defendant to establish defense in New York

1999The key to deciding this precise issue is the fact-specific balancing assessment promulgated in Cirale , which the Appellate Division failed to perform with its matter-of-law elimination of the privilege (compare, Brady v Ottaway Newspapers, 63 NY2d 1031 ).

1986The enactment of CPLR article 14-A placed no greater burden on a defendant to establish the defense of assumption of risk than was present prior to the amendment (see, Maddox v City of New York, 66 NY2d 270 ).

1983A parent’s interest in maintaining custody and care of his or her children has been given constitutional recognition (Stanley v Illinois, 405 US 645 ) as has the child’s interest in the care provided by the family relationship (see Drollinger v Milligan, 552 F2d 1220, 1225-1226).

1983Plaintiff need not plead or prove bad faith; it is for the defendant to establish immunity by evidence of good faith (see Gomez v Toledo, supra, at pp 635-636 ).

1980Such a shift in burden of proof is precisely what the Supreme Court of the United States has struck down (Mullaney v Wilbur, 421 US 684 ; Matter of Winship, 397 US 358 .) The Appellate Division correctly reversed defendant’s convictions for the reasons stated by that court, and its orders should therefore be affirmed.

1980Such a shift in burden of proof is precisely what the Supreme Court of the United States has struck down (Mullaney v Wilbur, 421 US 684 ; Matter of Winship, 397 US 358 .) The Appellate Division correctly reversed defendant’s convictions for the reasons stated by that court, and its orders should therefore be affirmed.

1976The Court of Appeals in People v Patterson ( 39 NY2d 288 ) has held such statutory provisions to be constitutional.

1974Judge Bower felt that the well-established common-law presumption of sanity was sufficient to place the burden on the defendant to establish the defense affirmatively but only by a preponderance of the evidence — on the theory that the beyond-a-reasonable-doubt standard was intended for the defendant’s protection and should only bind the prosecutor (People v. McCann, supra, at p. 59 et seq.).

1969(See, also, Sherman v. United States, 356 U. S. 369 .) The revised Penal Law of New York now provides for an affirmative defense of entrapment (§ 40.05) with the burden placed on the defendant to establish the defense by a preponderance of the evidence (§ 25.00).

1960(Best Renting Co. v. City of New York, 248 N. Y. 491 ; Smith v. Dayton, 253 App. Div. 899 ; Merritt v. Smith, 50 App. Div. 349 ; Finch Pruyn & Co. v. People, 181 Misc. 122 , supra.) It has not met this burden.

1960(Best Renting Co. v. City of New York, 248 N. Y. 491 ; Smith v. Dayton, 253 App. Div. 899 ; Merritt v. Smith, 50 App. Div. 349 ; Finch Pruyn & Co. v. People, 181 Misc. 122 , supra.) It has not met this burden.

1960(Best Renting Co. v. City of New York, 248 N. Y. 491 ; Smith v. Dayton, 253 App. Div. 899 ; Merritt v. Smith, 50 App. Div. 349 ; Finch Pruyn & Co. v. People, 181 Misc. 122 , supra.) It has not met this burden.

1960(Best Renting Co. v. City of New York, 248 N. Y. 491 ; Smith v. Dayton, 253 App. Div. 899 ; Merritt v. Smith, 50 App. Div. 349 ; Finch Pruyn & Co. v. People, 181 Misc. 122 , supra.) It has not met this burden.

1934Co., 167 N. Y. 178 .) “ The general rule of pleading, which also accords with reason, is that defenses which assume or admit the original cause of action alleged, but are based upon subsequent facts or transactions which go to qualify or defeat it, must be pleaded and proved by the defendant.” (Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45, 50 .) In actions against mutual benefit associations on certificates where the defense of failure to pay an assessment is pleaded, the burden of proof is on the defendant to establish such defense by a fair preponderance of the evidence.

1934Co., 167 N. Y. 178 .) “ The general rule of pleading, which also accords with reason, is that defenses which assume or admit the original cause of action alleged, but are based upon subsequent facts or transactions which go to qualify or defeat it, must be pleaded and proved by the defendant.” (Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45, 50 .) In actions against mutual benefit associations on certificates where the defense of failure to pay an assessment is pleaded, the burden of proof is on the defendant to establish such defense by a fair preponderance of the evidence.

1913(White v. Benjamin, 138 N. Y. 623 .) “A corrupt and usurious agreement will not be presumed from a fact, which is equally consistent with a lawful purpose.” (Valentine v. Conner, 40 N. Y. 253 .) The evidence shows that a representative of the plaintiff talked with the defendant as to the possibility of his obtaining discounts from the claimants when he paid cash to satisfy their claims, and that he also informed the defendant when he had done so, and that she expressed her satisfaction.