wholesome rule in New York

1916The court there also said: “ In our opinion that standard should not be lowered by putting dubious conduct outside of the domain of law. ’ ’ When the case was in the Appellate Division of this department ( 160 App. Div. 725 ), Mr. Justice Laughlin wrote (p. 734): “ The wisdom of ages has developed a wholesome rule of honesty and fair dealing between men about to embark in any lawful enterprise or adventure, which involves relations of mutual trust and confidence, either as partners or joint adventurers, and that rule, which has and can have no exception, rigidly requires the utmost good faith

1914(White v. Sherman, 168 Ill. 589 ; Getty v. Devlin, 54 N. Y. 403 ; 70 id. 504 ; Brewster v. Hatch, 122 id. 349; Dunlop v. Richards, 2 E.

1956Fundamentally, a governmental unit has no greater right than an individual to retain moneys to which it is not rightfully entitled. “ No sound reason exists for exonerating even municipal corporations from the controlling effects of this wholesome principle; for it is equally as unjust and inequitable for them to retain money they have acquired without consideration, as it is for a private person to attempt to do so.” (Chapman v. City of Brooklyn, 40 N. Y. 372, 380 .) The city urges that lack of protest is in effect a waiver of the taxpayer’s right to claim a refund, since it indicates a volun

1955I find nothing exceptional or unusual in the present case to warrant departure from the wholesome rule laid down in Levins v. Bucholtz (supra).

1944In Sturgis v. Spofford ( 45 N. Y. 446 ), the court said on page 453: ‘ ‘ Prosecutions for aggregated penalties should not be encouraged. * * * It is a wholesome rule not to allow a recovery for aggregated penalties unless the language of the statute clearly requires it.” The Court of Appeals in the case of People v. Spencer ( 201 N. Y. 105, 110 ) goes so far as to recognize a distinction between “ every ” and “ each ” and intimates that the use of the word “ every violation ” does not mean “ each violation ” unless there is other language in the statute which clearly expresses such intent.

1944In Sturgis v. Spofford ( 45 N. Y. 446 ), the court said on page 453: ‘ ‘ Prosecutions for aggregated penalties should not be encouraged. * * * It is a wholesome rule not to allow a recovery for aggregated penalties unless the language of the statute clearly requires it.” The Court of Appeals in the case of People v. Spencer ( 201 N. Y. 105, 110 ) goes so far as to recognize a distinction between “ every ” and “ each ” and intimates that the use of the word “ every violation ” does not mean “ each violation ” unless there is other language in the statute which clearly expresses such intent.

1943(Lewis v. O’Malley, 49 F. Supp. 173, 178 .) The law cloaks every man with a “ presumption of good faith in his business dealings.” (A. W.

1942It is a wholesome doctrine urged in Matter of Lee (supra, p. 539 ): “ The Supreme Court and the Surrogate’s Court have concurrent jurisdiction in many respects, and the seemly administration of the law demands that their orders do not conflict.” It appears that the justice of the Supreme Court who granted the order appealed from regarded it as an admonition to him to dismiss the writ.

1938But in chancery, under the same wholesome principle and practice by which bills of discovery were allowed for ascertaining the opponent’s testimony and the documents in his possession, the inspection of chattels and premises in his possession or control was obtainable wherever fairness seemed to demand it.’ ” People v. Gerold ( 265 Ill. 448 ; 107 N. E. 165 ) held it to be error to refuse impounding books seized by the district attorney which were to be used in evidence, so as to allow access by the accused before trial to prepare his defense.

1920Co. v. Tax Comrs., 212 N. Y. 472, 485 ; The Conqueror, 166 U. S. 110, 131, 133 ; Brehm v. Great Western Railway Co., 34 Barb. 256, 273 .) In People v. Vanderhoof ( 71 Mich. 158 ) the court laid down the wholesome rule that a party is not obliged to employ rebutting experts on pain of having the original evidence of experts accepted as conclusive.

1920Co. v. Tax Comrs., 212 N. Y. 472, 485 ; The Conqueror, 166 U. S. 110, 131, 133 ; Brehm v. Great Western Railway Co., 34 Barb. 256, 273 .) In People v. Vanderhoof ( 71 Mich. 158 ) the court laid down the wholesome rule that a party is not obliged to employ rebutting experts on pain of having the original evidence of experts accepted as conclusive.

1920Co. v. Tax Comrs., 212 N. Y. 472, 485 ; The Conqueror, 166 U. S. 110, 131, 133 ; Brehm v. Great Western Railway Co., 34 Barb. 256, 273 .) In People v. Vanderhoof ( 71 Mich. 158 ) the court laid down the wholesome rule that a party is not obliged to employ rebutting experts on pain of having the original evidence of experts accepted as conclusive.

