undoubted rule in New York

1837Upon the same principle rest the decisions of Fish v. Weatherwax ( 2 Johns.

1799Upon the same principle rest the decisions of Fish v. Weatherwax, 2 Johns.

1976Under section 6 of article I of the New York State Constitution and sections 252 and 259 of the Code of Criminal Procedure, the Grand Jury had power to investigate and indict regardless of what had occurred before the magistrate and regardless of whether the magistrate had held or discharged the prisoner or still had the matter pending, or of whether there had ever been such a preliminary hearing * * * The expressions in the above-cited authorities are in some instances obiter dicta but taken together they state an old and undoubted rule.” Thus, a subsequent indictment will automatically elimi

1976Under section 6 of article I of the New York State Constitution and sections 252 and 259 of the Code of Criminal Procedure, the Grand Jury had power to investigate and indict regardless of what had occurred before the magistrate and regardless of whether the magistrate had held or discharged the prisoner or still had the matter pending, or of whether there had ever been such a preliminary hearing * * * The expressions in the above-cited authorities are in some instances obiter dicta but taken together they state an old and undoubted rule.” Thus, a subsequent indictment will automatically elimi

1976Under section 6 of article I of the New York State Constitution and sections 252 and 259 of the Code of Criminal Procedure, the Grand Jury had power to investigate and indict regardless of what had occurred before the magistrate and regardless of whether the magistrate had held or discharged the prisoner or still had the matter pending, or of whether there had ever been such a preliminary hearing * * * The expressions in the above-cited authorities are in some instances obiter dicta but taken together they state an old and undoubted rule.” Thus, a subsequent indictment will automatically elimi

1976Under section 6 of article I of the New York State Constitution and sections 252 and 259 of the Code of Criminal Procedure, the Grand Jury had power to investigate and indict regardless of what had occurred before the magistrate and regardless of whether the magistrate had held or discharged the prisoner or still had the matter pending, or of whether there had ever been such a preliminary hearing * * * The expressions in the above-cited authorities are in some instances obiter dicta but taken together they state an old and undoubted rule.” Thus, a subsequent indictment will automatically elimi

1968The stigmatizing effect, however, of claiming the privilege before the jury is so powerful that it would be unrealistic to suppose that instructions can cure it (see Flores v. United States, 379 F. 2d 905, 910 ; De Luna v. United States, 308 F. 2d 140, 155 ; United States v. Housing Foundation of America, 176 F. 2d 665 , supra; People v. Hannon, 50 Misc 2d 297, 302 , supra [dictum]).

1968The stigmatizing effect, however, of claiming the privilege before the jury is so powerful that it would be unrealistic to suppose that instructions can cure it (see Flores v. United States, 379 F. 2d 905, 910 ; De Luna v. United States, 308 F. 2d 140, 155 ; United States v. Housing Foundation of America, 176 F. 2d 665 , supra; People v. Hannon, 50 Misc 2d 297, 302 , supra [dictum]).

1968The stigmatizing effect, however, of claiming the privilege before the jury is so powerful that it would be unrealistic to suppose that instructions can cure it (see Flores v. United States, 379 F. 2d 905, 910 ; De Luna v. United States, 308 F. 2d 140, 155 ; United States v. Housing Foundation of America, 176 F. 2d 665 , supra; People v. Hannon, 50 Misc 2d 297, 302 , supra [dictum]).

1968The stigmatizing effect, however, of claiming the privilege before the jury is so powerful that it would be unrealistic to suppose that instructions can cure it (see Flores v. United States, 379 F. 2d 905, 910 ; De Luna v. United States, 308 F. 2d 140, 155 ; United States v. Housing Foundation of America, 176 F. 2d 665 , supra; People v. Hannon, 50 Misc 2d 297, 302 , supra [dictum]).

1967It is the undoubted rule that an unexeused violation of a statute may be negligence (Martin v. Herzog, 228 N. Y. 164 ), but proof of the violation may be offset by a reasonable explanation dependent" on the circumstances (Tedla v. Ellman, 280 N. Y. 124 [walking on the wrong side of a highway] ; Marquardt v. Erie R.

1967It is the undoubted rule that an unexeused violation of a statute may be negligence (Martin v. Herzog, 228 N. Y. 164 ), but proof of the violation may be offset by a reasonable explanation dependent" on the circumstances (Tedla v. Ellman, 280 N. Y. 124 [walking on the wrong side of a highway] ; Marquardt v. Erie R.

1961The first defense alleging truth as a justification is attacked by the plaintiff because it does no more than state that “ the words spoken of plaintiff as alleged in the complaint herein are true and were spoken without malice.” It is the undoubted rule that the defense of truth usually must be supported by allegations of fact as to what is claimed to be true (Meyers v. Huschle Bros., 273 App. Div. 107 ; Faulk v. Aware, Inc., 3 Misc 2d 833 , affd. 3 A D 2d 703).

1961The first defense alleging truth as a justification is attacked by the plaintiff because it does no more than state that “ the words spoken of plaintiff as alleged in the complaint herein are true and were spoken without malice.” It is the undoubted rule that the defense of truth usually must be supported by allegations of fact as to what is claimed to be true (Meyers v. Huschle Bros., 273 App. Div. 107 ; Faulk v. Aware, Inc., 3 Misc 2d 833 , affd. 3 A D 2d 703).

