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ny/1000016.json

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+"{\"id\": \"1000016\", \"name\": \"Anthony M. Barraco, P. C., Respondent, v. Donald P. Rosendale, Appellant\", \"name_abbreviation\": \"Anthony M. Barraco, P. C. v. Rosendale\", \"decision_date\": \"1990-06-28\", \"docket_number\": \"\", \"first_page\": \"899\", \"last_page\": \"901\", \"citations\": \"162 A.D.2d 899\", \"volume\": \"162\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T21:44:02.926704+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anthony M. Barraco, P. C., Respondent, v Donald P. Rosendale, Appellant.\", \"head_matter\": \"Anthony M. Barraco, P. C., Respondent, v Donald P. Rosendale, Appellant.\", \"word_count\": \"777\", \"char_count\": \"4787\", \"text\": \"Mercure, J.\\nAppeals (1) from an order of the Supreme Court (Torraca, J.), entered October 19, 1988 in Ulster County, which, inter alia, granted plaintiff's motion for summary judgment in lieu of complaint, and (2) from the judgment entered thereon.\\nAlthough the record on appeal is somewhat unclear, it appears that plaintiff, a professional corporation, was one of several law firms which performed legal services on behalf of defendant and that at some unspecified time defendant placed the sum of $100,000 in escrow with the New York City law firm of Lankenau, Kovner & Bickford to be used for payment of the fees of defendant's \\\"various attorneys\\\". Plaintiff, claiming entitlement to a net fee and disbursement of $1,312.50 as of August 6, 1987, made unsuccessful efforts to collect the fee from the escrow agent and then brought this motion for summary judgment in lieu of complaint pursuant to CPLR 3213 to recover it from defendant.\\nThe motion was supported by an affirmation of Anthony Barraco, plaintiff's principal, which, inter alia, incorporated as exhibits (1) a copy of an August 6, 1987 letter from plaintiff to defendant, stating the extent of legal services rendered and a disbursement which had been made on defendant's behalf, and requesting payment of the fee, and (2) a copy of a November 25, 1987 letter from defendant to the escrow agent which stated as follows: \\\"Mr. Barraco has submitted a final bill of $1,220 to me. I have reviewed it carefully, and it is fully accurate, documented and appropriate. I am authorizing you as escrow agent to pay this sum directly to Mr. Barraco from the funds you hold for that purpose.\\\" Defendant, pro se, opposed the motion, asserting only that resolution of the motion should await determination of a pending motion to dismiss the action for failure to name the escrow agent, allegedly a necessary party, that plaintiff inadequately substantiated its fee on a quantum meruit basis and that recovery should be had from the escrow agent. Supreme Court granted the motion for summary judgment for the full amount sought by plaintiff. Defendant appeals.\\nAs a preliminary matter, we reject plaintiff's assertion that defendant impermissibly appeals from the order denying his motion for reargument and that the appeal should, accordingly, be dismissed. Although defendant did unsuccessfully move for reargument, it is clear from a reading of his notice of appeal that the instant appeal is from the order granting summary judgment and, by implication, the judgment entered thereon.\\nTurning to the merits, we consider the threshold issue of whether the letter from defendant to the escrow agent constitutes \\\"an instrument for the payment of money only\\\" so as to permit resort to the accelerated procedure of CPLR 3213. \\\"[CPLR 3213] is not limited to negotiable and nonnegotiable paper within the terms of article 3 of the Uniform Commercial Code . Rather, what is required is a written unconditional instrument, evidencing an obligation to pay a sum at a certain time or over a stated period\\\" (Maglich v Saxe, Bacon & Bolan, 97 AD2d 19, 22), a requirement which may be satisfied by correspondence signed by the party to be charged (see, supra; Ace Off. Cleaning Corp. v Brodsky, Hopf & Adler, 81 Misc 2d 170; Baker v Gundermann, 52 Misc 2d 639; cf., Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 155-156). Here, in his November 25, 1987 letter, defendant evidenced his obligation to plaintiff in the clearest of terms and directed immediate payment of the bill from funds which he believed were available for that purpose, thus permitting the accelerated summary judgment procedure of CPLR 3213.\\nMoreover, it is our view that summary judgment was properly granted in favor of plaintiff. Since plaintiff's August 6, 1987 statement qualifies as an account stated (see, Interman Indus. Prods. v R. S. M. Electron Power, supra, at 153-154) and is supported by a \\\"written document subscribed by the party to be charged thereunder\\\" (supra, at 152), it constitutes prima facie evidence of defendant's indebtedness, at least in the amount acknowledged. Clearly, the affidavit submitted in opposition to the motion failed to raise a factual issue. However, since defendant acknowledged an obligation in the amount of only $1,220, Supreme Court erred in granting judgment for more than that amount. The judgment should be modified accordingly.\\nDefendant's remaining contentions have either not been preserved for our review or are found to be meritless.\\nOrder and judgment modified, on the law, without costs, by reducing the sum of $1,312.50 to $1,220, and, as so modified, affirmed. Kane, J. P., Weiss, Levine, Mercure and Harvey, JJ., concur.\"}"

