salutary rule in New York

1959(Williston on Contracts, vol. 2, § 677; Dolan v. Rodgers, 149 N. Y. 489 ; Matter of Casualty Co. [Bliss Co. Claim], 250 N. Y. 410, 419 .) ‘ It is a well-settled and salutary rule that a party cannot insist upon a condition precedent, when its non-performance has been caused by himself.’ (Young v. Hunter, 6 N. Y. 203 .). ‘ It is as effective an excuse of performance of a condition that the promisor has hindered performance as that he has actually prevented it. ’ (Williston on Contracts, vol. 2, § 677.) ” The second cause of action against the corporate defendant and its officers realleges the c

1956(Williston on Contracts, vol. 2, § 677; Dolan v. Rodgers, 149 N. Y. 489 ; Matter of Casualty Co. [Bliss Co. Claim], 250 N. Y. 410, 419 .) ‘ It is a well-settled and salutary rule that a party cannot insist upon a condition precedent, when its nonperformance has been caused by himself.’ (Young v. Hunter, 6 N. Y. 203 .) (Emphasis supplied.) ‘ It is as effective an excuse of performance of a condition that the promisor has hindered performance as that he has actually prevented it.’ (Williston on Contracts, vol. 2, § 677.) The American Law Institute, in its ‘ Restatement of the Law of Contracts ’

1959(Williston on Contracts, vol. 2, § 677; Dolan v. Rodgers, 149 N. Y. 489 ; Matter of Casualty Co. [Bliss Co. Claim], 250 N. Y. 410, 419 .) ‘ It is a well-settled and salutary rule that a party cannot insist upon a condition precedent, when its non-performance has been caused by himself.’ (Young v. Hunter, 6 N. Y. 203 .). ‘ It is as effective an excuse of performance of a condition that the promisor has hindered performance as that he has actually prevented it. ’ (Williston on Contracts, vol. 2, § 677.) ” The second cause of action against the corporate defendant and its officers realleges the c

1956(Williston on Contracts, vol. 2, § 677; Dolan v. Rodgers, 149 N. Y. 489 ; Matter of Casualty Co. [Bliss Co. Claim], 250 N. Y. 410, 419 .) ‘ It is a well-settled and salutary rule that a party cannot insist upon a condition precedent, when its nonperformance has been caused by himself.’ (Young v. Hunter, 6 N. Y. 203 .) (Emphasis supplied.) ‘ It is as effective an excuse of performance of a condition that the promisor has hindered performance as that he has actually prevented it.’ (Williston on Contracts, vol. 2, § 677.) The American Law Institute, in its ‘ Restatement of the Law of Contracts ’

1990(People v Consolazio, 40 NY2d 446, 453 .) The purpose of this salutary rule is to "afford the defendant a fair opportunity to cross-examine the People’s witnesses at trial”.

1990(People v Jones, 70 NY2d 547, 550 .) Thus, for example, in People v Consolazio ( 40 NY2d 446, 454 ), the court "rejected] arguments that consideration of the significance of the content or substance of a witness’ prior statements can result in a finding of harmless error” (see also, People v Jones, supra, at 551; People v Novoa, 70 NY2d 490, 499 ), and in People v Perez ( 65 NY2d 154 , 158- 159) the claim that the witness’ statements to private parties were not Rosario material, was likewise rejected.

1990(People v Poole, 48 NY2d 144, 149 .) However, application of the Rosario rule is always subject to "common sense limits”.

1990In the 29 years since this salutary rule was established to "afford the defendant a fair opportunity to cross-examine the People’s witnesses at trial” (People v Poole, 48 NY2d 144, 149 ), our courts have consistently adhered to, and refined, the "fundamental objective underlying Rosario”.

1958(See, e.g., Matter of Rothman, 263 N. Y. 31 ; Matter of Kalthoff, 298 N. Y. 458 .) Under the facts disclosed by this record- we think the appointment of a stranger was contrary to the established law of this State.

1937(Matter of Rothman, 263 N. Y. 31 ; Matter of Foster, 254 id. 614; Matter of Dietz, 247 App. Div. 366 ; Matter of Cooper, 105 id. 449 ; Matter of Lamoree, 32 Barb. 122 .) This has long been acknowledged as a salutary rule, and there should be no departure from the practice, except for a good and valid reason.

1908It is quite essential that this rule should be strengthened rather than relaxed. - The case of Barton v. Speis ( 73 N. Y. 133 ) clearly recognizes the existence of the power in this court to compel the payment of these costs.

