elementary principle in New York

1902(Village of Champlain v. McCrea, 165 N. Y. 264 .) Under these findings the decree of the Surrogate’s Court in the original accounting proceeding is void as to this petitioner. “ It is an elementary principle, recognized in all the cases, that to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person as well as of the subject-matter, and that the want of jurisdiction over either may always be set up against the judgment when sought to be enforced, or any benefit is claimed under it.” (Ferg

1899“It is an elementary principle, recognized in all the cases,” say the court in the case of Ferguson v. Crawford, 70 N. Y. 253, 256 , “that to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person as well as the subject-matter, and that the want of jurisdiction over either may always be set up against a judgment when sought to be enforced, or any benefit is claimed under it.” But nowhere do we find a suggestion that this question may be raised by a simple denial -of the allegations of the

1927(McCluskey v. Cromwell, 11 N. Y. 593, 601 ; Burnside v. Whitney, 21 id. 148; Newell v. Wheeler, 48 id. 486; People ex rel.

1913McCluskey v. Cromwell, 11 N. Y. 593 ; Matter of O’Neil, 91 id. 516.

1913Jur. § 315; Ewell’s Evans on Agency, 268; Dunlap Paley on Agency, 105, 106; Carman v. Beach, 63 N. Y. 97, 100 .) It is an elementary principle that an agent cannot take upon himself incompatible duties, and characters, or act in a transaction where he has an adverse interest or employment.

1900An agent is held to ubérrima fides in. his dealings with his principal; and, if he acts adversely to his employer in any part of the.transaction or omits to disclose any interest which would naturally influence his conduct in dealing with the subject of the employment, it amounts to such a fraud upon the principal as to forfeit any right to compensation for services. * * * It is an elementary principle that an agent cannot take upon himself incompatible duties and characters, or act in a transaction where he has an adverse .interest or employment. * * * In such a case he must necessarily be un

2019Those writings also avoid the elementary rule of this Court that, "[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' " ( Vega , 18 N.Y.3d at 503 , 942 N.Y.S.2d 13 , 965 N.E.2d 240 , quoting Ortiz v. Varsity Holdings, LLC , 18 N.Y.3d 335 , 339, 937 N.Y.S.2d 157 , 960 N.E.2d 948 [2011] ).

2019Those writings also avoid the elementary rule of this Court that, "[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' " ( Vega , 18 N.Y.3d at 503 , 942 N.Y.S.2d 13 , 965 N.E.2d 240 , quoting Ortiz v. Varsity Holdings, LLC , 18 N.Y.3d 335 , 339, 937 N.Y.S.2d 157 , 960 N.E.2d 948 [2011] ).

1995"It is an elementary rule of evidence, and of common sense, in our State and almost every other jurisdiction, that, when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment * * * This rule is firmly imbedded in behavioral expectations” (People v Savage, supra, at 679 ).

1994"It is an elementary rule of evidence, and of common sense, in our State and in almost every other jurisdiction, that, when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment” (People v Savage, 50 NY2d 673, 679 , cert denied 449 US 1016 ; see, Hoberman v Lane, 85 AD2d 595 ).

1971(Edgerton v. Page, 20 N. Y. 281, pp. 283, 284 , 285 ; Boreel v. Lawton, 90 N. Y. 293 , 297 ; Taylor Landlord & Tenant, sect. 379.) * * * Consequently, the defendant not having abandoned the premises or surrendered the lease must pay the rent reserved and seek recoupment for the city’s breach of contract. ’ ’ In the case at bar, tenant did not abandon the demised premises but elected to stay in possession.

1928(Edgerton v. Page, 20 N. Y. 281, pp. 283, 284, 285 ; Boreel v. Lawton, 90 N. Y. 293, 297 ; Taylor Landlord & Tenant, sect. 379.) There was no actual eviction in this case and none is claimed.

1949(Burr v. Veeder, 3 Wend., 412 .) An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.

1877(Burr v. Veeder, 3 Wend., 412 .) An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.

