foundation claim in New York

2001Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence” ( Lowney, supra at 576 , quoting Hynes, supra at 458 ).

1932Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence.,, (Hynes v. McDermott, 91 N. Y. 451, 459 .) In the case at bar, however, it is established by the evidence that the relations between the complainant and the appellant were illicit in their inception, and there is a presumption that they so continued until a change in their character is shown by acts and circumstances strongly indicating that the connection has become matrimonial.

2000Moreover, plaintiffs “may not at the same time rely upon the lease as the foundation of their claim for damages and repudiate the provisions by which they waived their constitutional right to a jury trial” (Leav v Weitzner, 268 App Div 466, 468 ).

1976Specifically, Masterpol’s counterclaim, which, inter alia, alleges the breach of the lease by plaintiff, may not at the same time rely upon the lease as the foundation of the claim for damages, and repudiate the provisions therein by which the right to trial by jury is waived (Leav v Weitzner, supra; Pratt v Trustees of Sailors’ Snug Harbor in City of N. Y, 19 Misc 2d 551 ).

1989In Gall v Gall ( 114 NY 109, 117-118 ), the Court of Appeals opined that "[w]hile such cohabitation does not constitute marriage, it tends to prove that a marriage has been entered into by the parties” (see also, Matter of Fischer v Endres Delivery Co., 45 AD2d 892 ; Matter of Myers v Tuttle, 278 App Div 543 ; see generally, 9 Wigmore, Evidence § 2505 [Chadbourn rev 1981]).

1932(Gall v. Gall, 114 N. Y. 109, 113 .) In the case upon which this appeal is based the evidence clearly shows that such a change occurred in 1919 when the appellant was threatened with a criminal prosecution if he did not marry the complainant.

1958The voluntary failure to make such a demand is a weak foundation for the claim that appellant was deprived of a constitutional right (Patton v. United States, 281 U. S. 276 ).

1934(Patton v. United States, 281 U. S. 276 .) ” From a consideration of the foregoing authorities, it would seem to me that the indictment of the relator by the grand jury of Chenango county was sufficient in the first instance to give the court jurisdiction; that the defendant by his plea of guilty and failure to move in arrest of judgment, waived the defect in the indictment.

2013Here, contrary to the defendant’s contention, the record demonstrates that the County Court providently exercised its discretion in connection with the conduct of the voir dire process (see People v Jean, 75 NY2d at 745 ; People v Littlejohn, 92 AD3d at 898-899 ; People v Thompson, 45 AD3d 876, 877 [2007]; People v Rodriguez, 240 AD2d at 683 ).

2013Here, contrary to the defendant’s contention, the record demonstrates that the County Court providently exercised its discretion in connection with the conduct of the voir dire process (see People v Jean, 75 NY2d at 745 ; People v Littlejohn, 92 AD3d at 898-899 ; People v Thompson, 45 AD3d 876, 877 [2007]; People v Rodriguez, 240 AD2d at 683 ).

2013Moreover, while “counsel has a right to inquire as to the qualifications of the veniremen [and venirewomen] and their prejudices so as to provide a foundation for a challenge for cause or a peremptory challenge, . . . it is simply not the province of counsel to question prospective jurors as to their attitudes or knowledge of matters of law” (People v Boulware, 29 NY2d 135, 141 [1971], cert denied 405 US 995 [1972] [citation omitted]).

2013Moreover, while “counsel has a right to inquire as to the qualifications of the veniremen [and venirewomen] and their prejudices so as to provide a foundation for a challenge for cause or a peremptory challenge, . . . it is simply not the province of counsel to question prospective jurors as to their attitudes or knowledge of matters of law” (People v Boulware, 29 NY2d 135, 141 [1971], cert denied 405 US 995 [1972] [citation omitted]).

2013Here, contrary to the defendant’s contention, the record demonstrates that the County Court providently exercised its discretion in connection with the conduct of the voir dire process (see People v Jean, 75 NY2d at 745 ; People v Littlejohn, 92 AD3d at 898-899 ; People v Thompson, 45 AD3d 876, 877 [2007]; People v Rodriguez, 240 AD2d at 683 ).

2013Here, contrary to the defendant’s contention, the record demonstrates that the County Court providently exercised its discretion in connection with the conduct of the voir dire process (see People v Jean, 75 NY2d at 745 ; People v Littlejohn, 92 AD3d at 898-899 ; People v Thompson, 45 AD3d 876, 877 [2007]; People v Rodriguez, 240 AD2d at 683 ).

2013Here, contrary to the defendant’s contention, the record demonstrates that the County Court providently exercised its discretion in connection with the conduct of the voir dire process (see People v Jean, 75 NY2d at 745 ; People v Littlejohn, 92 AD3d at 898-899 ; People v Thompson, 45 AD3d 876, 877 [2007]; People v Rodriguez, 240 AD2d at 683 ).

