reasons upon rule in New York

1898As indicating the reasons upon which the exception is based, we may cite the cases of Goebel v. Wolf, 113 N. Y. 405 , 21 N. E. 388 ; Campbell v. Stokes, 142 N. Y. 23 , 36 N. E. 811 ; and Smith v. Edwards, 88 N. Y. 92 .

1898As indicating the reasons upon which the exception is based, we may cite the cases of Goebel v. Wolf, 113 N. Y. 405 , 21 N. E. 388 ; Campbell v. Stokes, 142 N. Y. 23 , 36 N. E. 811 ; and Smith v. Edwards, 88 N. Y. 92 .

1982Attorney Gen. v Security Life Ins. & Annuity Co., 79 NY 267, 270 ; Foster v Toumshend, 68 NY 203, 206 ; Chautauque County Bank v Risley, 19 NY 369, 377 ; Pruyn v McCreary, 105 App Div 302, 304 , affd 182 NY 568 ; see Anns., 39 ALR 6 ; 48 ALR 241 ). 1 Nothing in the reasons upon which the rule is based mandates a holding that failure to obtain leave is a fatal and incurable error, nor although we recognize that there is a division in the lower courts on the question (see 7A Weinstein-Korn-Miller, NY Civ Prac [1981 Supp], par 6401.19, p 75; compare McLaughlin, Practice Commentaries, McKinney’s C

1982Thus, in Johnson v Smith ( 297 NY 165 , remittitur amd 297 NY 954 , cert den 335 US 824 ), we held that property in the hands of a receiver could be sold by the county treasurer for taxes without obtaining leave of court, and as part of the analysis noted in dictum “that, while propriety may suggest an application to the court before selling property possessed by a receiver, the failure to obtain leave neither defeats the action brought * * * nor invalidates the sale effected” (297 NY, at p 172).

1982Attorney Gen. v Security Life Ins. & Annuity Co., 79 NY 267, 270 ; Foster v Toumshend, 68 NY 203, 206 ; Chautauque County Bank v Risley, 19 NY 369, 377 ; Pruyn v McCreary, 105 App Div 302, 304 , affd 182 NY 568 ; see Anns., 39 ALR 6 ; 48 ALR 241 ). 1 Nothing in the reasons upon which the rule is based mandates a holding that failure to obtain leave is a fatal and incurable error, nor although we recognize that there is a division in the lower courts on the question (see 7A Weinstein-Korn-Miller, NY Civ Prac [1981 Supp], par 6401.19, p 75; compare McLaughlin, Practice Commentaries, McKinney’s C

1982Attorney Gen. v Security Life Ins. & Annuity Co., 79 NY 267, 270 ; Foster v Toumshend, 68 NY 203, 206 ; Chautauque County Bank v Risley, 19 NY 369, 377 ; Pruyn v McCreary, 105 App Div 302, 304 , affd 182 NY 568 ; see Anns., 39 ALR 6 ; 48 ALR 241 ). 1 Nothing in the reasons upon which the rule is based mandates a holding that failure to obtain leave is a fatal and incurable error, nor although we recognize that there is a division in the lower courts on the question (see 7A Weinstein-Korn-Miller, NY Civ Prac [1981 Supp], par 6401.19, p 75; compare McLaughlin, Practice Commentaries, McKinney’s C

1982Thus, in Johnson v Smith ( 297 NY 165 , remittitur amd 297 NY 954 , cert den 335 US 824 ), we held that property in the hands of a receiver could be sold by the county treasurer for taxes without obtaining leave of court, and as part of the analysis noted in dictum “that, while propriety may suggest an application to the court before selling property possessed by a receiver, the failure to obtain leave neither defeats the action brought * * * nor invalidates the sale effected” (297 NY, at p 172).

1982Thus, in Johnson v Smith ( 297 NY 165 , remittitur amd 297 NY 954 , cert den 335 US 824 ), we held that property in the hands of a receiver could be sold by the county treasurer for taxes without obtaining leave of court, and as part of the analysis noted in dictum “that, while propriety may suggest an application to the court before selling property possessed by a receiver, the failure to obtain leave neither defeats the action brought * * * nor invalidates the sale effected” (297 NY, at p 172).