ny/1025199.json

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+"{\"id\": \"1025199\", \"name\": \"In the Matter of the Estate of Beatrice M. Bros, Deceased\", \"name_abbreviation\": \"In re the Estate of Bros\", \"decision_date\": \"1958-01-07\", \"docket_number\": \"\", \"first_page\": \"943\", \"last_page\": \"945\", \"citations\": \"11 Misc. 2d 943\", \"volume\": \"11\", \"reporter\": \"New York Miscellaneous Reports\", \"court\": \"New York Surrogate's Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-11T02:14:37.974327+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Estate of Beatrice M. Bros, Deceased.\", \"head_matter\": \"In the Matter of the Estate of Beatrice M. Bros, Deceased.\\nSurrogate\\u2019s Court, New York County,\\nJanuary 7, 1958.\\nDuer, Strong & Whitehead for Oewill Y. W. Hawkins and others, as executors, petitioners.\\nMilton Schill) ack for George D. Gartland, individually, respondent.\\nWilliam C. Porth for New York University, respondent.\", \"word_count\": \"789\", \"char_count\": \"4555\", \"text\": \"Joseph A. Cox, S.\\nThe petitioners in this application for the settlement of the executors' account have sought the court's instructions concerning the manner in which estate taxes are to be apportioned. In paragraph Ninth of her will, testatrix made the following provisions: \\\" I direct that all succession, inheritance, transfer and estate taxes which may be chargeable against any of the persons to whom legacies are herein-before given or against the property so bequeathed or against the money or property which they may become entitled to receive hereunder shall be paid out of my residuary estate.\\\"\\nThere was included by both the Federal and the State tax authorities as part of the taxable estate the principal of an inter vimos trust created by decedent under date of August 10, 1944. Because of the inclusion of this property in the taxable estate the following questions have been submitted for decision: (1) Does the text of the will set forth above constitute a direction against apportionment within the meaning of section 124 of Decedent Estate Law so as to exonerate the beneficiaries of the inter vivos trust from contributing to the discharge of the total tax burden? (2) If it does not, should taxes be apportioned among- the beneficiaries of the inter vivos trust on the basis of their respective interests therein, and (3) If apportionment is directed, are the inter vivos trust beneficiaries entitled to the sole benefit of the Federal gift tax credit paid in connection with the inter vivos transfer?\\nThere is unanimous agreement on the part of the persons who have taken a position in this proceeding that all of the preresiduary bequests provided for in the will pass free of taxes by reason of the directions of the testatrix. This is a proper interpretation of the will and such taxes as are attributable to those legacies will be deducted before the establishment of the residuary estate which goes in its entirety to charity, subject to a charge for two annuities.\\nFour of the five persons named to take the remainder of the inter vivos trust are named as legatees in the will. One of them is also a coexecutor. It is his position that the directions contained in the first of the three clauses set forth in article Ninth of the will excuse the legatees who share in the inter vivos trust from making any contributions to the total tax burden. That direction exonerates persons to whom preresiduary legacies are given from the payment of any part of the estate taxes '1 which may be chargeable against any of [them] \\\". It is quite clear, however, that in the context in which this language is found, reference is being made to the taxes due upon the legacies such persons are entitled to receive under the will and not to their interests in the inter vivos trust. Certainly, if there is any ambiguity that would permit the court a choice in the matter, and the court believes there is none, it must be resolved under the authorities in favor of the application of the statute so as to require apportionment (Matter of Pepper, 307 N. Y. 242; Matter of Mills, 189 Misc. 136, affd. 272 App. Div. 229, affd. 297 N. Y. 1012). As the Court of Appeals has said in Matter of Pepper (supra, p. 251): \\\"In case of doubt as to what the will means on the subject of taxes the statutory direction to apportion is absolute.\\\"\\nIt is held that the will does not contain a stipulation against the apportionment of taxes with respect to the inter vivos trust and it must bear its share of the taxes. This court will make no direction as to the apportionment of the tax burden within that trust.\\nThe testatrix paid a gift tax in connection with the creation of the inter vivos trust and this tax has been credited against the Federal estate tax assessed against the estate. Such credit redounds to the advantage of the entire group charged with the tax burden and is not confined to the donees of the inter vivos transfer (Matter of Blumenthal, 182 Misc. 137, affd. 267 App. Div. 949, affd. 293 N. Y. 707). The 1950 amendment to section 124 of the Decedent Estate Law adopted the rule of the last-cited decision as existing law (Decedent Estate Law, \\u00a7 124, subd. 3, par. [iii]).\\nSubmit decree on notice construing the will.\"}"