1945(Matter of Davis, 182 N. Y. 468 , affg. 105 App. Div. 221 .) That case and other authorities dealing with this rule were reviewed by me in my decision in Matter of Webb {supra).

1944(Matter of Cook, 244 N. Y. 63 ; Matter of Davis, 182 N. Y. 468 ; Matter of Hoyt, 55 Misc. 159 , affd. 122 App. Div. 914 , affd. 192 N. Y. 538 .) “ An interest resting on sentiment or sympathy, or on any basis other than the gain or loss of money or its equivalent, is not sufficient, but any one who would * * * become entitled to properly by the probate of a will, is authorized to appear and be heard upon the subject.

1941(Young v. Young, supra.) Intention or mere words cannot supply the place of an actual surrender of control and authority over the thing intended to be given.

1921It is impossible to sustain this transaction as an executed gift of the personal property, for that was subject to the same conditions and limitations as the real estate. “ It is an elementary rule,” say the court in Young v. Young ( 80 N. Y. 422, 435 ), “ that such a gift cannot be made to take effect in possession in futuro.

1934Ch. 206, 209 )It is an elementary principle, upon which the doctrine of election is founded, that a person shall not claim an interest under one instrument (either deed or will, for it applies to both) without giving full effect to it as far as he can, and renouncing any right to property which would defeat the disposition.” An early recognition of this principle by the Court of Appeals is found in the leading case of Havens v. Sackett ( 15 N. Y. 365 ), in which Chief, Judge Denió, writing for the unanimous court, states as an established rule of courts of equity that: “ One who accepts a bene

1906Rep. 206), says : “ It is an elementary principle, upon which the doctrine of election is founded, that a person shall not claim an interest under one instrument (either deed or will, for it applies to both) without giving full effect to it as far as he can, and renouncing any right to property which would defeat- the disposition (Thellusson v. Woodford, 13 Ves. 220), or, to use Lord Rosslyn’s words, as quoted in Moore v. Butler (2 Sch. & L. 267), no person puts himself in a capacity to take under an instrument without performing the conditions of the instrument, and the conditions may bo expr

1925He cannot excuse non-performance and recover, because a strict compliance with the obligations of the contract has been either waived or prevented by the defendant.’ Mac Knight Flintic Stone Co. v. Mayor ( 21 App. Div. 472 ) and Schnaier v. Nathan (31 id. 227) are also to the same effect.

1898He cannot excuse non-performance and recover, because a strict compliance with the obligations of the contract has been either waived or prevented by the defendant.” MacKnight Flintic Stone Co. v. Mayor ( 21 App. Div. 472 ) and Schnaier v. Nathan (31 id. 227) are also to the same effect.

1924In Lawrence v. Maxwell ( 53 N. Y. 19 ) the court, per Allen, J., said (p. 21): ‘ The counsel for the appellant does not controvert the elementary principle that custom or usage cannot avail to vary or alter the terms of "an agreement as made, or its legal effect.

1914In Lawrence v. Maxwell ( 53 N. Y. 19 ) the court, per Allen, J., said (p. 21): “ The counsel for the appellant does not controvert the elementary principle that custom or usage cannot avail to vary or alter the terms of an agreement as made, or its legal effect.

1917(People v. Hinksman, 192 N. Y. 421 .) It is also an elementary rule that the general character of the defendant in a criminal trial may not be mad-e an issue unless he chooses to make it so by resorting to- affirmative proof of good character.

1917(People v. Hinksman, 192 N. Y. 421 , 22 N. Y.

1911(Stanton v. Miller, 58 N. Y. 192 ; Sharkey v. Larkin, 52 id. 623; Mayer v. McCreery, 119 id. 434.) It is also well settled that to justify specific performance of a contract it must be established by satisfactory proof.

1907(Stanton v. Miller, 58 N. Y. 192 ; Shakespeare v. Markham, 72 id. 406; Winne v. Winne, 166 id. 272; Rosseau v. Rouss, supra.) It seems to me that this paper, even if,, arguendo, it be conceded to have been*executed and delivered, was too indefinite and uncertain to permit a court of equity to decree its specific performance.