1982Attorney Gen. v Security Life Ins. & Annuity Co., 79 NY 267, 270 ; Foster v Toumshend, 68 NY 203, 206 ; Chautauque County Bank v Risley, 19 NY 369, 377 ; Pruyn v McCreary, 105 App Div 302, 304 , affd 182 NY 568 ; see Anns., 39 ALR 6 ; 48 ALR 241 ). 1 Nothing in the reasons upon which the rule is based mandates a holding that failure to obtain leave is a fatal and incurable error, nor although we recognize that there is a division in the lower courts on the question (see 7A Weinstein-Korn-Miller, NY Civ Prac [1981 Supp], par 6401.19, p 75; compare McLaughlin, Practice Commentaries, McKinney’s C

1982Attorney Gen. v Security Life Ins. & Annuity Co., 79 NY 267, 270 ; Foster v Toumshend, 68 NY 203, 206 ; Chautauque County Bank v Risley, 19 NY 369, 377 ; Pruyn v McCreary, 105 App Div 302, 304 , affd 182 NY 568 ; see Anns., 39 ALR 6 ; 48 ALR 241 ). 1 Nothing in the reasons upon which the rule is based mandates a holding that failure to obtain leave is a fatal and incurable error, nor although we recognize that there is a division in the lower courts on the question (see 7A Weinstein-Korn-Miller, NY Civ Prac [1981 Supp], par 6401.19, p 75; compare McLaughlin, Practice Commentaries, McKinney’s C

1900And the next step taken is described in People v. O’Sullivan, 104 N. Y. 481 , and is to the effect that if such evidence be competent from disinterested witnesses who may have observed the conduct of the parties, it is not rendered incompetent because it comes from the complainant herself.

1899The principle of the rule is that the assignee of the insolvent, whose creditor is also his prospective debtor upon an unmatured demand, takes the demand as an asset of the estate only so far as it exceeds the debt of the insolvent, because “in case of mutual debts it is only the balance which is the real and just sum owing by or to the insolvent,” and because the assignee “ acquired no greater right than his assignor had prior to the assignment, had the claim then matured.” Matter of Hatch, supra, 405 .

1898As indicating the reasons upon which the exception is based, we may cite the cases of Goebel v. Wolf, 113 N. Y. 405 , 21 N. E. 388 ; Campbell v. Stokes, 142 N. Y. 23 , 36 N. E. 811 ; and Smith v. Edwards, 88 N. Y. 92 .

1898As indicating the reasons upon which the exception is based, we may cite the cases of Goebel v. Wolf, 113 N. Y. 405 , 21 N. E. 388 ; Campbell v. Stokes, 142 N. Y. 23 , 36 N. E. 811 ; and Smith v. Edwards, 88 N. Y. 92 .

1898As indicating the reasons upon which the exception is based, we may cite the cases of Goebel v. Wolf, 113 N. Y. 405 , 21 N. E. 388 ; Campbell v. Stokes, 142 N. Y. 23 , 36 N. E. 811 ; and Smith v. Edwards, 88 N. Y. 92 .

1896Co., 121 N. Y. 31, 44 .) *242 It is quite apparent that a carrier of passengers must make and enforce such reasonable rules as will enable it to discharge its duties to the general public in a proper manner, and if the facts are undisputed and not susceptible of different inferences, the question of their reasonableness ought not to be submitted to a jury who might not readily understand the reasons upon which the rule is sought to be founded.

1884In Deen v. Cozzens (7 Robt., 178), it was held, upon the authority of Matter of Davison ( 6 Paige, 136 ), and Matter of Ryder (11 id., 185 ), that, where a fund or estate is given to an infant, with a valid limitation over upon the death of such infant, the court has no power to break in on the corpus of the gift, for the support, maintenance or advancement of the infant; and that, where it has no such authority, it has no right to ratify the act of the trustee in so doing.

1884In Deen v. Cozzens (7 Robt., 178), it was held, upon the authority of Matter of Davison ( 6 Paige, 136 ), and Matter of Ryder (11 id., 185 ), that, where a fund or estate is given to an infant, with a valid limitation over upon the death of such infant, the court has no power to break in on the corpus of the gift, for the support, maintenance or advancement of the infant; and that, where it has no such authority, it has no right to ratify the act of the trustee in so doing.

1884This confidential relation existed, whether he was at the meeting which directed the purchase or not.” In the case of Cumberland Coal and Iron Co. v. Sherman ( 30 Barb. 553 ), the court sets forth with great clearness the reasons upon which the rule is founded.

1879The reasons upon which the doctrine of Smith v. People ( 47 N. Y., 330 ) is founded are so fully set forth by Allen, J., in his opinion in that case, that it would be superfluous to repeat them here.