ny/1042979.json

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+"{\"id\": \"1042979\", \"name\": \"Civic Realty Company, Plaintiff, v. New York Telephone Company, Defendant\", \"name_abbreviation\": \"Civic Realty Co. v. New York Telephone Co.\", \"decision_date\": \"1959-03-26\", \"docket_number\": \"\", \"first_page\": \"660\", \"last_page\": \"665\", \"citations\": \"16 Misc. 2d 660\", \"volume\": \"16\", \"reporter\": \"New York Miscellaneous Reports\", \"court\": \"New York Supreme Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T22:18:08.780271+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Civic Realty Company, Plaintiff, v. New York Telephone Company, Defendant.\", \"head_matter\": \"Civic Realty Company, Plaintiff, v. New York Telephone Company, Defendant.\\nSupreme Court, Special and Trial Term, New York County,\\nMarch 26, 1959.\\nMorris E. Linderman for plaintiff.\\n6r. Wallace Bates for defendant.\", \"word_count\": \"1637\", \"char_count\": \"9839\", \"text\": \"Isidob Wasservogel,\\nSpec. Ref. Plaintiff landlord seeks to recover the reasonable value of restoring a portion of its premises to their original condition after the same were surrendered by the defendant tenant at the termination of its lease.\\nNone of the material facts are in dispute. The record shows that on October 28, 1946, plaintiff's predecessor, as landlord, entered into a 10-year lease with defendant for 10 floors in an office building located at No. 2 Lafayette Street, New York City. When defendant first took possession of said premises, there were separate lavatories for men and women on each floor. Shortly thereafter, with the knowledge and consent of the landlord, defendant made certain alterations, the result of which was to convert the two separate lavatories on each of its leased floors into one large women's lavatory.\\nIn or about June, 1951, No. 2 Lafayette Street was conveyed to plaintiff herein, subject to the terms of defendant's lease. It is conceded by plaintiff that at the time it purchased these premises, no one in its behalf inspected the physical layout of the 10 floors leased by defendant or made any inquiry on the subject of either the prior owner or defendant. Plaintiff also admits that it had no knowledge of the condition of the lavatories on the 10 floors here involved as they existed prior to defendant's alterations thereof, but claims that its representa^ tives examined floor plans which indicated separate toilet facilities for men and women on each floor.\\nParagraph \\u00e1 of the defendant's lease significantly provides that all alterations became the property of the landlord unless it otherwise elected prior to the expiration of the lease, upon due notice thereof to defendant. Plaintiff gave no such notice nor did it demand at any time prior to the termination of the lease that the premises be restored to their original condition. Subsequent to the surrender of the leased space, however, plaintiff made certain alterations which, in effect, reinstated the separate lavatories for men and women on each floor. It is the cost of this work that plaintiff seeks to recover in this action.\\nIt is plaintiff's contention that paragraph 23 of the lease, which provides, in substance, that the demised premises be surrendered \\\"in good order and condition,\\\" must be construed to obligate defendant to restore such premises to their original condition. Plaintiff further contends that independent of any covenant in the lease, there was an implied obligation on the tenant to restore the premises at the end of the term to substantially the same condition they were in when first leased, subject only to reasonable use. Such contentions are without merit.\\nThe only reference in the lease to the condition of the premises at the end of the term is set forth in paragraph 23 as follows: \\\"Upon the expiration or other termination of the term of this lease, Tenant shall quit and surrender to Landlord the demised premises, broom clean, in good order and condition, ordinary wear excepted. Tenant shall remove all property of Tenant as directed by landlord Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of the term of this lease.\\\"\\nThere is no claim here that the demised premises were physically damaged in any respect or that the defendant left them otherwise than \\\"broom clean.\\\" Likewise, plaintiff does not assert that the leased space was not \\\" in good order and condition \\\" in the ordinary sense and meaning of the phrase. In the opinion of the court, therefore, defendant surrendered the premises in accordance with the terms set forth in paragraph 23 of the lease.