burden of proof rule in New York

1950Opposition is registered upon the ground that the action herein sounds in tort, and that although the burden of proof rule, formerly the general rule in this department, was relaxed by the decision in Dorros, Inc., v. Dorros Bros. ( 274 App. Div. 11 ), as the action herein sounds in tort, this liberality has not been applied to actions sounding in tort.

1949In view of the recent decision of the Appellate Division in this department in Dorros, Inc., v. Dorros Bros., Inc. ( 274 App. Div. 11 ) which rendered obsolete the burden of proof rule generally applied in this department, there appears to be no good reason for denying an examination before trial in an arbitration proceeding as to matters which are clearly material and necessary to the issues before the arbitrator.

1994The defendant’s challenge to the jury instructions is unpreserved for appellate review (see, CPL 470.05 [2]; People v Contes, 60 NY2d 620, 621 , supra), and, in any event, is without merit, since the charge as a whole properly instructed the jury regarding the burden of proof and presumption of innocence (see, People v Coleman, 70 NY2d 817 ; People v Jones, 173 AD2d 487 ).

1994The defendant’s challenge to the jury instructions is unpreserved for appellate review (see, CPL 470.05 [2]; People v Contes, 60 NY2d 620, 621 , supra), and, in any event, is without merit, since the charge as a whole properly instructed the jury regarding the burden of proof and presumption of innocence (see, People v Coleman, 70 NY2d 817 ; People v Jones, 173 AD2d 487 ).

1994The defendant’s challenge to the jury instructions is unpreserved for appellate review (see, CPL 470.05 [2]; People v Contes, 60 NY2d 620, 621 , supra), and, in any event, is without merit, since the charge as a whole properly instructed the jury regarding the burden of proof and presumption of innocence (see, People v Coleman, 70 NY2d 817 ; People v Jones, 173 AD2d 487 ).

1983The trial court, in charging the jury that “the recent and exclusive possession of the fruits of crime if unexplained or falsely explained, will justify the inference that the possessor is the criminal”, did not improperly shift the burden of proof in violation of the constitutional standards set forth in Barnes v United States ( 412 US 837 ).

1982The burden of proof of immunity is on the claimant (Cocron v Cocron, 84 Misc 2d 335, 338, 340 ) and a determination of whether or not that immunity attaches “lies within the province of the court(s) * * * on the basis of the facts properly before it” (Shamsee v Shamsee, 74 AD2d 357, 360 ).

1975Assn. v. Murtagh, 274 App. Div. 591 ), where the subpoenas are broad and sweeping, there must be some showing upon petitioner’s part that the documents sought bear some reasonable relationship to the matters under inquiry.

1964It should suffice, within the principles and the corollary rule elaborated in the Fiannaca case ( 306 N. Y. 513 , supra) to meet the burden of going forward, as distinguished from the burden of proof, that the surety, by an affidavit of a person knowing the facts, establish them prima facie.

1962Co. v. Universal Broadcasting Corp. ( 205 Ark. 115 ), a case cited in my original opinion.

1961This court recognized that the decision of the Appellate Division set forth the law in this Judicial Department, and it applied the rule laid down in Matter of Weisberg (supra) in the following cases: Matter of Ludlam (154 N. Y.

1960Acc. Assn., 247 App. Div. 352, 353 ; First Trust & Deposit Co. v. Dent, 263 App. Div. 1058 ; see cases cited in Thorp v. Pittsburgh Bicentennial Assn., 22 Misc 2d 233, 234-235 ).

1960Acc. Assn., 247 App. Div. 352, 353 ; First Trust & Deposit Co. v. Dent, 263 App. Div. 1058 ; see cases cited in Thorp v. Pittsburgh Bicentennial Assn., 22 Misc 2d 233, 234-235 ).

1960Or the trial court may be relegated to reliance, in determining the case, upon the doctrine of the burden of proof — which, in its classic application, is of no moment on a motion for summary judgment (cf. Curry v. Mackenzie, 239 N. Y. 267, 271-272 ; Connor v. Commercial Travelers Mut.

1958Statements, written or oral, by defendants regarding plaintiff’s alleged pro-communism, or his tendencies in that direction, may also be inquired into, even if they were made after the publication of the alleged libels, for they are relevant on the issue of malice (Taylor v. Friedman, 214 App. Div. 198 ; Kaminsky v. American Newspapers, 258 App. Div. 1078 , affd. 283 N. Y. 748 ).

1958Statements, written or oral, by defendants regarding plaintiff’s alleged pro-communism, or his tendencies in that direction, may also be inquired into, even if they were made after the publication of the alleged libels, for they are relevant on the issue of malice (Taylor v. Friedman, 214 App. Div. 198 ; Kaminsky v. American Newspapers, 258 App. Div. 1078 , affd. 283 N. Y. 748 ).

1958Statements, written or oral, by defendants regarding plaintiff’s alleged pro-communism, or his tendencies in that direction, may also be inquired into, even if they were made after the publication of the alleged libels, for they are relevant on the issue of malice (Taylor v. Friedman, 214 App. Div. 198 ; Kaminsky v. American Newspapers, 258 App. Div. 1078 , affd. 283 N. Y. 748 ).

1953These views are confirmed by the decisions of the Appellate Division of this department in Tausik v. Tausik ( 280 App. Div. 887 ), and Field v. Field ( 281 App. Div. 657 ), decided after the effective date of the rule, in which the Appellate Division in this department held that general examinations before trial in matrimonial actions will not be permitted as a matter of policy in the absence of special circumstances.

1953These views are confirmed by the decisions of the Appellate Division of this department in Tausik v. Tausik ( 280 App. Div. 887 ), and Field v. Field ( 281 App. Div. 657 ), decided after the effective date of the rule, in which the Appellate Division in this department held that general examinations before trial in matrimonial actions will not be permitted as a matter of policy in the absence of special circumstances.