1955Plaintiff’s declaration to the hospital physician as to the way the accident happened was directly probative evidence of a main fact in issue (Gangi v. Fradus, 227 N. Y. 452 ).

1955An undoubted exception to the “ hearsay ” rule makes admissible extrajudicial declarations against interest (Reed v. McCord, 160 N. Y. 330, 341 ).

1938If his possession was illegal his surety cannot be held, for the undoubted principle of law is that a surety on an official bond is not liable for money illegally paid to the principal (People v. Pennock, 60 N. Y. 421 ; People ex rel.

1934Co., 284 U. S. 489 ), but the reasonableness of such notice provision lies in the prevention from fraud and the importance to an insurance company in knowing the extent of its liability on outstanding policies.

1929Bearing in mind the undoubted rule that any uncertainty as to what was actually litigated in the earlier proceeding inures to the benefit of the party denying that the doctrine of res adjudicata is applicable (Griffen v. Keese, 187 N. Y. 454, 464 ), I am constrained to hold that the decree of the Surrogate’s Court in 1920 is not a bar to a determination of the rights of the parties on the merits.

1916Schwartz v. Minsker Realty Co., 166 App. Div. 681 ; Muratore v. Pirkl, 109 id. 146.

1913But because the case of Barto v. Himrod ( 8 N.Y. 483 ) is cited not only as a leading authority for this undoubted principle but also for the proposition that the present statute comes within its condemnation, consideration must be given to that decision for the purpose of bringing before our minds the exact facts involved and, therefore, the necessary limitations upon the scope of its authority.

1908Richter v. Poppenhausen, 42 N. Y. 373 .

1908In other words, the office of a demurrer is not to determine the question of equitable cognizance, but a question of law, and that question is, does the complaint state facts sufficient to constitute a cause of action ? “ In such a case,” say the court in Kain v. Larkin ( 141 N. Y. 144, 150 ), “ the demurrer cannot be sustained unless it appears, admitting all the facts alleged, that no cause of action whatever is stated.

1907The leading case in Hew York seems to be the case of Bartlett v. Drew ( 57 N. Y. 587 ), where the principle was enforced as against a stockholder who had received part of the capital, leaving the debts of the corporation unpaid.

1904(Daly v. Wise, supra, 312 , and authorities there cited.) But fraud is an affirmative defense, and must be proved (Chamberlayne’s Best Ev. [8th ed.] 308, and authorities there cited)it must be shown that the plaintiff, or his agent, made a statement on his personal knowledge, without having reasonable grounds to believe it to be true, and that the statement subsequently proved to be false, to the injury of the defendant.

1904Sternberger v. Sternberger, 12 App. Div. 398 .) It is the undoubted rule that the husband is regarded in the law as the head of the household and the law awards to him the care and the custody of the children, and charges upon him the duty of their proper care and maintenance as well as the support of his wife.

1900Water Courses, § 108a; Waffle v. Railroad Co., 53 N. Y. 11 ), yet he has no right to collect such waters from a considerable area by means of a ditch, and then discharge them in a single channel upon the land of his neighbor (Barkley v. Wilcox, 86 N. Y. 140 ; Bastable v. City of Syracuse, 8 Hun, 587 ; Carll v. Village of Northport, 11 App. Div. 120 , 42 N. Y.

1900Water Courses, § 108a; Waffle v. Railroad Co., 53 N. Y. 11 ), yet he has no right to collect such waters from a considerable area by means of a ditch, and then discharge them in a single channel upon the land of his neighbor (Barkley v. Wilcox, 86 N. Y. 140 ; Bastable v. City of Syracuse, 8 Hun, 587 ; Carll v. Village of Northport, 11 App. Div. 120 , 42 N. Y.

1900Water Courses, § 108a; Waffle v. Railroad Co., 53 N. Y. 11 ), yet he has no right to collect such waters from a considerable area by means of a ditch, and then discharge them in a single channel upon the land of his neighbor (Barkley v. Wilcox, 86 N. Y. 140 ; Bastable v. City of Syracuse, 8 Hun, 587 ; Carll v. Village of Northport, 11 App. Div. 120 , 42 N. Y.

1900Water Courses, § 108a; Waffle v. Railroad Co., 53 N. Y. 11 ), yet he has no right to collect such waters from a considerable area by means of a ditch, and then discharge them in a single channel upon the land of his neighbor (Barkley v. Wilcox, 86 N. Y. 140 ; Bastable v. City of Syracuse, 8 Hun, 587 ; Carll v. Village of Northport, 11 App. Div. 120 , 42 N. Y.

1899This was undoubted error, as it was the duty of. the .court to pass upon the legal- effect of the agreement; but we; cannot see. that any injury could result to the defendants, as the, court charged -that-if. the agreement provided that the city should maintain the pond at the depth required, and if they found that,' had the .pond been kept excavated to such depth, no. deleterious'conditions would have followed, the defendants could not be found guilty. ' ■ The . defendants also' contend that the judgment is erroneous' because it orders the-.nuisance to be abated,-which is equivalent to a judg

1898(Deitz v. Field, 10 App. Div. 425 , and cases cited.) We do not question this rule of law, but it has no application whatever to the present action.