1904The court has inherent power to require the payment of costs (Barton v. Speis, 73 N. Y. 133 ) and to impose reasonable conditions for favors it is asked tp grant: This salutary rule has recently been announced by this court in Hunt v. Sullivan (supra) in this language of the present presiding justice: “ Independently of the requirements of the Code a due exercise of the discretion vested in the court wmuld dictate genera ally that a litigant should be required to pay the costs of an unsuccessful motion before being heard in renewal.” The doctrine is not new.

1879Co., 53 N.Y., 574 ; In the Matter of the City of Buffalo, 68 id., 168; In the Matter of Water Commissioners, 66 id., 413.) This salutary rule, however, has never been carried to the extent of holding that streets and avenues included within the land sought to be condemned, are so far appropriated to public use that no authority can be conferred to obtain any right to use the same for railroad purposes.

1879Co., 53 N. Y., 574 ; In the Matter of the City of Buffalo, 68 id., 168; In the Matter of Water Commissioners, 66 id., 413.) This salutary rule, however, has never been carried to the extent of holding that streets and avenues included within the land sought to be condemned, are so far appropriated to public use that no authority can be conferred to obtain any right to use the same for railroad purposes.

1854Work, ( 2 Binn. 582 ,) Rush says,“ it is laid down as a general principle, and is said to be an established rule, not to grant a new trial on account of evidence discovered after the trial, which, by using due diligence, might have been discovered before, or which it was in his power to have been furnished with.” I most fully concur with this salutary rule.

1854Parsons in Bond v. Cutler ( 7 Mass. R. 205 ,) says: “ Want of recollection of a fact which, by due attention, might have been remembered can not be a reasonable ground for granting a new trial; for want of recollection may always be pretended and may be hard .to be disproved.” In Knox v. Work ( 2 Binn. 582) Rush says: “ It is laid down as a general principle, and is said to be an established rule, not to grant a new trial on account of evidence discovered after the trial, which by using due diligence, might have been discovered before, or which it was in his power to have been furnished with.”

2024"The general rule is, as it has been frequently stated, that a party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition." Kooleraire Serv. & Installation Corp. v. Bd. of Ed. of City of New York , 268 N.E.2d 782 (NY 1971); see also Young v. Hunter , 6 NY 203 (1852) ("It is a well settled and salutary rule that a party cannot insist upon a condition precedent, when its non-performance has been caused by himself.").

1990By its order, the Surrogate’s Court awarded or confirmed the following interim fees and disbursements: [[Image here]] The Epstein Firm Award: Although the Surrogate’s Court gave recognition in its decision to the principle that executorial services were not to be billed as legal services (citing Matter of Hallock, 214 App Div 323 ), this salutary rule was not applied with appropriate rigor when interim fees of $451,000 were disbursed to the Epstein firm for services it rendered from decedent’s death to September 1, 1986.

1990(People v Jones, 70 NY2d 547, 550 .) Thus, for example, in People v Consolazio ( 40 NY2d 446, 454 ), the court "rejected] arguments that consideration of the significance of the content or substance of a witness’ prior statements can result in a finding of harmless error” (see also, People v Jones, supra, at 551; People v Novoa, 70 NY2d 490, 499 ), and in People v Perez ( 65 NY2d 154 , 158- 159) the claim that the witness’ statements to private parties were not Rosario material, was likewise rejected.

1989She was not required to take "energetic steps to intervene” in the absence of any notice that the infant plaintiff was engaged in dangerous play (Lawes v Board of Educ., 16 NY2d 302, 305 , supra).

1989Here, the teacher, who had notice that the rule forbidding sleigh riding during school hours was being violated, made reasonable efforts to enforce the salutary rule enacted to prevent classroom distractions by waving the infant plaintiff and his companions off the slope and closing the blinds of her classroom window (cf., Germond v Board of Educ., 10 AD2d 139 ).

1984In any event, since this issue was not advanced earlier and there is no showing that any creditor was prejudiced, the interest of justice does not require an exception to the salutary rule which prohibits the raising on appeal of an issue which was not presented below (Antinelli v Toner, 74 AD2d 996, 997 ).

1982To extend the independent source or the inevitable discovery exceptions to such cases would be to vitiate the salutary requirement that, absent exigent circumstances, although the police have probable cause, they must nonetheless obtain a warrant prior to search and seizure (United States v Allard, 634 F2d 1182, 1186-1187, supra; United States v Griffin, 502 F2d 959, 961, cert den 419 US 1050 , supra; State v Ramos, 405 So 2d 1001, 1003 [Fla], supra). 3 For the reasons stated, I would affirm the order of the Appellate Division.

