somewhat similar claim in New York

1895Briggs v. Boyd, 56 N. Y. 289 ; 4 Wait, Act. & Def. 488; Cow.

1895Briggs v. Boyd, 56 N. Y. 289 ; 4 Wait’s Act. & Def. 488; Cow.

1989We recognize that in People v Rubin ( 101 AD2d 71, 77 ), the Appellate Division, Fourth Department, held a somewhat similar error to be reviewable as a matter of law even in the absence of an objection.

1979In Fraw Realty Co. v Natanson ( 261 NY 396 ), a somewhat similar claim was made by the two stockholders of a corporation indebted to the plaintiff.

1977In Matter of Barie v Lavine ( 40 NY2d 565 ), we were presented with a somewhat similar challenge to a social services regulation providing for the temporary suspension of recipients who unjustifiably refuse to accept employment.

1967Matter of Brescia v. Mugridge ( 52 Misc 2d 859 ) in which the court determined that mandamus under article 78 was maintainable in a somewhat similar challenge of title to office, rather than a proceeding in quo warranto, is not to the contrary of our determination.

1958Respondents however argue strongly to the contrary and rely mainly on Matter of Westerbeke ( 143 Misc 221 , affd. 236 App. Div. 856 , affd. 262 N. Y. 466 ) where, as here, the widow accepted greater benefits under the will under a similar general clause.

1958A somewhat similar clause was held not to cover the widow’s rights under section 200 in Matter of Galewitz ( 3 Misc 2d 197, 201 ), a question not raised on appeal (3 A D 2d 280; 3 A D 2d 736; 3 A D 2d 833).

1958Respondents however argue strongly to the contrary and rely mainly on Matter of Westerbeke ( 143 Misc 221 , affd. 236 App. Div. 856 , affd. 262 N. Y. 466 ) where, as here, the widow accepted greater benefits under the will under a similar general clause.

1958Respondents however argue strongly to the contrary and rely mainly on Matter of Westerbeke ( 143 Misc 221 , affd. 236 App. Div. 856 , affd. 262 N. Y. 466 ) where, as here, the widow accepted greater benefits under the will under a similar general clause.

1951A somewhat similar rule requiring timely objection has been applied to other disqualifications of an arbitrator (Matter of Newburger v. Rose, 228 App. Div. 526 ).

1941Matter of Dunbar & Sullivan Dredging Co. v. Fidelity & Deposit Co., 268 N. Y. 690 ; Matter of Hackfeld, 171 Misc. 727 ; affd., 259 App. Div. 707 ; leave to appeal to the Court of Appeals denied, 283 N. Y. 778 ; Matter of Kornder, 168 Misc. 553 ; Matter of Accles, 153 id. 421; affd., 245 App. Div. 743 .) In Matter of Hackfeld (supra) the government of the United States asserted a somewhat similar claim to that presented here upon the ground that large amounts of moneys had been paid by the Alien Property Custodian under a mistake of law as to the citizenship of the decedent and specifically tha

1941Matter of Dunbar & Sullivan Dredging Co. v. Fidelity & Deposit Co., 268 N. Y. 690 ; Matter of Hackfeld, 171 Misc. 727 ; affd., 259 App. Div. 707 ; leave to appeal to the Court of Appeals denied, 283 N. Y. 778 ; Matter of Kornder, 168 Misc. 553 ; Matter of Accles, 153 id. 421; affd., 245 App. Div. 743 .) In Matter of Hackfeld (supra) the government of the United States asserted a somewhat similar claim to that presented here upon the ground that large amounts of moneys had been paid by the Alien Property Custodian under a mistake of law as to the citizenship of the decedent and specifically tha

1941Matter of Dunbar & Sullivan Dredging Co. v. Fidelity & Deposit Co., 268 N. Y. 690 ; Matter of Hackfeld, 171 Misc. 727 ; affd., 259 App. Div. 707 ; leave to appeal to the Court of Appeals denied, 283 N. Y. 778 ; Matter of Kornder, 168 Misc. 553 ; Matter of Accles, 153 id. 421; affd., 245 App. Div. 743 .) In Matter of Hackfeld (supra) the government of the United States asserted a somewhat similar claim to that presented here upon the ground that large amounts of moneys had been paid by the Alien Property Custodian under a mistake of law as to the citizenship of the decedent and specifically tha

