qualifying clause in New York

2004Andriola v Antinoro, 511 US 1031 [1994]).

2004Simply passing a qualifying test, without more, does not create a contractual right to the position (see Matter of Andriola v Ortiz, 82 NY2d 320 [1993], cert denied sub nom.

1996As the IAS Court pointed out, this latter qualifying standard is virtually the same as that required to prevail in a posthumous paternity proceeding under Family Court Act § 519 (d) (see, Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141-142 ).

1996(See, People v McManus, 67 NY2d, at 549 , supra; People v Valles, 62 NY2d 36 [1984].) However, after reading the statutory language of Penal Law § 35.30 (4) (b) to the Grand Jury, the District Attorney gave the following qualifying instruction: "If you find that the person shot by the defendant, [the deceased], was not one of the robbers, then as a matter of law the defendant’s conduct under that section, subdivision (b), is not justified for those charges * * * pertaining to [the deceased].” The District Attorney now argues that, assuming arguendo, that charge was in error, there was no reaso

1996(See, People v McManus, 67 NY2d, at 549 , supra; People v Valles, 62 NY2d 36 [1984].) However, after reading the statutory language of Penal Law § 35.30 (4) (b) to the Grand Jury, the District Attorney gave the following qualifying instruction: "If you find that the person shot by the defendant, [the deceased], was not one of the robbers, then as a matter of law the defendant’s conduct under that section, subdivision (b), is not justified for those charges * * * pertaining to [the deceased].” The District Attorney now argues that, assuming arguendo, that charge was in error, there was no reaso

1993In fact, the Pascarella case, so heavily relied upon by the majority to support its proposition that the "firefighter rule" also governs line-of-duty injuries caused by a co-worker, similarly recognized that a municipality could be responsible under the doctrine of respondeat superior "for acts committed by its employees in the scope of their employment" ( 146 AD2d, at 68 ).

1993In fact, the Pascarella case, so heavily relied upon by the majority to support its proposition that the "firefighter rule” also governs line-of-duty injuries caused by a co-worker, similarly recognized that a municipality could be responsible under the doctrine of respondeat superior "for acts committed by its employees in the scope of their employment” ( 146 AD2d, at 68 ).

1984As observed by the Appellate Division, we have consistently held "that the performance of out-of-title duties creates no right to reclassification to a new position involving those duties". ( Matter of Gavigan v McCoy , 37 N.Y.2d 548, 550-551 , and cases cited therein.) We agree with that court that, in view of these holdings, "[w]ithout a much clearer statement from the Legislature than is found in chapter 846 of the Laws of 1980 that it intends a statute to run counter to this well-established rule, [the courts] would be ill advised to so interpret one of its enactments". (96 AD2d, p 563.) A

1980(This is not to say of course that pressures or encouragements which violate due process on well-established principles or the rules of Miranda v Arizona, 384 US 436 , etc., are rendered valid if they do not fall afoul of the qualifying clause of subdivision "[1].” But absent such a violation, inducements of the types permitted by the New York statute are I think valid.) We live in the age of Miranda .

1970Clement & Co. ( 163 Misc. 771 , affd. 256 App. Div. 469 , affd. 283 N. Y. 554 ) the question was raised whether, “ When a decedent’s death is caused by the negligent act of another and occurs during the infancy of his next of kin, is the period of such infancy a part of the two years within which an action, under section 130 of the Decedent Estate Law, must be commenced on behalf of such infant? ” It was stated in the opinion of the Appellate Division (p. 473): “ In defining those whose disabilities permit them temporarily to escape the bar of the statutory limitations fixed by article 2 of th

1970Clement & Co. ( 163 Misc. 771 , affd. 256 App. Div. 469 , affd. 283 N. Y. 554 ) the question was raised whether, “ When a decedent’s death is caused by the negligent act of another and occurs during the infancy of his next of kin, is the period of such infancy a part of the two years within which an action, under section 130 of the Decedent Estate Law, must be commenced on behalf of such infant? ” It was stated in the opinion of the Appellate Division (p. 473): “ In defining those whose disabilities permit them temporarily to escape the bar of the statutory limitations fixed by article 2 of th

1970Clement & Co. ( 163 Misc. 771 , affd. 256 App. Div. 469 , affd. 283 N. Y. 554 ) the question was raised whether, “ When a decedent’s death is caused by the negligent act of another and occurs during the infancy of his next of kin, is the period of such infancy a part of the two years within which an action, under section 130 of the Decedent Estate Law, must be commenced on behalf of such infant? ” It was stated in the opinion of the Appellate Division (p. 473): “ In defining those whose disabilities permit them temporarily to escape the bar of the statutory limitations fixed by article 2 of th

1961(Longo v. Tauriello, 201 Misc. 35 , citing Rules Civ.

1940(See Cox v. City of New York, 265 N. Y. 411, 414 .) We do not pass upon the merits of the appellant’s claim.

1920And in the present section (25) the qualifying clause is found that the person must be subpoenaed or ordered to attend “ for the purpose of being examined.” This clearly covers a witness who has been subpoenaed or ordered to appear (Goldsmith v. Haskell, 120 App. Div. 403 ), and also a party who is to be a witness.

1911The qualifying clause was considered by Presiding Justice INGRAHAM in Meister v. Woolverton ( 140 App. Div. 926 ), and We agree with what he there said to the effect that it was intended'for the carrier’s benefit and could be. waived by it, and that if it had been intended to limit the liability to $150 unless the excess value is stated, that intention would not have been left to inference.

1908R. 1 Eq. 337), and McMahon v. Allen ( 35 N. Y. 403 ).

1907In Berneken v. State ( 40 Neb. 810 ) the defendant was accused of the crime of receiving stolen property.

1907It is often found stated in connection with the qualifying rule which has been almost universally adopted in this country to the effect that, while the community reputation as to particular traits is admissible upon the question of character, the personal knowledge and belief of the witness must be excluded. (3 Wigmore on Evidence, § 1980.) Thus in Hirschman v. People ( 101 Ill. 568 ), where the defendant was tried on an indictment for manslaughter, it was held that he was properly permitted to give evidence of his general reputation in regard to peace and quiet; but that no error was committe

1882(Traver v. Nichols, 7 Wend., 434 ; Fenno v. Dickinson, 4 Denio, 84 ; Gormly v. McIntosh, 22 Barb., 271 .) But as the appeal from the Surrogate is to another court, and may bring up the entire proceedings before the Surrogate for review, we think it is to be regarded as a proceeding in the “ action or special proceeding ” for the proof of the will within the meaning of the qualifying clause above quoted.

1882(Traver v. Nichols, 7 Wend., 434 ; Fenno v. Dickinson, 4 Denio, 84 ; Gormly v. McIntosh, 22 Barb., 271 .) But as the appeal from the Surrogate is to another court, and may bring up the entire proceedings before the Surrogate for review, we think it is to be regarded as a proceeding in the “ action or special proceeding ” for the proof of the will within the meaning of the qualifying clause above quoted.

1882(Traver v. Nichols, 7 Wend., 434 ; Fenno v. Dickinson, 4 Denio, 84 ; Gormly v. McIntosh, 22 Barb., 271 .) But as the appeal from the Surrogate is to another court, and may bring up the entire proceedings before the Surrogate for review, we think it is to be regarded as a proceeding in the “ action or special proceeding ” for the proof of the will within the meaning of the qualifying clause above quoted.