2013Here, contrary to the defendant’s contention, the record demonstrates that the County Court providently exercised its discretion in connection with the conduct of the voir dire process (see People v Jean, 75 NY2d at 745 ; People v Littlejohn, 92 AD3d at 898-899 ; People v Thompson, 45 AD3d 876, 877 [2007]; People v Rodriguez, 240 AD2d at 683 ).

2004The trial foundation inquiry is addressed to “the scientific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial” (People v Wesley, supra, 83 NY2d at 429 ).

2004The trial foundation inquiry is addressed to "the scientific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial" ( People v Wesley, supra , 83 NY2d at 429 ).

1987An arbitration award which is not capable of confirmation, and, therefore, finalization (see, Matter of Mossman [MVAIC], 19 AD2d 842 ), cannot serve as the foundation for a defense of arbitration and award pursuant to CPLR 3211 (a) (5)”.

1986An arbitration award which is not capable of confirmation and, therefore, finalization (see, Matter of Mossman [MVAIC], 19 AD2d 842 ), cannot serve as the foundation for a defense of arbitration and award pursuant to CPLR 3211 (a) (5).

1966Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence. * * * The cohabitation, apparently decent and orderly, of two persons opposite in sex, raises a presumption of more or less strength that they have been duly married.” This presumption in fact may only be negated by disproving every reasonable possibility which would vitiate the marriage relationship (see Matter of Newins, supra; Matter of Dugro, 261 App. Div. 236 , affd. 287 N. Y. 595 ; Romps v. Romps, 209 App. Div. 832 ; Matter of Tompkins, 207 A

1931Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence/] (Hynes v. McDermott, 91 N. Y. 451 ; Price v. Tompkins, 108 Misc. 263 ; affd., 190 App. Div. 967 ; Betsinger v. Chapman, 88 N. Y. 487 ; Matter of Matthews, 153 id. 446.) The cohabitation, apparently decent and orderly, of two persons' opposite in sex, raises a presumption of more or less strength that they have been duly married.

1966Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence. * * * The cohabitation, apparently decent and orderly, of two persons opposite in sex, raises a presumption of more or less strength that they have been duly married.” This presumption in fact may only be negated by disproving every reasonable possibility which would vitiate the marriage relationship (see Matter of Newins, supra; Matter of Dugro, 261 App. Div. 236 , affd. 287 N. Y. 595 ; Romps v. Romps, 209 App. Div. 832 ; Matter of Tompkins, 207 A

1931Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence/] (Hynes v. McDermott, 91 N. Y. 451 ; Price v. Tompkins, 108 Misc. 263 ; affd., 190 App. Div. 967 ; Betsinger v. Chapman, 88 N. Y. 487 ; Matter of Matthews, 153 id. 446.) The cohabitation, apparently decent and orderly, of two persons' opposite in sex, raises a presumption of more or less strength that they have been duly married.

1924(Hordern v. Salvation Army, 199 N. Y. 233 .) We are reluctant to-permit an affirmance of the judgment to pass as an acceptance of the theory that defendant’s exemption from liability must rest oil the waiver doctrine.

1923(Hordern v. Salvation Army, supra.) It is not that the relation of master and servant does not exist between the charitable corporation and an employee but that the consequences of the application of the doctrine of respondeat superior are waived by the beneficiaries in accepting the benefits of the charity.

1904It is not enough that by some change in circumstance, brought about by his own act or the act of others, he may become entitled to it.” (See, too, Carpenter v. City of New York, 44 App. Div. 230 .) In default of proof by the claimant of his identity with the unknown owners, the wrong of the city or of its officers which justifies the right to interest for a period of more than the six months must necessarily be found in some neglect or omission of the city or of its officers after the petitioner had claimed the awards standing due to unknown owners.

1902In Cutter v. Mayor ( 92 N. Y. 169 ) Judge Danforth says : “ Where, however, • a demand is necessary as. a foundation for a claim of interest, it must be a distinct demand for the sum of money to which the party is then-entitled.” (See, also, Carpenter v. City of New York, 44 App. Div. 230 ; Deering v. C ity of New York, 51 id. 402.) The. notice to the comptroller was served in compliance with section 261 of the charter of the city of New York (Laws of 1897, chap. 378), which provides that “No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against the ci

1904In Cutter v. Mayor (supra) it is said : “ Where, however, a demand is necessary as a foundation for a claim of interest, it must be a distinct demand for the sum of money to which the party is then entitled.

1899In Cutter v. Mayor ( 92 N. Y. 166 ) it was said : “ Where, however, a demand is necessary as a foundation for a claim of interest, it must be a distinct demand for the sum of money to which the party is then entitled, It is not enough that by some change in circumstances, brought about by his own act or the act of others, he may become entitled to it.