\\nSimilar provisions respecting the phrase \\\" good order and condition\\\" have been the subject of considerable litigation in the courts of this State. Contrary to plaintiff's contention, an examination of the reported cases fails to disclose any instance where such language was construed as an obligation to remove properly authorized and properly constructed alterations and to restore the premises to the conditions originally existing at the commencement of the lease. On the contrary, the reported cases require only that a tenant repair and restore actual injury, physical damage, deterioration or waste of the premises caused by the tenant (see Appleton v. Marx, 117 App. Div. 206, affd. 191 N. Y. 81; Bushwick Realty Co. v. Sanitary Fireproofing & Contr. Co., 129 App. Div. 533; Schwegler Realty Co. v. Audubon Nat. Bank, 88 Mise. 14; Friedmann v. Margiotta, 53 N. Y. S. 2d 79; Tanenbaum v. Berkowitz, 173 N. Y. S. 802).\\nThe cases of Woollard v. Schaffer Stores Co. (272 N. Y. 304): Ayen v. Schmidt (80 Misc. 670); Wotton v. Wise (15 Jones & Sp. 515), and Megerell v. State of New York (46 N. Y. S. 2d 685), cited by plaintiff, are clearly distinguishable from the instant action. In each of these cited cases, unlike the facts here agreed upon by the parties, the tenant made alterations to or removals from the leased premises without the consent of the landlord. These cases, therefore, are clearly not applicable to the one at bar.\\nIt is significant that there is nothing in the lease here involved which expressly requires defendant, at the termination thereof, to restore the demised premises to the same condition in which they formerly were, ordinary wear and tear excepted. Therefore, the case of Lazarus v. Ludwig (45 App. Div. 486) and other cases cited by plaintiff involving leases with express covenants to restore the premises to their original condition are not relevant to this action.\\nAs heretofore noted, the lease between plaintiff's predecessor and defendant specifically gave the tenant the right to make alterations with the landlord's consent. Moreover, the alterations here involved were made at the beginning of the leased term with this necessary approval and consent. Significantly, under the lease, these alterations became the landlord's property and were required to remain upon and to be surrendered with the leased premises, as a part thereof, at the end of the term. As heretofore stated, the lease also gave the landlord the opportunity to elect otherwise with respect to the ownership of these alterations upon due notice to defendant. Concededly, no such election was made. Under these circumstances, I hold that defendant properly surrendered the alterations as part of the premises at the termination of its lease. To have done otherwise and to have removed these alterations would have rendered defendant liable to plaintiff for the reasonable value thereof, inasmuch as it must be deemed that these alterations were then plaintiff's property (see Perlman v. Camp Hygiology, N. Y. L. J., June 20, 1947, p. 2448, col. 2; Johyle Realty Corp. v. Ziman, N. Y. L. J., May 13,1948, p. 1795, col. 3).\\nNothing in the record warrants the conclusion that, in making the alterations with the landlord's approval and consent, defendant went beyond the powers afforded it by the provisions of the lease or caused any injury or acts of waste to be committed with respect to the premises. On the contrary, in keeping with the terms of the lease, defendant surrendered the premises with the alterations intact and with the entire premises in good condition and repair. It necessarily follows, therefore, that defendant fulfilled its complete obligation to plaintiff as the landlord's successor in title.\\nIn the opinion of the court, plaintiff's remaining argument that there was an implied obligation to restore the premises to their original condition is without merit either in law or in fact. Where, as in the instant action, alterations were made by a tenant with the consent and knowledge of the landlord, there is no implied obligation to restore the premises to their original condition at the end of the term (Rasch, New York Law of Landlord and Tenant, \\u00a7 603; New York Law of Landlord and Tenant, \\u00a7 426; 51 O. J. S., Landlord and Tenant, \\u00a7 411; 32 Am. Jur., \\u00a7 804, 807; see, also, McGregor v. Board of Educ., 107 N. Y. 511; Polo v. International Trust Co., 166 Misc. 398, affd. 257 App. Div. 820; Perry v. Mott Iron Works Co., 207 Mass. 501; Cawley v. Jean, 218 Mass. 263; Savage v. University State Bank of Champaign, 263 111. App. 457; Arkansas Fuel Oil Co. v. Connellee, 39 S. W. 2d 99 [Texas]; Duvanel v. Sinclair Refining Co., 170 Kan. 483; Ann. 23 A. L. R. 2d 649 et seq.).\\nIf, upon the execution of the lease, the parties thereto intended that the premises were to be surrendered in a particular condition other than as stated in paragraph 23 (supra), they could have and should have expressly so stated. No such covenant may now be implied as a matter of law. Likewise, the mere fact that plaintiff's predecessor exhibited plans to plaintiff which were not in accord with the true condition of the premises is not sufficient to hold defendant liable as prayed for in the complaint. There was no attempt by defendant at any time to conceal from plaintiff the changes it made. Even a cursory physical examination of the premises by plaintiff would have revealed them.\\nThus, in view of the facts above stated and upon all of the evidence before me, I hold that defendant has violated neither an express nor an implied duty of its tenancy and, therefore, is not liable for damages for the failure, at the termination of its lease, to restore the premises to their original condition.\\nAccordingly, judgment is rendered in favor of defendant dismissing the complaint upon the merits.\\nThe above constitutes the decision of the court as required by the applicable provisions of the Civil Practice Act.\"}"