1941Matter of Dunbar & Sullivan Dredging Co. v. Fidelity & Deposit Co., 268 N. Y. 690 ; Matter of Hackfeld, 171 Misc. 727 ; affd., 259 App. Div. 707 ; leave to appeal to the Court of Appeals denied, 283 N. Y. 778 ; Matter of Kornder, 168 Misc. 553 ; Matter of Accles, 153 id. 421; affd., 245 App. Div. 743 .) In Matter of Hackfeld (supra) the government of the United States asserted a somewhat similar claim to that presented here upon the ground that large amounts of moneys had been paid by the Alien Property Custodian under a mistake of law as to the citizenship of the decedent and specifically tha

1941Matter of Dunbar & Sullivan Dredging Co. v. Fidelity & Deposit Co., 268 N. Y. 690 ; Matter of Hackfeld, 171 Misc. 727 ; affd., 259 App. Div. 707 ; leave to appeal to the Court of Appeals denied, 283 N. Y. 778 ; Matter of Kornder, 168 Misc. 553 ; Matter of Accles, 153 id. 421; affd., 245 App. Div. 743 .) In Matter of Hackfeld (supra) the government of the United States asserted a somewhat similar claim to that presented here upon the ground that large amounts of moneys had been paid by the Alien Property Custodian under a mistake of law as to the citizenship of the decedent and specifically tha

1941Matter of Dunbar & Sullivan Dredging Co. v. Fidelity & Deposit Co., 268 N. Y. 690 ; Matter of Hackfeld, 171 Misc. 727 ; affd., 259 App. Div. 707 ; leave to appeal to the Court of Appeals denied, 283 N. Y. 778 ; Matter of Kornder, 168 Misc. 553 ; Matter of Accles, 153 id. 421; affd., 245 App. Div. 743 .) In Matter of Hackfeld (supra) the government of the United States asserted a somewhat similar claim to that presented here upon the ground that large amounts of moneys had been paid by the Alien Property Custodian under a mistake of law as to the citizenship of the decedent and specifically tha

1928It has been held that a somewhat similar claim should be allowed as a proper deduction in a testate estate given to the claimant (Matter of Enos, 61 Misc. 594 ) although the soundness of this decision has been questioned.

1927J., in Wiles v. Suydam ( 64 N. Y. 173, 177 ) said: “ To invent a rule for determining what the ‘ same transaction ’ means, and when a cause of action shall be deemed to ‘ arise out ’ of it, and what the ‘ same subject of action ’ means,' and when transactions are to be deemed connected with it, has taxed the ingenuity of many learned judges * * *.

1926The error cannot be overlooked as unsubstantial or lacking in prejudice as was a somewhat similar error in People v. Kasprzyk ( 209 App. Div. 449 ; affd., 238 N. Y. 633 ).

1926The error cannot be overlooked as unsubstantial or lacking in prejudice as was a somewhat similar error in People v. Kasprzyk ( 209 App. Div. 449 ; affd., 238 N. Y. 633 ).

1922In Sherlock v. State of New York, 114 Misc.

1911In Wyatt v. McCreery and Wyatt v. Wanamaker, 126 App. Div. 650, 656 , a somewhat similar defense, was interposed to actions brought by the plaintiff for the illegal use of her photograph by the defendants; and the defenses in each action were demurred to and the demurrers sustained.

1911But those decisions were based upon the fact of the plaintiff’s infancy; for, as said in the case 'against Wanamaker, supra, 657: “ The plaintiff is an infant, and on the facts pleaded she is not estopped from invoking the protection awarded to her by the act in question.” It seems to me that the eases cited are not an authority in support of the plaintiff on this motion.

