announced rule in New York

2000Thus, in determining whether the stop of an automobile is simply a pretext to search or to obtain information to justify a search of either the vehicle or the driver, New York intermediate appellate courts have looked to the subjective police purpose in making the stop. [Citations omitted.] Under the Fourth Amendment, the subjective police reason for stopping an automobile is irrelevant provided the stop is reasonable and ‘as a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.’ See, Whren v. U

1999Based upon our examination of the record, we find that the misbehavior report and the testimony adduced at the hearing constitute substantial evidence to support the determination (see, Matter of Torres v Goord, 242 AD2d 800 ).

1995Auth., 97 AD2d 808 , affd 62 NY2d 973 ; See v Arias, 209 AD2d 503 ; Anonymous v Anonymous, 154 Misc 2d 46, 51 ; Dumas v Agency for Child Dev., 569 F Supp 831 ; Graboi v Kibel, 432 F Supp 572 ).

1995Auth., 97 AD2d 808 , affd 62 NY2d 973 ; See v Arias, 209 AD2d 503 ; Anonymous v Anonymous, 154 Misc 2d 46, 51 ; Dumas v Agency for Child Dev., 569 F Supp 831 ; Graboi v Kibel, 432 F Supp 572 ).

1995The Court announced a test which depends less on the proper medical classification of the state of the claimant’s mental health (normal, neurotic, psychotic or, as in this case, "borderline”), and more on a matter of pragmatic assessment of whether the claimant can manage his or her personal affairs (see also, Matter of Cerami v City of Rochester School Dist., 82 NY2d 809; Matter of Mazzilli v City of New York, 115 AD2d 604; Eisenbach v Metropolitan Transp.

1995Auth., 97 AD2d 808 , affd 62 NY2d 973 ; See v Arias, 209 AD2d 503 ; Anonymous v Anonymous, 154 Misc 2d 46, 51 ; Dumas v Agency for Child Dev., 569 F Supp 831 ; Graboi v Kibel, 432 F Supp 572 ).

1995Auth., 97 AD2d 808 , affd 62 NY2d 973 ; See v Arias, 209 AD2d 503 ; Anonymous v Anonymous, 154 Misc 2d 46, 51 ; Dumas v Agency for Child Dev., 569 F Supp 831 ; Graboi v Kibel, 432 F Supp 572 ).

1995The Court announced a test which depends less on the proper medical classification of the state of the claimant’s mental health (normal, neurotic, psychotic or, as in this case, "borderline”), and more on a matter of pragmatic assessment of whether the claimant can manage his or her personal affairs (see also, Matter of Cerami v City of Rochester School Dist., 82 NY2d 809; Matter of Mazzilli v City of New York, 115 AD2d 604; Eisenbach v Metropolitan Transp.

1995Auth., 97 AD2d 808 , affd 62 NY2d 973 ; See v Arias, 209 AD2d 503 ; Anonymous v Anonymous, 154 Misc 2d 46, 51 ; Dumas v Agency for Child Dev., 569 F Supp 831 ; Graboi v Kibel, 432 F Supp 572 ).

1992The court announced its rule as follows: " '[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.’ Franks v Delaware (1978), 438 U.S. 154, 155-56 , 98 S.Ct. 2674, 2676 , 57 L.Ed.2d 667, 672 .

1992The court announced its rule as follows: " '[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.’ Franks v Delaware (1978), 438 U.S. 154, 155-56 , 98 S.Ct. 2674, 2676 , 57 L.Ed.2d 667, 672 .

1983(Citing to Humphries v District of Columbia, 174 US 190 .) In Morris (supra, at p 490), the court announced the test for a valid verdict: “[W]hether it ‘* * * was certain, unqualified and unambiguous considering the circumstances of the receipt of the verdict and poll of the jurors relative to their verdict.’ ” (Quoting Cook v United States, 379 F2d 966, 968.) This test is in accord with that used by the Second Department, requiring a finding that “all of the jurors unequivocally expressed their assent” (People v Gottlieb, 44 AD2d 587 , revd on other grounds 36 NY2d 629 ).

1983(Citing to Humphries v District of Columbia, 174 US 190 .) In Morris (supra, at p 490), the court announced the test for a valid verdict: “[W]hether it ‘* * * was certain, unqualified and unambiguous considering the circumstances of the receipt of the verdict and poll of the jurors relative to their verdict.’ ” (Quoting Cook v United States, 379 F2d 966, 968.) This test is in accord with that used by the Second Department, requiring a finding that “all of the jurors unequivocally expressed their assent” (People v Gottlieb, 44 AD2d 587 , revd on other grounds 36 NY2d 629 ).

1983(Citing to Humphries v District of Columbia, 174 US 190 .) In Morris (supra, at p 490), the court announced the test for a valid verdict: “[W]hether it ‘* * * was certain, unqualified and unambiguous considering the circumstances of the receipt of the verdict and poll of the jurors relative to their verdict.’ ” (Quoting Cook v United States, 379 F2d 966, 968.) This test is in accord with that used by the Second Department, requiring a finding that “all of the jurors unequivocally expressed their assent” (People v Gottlieb, 44 AD2d 587 , revd on other grounds 36 NY2d 629 ).