ny/1061961.json

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+"{\"id\": \"1061961\", \"name\": \"In the Matter of Guaranty Trust Company of New York, as Trustee of the Petroleum Research Fund Created by Shell Oil Company Incorporated and Others\", \"name_abbreviation\": \"In re Guaranty Trust Co.\", \"decision_date\": \"1960-03-09\", \"docket_number\": \"\", \"first_page\": \"83\", \"last_page\": \"90\", \"citations\": \"22 Misc. 2d 83\", \"volume\": \"22\", \"reporter\": \"New York Miscellaneous Reports\", \"court\": \"New York Supreme Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T20:11:36.332890+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Guaranty Trust Company of New York, as Trustee of the Petroleum Research Fund Created by Shell Oil Company Incorporated and Others.\", \"head_matter\": \"In the Matter of Guaranty Trust Company of New York, as Trustee of the Petroleum Research Fund Created by Shell Oil Company Incorporated and Others.\\nSupreme Court, Special Term, New York County,\\nMarch 9, 1960.\\nDavis Polk Wardwell Sunderland & Kiendl (Theodore Kiendl, Walter D. Fletcher, Andreio Y. Rogers, J. Dormer Cannon and Henry L. King of counsel), for petitioner.\\nLouis J. Lefkowits, Attorney-General (P. Hodges Combier and Donald H. Holley of counsel), for State of New York.\\nElisha Hanson, Arthur B. Hanson and Brown, Cross & Hamilton for American Chemical Society, respondent.\\nEdwin Jason Dryer for Independent Refiners Association of America and others, intervenors-respondents.\\nLowenstein, Pitcher, Spence, Hotchkiss, Amann & Parr for Quaker State Oil Refining Corp. and others, intervenorsrespondents.\\nWinthrop, Stimson, Putnam & Roberts for South Penn Oil Company, intervener-respondent.\\nSimpson Thacher & Bartlett for Lehman Brothers and others.\\nJohn G. Woods for Universal Oil Products Company.\", \"word_count\": \"3027\", \"char_count\": \"19021\", \"text\": \"Jacob Markowitz, J.\\nThere is now before the court a motion . by the trustee, Morgan Guaranty Trust Co. of New York, for an order (1) disaffirming the further supplemental report of the referee, dated November 16, 1959, and (2) approving the trustee's application to be allowed as compensation for its services 10% of $72,500,000, that sum representing the proceeds of the sale of the securities of Universal Oil Products Company. There is also before the court a motion by the Attorney-General of the State of New York, \\\" as attorney for the ultimate charitable beneficiaries \\\" of the trust here involved, for an order confirming the referee's recommendation that the compensation of the trustee be based only upon services rendered by it in connection with the sale of the Universal securites and that it be fixed at $750,000 for said services. In addition, the court has before it applications by the referee, the attorneys for the trustee, and others, for the fixation of compensation for the services rendered by them, and an application for judicial settlement of the trustee's account.\\nA brief statement of the prior steps in this proceeding (Civ. Prac. Act, art. 79) is appropriate.\\nThe proceeding was instituted in the Spring of 1956, by Morgan Guaranty Trust Co. (then known as Guaranty Trust Co.), as trustee of a charitable, scientific and educational trust, for authority to sell Universal Oil Products Company securities, which constituted substantially the entire corpus of the trust. The trust agreement forbade the disposition of said securities or the discontinuance of Universal's research and development work in the petroleum field, without a judicial determination that ' ' conditions shall have changed in such manner and to such extent that the public welfare will be no longer effectively served by such restrictions \\\". The court appointed Louis M. Loeb, Esq., as referee to hear and report (1) as to whether changed conditions had made a sale advisable, in the public welfare, (2) as to whether the trustee, in the event a sale was made with the court's sanction, was entitled to 10% of the proceeds of such sale as compensation for its services (in addition to $50,000 per year which it had retained as compensation) and (3) as to the need for an accounting by the trustee on notice to the Attorney-General. (The court had originally appointed William O'Shea, Esq., as referee, but after he had commenced to act, his unfortunate death necessitated the appointment of a successor referee.) The parties to the proceeding include the American Chemical Society (the beneficiary of the trust income), the Attorney-General (the statutory representative of the indefinite and uncertain beneficiaries), and various independent oil companies, which intervened in the proceeding (3 Misc 2d 790, mod. 3 A D 2d 1). These companies were and are interested in having Universal's research and development work continue and in keeping control of Universal from falling into the hands of those who might operate the company in a manner detrimental to independent oil companies.