1902In the Matter of Swales, 60 App. Div. 599 , the Appellate Division for the fourth department said: “ It is made to appear beyond all controversy that the respondent did invoke the jurisdiction of the court of a sister State to free herself from all marital relations with the decedent. * * * How, while it probably would not be technically correct to assert that any or all of the respondent’s acts constituted an estoppel within the ordinary acceptation of that term, for the reason that they were not designed to and did not influence the decedent to do anything which he would not otherwise have d

1901How, while it probably would not be technically correct to assert that any or all of the respondent’s acts constituted an estoppel within the ordinary acceptation'of that term, for the reason that they were not designed to and did not influence the decedent to do anything which he would not otherwise have done (Todd v. Kerr, 42 Barb. 317 ; Holmes v. Holmes, 4 Lans. 388 ), yet we think the case justifies the application of a somewhat similar principle, which is, that where a party has invoked the jurisdiction of any court and submitted himself thereto, he cannot thereafter be heard to question

1901This principle was broadly declared in the case of Hewitt v. Northrup ( 75 N. Y. 506 ), upon the authority of which it was held applicable to a case similar in many of its features to the one. under consideration by the late General Term of the first department (Matter of Morrisson, 52 Hun, 102 ), and the decision in the last-mentioned case was subsequently affirmed by the Court of Appeals. ( 117 N. Y. 638 .) The same rulé has been adopted by the courts of this and many other States in a variety of cases.

1901This principle was broadly declared in the case of Hewitt v. Northrup ( 75 N. Y. 506 ), upon the authority of which it was held applicable to a case similar in many of its features to the one. under consideration by the late General Term of the first department (Matter of Morrisson, 52 Hun, 102 ), and the decision in the last-mentioned case was subsequently affirmed by the Court of Appeals. ( 117 N. Y. 638 .) The same rulé has been adopted by the courts of this and many other States in a variety of cases.

1901How, while it probably would not be technically correct to assert that any or all of the respondent’s acts constituted an estoppel within the ordinary acceptation'of that term, for the reason that they were not designed to and did not influence the decedent to do anything which he would not otherwise have done (Todd v. Kerr, 42 Barb. 317 ; Holmes v. Holmes, 4 Lans. 388 ), yet we think the case justifies the application of a somewhat similar principle, which is, that where a party has invoked the jurisdiction of any court and submitted himself thereto, he cannot thereafter be heard to question

1901This principle was broadly declared in the case of Hewitt v. Northrup ( 75 N. Y. 506 ), upon the authority of which it was held applicable to a case similar in many of its features to the one. under consideration by the late General Term of the first department (Matter of Morrisson, 52 Hun, 102 ), and the decision in the last-mentioned case was subsequently affirmed by the Court of Appeals. ( 117 N. Y. 638 .) The same rulé has been adopted by the courts of this and many other States in a variety of cases.

1895In Thompson v. Railroad Co., 110 N. Y. 637 , 17 N. E. 690 , it was-said: “The giving of the signals required by law does not, under all circumstances, render the defendant free from negligence if it ran its trains in an undue, and what might be found to be an improper and highly dangerous, rate of speed throughout a village or city more or less densely populated.” Towns v. Railroad Co. (Sup.) 8 N. Y.

1895In Thompson v. Railroad Co., 110 N. Y. 637 , 17 N. E. 690 , it was-said: “The giving of the signals required by law does not, under all circumstances, render the defendant free from negligence if it ran its trains in an undue, and what might be found to be an improper and highly dangerous, rate of speed throughout a village or city more or less densely populated.” Towns v. Railroad Co. (Sup.) 8 N. Y.

1895In Massoth v. Canal Co., 64 N. Y. 524 , it was said: “Irrespective of any ordinance or law regulating the speed of railroad trains, it was a question of fact whether the rate was excessive or dangerous in that locality; and, if so found by the jury, and such excessive rate-of speed caused the collision, the defendant was liable for the consequences.” A somewhat similar doctrine was restated in Cordell v. Railroad Co. 70 N. Y. 124 .