perpetuity error in New York

1972That opinion notes that Chancellor Kent, more than a century ago, had stated that upwards of a thousand cases could then be pointed out in the English and American reports ‘ “ which had been overruled, doubted or limited in their application”’, and that the great Chancellor had declared that decisions which seem contrary to reason ‘“ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” ’ And Justice Sutherland, writing for the Supreme Court in Funk

1951That opinion notes that Chancellor Kent, more than a century ago, had stated that upwards of a thousand cases could then be pointed out in the English and American reports ‘ ‘ ‘ which had been overruled, doubted or limited in their application ’ ”, and that the great Chancellor had declared that decisions which seem contrary to reason u ‘ ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.’ ” And Justice Sutherland, writing for the' Supreme Court

1892He added that “ It is probable that the records of many of the courts of this country are replete with hasty and crude decisions, and in such cases ought to be examined without fear and revised without reluctance, rather than to have the character of our law impaired and the beauty and harmony of the system destroyed by the perpetuity of error." 1 Kent’s Com. (13th ed.), 477; Broom’s Legal Maxims, 153; Gifford v. Livingston, 2 Denio, 392 ; Morse v. Goold, 11 N. Y., 281 ; Judson v. Gray, id., 408 .

1892He added that “ It is probable that the records of many of the courts of this country are replete with hasty and crude decisions, and in such cases ought to be examined without fear and revised without reluctance, rather than to have the character of our law impaired and the beauty and harmony of the system destroyed by the perpetuity of error." 1 Kent’s Com. (13th ed.), 477; Broom’s Legal Maxims, 153; Gifford v. Livingston, 2 Denio, 392 ; Morse v. Goold, 11 N. Y., 281 ; Judson v. Gray, id., 408 .

1956I have no aversion to the molding and changing- of the common law to keep pace with present-day conditions, and, as the great Chancellor Kent stated, to revise it ‘1 without reluctance, rather than to have the character of our law impaired, and the heauty and harmony of the system destroyed by the perpetuity of error.” (Woods v. Lancet, 303 N. Y. 349, 355 .) However, the receiver, as has been hereinbefore noted, is acting under and by virtue of a specific statute which limits his powers, and any change such as recommended by the referee should come from the Legislature, not the courts.

1951No reason appears why there should not be the same approach when traditional common-law rules of negligence result in injustice (see Hagopian v. Samuelson, 236 App. Div. 491, 492 , and see Justice Stone’s article on “ The Common Law in the United States ”, 50 Harv.

1934Co., 133 N. Y. 79 .) Chancellor Kent (1 Kent Com. [13th ed.] 477), in commenting upon the rule of stare decisis, said that “ it is probable that the records of many of the courts of this country are replete with hasty and crude decisions; and in such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” From what has been said we are convinced that the decision of the United States Supreme Court in the Fox Film case is to be given a retrospec