just and equitable rule in New York

1932The test laid down by the courts by which a claim is to be deemed either a gift of public money for private purposes or a just and equitable claim against the State not enforcible in law has been discussed in Matter of Kilroe v. Craig ( 208 App. Div. 93 ; affd., 238 N. Y. 628 ).

1932The test laid down by the courts by which a claim is to be deemed either a gift of public money for private purposes or a just and equitable claim against the State not enforcible in law has been discussed in Matter of Kilroe v. Craig ( 208 App. Div. 93 ; affd., 238 N. Y. 628 ).

1932In that case this court, by Merrell, J., said (p. 97): “ So far as our attention has been directed there is no controlling authority holding that any claim may be enforced against the city where the city has not received some benefit from the expenditure forming the basis of the claim.” This view was not novel but was a restatement of the rule made by Rumsey, J., in Matter of Straus ( 44 App. Div. 425, 429 ): “ The other class of moral obligations includes those which have not been preceded by any legal liability, and yet which might be sufficient to authorize the Legislature to require their

1932Section 685 of the Greater New York Charter provides that if it shall at any time be ascertained that any person who has received care or treatment through the commissioner of public welfare, has property an action may be maintained against such person or his estate to recover such sums as may have been expended in his or her support and treatment, and under this charter provision the commissioner of public welfare in the case of Taylor v. Kelly ( 145 Misc. 568 ) recovered from the estate the funds one had received as a “ poor blind person.” The learned court in that case well expressed what a

1915This, to our minds, affords a more just and equitable rule and is the one that was evidently contemplated by the Legislature.” (See, also, McKenney v. American Locomotive Co., 164 App. Div. 625 .) Upon the authority of the Capron case we feel that the defendant was entitled to the evidence of Dr. Harvie as to the plaintiff’s condition.

1910(Matter of Borup, 182 N. Y. 222 .) It is a general rule that, under a statute creating a special liability in which the subject of interest is ignored, interest is not recoverable. (16 Am. & Eng.

1889In Stillman v. Northrup , cited above, the court says: “It is not sufficient for the-defendants merely to show that plaintiff’s agent took and exacted the $50 as a condition of the loan, but it was incumbent upon them to show that he took the $50 with the knowledge and assent of the plaintiff, so that she, at least by acquiescence, became a party to the usurious exaction.” The tendency and spirit of the cases above referred to seem to overrule the decision in Wyeth v. Braniff, 84 N. Y. 627 , and to establish a more just and equitable rule than that there laid down.

1877“In Marshall v. Meeks ( 51 N. Y. 140 ). these, views as to an. attorney’s lien for his costs are confirmed, and it was held that where the judgment was for costs solely, it was in itself a legal notice of the lien, which could be discharged only by payment to the attorney, and by a divided court, it was held, that where the judgment issues for both damages and costs, such lien could only be protected by notifying the judgment debtor.

1842(Bank of Utica v. City of Utica, 4 Paige, 399 .) It would have been a more just and equitable rule to take the amount of capital as it actually exists at the time of making the assessment.

1839And in concluding this description of a dedication, I would observe that the supreme court of the United States, in 9 Cranch, 292 , declare that this doctrine'of dedication is not a novel doctrine in the common law, and well they might do so, if the sanction of more than a cen-. tury is sufficient to remove the stain of novelty from a legal proposition ; but the near approach and tendency of the English courts to this just and equitable principle may be traced to even a much earlier period ; and, in my judgment, may be found in the reasonings and principles of those tribunals, when they laid d