\\nReferee Loeb's original report recommended that the trustee be authorized to sell the securities of Universal, when it deemed such sale advisable, upon certain terms and conditions intended to insure (1) as widespread dissemination as possible of Universal's securities (to prevent their acquisition by the major oil companies) and (2) that Universal would continue, for 10 years, its research 'and other activities and its policy of making its technique and know-how available to the petroleum industry on a nondiscriminatory basis. For reasons discussed in its opinion (16 Misc 2d 304) and unnecessary to repeat here, this court found that a sale of Universal's securities was appropriate, in the interest of the public welfare, by changes of conditions which had occurred after the creation of the trust. The court held, however, that any contract of sale of the securities should be conditioned upon the court's approval thereof prior to its consummation, in order to insure that the price would represent the maximum obtainable from a sale upon the terms and conditions previously referred to and consistent with the circumstances prevailing. The matter was remitted to the referee for the purpose of determining the conditions, terms, methods and other phases of a proposed sale best calculated to serve the public welfare, including the methods, mechanics and procedure to be followed, the adequacy of the price and the manner in which it was to be arrived at, and the contents, type and manner of notice of sale. An additional matter which the court directed the referee to consider, upon the remission, was the making of suitable provision for stock incentives for Universal's employees.\\nThereafter, in his first supplemental report, the referee recommended the appointment of an individual or firm, of recognized reputation and standing in the field of finance and investment banking, to act as an expert advisor to the referee in connection with the methods and procedure by which a sale, under the conditions of wide dissemination, etc., previously referred to, could be achieved for the maximum price obtainable in said circumstances. The referee also recommended the appointment of an independent appraiser to evaluate Universal's securities for the purpose of aiding the referee in reaching a conclusion as to whether or not to approve the sales price. The court granted confirmation of the first supplemental report and designated the First Boston Corporation to advise the referee and the court, and the Ebasco Services, Inc., to appraise the value of Universal's securities (16 Misc 2d 282).\\nIn his second supplemental report, the referee recommended, on the basis of the evidence before him and the advice of the court-appointed financial expert, the First Boston Corporation, (1) that the sale of Universal's stock be negotiated, subject to the court's approval, with an investment banking house or syndicate of investment banking houses initially selected by the trustee from among the leading national investment banking houses capable of organizing and managing a group of underwriters to handle the transaction, such selection also to be subject to the court's approval, (2) that there be no fixation of an upset price, and (3) that no contract of sale be approved by the court unless it incorporate a suitable stock incentive plan for key managerial and technical personnel of Universal. In confirming the second supplemental report, this court found that the purposes to be achieved could best be accomplished by a negotiated sale rather than through competitive bidding (15 Misc 2d 23). In commenting upon the requirement that a stock incentive plan be incorporated in any contract of sale, the court stressed the importance of having the plan's benefits extend below the top echelons of Universal's management to the classes of employees whose activities play an important part in the success of Universal's operations. The court directed the referee to hold a hearing as to (1) whether the selection by the trustee of the investment banks to manage the underwriting group should be approved, or whether the trustee should negotiate with other competent investment bankers who might appear and give evidence at the hearing, (2) whether the terms and conditions of the contract of sale and the underwriting-agreements (draft copies of which were to be made availabe for inspection at the offices of the referee and counsel for the trustee) should be approved, subject to final approval with respect to price and related matters, (3) whether the terms and conditions of the stock incentive plan for employees should be approved, and (4) such other matters related to the sale as might properly come before the referee. The hearing was ordered to be held upon notice to the parties and, in addition, notice through specified advertisements in New York, Chicago, and other newspapers and through a special bulletin or newsletter to be issued by Universal to its employees.