256 App. Div. 693 .) Finally, defendant’s affidavit is bare of any facts or circumstances from which it can be found that the plaintiff ever abandoned her divorce action against defendant, or ever voluntarily relinquished any rights acquired by the service of process on defendant and Ms appearance therein, or ever intended to.

1938(Eddy v. Traver, 6 Paige, 521,525 .) A difficulty is, however, here encountered is the fact that his application does not conform to the procedural requirements of section 236 of the Surrogate's Court Act.

1938Under the authority of Matter of Cunniff ( 272 N. Y. 89, 101 ) an application in the present accounting by the creditor for the sale of the realty is timely and will warrant a direction that the undivided one-half thereof, now in the possession of the statutory distributees, be sold for the satisfaction of his claim.

1937(Graff v. Bonnett, 31 N. Y. 9, 14, 15 ; Schenck v. Barnes, supra; Newton v. Hunt, 134 App. Div. 325, 330 ; affd., 201 N. Y. 599 ; Kene v. Hill, 102 App. Div. 370 ; 1 Bogert on Trusts and Trustees, § 224; Griswold on Spendthrift Trusts, § 475.) So far as circumstances are here disclosed by the pleadings, however, we are of opinion that it would be inequitable to direct that the judgment debtor’s interest be sold for the satisfaction of the judgment.

1937(Graff v. Bonnett, 31 N. Y. 9, 14, 15 ; Schenck v. Barnes, supra; Newton v. Hunt, 134 App. Div. 325, 330 ; affd., 201 N. Y. 599 ; Kene v. Hill, 102 App. Div. 370 ; 1 Bogert on Trusts and Trustees, § 224; Griswold on Spendthrift Trusts, § 475.) So far as circumstances are here disclosed by the pleadings, however, we are of opinion that it would be inequitable to direct that the judgment debtor’s interest be sold for the satisfaction of the judgment.

1937(Graff v. Bonnett, 31 N. Y. 9, 14, 15 ; Schenck v. Barnes, supra; Newton v. Hunt, 134 App. Div. 325, 330 ; affd., 201 N. Y. 599 ; Kene v. Hill, 102 App. Div. 370 ; 1 Bogert on Trusts and Trustees, § 224; Griswold on Spendthrift Trusts, § 475.) So far as circumstances are here disclosed by the pleadings, however, we are of opinion that it would be inequitable to direct that the judgment debtor’s interest be sold for the satisfaction of the judgment.

1937(Graff v. Bonnett, 31 N. Y. 9, 14, 15 ; Schenck v. Barnes, supra; Newton v. Hunt, 134 App. Div. 325, 330 ; affd., 201 N. Y. 599 ; Kene v. Hill, 102 App. Div. 370 ; 1 Bogert on Trusts and Trustees, § 224; Griswold on Spendthrift Trusts, § 475.) So far as circumstances are here disclosed by the pleadings, however, we are of opinion that it would be inequitable to direct that the judgment debtor’s interest be sold for the satisfaction of the judgment.

1935(Schnell v. Perlmon, supra; Hettrick Manufacturing Co. v. Barish, supra.) Having reached this conclusion, it is unnecessary for me to determine whether or not the claimant’s waiver in the “ modification support agreement,” executed prior to the 1935 enactment of the present statute in abrogation of the common-law rule concerning sealed instruments (Civ.

1935(Pennington v. Fourth National Bank, 243 U. S. 271 .) “A state can exercise through its courts jurisdiction to compel payment by a debtor who is subject to the jurisdiction of the state of a claim against him in favor of his creditor and to apply the pror ceeds to the satisfaction of a claim asserted by a third person, as plaintiff, against the creditor, although the state has no jurisdiction over the creditor,*’ (Restatement, Conflict of Laws, § 108; Harris v, Balk, supra.) This was a personal judgment against defendant insurance company, that defendant being present in the State of Washingto

1935A “ state can exercise through its coruts jurisdiction to apply to the satisfaction of a claim, interests in things subject to the jurisdiction of the State, belonging to the person against whom the claim is asserted, although the State has no jurisdiction over him.” (Restatement, Conflict of Laws, § 106; Harris v. Balk, supra; Louisville & Nashville R.

1935(Schnell v. Perlmon, supra; Hettrick Manufacturing Co. v. Barish, supra.) Having reached this conclusion, it is unnecessary for me to determine whether or not the claimant’s waiver in the “ modification support agreement,” executed prior to the 1935 enactment of the present statute in abrogation of the common-law rule concerning sealed instruments (Civ.

1934The effect of this act was, in the absence of any demonstration that the Wissner Company was not a bona fide assignee for value, the burden of which was on the prior assignee (Matter of Leverich, 135 Misc. 774, 790 ; affd. on opinion of this court, 234 App. Div. 625 ; Leask v. Hoagland, 64 Misc. 156, 165 ; revd. on other grounds, 136 App. Div. 658 ), to give precedence to the Wissner assignment so far as might be necessary for the satisfaction of its claim to the full extent of the $500 which had accrued up to the time it was given.

1934The effect of this act was, in the absence of any demonstration that the Wissner Company was not a bona fide assignee for value, the burden of which was on the prior assignee (Matter of Leverich, 135 Misc. 774, 790 ; affd. on opinion of this court, 234 App. Div. 625 ; Leask v. Hoagland, 64 Misc. 156, 165 ; revd. on other grounds, 136 App. Div. 658 ), to give precedence to the Wissner assignment so far as might be necessary for the satisfaction of its claim to the full extent of the $500 which had accrued up to the time it was given.