1916The court there also said: “ In our opinion that standard should not be lowered by putting dubious conduct outside of the domain of law. ’ ’ When the case was in the Appellate Division of this department ( 160 App. Div. 725 ), Mr. Justice Laughlin wrote (p. 734): “ The wisdom of ages has developed a wholesome rule of honesty and fair dealing between men about to embark in any lawful enterprise or adventure, which involves relations of mutual trust and confidence, either as partners or joint adventurers, and that rule, which has and can have no exception, rigidly requires the utmost good faith

1916The court there also said: “ In our opinion that standard should not be lowered by putting dubious conduct outside of the domain of law. ’ ’ When the case was in the Appellate Division of this department ( 160 App. Div. 725 ), Mr. Justice Laughlin wrote (p. 734): “ The wisdom of ages has developed a wholesome rule of honesty and fair dealing between men about to embark in any lawful enterprise or adventure, which involves relations of mutual trust and confidence, either as partners or joint adventurers, and that rule, which has and can have no exception, rigidly requires the utmost good faith

1916The court there also said: “ In our opinion that standard should not be lowered by putting dubious conduct outside of the domain of law. ’ ’ When the case was in the Appellate Division of this department ( 160 App. Div. 725 ), Mr. Justice Laughlin wrote (p. 734): “ The wisdom of ages has developed a wholesome rule of honesty and fair dealing between men about to embark in any lawful enterprise or adventure, which involves relations of mutual trust and confidence, either as partners or joint adventurers, and that rule, which has and can have no exception, rigidly requires the utmost good faith

1914(White v. Sherman, 168 Ill. 589 ; Getty v. Devlin, 54 N. Y. 403 ; 70 id. 504 ; Brewster v. Hatch, 122 id. 349; Dunlop v. Richards, 2 E.

1909The plaintiff seeks to avoid the logical consequences of the situation by invoking the wholesome doctrine enunciated in Anthony v. American Glucose Co. 146 N. Y. 407 , in which Finch, J., speaking for the court, says: “We have of late refused to be always and utterly trammelled by the logic derived from corporate existence where it only serves to distort or hide the truth, and I think we should not hesitate in this case to reject the purely technical defense attempted.” In that case the American Glucose Company had been organized to take over the property of certain corporations, in one of whi

1907The Court of Appeals in Langley v. Rouss ( 185 N. Y. 201 ) has recently laid down the wholesome doctrine that “a provision that the builder is not to execute any extra work or make any modifications or alterations in the work mentioned in the specifications and plans unless ordered in writing by the engineer in charge, or claim payment for the same unless such written order be produced, is valid and should be enforced.” In the case at bar there were to be no extras unless by agreement between the parties, or upon the written authorization of the defendants, subject to an arbitration as to the

1905Under this rule the party prosecuted will have an opportunity to desist from doing the act complained of, and if he does not he will knowingly incur all the hazards of repeated prosecutions.” In Suydam v. Smith ( 52 N. Y. 383 ), where the recovery of cumulative penalties was upheld, the statutory words imposing the penalty were “for each offence.” We think that “ every ” is not always necessarily the synonym of “ each.” In Grover v. Morris ( 73 N. Y. 473 ) the recovery was under an act which authorized a purchaser to recover double the amount paid by him in the purchase of any lottery tickets.

1905Under this rule the party prosecuted will have an opportunity to desist from doing the act complained of, and if he does not he will knowingly incur all the hazards of repeated prosecutions.” In Suydam v. Smith ( 52 N. Y. 383 ), where the recovery of cumulative penalties was upheld, the statutory words imposing the penalty were “for each offence.” We think that “ every ” is not always necessarily the synonym of “ each.” In Grover v. Morris ( 73 N. Y. 473 ) the recovery was under an act which authorized a purchaser to recover double the amount paid by him in the purchase of any lottery tickets.

1901The complaint on demurrer is deemed to allege what can be implied from the allegations therein by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred.” Sage v. Culver ( 147 N. Y. 241 ) and Kain v. Larkin (141 id. 144, 150) give expression to the same wholesome rule.

1889In Wood v. Hunt, supra, the subject of the fraudulent grant was directed to be sold for the benefit of the grantor’s creditors;, and it was provided that, if the creditors’ claims were not paid out of the avails, the grantee should pay over the rents and profits, unless he elected to pay the deficiency; and he was disallowed the sums expended in paying the grantor’s creditors and the claims which he had purchased of the grantor’s .creditors.

1882In Lee v. Adsit, 37 N. Y. 78 , it is said that “ the rule that paroi extrinsic evidence shall not be received to contradict or vary a contract which is in writing, applies only in contro•versies between the parties, promisor and promisee, in such contract,” and that “ the writing is not conclusive as between one of the contracting parties and a third person; ” and in McMaster v. The Insurance Co. of N. A. ( 55 N. Y. 222 ), it was held that “ the rule that paroi testimony may not be given to contradict a written contract, applies only in suits between the parties to it or their privies.

1882In Lee v. Adsit, 37 N. Y. 78 , it is said that “ the rule that paroi extrinsic evidence shall not be received to contradict or vary a contract which is in writing, applies only in contro•versies between the parties, promisor and promisee, in such contract,” and that “ the writing is not conclusive as between one of the contracting parties and a third person; ” and in McMaster v. The Insurance Co. of N. A. ( 55 N. Y. 222 ), it was held that “ the rule that paroi testimony may not be given to contradict a written contract, applies only in suits between the parties to it or their privies.