1908Bank of Ballston Spa. v. Bd. of Suprs., 106 N. Y. 488, 494 .) In City of Albany v. McNamara ( 117 N. Y. 168, 172 ), the court said: ‘It is an elementary principle in such actions that money voluntarily paid out by one for another cannot be recovered back.’ ” The payment of these premiums by the administratrix does not even reach the dignity of a voluntary payment.

1899Bank of Ballston Spa v. Bd. of Suprs., 106 N. Y. 488, 494 .) In City of Albany v. McNamara ( 117 N. Y. 168, 172 ) the court said: “It is an elementary principle in such actions that money voluntarily paid out by one for another cannot be recovered back. (1 Parsons on Contracts, 471, et seq.) In- order to support such an action it is essential that a request on the part of tike person benefited,"to make such payment,, either expressly or fairly to be implied from the circumstances of the case, must be proved.

1904But if the evidence is material and relevant to the issue, it is not inadmissible simply because it tends to prove the defendant guilty of another crime.” (People v. McLaughlin, 150 N. Y. 365 .) It is hardly necessary to say that the evidence being considered Was harmful to the defendant.

1901But if the evidence is material and relevant to the issue, it is not inadmissible because it tends to establish the defendant's guilt of a crime other than the one charged;" and People v. McLaughlin ( 150 N.Y. 365 , 386 ) is to the same effect.

1904(Moore v. Mayor, etc., of New York, 8 N. Y. 110 .) She has not even a chose in action, and cannot protect the land in any way from waste and deterioration either by her husband or his alienee.

1874(Moore v. Mayor, etc., of New York, 8 N. Y., 110 .) She has not even a ohose in action, and cannot protect the land in any way from waste and deterioration, either by her husband or his alienee.

1902Forfeiture of rights and properties cannot be adjudged "by legislative acts, and confiscation, without a judicial hearing after due notice, would be void, as not being due process of law,” yet this is exactly what these modern innovations in municipal charters undertake to do; and “it is not without a feeling of satisfaction,” to quote the language of Chief Judge Ruger in the case of Gilman v. Tucker, 128 N. Y. 190, 205 , 28 N. E. 1040 , 13 L.

1901In Gilman v. Tucker, 128 N. Y. 190 , Chief Judge Rugker said: “It is laid down in Cooley’s Constitutional Limitations as an elementary principle ■ . . that forfeiture of rights and properties cannot be adjudged by legislative acts, and confiscation, without a judicial hearing after due notice, will be void as not being due process of law.” The proceeding need not be what is ordinarily termed a judicial one in a court of law; nevertheless, it must be conducted! in a judicial manner.

1899(Addison on Contracts, 1055, Wright v. Garlinghouse, 26 N. Y. 539 ; Wellington v. Kelly, 84 id. 546 .)” It is unnecessary to discuss any other questions raised on the appeal, and the judgment should be affirmed.

1899(Addison on Contracts, 1055, Wright v. Garlinghouse, 26 N. Y. 539 ; Wellington v. Kelly, 84 id. 546 .)” It is unnecessary to discuss any other questions raised on the appeal, and the judgment should be affirmed.

1888If authorities needed to be cited to sustain this elementary principle, an abundance of them will be found in respondent’s brief, notably, Hale v. Omaha Bank ( 49 N. Y., 633 -636), Van Alen v. American National Bank ( 52 N.Y., 1 , 4-6 ; 1 Story’s Eq.

1887Bk., etc. ( 52 N. Y., 1, 4-6 ); (1 Story Eq.

1884It is an elementary rule that any law that changes the punishment and inflicts a greater pnnishment than the law annexed to the crime when committed, is void (Calder v. Bull, 3 Dall. 386 -390), and the rule is the same when the law is changed after conviction (Hartung v. People, 22 N. Y. 95 ).

1884Hartung v. People, 22 N. Y. 95 .

1851(Steele v. White, 2 Paige, 478 .) Neither is it competent for a purchaser to object to the mere form of the proceedings, which are more or less governed by the discretion of the court, or to irregularities in matters of practice.

1833Steel v. White, 2 Paige, 478 .