1979That ascertained, they do not trouble themselves about the reason for change.” (To same effect Matter of Brann, 219 NY 263, 268 , supra; see, also, Matter of Ireland, 257 NY 155 ; Matter of Block, 91 Misc 2d 92, 94 .) Although rigid in format, the announced rule is subject to one exception.

1979Changes "in name or form only” do not result in an ademption, said Judge Cardozo in Matter of Brann ( 219 NY 263, 267 , supra).

1979That ascertained, they do not trouble themselves about the reason for change.” (To same effect Matter of Brann, 219 NY 263, 268 , supra; see, also, Matter of Ireland, 257 NY 155 ; Matter of Block, 91 Misc 2d 92, 94 .) Although rigid in format, the announced rule is subject to one exception.

1937In the case of Van Alen v. American National Bank ( 52 N. Y. 1 ) the court announced the rule: “When a trustee deposits trust moneys in his own name in a bank with his individual money, the character of the trust money is not lost but it remains the property of a cestui que trust.

1937In the recent, case of Matter of Hammer ( 237 App. Div. 497, at p. 502 ) the court announced the rule: “ If, however, the decree is based on the theory that the account or deposit with the appellant trust company is but the avails of proceeds of specific property belonging to the estate which the executors and administrators had the right to recover, then the decree is within the jurisdiction of the court.” Upon the facts and law applicable thereto, I think that the court has jurisdiction.

1931In McKeon v. Van Slyck ( 223 N. Y. 392 ) the court announced the rule that claims against estates are required to be proven only by a preponderance of evidence the same as a plaintiff in a civil action, but that a court as a trier of facts in determining whether such a preponderance exists, must keep in mind that the alleged promisor is dead and, therefore, unable to speak.

1930In Hurlburt v. Durant ( 88 N. Y. 121, 122 ) the court announced the rule that “ It seems that when by the terms of a will, an executor also becomes a trustee or a donee of a trust power, powers being .conferred and duties imposed upon him, not as incidents of his office as executor, but as belonging to that of trustee, the trust and executorship are distinguishable and separate, and a separate commission may be allowed for services as trustee to be paid out of the trust fund.” This subject received attention in the case of Ward v. Ford ( 4 Redf. 34 ), in which it was held that double commissio

1930In Hurlburt v. Durant ( 88 N. Y. 121, 122 ) the court announced the rule that “ It seems that when by the terms of a will, an executor also becomes a trustee or a donee of a trust power, powers being .conferred and duties imposed upon him, not as incidents of his office as executor, but as belonging to that of trustee, the trust and executorship are distinguishable and separate, and a separate commission may be allowed for services as trustee to be paid out of the trust fund.” This subject received attention in the case of Ward v. Ford ( 4 Redf. 34 ), in which it was held that double commissio

1925In referring to the Optional City Government Law of 1914 it was said: “ The whole trend of modern thought and recent legislation is toward vesting in each municipality the management of its local affairs.” (Cleveland v. City of Watertown, 222 N. Y. 159 .) And later in Schieffelin v. Hylan ( 236 N. Y. 254 ) the same progressive view was exhibited where the court announced the doctrine that in determining whether an act of a given nature comes within the constitutional definition of a city purpose, courts may and will take notice of widespread opinion and general practice which have come to rega

1925In referring to the Optional City Government Law of 1914 it was said: “ The whole trend of modern thought and recent legislation is toward vesting in each municipality the management of its local affairs.” (Cleveland v. City of Watertown, 222 N. Y. 159 .) And later in Schieffelin v. Hylan ( 236 N. Y. 254 ) the same progressive view was exhibited where the court announced the doctrine that in determining whether an act of a given nature comes within the constitutional definition of a city purpose, courts may and will take notice of widespread opinion and general practice which have come to rega

1905(Freelove v. Cole, 41 Barb. 318 ; affd. on appeal, 41 N. Y. 619 ; Goldsmith v. Goldsmith, 145 id. 313 ; Watkins v. Jones, 78 Hun, 496 ; Bingham v. Sheldon, 101 App. Div. 48 .) In Wood v. Rabe ( 96 N. Y. 414 ) the court announced the principle upon which the doctrine rests in these words: “ When a person through the influence of a confidential relation acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief.” The foregoing authorities support this doctrine.

1905(Freelove v. Cole, 41 Barb. 318 ; affd. on appeal, 41 N. Y. 619 ; Goldsmith v. Goldsmith, 145 id. 313 ; Watkins v. Jones, 78 Hun, 496 ; Bingham v. Sheldon, 101 App. Div. 48 .) In Wood v. Rabe ( 96 N. Y. 414 ) the court announced the principle upon which the doctrine rests in these words: “ When a person through the influence of a confidential relation acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief.” The foregoing authorities support this doctrine.