difficulty principle in New York

1985Other justifications include the difficulty of warning each ultimate user of the drug (see, e.g., Terhune v Robins Co., 90 Wn 2d 9, 14, 577 P2d 975 [1978]), and the potential interference within the doctor/patient relationship (see, Dunkin v Syntex Labs., 443 F Supp 121, 123 [WD Tenn 1977]), as well as the fear that detailed warnings to patients could mislead them.

1977Finally, in Hopt v Utah (supra, p 440 ), Justice Field concluded: "The difficulty with this instruction is, that the words 'to a reasonable and moral certainty’ add nothing to the words 'beyond a reasonable doubt;’ one may require explanation as much as the other.” "A court’s charge is not like a corporate indenture, able to be studied at leisure, valid if all technical recitals are to be found within its four corners.

1977Rather, it is a means to guide laymen, in plain and practical fashion, in the discharge of a solemn responsibility.” (People v Lupo, 305 NY 448, 452 .) I find that the requested charge would not assist the jury in its deliberations, but rather, would only tend to confuse them by adding a further improper element.

1973(People v. Molineaux, 168 N. Y. 264 .) The difficulty in applying the exception to the facts in this ease is that the complainant testified that she did not observe defendant during the actual rape; only before and after it was committed.

1947(Myer v. Myer, 271 App. Div. 465 , 476; Gottfried v. Gottfried, 269 App. Div. 413, 416 .) The difficulty with applying this principle to the complaint in this case is that the first cause of action is vague as to the dates when the various acts complained of occurred.

1939The language of this particular will which causes the difficulty is the clause “ or if either of them shall not live to become entitled to said legacy, the six-sevenths to go to the survivor.” There appears to be a dearth of precedent in this State as to the interpretation of the word “ entitled ” or the phrase “ become entitled to.” Matter of Weaver ( 253 App. Div. 24 ; affd., 278 N. Y. 605 ), cited by counsel for the estate of Laura Jay Wells in support of the contention that the remainder vested at the death of the testatrix, is not in point here.

1939The language of this particular will which causes the difficulty is the clause “ or if either of them shall not live to become entitled to said legacy, the six-sevenths to go to the survivor.” There appears to be a dearth of precedent in this State as to the interpretation of the word “ entitled ” or the phrase “ become entitled to.” Matter of Weaver ( 253 App. Div. 24 ; affd., 278 N. Y. 605 ), cited by counsel for the estate of Laura Jay Wells in support of the contention that the remainder vested at the death of the testatrix, is not in point here.

1928(Griffen v. Manice, 166 N. Y. 188 ; Slater v. Barnes, 241 N. Y. 284 ; Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488 ; Sullivan v. Minneapolis Street Railway Co., 161 *239 Minn. 45; Sylvia v. Newport Gaslight Co., 124 Atl.

1928(Griffen v. Manice, 166 N. Y. 188 ; Slater v. Barnes, 241 N. Y. 284 ; Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488 ; Sullivan v. Minneapolis Street Railway Co., 161 *239 Minn. 45; Sylvia v. Newport Gaslight Co., 124 Atl.

1928(Griffen v. Manice, 166 N. Y. 188 ; Slater v. Barnes, 241 N. Y. 284 ; Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488 ; Sullivan v. Minneapolis Street Railway Co., 161 *239 Minn. 45; Sylvia v. Newport Gaslight Co., 124 Atl.

1928(Griffen v. Manice, 166 N. Y. 188 ; Slater v. Barnes, 241 N. Y. 284 ; Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488 ; Sullivan v. Minneapolis Street Railway Co., 161 *239 Minn. 45; Sylvia v. Newport Gaslight Co., 124 Atl.

1924(Knickerbocker Life Insurance Co. v. Pendleton, 112 U. S. 696 ; Royal Insurance Co. v. Martin, 192 id. 149.) The difficulty is that no waiver was alleged in the complaint; on the contrary, full compliance with all the conditions of the policy was alleged.

1912Co., 134 Cal. 549 .) The learned trial justice evidently realized the difficulty of applying the rule of res ipsa loquitur to the case at bar, for after he had charged that it was applicable he proceeded to instruct the jury as to the measure of defendant’s duty and responsibility as follows: “The question, then, for you to answer is this: Whether or not the chimney which was constructed had a defect which this defendant ought to have realized and knew was a dangerous defect in using reasonable care and judgment as a contractor.

1896The case of Corning v. Troy Iron & Nail Factory ( 40 N. Y. 191 ), relied upon by the-appellants, was an action to obtain a perpetual injunction, restraining the defendant from diverting the waters of a. stream along the lands of the plaintiffs, and the question being as to the legal rights of the parties, ■ it was held that the-defendant had acquired no right to divert the,water.

1875In such a case it is well settled that an action to vacate an assessment and remove it as a cloud upon title, cannot be maintained, (Scott v. Onderdonk, 14 N. Y., 9 ; Heywood v. City of Buffalo, id., 538; Hatch v. City of Buffalo, 38 id., 276 ; Allen v. City of Buffalo, 39 id., 386 ; Croohe v. Andrews, 40 id., 547.) *493 Hence I can see no grounds, upon any facts stated in the complaint, for the equitable relief demanded.

1873In 39 N. Y., supra, the court decided that a corporation was liable if negligence causing an injury to a subordinate servant could be imputed to the directors, but did not establish any definite rule on the subject.

1832In the case °f Smith v. Cheetham, 3 Caines, 57 , no doubt was entertained by the court as to the competency of the confessions or admissions of the jury, if their own affidavits were admissible, and the only difficulty was the rule which rejected the evidence of the jurors themselves to impeach their verdict.