enunciated rule in New York

1868In the case of Dedieu v. People ( 22 N. Y. 178 ), this court enunciated the principle which, it seems to me, should govern this case.

1868In the case of Dedieu v. The People ( 22 N.Y. 178 ), this court enunciated the principle which, it seems to me, should govern this case.

2007(See Marek v Laufer & Son, 257 AD2d 363 [1st Dept 1999] [arbitration clause in written confirmation; there was no conflicting writing]; S&T Sportswear Corp. v Drake Fabrics, 190 AD2d 598 [1st Dept 1993] [arbitration clause in “draft sales contract”; it is not clear whether this “draft sales contract” was a confirmation under UCC 2-201]; Matter of Continental Stock Transfer & Trust Co. v Sher-Del Transfer & Relocation Servs., 298 AD2d 336 [1st Dept 2002] [there was a “battle of forms”].) 3 Thus, the New York rule would require this court to deny Kahan’s motion to confirm the award and grant Ven

2007(See Marek v Laufer & Son, 257 AD2d 363 [1st Dept 1999] [arbitration clause in written confirmation; there was no conflicting writing]; S&T Sportswear Corp. v Drake Fabrics, 190 AD2d 598 [1st Dept 1993] [arbitration clause in “draft sales contract”; it is not clear whether this “draft sales contract” was a confirmation under UCC 2-201]; Matter of Continental Stock Transfer & Trust Co. v Sher-Del Transfer & Relocation Servs., 298 AD2d 336 [1st Dept 2002] [there was a “battle of forms”].) 3 Thus, the New York rule would require this court to deny Kahan’s motion to confirm the award and grant Ven

2007(See Marek v Laufer & Son, 257 AD2d 363 [1st Dept 1999] [arbitration clause in written confirmation; there was no conflicting writing]; S&T Sportswear Corp. v Drake Fabrics, 190 AD2d 598 [1st Dept 1993] [arbitration clause in “draft sales contract”; it is not clear whether this “draft sales contract” was a confirmation under UCC 2-201]; Matter of Continental Stock Transfer & Trust Co. v Sher-Del Transfer & Relocation Servs., 298 AD2d 336 [1st Dept 2002] [there was a “battle of forms”].) 3 Thus, the New York rule would require this court to deny Kahan’s motion to confirm the award and grant Ven

1990The Court of Appeals in Gunnarson v State of New York ( 70 NY2d 923 ) set forth the general rule that interest should be calculated from the date of the adjudication of liability.

1988In Furman v Georgia ( 408 US 238, 282 ) the court enunciated the test under which a court may determine that a punishment is "cruel and unusual” as follows: "If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the [Eighth Amendment].” Although ordinarily reserved for the imposition of capital pun

1988In Furman v Georgia ( 408 US 238, 282 ) the court enunciated the test under which a court may determine that a punishment is "cruel and unusual” as follows: "If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the [Eighth Amendment].” Although ordinarily reserved for the imposition of capital pun

1988That court, having rejected such application in Broadie , nonetheless said (People v Broadie, supra, at 119 ), "This is not to say that in some rare case on its particular facts it may not be found that the statutes have been unconstitutionally applied”.

1980(Pollard v Meyer, 61 AD2d 766, 767 .) Here we have substantial questions of fact that cannot be disposed of in advance of trial.

1980This court enunciated the rule with clarity, when it said "summary judgment is a drastic remedy which should be withheld whenever there is any doubt as to the existence of a triable or arguable issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 )”.

1968In Mempa (supra, p. 134 ) the court enunciated the principle ‘ ‘ that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” It is recognized, as respondent contends, that there are basic differences between probation and parole.

1966(Swensson v. New York, Albany Despatch Co., 309 N. Y. 497 .) There plaintiff passenger testified that the deceased driver, whose estate was a coplaintiff, had stated with reference to the air brakes on the truck, “ The air was gone.” and that “ the regular brakes did not work either.” The Court of Appeals held (pp. 503-504) this was “ almost a classic example of res gestae * * * spontaneous statement in the course of, and within ten seconds of the final happening of the startling event itself, it related to the circumstances of the event, and was made before he had either time, opportunity, or

1959S. 2d 561.) In Bogart (supra), the court enunciated this rule clearly (p. 107): “ The law requires disclosure to be made only when there is a duty to make it, and this duty is not raised by the mere circumstance that the undisclosed fact is material, and is known to the one party, and not to the other, or by the additional circumstance that the party to whom it is known, knows that the other party is acting in ignorance of it.” Clearly, then, the duty to disclose only arises when there is a confidential or fiduciary relationship between the parties.