1979While there appears to be some authority supportive of this contention (Matter of City of New York v Christensen, 30 AD2d 700 , aifd 24 NY2d 1002 ), we are of the view that the better and more salutary rule is articulated in Reifke v State of New York ( 31 AD2d 67, 68 , aifd 26 NY2d 859 ).

1979While there appears to be some authority supportive of this contention (Matter of City of New York v Christensen, 30 AD2d 700 , aifd 24 NY2d 1002 ), we are of the view that the better and more salutary rule is articulated in Reifke v State of New York ( 31 AD2d 67, 68 , aifd 26 NY2d 859 ).

1979This salutary principle, * however, may not be employed to bar a prosecutor’s attack on the truth of an alibi so long as it is not done in such manner as to imply that the witness had a duty to go to the police or other authorities promptly and reveal the alibi (People v Brown, 62 AD2d 715 ; and see People v Colarco, 68 AD2d 430 ; People v Keller, 67 AD2d 153, 161-162 ; People v Maschi, 65 AD2d 405 , dissenting opn by Silver-man, J., pp 412-413).

1979This salutary principle, * however, may not be employed to bar a prosecutor’s attack on the truth of an alibi so long as it is not done in such manner as to imply that the witness had a duty to go to the police or other authorities promptly and reveal the alibi (People v Brown, 62 AD2d 715 ; and see People v Colarco, 68 AD2d 430 ; People v Keller, 67 AD2d 153, 161-162 ; People v Maschi, 65 AD2d 405 , dissenting opn by Silver-man, J., pp 412-413).

1979This salutary principle, * however, may not be employed to bar a prosecutor’s attack on the truth of an alibi so long as it is not done in such manner as to imply that the witness had a duty to go to the police or other authorities promptly and reveal the alibi (People v Brown, 62 AD2d 715 ; and see People v Colarco, 68 AD2d 430 ; People v Keller, 67 AD2d 153, 161-162 ; People v Maschi, 65 AD2d 405 , dissenting opn by Silver-man, J., pp 412-413).

1979This salutary principle, * however, may not be employed to bar a prosecutor’s attack on the truth of an alibi so long as it is not done in such manner as to imply that the witness had a duty to go to the police or other authorities promptly and reveal the alibi (People v Brown, 62 AD2d 715 ; and see People v Colarco, 68 AD2d 430 ; People v Keller, 67 AD2d 153, 161-162 ; People v Maschi, 65 AD2d 405 , dissenting opn by Silver-man, J., pp 412-413).

1979While there appears to be some authority supportive of this contention (Matter of City of New York v Christensen, 30 AD2d 700 , aifd 24 NY2d 1002 ), we are of the view that the better and more salutary rule is articulated in Reifke v State of New York ( 31 AD2d 67, 68 , aifd 26 NY2d 859 ).

1979While there appears to be some authority supportive of this contention (Matter of City of New York v Christensen, 30 AD2d 700 , aifd 24 NY2d 1002 ), we are of the view that the better and more salutary rule is articulated in Reifke v State of New York ( 31 AD2d 67, 68 , aifd 26 NY2d 859 ).

1977As Justice MAHONEY observed in the course of his dissent at the Appellate Division in the present case, "it is difficult to perceive how the goal of protecting our highest administrative, judicial and legislative officials from undue harassment is advanced by extending the salutary doctrine of absolute privilege to all presidents of public colleges" ( 53 AD2d 368, 373 ).

1977As Justice Mahoney observed in the course of his dissent at the Appellate Division in the present case, "it is difficult to perceive how the goal of protecting our highest administrative, judicial and legislative officials from undue harassment is advanced by extending the salutary doctrine of absolute privilege tp all presidents of public colleges” ( 53 AD2d 368, 373 ).

1977Certainly this is a salutary rule since (1) producing the fur coat or jewelry in court adds not one whit to the proof of theft unless value is in issue and that could be testified to by an expert who had previously examined the articles; and (2) owners of the item ought to receive back their possessions expeditiously, there being little point in the article languishing in the prosecutor’s vaults month after month.” In People v Fonville ( 72 Misc 2d 785 ), the defendant was charged with larceny of a wooden jewelry box from a store.

1977Co. ( 30 NY2d 143 ).