reiteration rule in New York

1993The Court writes (supra, at 268), "[t]hus, RPAPL 713 merely permits a special proceeding as an additional means of effectuating the removal of nontenants, but it does not replace an owner’s common-law right to oust an interloper without legal process (see, Bliss v Johnson, 73 NY 529 ).” This is merely a reiteration of principle number 3 of Bliss (supra), which was addressed earlier in this opinion.

1993The Court writes (supra, at 268), "[t]hus, RPAPL 713 merely permits a special proceeding as an additional means of effectuating the removal of nontenants, but it does not replace an owner’s common-law right to oust an interloper without legal process (see, Bliss v Johnson, 73 NY 529 ).” This is merely a reiteration of principle number 3 of Bliss (supra), which was addressed earlier in this opinion.

1950The trial court probably had in mind section 1143 of the Civil Practice Act, which, so far as pertinent here, provides: “ The declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced.” (Emphasis supplied.) This statute has been held to apply to contested as well as uncontested actions (Feig v. Feig, 232 App. Div. 172 ; Gabriel v. Gabriel, 274 App. Div. 141 ), and is but the reiteration of a rule which comes to us from the ecclesiastical courts of England, which had jurisdiction in matrimonial matte

1950The trial court probably had in mind section 1143 of the Civil Practice Act, which, so far as pertinent here, provides: “ The declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced.” (Emphasis supplied.) This statute has been held to apply to contested as well as uncontested actions (Feig v. Feig, 232 App. Div. 172 ; Gabriel v. Gabriel, 274 App. Div. 141 ), and is but the reiteration of a rule which comes to us from the ecclesiastical courts of England, which had jurisdiction in matrimonial matte

1950Among the canons ratified at the Convocation of Canterbury in 1603, we find canon 105, providing as follows: “Forasmuch as matrimonial causes have been always reckoned and computed among the weightiest, and therefore require the greater caution * * * we do straitly charge and enjoin, that in all proceedings to divorce and nullities of matrimony, good circumspection and advice be used * * * and that credit be not given to the sole confession of the parties themselves, howsoever taken upon oath, either within or without the court.” (Emphasis supplied.) (Devanbagh v. Devanbagh, 5 Paige 554, 555 ;

1948Authorities cited by the Appellate Division in the Sweet case, other than Hancock v. First National Bank (supra), alone lead to this conclusion.

1948The recent decision in Sweet v. Sweet ( 266 App. Div. 1010 ), as I read it, was not a reiteration of the rule laid down in the Hancock case and the indicated possibility of the unavailability of the witness at the trial was only one of the factors which induced a reversal of the order denying the examination sought.

1940The gift must be made under the apprehension of death from some present disease or some other impending peril * * (Emphasis supplied.) The rule thus stated is a reiteration of the rule stated by the General Term of the Supreme Court in Irish v. Nutting ( 47 Barb. 370, 387 ).

1927The court there held that the defendant insurance company undoubtedly has a right in its own behalf and independent of the rights of the original beneficiary to insist that the provisions of its policy for a change in beneficiary shall be complied with and that it shall not be liable to one who is in fact a stranger through failure to comply with such provisions, and it said: “ While the rights of a beneficiary become vested upon the death of the insured without change * * * they are entirely contingent, uncertain and revocable during the life of the insured.” This was but a reiteration of the

1927(Fink v. Fink, 171 N. Y. 616 .) ” The rights of the beneficiary under these decisions, therefore, become fixed on the death of the insured, and neither the insurance company nor the court can divest the beneficiary of his rights by any act done after the death of the insured.

1906(Lawlor v. Magnolia Metal Co., 2 App. Div. 552 ; Plummer v. International Power Co., 88 id. 452; Esselstyn v. Union Surety & Guaranty Co., 82 id. 474; Miller v. Miller, 108 id. 310.) If the foregoing views be correct, then the order appealed from should be modified, so as to provide that the motion to discharge the attachment be granted upon payment of the sheriff’s fees (the amount of such fees, unless agreed upon, to be taxed upon notice), and as thus modified the same should be affirmed, with ten dollars costs and disbursements to the appellant.

1904The case of Moore v. Metropolitan, National Bank ( 55 N. Y. 41 ) has been and is now recognized as an authority, and the plain holding of that case is that “ A Toona fide purchaser for value of a non-negotiable chose in action from one upon whom the owner has, by assignment, conferred the apparent absolute ownership, where the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner, who is estopped from asserting a title in hostility thereto.” The holding in this case was not the enunciation of a new doctrine, but it was a reiteration of the

1901We think at least the doctrine stated by Judge Cullen in Fealey v. Bull (supra), and which is but a reiteration of the rule which has prevailed for more than fifty years, is still in force, to wit, that “ there must be not only some evidence, but the evidence must be sufficient in its nature to warrant the court in submitting a cause to the jui’y.” and that “ the testimony of a witness may be in such contradiction of matters of common knowledge or the laws of nature as to be incredible as a matter of law,” and that whether the evidence is “ sufficient in its nature,” or so in “ contradiction ”

1877This is but a reiteration of the rule laid down in Corcoran v. Holbrook ( 59 N. Y., 517 ); in Flike v. Boston and Albany Railroad Company 53 id., 549 ), and in Laning v. New York Central Railroad Company (49 id., 521 ); and it was also declared, in Corcoran v. Holbrook , that the rule was applicable as well to individuals as to corporations.

1877This is but a reiteration of the rule laid down in Corcoran v. Holbrook ( 59 N. Y., 517 ); in Flike v. Boston and Albany Railroad Company 53 id., 549 ), and in Laning v. New York Central Railroad Company (49 id., 521 ); and it was also declared, in Corcoran v. Holbrook , that the rule was applicable as well to individuals as to corporations.

1874This was in effect a reiteration of the doctrine laid down by the chancellor in Livingston v. Mayor, &c., of New York ( 8 Wend. 85 ),' namely, that the provision of the constitution rela tive to the right of trial by jury, relates to the trial by courts of justice of issues of fact in civil and criminal proceedings ; that it has no relation to cases involving the taking of laud for purposes of public improvement;. and that although. damages in the class of cases last mentioned have frequently been ascertained by the oaths of twelve freeholders, that fact did not constitute the said proceedings

1873Jac., 281; 2 Modern, 36; 6 Blackf., 161 ; 7 Watts, 360 ; 2 Munf., 337 .

1873These cases contain but the reiteration of the rule laid down in others cited in 3 N. Y., 264 ; Cro.

1849In Sherman v. Crosby, ( 11 John. 70 ,) what was apparently the separate debt of one defendant was offered to be set off against the joint debt of both.