correctness rule in New York

1927(Donovan v. Weed, 182 N. Y. 43, 46 .) In the case now before us it is conceded that the plaintiffs did not bring the vendor and purchaser to an agreement as to terms, and yet the plaintiffs have a judgment for the full amount of their claim.

1926(Do novan v. Weed, 182 N. Y. 43, 46 .) The proposed purchaser never met the defendant.

1927In that case the court, Mr. Justice Woodward writing, summarized the rule to which reference had been made, and also the facts to which in that case they applied that rule, as follows: “ In Sibbald v. Bethlehem Iron Co. ( 83 N. Y. 378 ) it was laid down as a fundamental and correct doctrine ‘ that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue/ and the authority of this case, or the correctness of the rule deduced, has neve

1926This has never occurred and the defendant was, therefore, within his rights in rescinding the contract, as by its terms he was permitted" to do.” In Sibbald v. Bethlehem Iron Co. ( 83 N. Y. 378 ) it was held that “ the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue; ” and the authority of that case, or the correctness of the rule deduced, has never been questioned.

1939The United States Supreme Court has said: “ We must not be understood as conceding the correctness of the doctrine by which a mimicipal corporation, as to the discharge of its administrative duties, is treated as having two distinct capacities, the one private or corporate, and the other governmental or sovereign, in which latter it may inflict a direct and positive wrong upon the person or property of a citizen without power in the courts to afford redress for such wrong.” (Workman v. City of New York, 179 U. S. 552, 574 .) The present tendency is against the rule of non-liability.

1931The United States Supreme Court has said: “ We must not be understood as conceding the correctness of the doctrine by which a municipal corporation, as to the discharge of its administrative duties, is treated as having two distinct capacities, the one private or corporate, and the other governmental or sovereign, in which latter it may inflict a direct and positive wrong upon the person or property of a citizen without power in the courts to afford redress for such wrong.” (Workman v. City of New York, 179 U. S. 552, 574 .) The modern tendency is against the rule of non-liability.

1896Nothing is said in the opinion in Lane v. Town of Hancock ( 142 N. Y. 510 ) that conflicts with the views thus expressed in Bullock v. Town of Durham (supra).

1896Nothing is said in the opinion in Lane v. Town of Hancock, 142 N. Y. 510 , 37 N. E. 473 , that conflicts with the views thus expressed in Bullock v. Town of Durham.

1894In 1830 we find the same assumption in the opinion of Marcy, J., in the celebrated case of People v. Mather, 4 Wend. 229 , arising oxit of the alleged abduction of William Morgan.

1894In 1830, we find the same assumption in the opinion of Marcy, J., in the celebrated case of the People v. Mather, 4 Wend. 229 , arising out of the alleged abduction of William Morgan.

1871Allen, J., after referring to the case of Waldron v. Jenkins, supra, and the authorities upon which it is founded, remarks: u But inspectors of election were not distinguished from any other officers who are not judges or 6 anything like judges,’ ” thus questioning the correctness of the doctrine laid down.

1871Allen, J., after referring to the case of Waldron v. Jenkins, supra, and the authorities upon which it is founded, remarks: u But inspectors of election were not distinguished from any other officers who are not judges or 6 anything like judges,’ ” thus questioning the correctness of the doctrine laid down.

1988Finally, the hearing court’s decision not to recuse itself from the suppression hearing because of its participation in the defendant’s competency hearing was not an improvident exercise of discretion (see, People v Moreno, 70 NY2d 403 ).

1987(People v Carmine A., 53 NY2d 816, 818 ; People v Dean, 47 NY2d 967 ; People v Clark, 45 NY2d 432 .) Although it is, and should be, done rarely, I think there are circumstances in which ah intermediate appellate Judge, without any disrespect to the Court of Appeals, may appropriately invite that court to reconsider the correctness of a rule it enunciated.

1987(People v Carmine A., 53 NY2d 816, 818 ; People v Dean, 47 NY2d 967 ; People v Clark, 45 NY2d 432 .) Although it is, and should be, done rarely, I think there are circumstances in which ah intermediate appellate Judge, without any disrespect to the Court of Appeals, may appropriately invite that court to reconsider the correctness of a rule it enunciated.

1987(People v Carmine A., 53 NY2d 816, 818 ; People v Dean, 47 NY2d 967 ; People v Clark, 45 NY2d 432 .) Although it is, and should be, done rarely, I think there are circumstances in which ah intermediate appellate Judge, without any disrespect to the Court of Appeals, may appropriately invite that court to reconsider the correctness of a rule it enunciated.

1962This rule was reaffirmed in Haase v. Schneider ( 112 App. Div. 336 [2d Dept.]) wherein the court pointed out that mere agreement as to the price is insufficient, and specified, as one of the additional elements necessary, agreement as to the time of taking title.