1862(Code, § 150; Vassar v. Livingston, 3 Kern., 248; Gleason v. Moer, 2 Denio, 639 ; Spencer v. Babcock, 22 Barb., 326 ; Ives v. Miller, 19 id., 197.) *Page 629 The transactions sought to be introduced and investigated were distinct and independent transactions, having no connection with the notes or their origin or consideration, so that there is nothing in the identity of the plaintiff's cause of action and the defence insisted upon, to entitle the defendant to claim that both should be tried at the same time, and the rights of the parties in respect to each be adjusted in one action.

1862(Code, § 150; Vassar v. Livingston, 3 Kern., 248; Gleason v. Moer, 2 Denio, 639 ; Spencer v. Babcock, 22 Barb., 326 ; Ives v. Miller, 19 id., 197.) The transactions sought to be introduced and investigated were distinct and independent transactions, having no connection with the notes or their origin or consideration, so that there is nothing in the identity of the plaintiff’s cause of action and the defence insisted upon, to entitle the defendant to claim that both should be tried at the same time, and the rights of the parties in respect to each be adjusted in one action.

1862(Code, § 150; Vassar v. Livingston, 3 Kern., 248; Gleason v. Moer, 2 Denio, 639 ; Spencer v. Babcock, 22 Barb., 326 ; Ives v. Miller, 19 id., 197.) *Page 629 The transactions sought to be introduced and investigated were distinct and independent transactions, having no connection with the notes or their origin or consideration, so that there is nothing in the identity of the plaintiff's cause of action and the defence insisted upon, to entitle the defendant to claim that both should be tried at the same time, and the rights of the parties in respect to each be adjusted in one action.

1862(Code, § 150; Vassar v. Livingston, 3 Kern., 248; Gleason v. Moer, 2 Denio, 639 ; Spencer v. Babcock, 22 Barb., 326 ; Ives v. Miller, 19 id., 197.) The transactions sought to be introduced and investigated were distinct and independent transactions, having no connection with the notes or their origin or consideration, so that there is nothing in the identity of the plaintiff’s cause of action and the defence insisted upon, to entitle the defendant to claim that both should be tried at the same time, and the rights of the parties in respect to each be adjusted in one action.

1860The first is .that of *561 Van Bracklin v. Fonda ( 12 John., 468 ), which was an action to recover damages for selling a quantity of beef as ■ “ good and sound,’’ which proved “ bad and unwholesome.” There was in that case some evidence that the defendant knew the animal to be diseased before it was slaughtered; but the court, in giving judgment, say that “ in the sale of provisions for domestic use, the vendor is bound to know that they are sound and wholesome, at his peril.” Although what the court here says is that the vendor is bound to know the condition of what he sells, yet the subseque

1860The first *s °f * Van Bracklin v. Fonda ( 12 Johns. 468 ), which was an action to recover damages for selling a quantity of beef as'“ good and sound,” which proved “bad and unwholesome.” There was, in that case, some evidence that the defendant knew the animal to be diseased, before it was slaughtered; but the court, in giving judgment, say, that “in the sale of provisions for domestic use, the vendor is hound-to know that they are sound and wholesome, at his peril.” 1 Although what the court here says is, that the vendor is hound to know the condition of what he sells, yet, the subsequent cas

1860The first is .that of *561 Van Bracklin v. Fonda ( 12 John., 468 ), which was an action to recover damages for selling a quantity of beef as ■ “ good and sound,’’ which proved “ bad and unwholesome.” There was in that case some evidence that the defendant knew the animal to be diseased before it was slaughtered; but the court, in giving judgment, say that “ in the sale of provisions for domestic use, the vendor is bound to know that they are sound and wholesome, at his peril.” Although what the court here says is that the vendor is bound to know the condition of what he sells, yet the subseque

1860The first *s °f * Van Bracklin v. Fonda ( 12 Johns. 468 ), which was an action to recover damages for selling a quantity of beef as'“ good and sound,” which proved “bad and unwholesome.” There was, in that case, some evidence that the defendant knew the animal to be diseased, before it was slaughtered; but the court, in giving judgment, say, that “in the sale of provisions for domestic use, the vendor is hound-to know that they are sound and wholesome, at his peril.” 1 Although what the court here says is, that the vendor is hound to know the condition of what he sells, yet, the subsequent cas

2025Generally, "[a]bsent a specific provision in the power of attorney document authorizing gifts, an attorney-in-fact, in exercising his or her fiduciary responsibilities to the principal, may not make a gift to himself [or herself] or a third party of the money or property which is the subject of the agency relationship" ( McGregor v McGregor , 191 AD3d 974, 976 [internal quotation marks omitted]; see General Obligations Law § 5-1505[2][a][2]; Choudhari v Choudhari , 220 AD3d at 837 ; Scotti v Barrett , 149 AD3d 998, 999 ). "'Such a gift carries with it a presumption of impropriety and self-deal