1959(Amend v. Hurley, supra; Dash v. Jennings, supra.) Here there is no allegation of any relationship between these parties which would give rise to such a duty to speak.

1958In that appeal this court enunciated the rule which we believe controls the instant case in this statement (p. 720): “We may not assume or speculate that adequate warning signs would not have been heeded (Nuss v. State of New York, 195 Misc. 38 , revd. 276 App. Div. 300 , revd. 301 N. Y. 768 ) but may assume that had the stop sign been in position Smithart would have observed it and stopped.

1958In that appeal this court enunciated the rule which we believe controls the instant case in this statement (p. 720): “We may not assume or speculate that adequate warning signs would not have been heeded (Nuss v. State of New York, 195 Misc. 38 , revd. 276 App. Div. 300 , revd. 301 N. Y. 768 ) but may assume that had the stop sign been in position Smithart would have observed it and stopped.

1957In Western New York Water Co. v. City of Buffalo ( 242 N. Y. 202 ) the court enunciated this rule as follows (pp. 206-207). “ Mere illegality is not enough.

1955Benjamin on Administrative Adjudication, vol. 1, p. 9.) A “ history of corruption ” should not blind us to the enunciated principle that “ [t]he procedure of the * * * [Commission] must conform to recognized standards of fairness and a record must be made which permits a review of the action of the * * * (Commission) by the court.” (Matter of Perpente v. Moss, 293 N. Y. 325, 329 , supra.) The order appealed from should he affirmed, with costs.

1941Co., 15 Nev. 167, 179 ; Burt v. Smith, 181 N. Y. 1 .) In the Thompson case the court said (p. 496): “ Want of probable cause and malice, combined, are essential.” In the Burt case the court enunciated the rule as follows (p. 5): “ While malice is the root of the action, malice alone even when extreme, is not enough, for want of probable cause must also be shown.” That suit was maliciously begun and prosecuted without probable cause is not shown merely by the fact that defendant proceeded to Nevada for the purpose of there acquiring a fictitious domicile and residence to enable her to meet a ju

1941Co., 15 Nev. 167, 179 ; Burt v. Smith, 181 N. Y. 1 .) In the Thompson case the court said (p. 496): “ Want of probable cause and malice, combined, are essential.” In the Burt case the court enunciated the rule as follows (p. 5): “ While malice is the root of the action, malice alone even when extreme, is not enough, for want of probable cause must also be shown.” That suit was maliciously begun and prosecuted without probable cause is not shown merely by the fact that defendant proceeded to Nevada for the purpose of there acquiring a fictitious domicile and residence to enable her to meet a ju

1930(Brody, Adler & Koch Co. v. Hochstadter, No. 1, 150 App. Div. 527, 529 ; City of New York v. Matthews, 156 id. 490, 493; Rubenstein v. Radt, 133 id. 57,60; Goss v. Goss & Co., 126 id. 748, 749; Strauss & Co., Inc., v. American Credit Indemnity Co., 203 id. 361, 363, 364.) In Brody, Adler & Koch Co. v. Hochstadter (supra), a case in its facts almost identical with the case at bar, this court clearly enunciated the rule that a defendant’s equitable counterclaim must be disposed of prior to the other issues raised by the complaint and the defendant’s answer thereto.

1930(Brody, Adler & Koch Co. v. Hochstadter, No. 1, 150 App. Div. 527, 529 ; City of New York v. Matthews, 156 id. 490, 493; Rubenstein v. Radt, 133 id. 57,60; Goss v. Goss & Co., 126 id. 748, 749; Strauss & Co., Inc., v. American Credit Indemnity Co., 203 id. 361, 363, 364.) In Brody, Adler & Koch Co. v. Hochstadter (supra), a case in its facts almost identical with the case at bar, this court clearly enunciated the rule that a defendant’s equitable counterclaim must be disposed of prior to the other issues raised by the complaint and the defendant’s answer thereto.

1906We think it must be held, under the doctrine of this court enunciated in Lewis v. City of New York ( 106 App. Div. 454 ) and Keane v. City of New York (88 id. 542 ) and Walton v. Mayor (26 id. 76), that the armory board had no power to incur an indebtedness for architect’s fees, which the city became liable to pay, until it had- been authorized to incur such indebtedness by resolution of the commissioners of the sinking fund.

1906We think it must be held, under the doctrine of this court enunciated in Lewis v. City of New York ( 106 App. Div. 454 ) and Keane v. City of New York (88 id. 542 ) and Walton v. Mayor (26 id. 76), that the armory board had no power to incur an indebtedness for architect’s fees, which the city became liable to pay, until it had- been authorized to incur such indebtedness by resolution of the commissioners of the sinking fund.