1949That doctrine finds support in many authorities (Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 134 N. Y. 461 ; Phœnix Bridge Co. v. Creem, 102 App. Div. 354 , affd. 185 N. Y. 580 ; Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214 ; Schwartz v. Merola Bros.

1949That doctrine finds support in many authorities (Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 134 N. Y. 461 ; Phœnix Bridge Co. v. Creem, 102 App. Div. 354 , affd. 185 N. Y. 580 ; Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214 ; Schwartz v. Merola Bros.

1949That doctrine finds support in many authorities (Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 134 N. Y. 461 ; Phœnix Bridge Co. v. Creem, 102 App. Div. 354 , affd. 185 N. Y. 580 ; Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214 ; Schwartz v. Merola Bros.

1949That doctrine finds support in many authorities (Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 134 N. Y. 461 ; Phœnix Bridge Co. v. Creem, 102 App. Div. 354 , affd. 185 N. Y. 580 ; Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214 ; Schwartz v. Merola Bros.

1945Knowing that the law now permits the assessment of property of this character, on or before grievance day it would have a full opportunity to apprise the assessors of the correctness or error of their computations and estimates, so that in “ such circumstances the chance of confusion becomes negligible.” (McCoun v. Pierpont, supra, p. 70 .) Nothing in the description used by the assessors would either deceive or mislead “ a diligent taxpayer, anxious, in good faith, to identify ” its property.

1945(McCoun v. Pierpont, supra, pp. 69-70 ; Blum v. Nassau P. & B.

1933(Miller v. State, 229 App. Div. 423 .) They have held, however, that since some part has been taken, damages for the closing may be recovered.

1931Supp. 798, 804, 805 .) (See, also, Robertson v. De Brulatour, 188 N. Y. 301, 305, 306 .) An additional indication of the correctness of the rule contained in these cases arises from the application of the familiar maxim, noscitur a sociis, which, as noted in Matter of Hermance ( 71 N. Y. 481, 487 ), is “ so frequently applied in the construction of deeds, wills and other written instruments, as well as of statutes,” and concerning which the Appellate Division of this department has said that there is “ no more useful canon of interpretation.” (Moubray v. G. & M.

1931Improvement Company, 178 App. Div. 737, 740 .) This principle is stated in Broom’s Legal Maxims to be that “ the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it.” For the reasons above assigned, the court, therefore, is of the opinion that the proper construction of article “ Sixth ” of this will is to give to the widow merely the ordinary annual income derived from the usual employment of the principal funds of the trust, and that neither she nor her estate are entitled to any enhancement in value in the principal funds of the trust, wheth

1930There is no doubt about the correctness of the principle for which defendants, appellants, contend on the authority of Vooth v. McEachen ( 181 N. Y. 28 ), that a client who sues his attorney for misconduct in respect of a matter committed to the latter’s care must prove his damages.

1924Section 889 of the Penal Law, under which the first count of the indictment is drawn, provides that, to constitute the crime charged,. there must be an “ intent to defraud or to conceal any larceny or misappropriation by any person of any money or property.” Mr. Justice Dowling when sitting at the New York Trial Term, Criminal Branch, ruled in People v. Hegeman ( 57 Misc.

1924Loomis v. Canal Appraisers ( 33 N. Y. 461 ), and by Huger, Ch.

1924It is not essential to the right that the property to be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance. * * * If it is so far navigable or floatable, in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported.” (Per Smith, J., in Morgan v. King, 35 N. Y. 454 .) The correctness of this doctrine is universally conceded.

1923(Genevetz v. Feiering, 136 App. Div. 736 ; Schuyler v. Kirk-Brown Realty Co., 193 id. 269; Dittenfass v. Horsley, 177 id. 143; affd., 224 N. Y. 560 .) But it has finally been determined by the Court of Appeals that the assignee of a vendee may enforce performance by the vendor.

1923Ch. 398 ; Adams v. Wadhams, 40 Barb. 225 ; Hugel v. Habel, 132 App. Div. 327 .) The correctness of this doctrine has not, so far as I can find, been questioned, but on the contrary has been assumed in numerous cases, and- specific performance denied to a vendee’s assignee because as he was not bound to perform there was an absence of mutuality.

1923(Genevetz v. Feiering, 136 App. Div. 736 ; Schuyler v. Kirk-Brown Realty Co., 193 id. 269; Dittenfass v. Horsley, 177 id. 143; affd., 224 N. Y. 560 .) But it has finally been determined by the Court of Appeals that the assignee of a vendee may enforce performance by the vendor.

1923Ch. 398 ; Adams v. Wadhams, 40 Barb. 225 ; Hugel v. Habel, 132 App. Div. 327 .) The correctness of this doctrine has not, so far as I can find, been questioned, but on the contrary has been assumed in numerous cases, and- specific performance denied to a vendee’s assignee because as he was not bound to perform there was an absence of mutuality.