\\nThe third supplemental report of the referee recommended approval of the investment bankers selected by the trustee, to wit: \\\"Lehman Brothers; Smith, Barney & Co.; and Merrill Lynch, Pierce, Fenner & Smith\\\", and of the contracts of sale and underwriting agreements, subject to final approval of the price and related matters. It also recommended approval of the terms and conditions of the stock incentive plan. The report was based upon evidence adduced at a hearing before the referee and upon advice received from the First Boston Corporation, the court-appointed expert advisor. A motion to confirm the report, except for a slight unimportant modification, was granted and a date set for a hearing for the fixation of the price to be paid for the Universal securities (the reasons for this procedure appear in the opinion rendered by the court at the time [15 Misc 2d 23, 27]). After said hearing, the court fixed $72,500,000 as the gross sales price for the capital stock of Universal held by the trustee and authorized the trustee to execute an agreement for a sale at that price and to consummate such sale. In determining what price to fix, the court also received invaluable assistance from Ebasco Services, Inc., the expert appraiser which it had appointed. The trustee was directed to file an account of its proceedings after the sale and to move for judicial settlement thereof. The compensation of the referee, the court-appointed advisors and of counsel was reserved for determination upon the settlement of the account (15 Misc 2d 507).\\nThe sale was thereafter consummated and the trustee subsequently filed an account and applied for settlement thereof as well as for the fixation of the compensation of the referee, the advisors, and. counsel.\\nThe referee's original report had found that the trustee was not entitled to any compensation, in addition to the $50,000 per year which it had received, except for such services as it might render in connection with a sale of the Universal securities. The trustee had opposed confirmation of this phase of the report. Determination of the issue as to the proper amount of the trustee's compensation had been held in abeyance pending the consummation of a sale and application for settlement of the trustee's final account (16 Misc 2d 304, 319). After consummation of the sale, the trustee had renewed a prior motion to disaffirm that part of the referee's first report which dealt with the trustee's compensation or, in the alternative, for an opportunity to submit additional evidence on that subject. The court had granted the alternative relief requested and had directed a further hearing by the referee. It fixed the allowances of the two court-appointed advisors (First Boston Corporation at $150,000 and Ebasco Services, Inc. at $60,000) but it held in abeyance the settlement of the account and the fixation of allowances to the referee and counsel, in view of the need for further services on their part (21 Misc 2d 1062).\\nThe referee thereafter filed his fourth supplemental report, dated November 16, 1959, in which he adhered to his prior finding that the trustee was entitled to no compensation (except the $50,000 per year) for its services unconnected with the sale of the Universal securities. The referee found that the phrase \\\"reasonable compensation \\\", appearing in article twelfth of the trust agreement, meant $50,000 per annum for ' ' ordinary services\\\", including all services except those connected with the sale of Universal's securities. He based these conclusions upon (1) testimony which, in his opinion, indicated that the trustee had agreed to charge $50,000 per annum for routine services, (2) the fact that the trustee had rendered annual accounts in which it set forth its fee at $50,000, without any mention or reservation of additional compensation, and (3) the lack of evidence that the phrase \\\" ordinary services \\\" was not to include all services other than sales services. The referee found that the trustee was entitled to $750,000 for its services in connection with said sale. It is these findings of the referee which are the subject of the pending motions to disaffirm and to confirm.\\nIn support of its motion 'to disaffirm, the attorneys for the trustee have contended that the \\\"referee's conclusion that the trustee is not entitled to any compensation, over and above the $50,000 per year, for services rendered by it which are not connected with the sale of the Universal securities is contrary to the express language of the trust indenture and to the expressed as well as the actual intention of the parties to the indenture. They also contended that the referee's recommendation of $750,000 for the trustee's services in connection with the sale was wholly inadequate. If their position were to be ultimately upheld, as to either or both contentions, by this court or by an appellate court, the trustee would be entitled to a very large amount of compensation for the admittedly excellent and valuable services it rendered in what the referee described as \\\" its general stewardship of Universal's revival from potential bankruptcy to a successful contender in the competitive petroleum industry \\\" (referee's original report, p. 53), and the sale of Universal's securities. Recognizing that sharp issues of fact and law exist which render the question of the correctness of the referee's conclusion a debatable one, the court, in the interest of all concerned, and in order to prevent, if possible, protracted and expensive litigation whose result could not be predicted, actively encouraged the parties to work out a compromise acceptable to all concerned and to the court. Such a compromise was finally agreed upon and meets with the approval of the court. It calls for the fixation of $1,750,000 as the compensation of the trustee as and for its ' ' additional ' ' compensation from the date of the inception of the trust through February 11, 1959, the date on which the trustee disposed of the Universal securities. The ordinary compensation of the trustee is computed at the rate of $50,000 per year from the inception of the trust to February 19, 1959. For all its future services the trustee is to receive 4% of each year's income, unless this amount is decreased or increased by written agreement between the trustee and the American Chemical Society, approved by the court on notice to the Attorney-G-eneral. This provision of the compromise agreement eliminates, for the future, the uncertainty which exists as to the compensation to which the trustee is entitled under the provisions of the trust agreement and substitutes a clear and definite standard of compensation. The $1,750,000 is less than 25% of the amount of compensation requested by the trustee, while the 4% future rate is 1% less than the 5% rate fixed by statute for trusts of the character here involved (Civ. Prac. Act, \\u00a7 1548, subd. 5, par. [a]; \\u00a7 1548-a, subd. 5, par. [a]).\\nThe compromise agreement also provides that the trustee will not designate a successor \\\"qualified recipient \\\" except with court approval on notice to the Attorney-General, and that the American Chemical Society will not appoint a successor trustee except upon the court's approval after notice to the Attorney-General.\\nThe fee of Davis Polk War dwell Sunderland & Kiendl, the trustee's attorneys, is fixed, without objection, at $200,000, in addition to the $185,000 which they have heretofore received. The fees of Brown, Cross & Hamilton and Elisha Hanson, attorneys for the American Chemical Society, are fixed at the amounts they have heretofore received (viz., $19,500 and $160,950, respectively) plus respective disbursements of $203.41 and $1,659.93. Their application for additional fees has been withdrawn. The fee of the referee is fixed, without objection, at $250,000 (inclusive of disbursements). The fee of the deceased referee, William O'Shea, is fixed, without objection, at $25,000. The final account, as brought up to December 31, 1959 in the supplemental account, is judicially settled and allowed as filed, without objection.\\nIt would be inappropriate to terminate this proceeding, which has continued for a period of four years, and which has produced such excellent results for the beneficiaries of the trust, without a few words of commendation for those who have contributed to that result. The trustee, itself, has done an admirable piece of work in rehabilitating Universal from the verge of bankruptcy to its present outstanding position and also in bringing about a.sale of the Universal securities for $72,500,000. Louis Loeb, Esq., the referee, has performed an arduous task with great skill and perseverance. The efforts of the late William O'Shea, Esq., were extremely helpful. The court-appointed advisors have rendered invaluable assistance to the referee and to the court. The Attorney-General has labored valiantly and with great skill in the interest of the charitable beneficiaries and his services have played an important part in the attainment of the final result. The attorneys for the trustee have performed outstanding services in connection with the many difficult and complex problems which arose during the course of the proceeding. The attorneys for the intervening independent oil companies also have played an important part, among other phases, in seeing to it that Universal will continue its research for a long period of years, free from the domination of the larger oil producers. The underwriters and their attorneys, as well as the officers, personnel and attorneys of the American Chemical Society and of Universal, are likewise entitled to great commendation for their co-operation in the attainment of the ultimate result. All who participated are entitled to take deep' gratification in what they succeeded in accomplishing.\\nThe motions are disposed of in accordance with this opinion. Settle order.\"}"

ny/1064681.json

@@ -0,0 +1 @@
+"{\"id\": \"1064681\", \"name\": \"The People of the State of New York, Respondent, v. Raymond Quevas, Appellant\", \"name_abbreviation\": \"People v. Quevas\", \"decision_date\": \"1991-12-02\", \"docket_number\": \"\", \"first_page\": \"441\", \"last_page\": \"442\", \"citations\": \"178 A.D.2d 441\", \"volume\": \"178\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T17:03:55.121684+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York, Respondent, v Raymond Quevas, Appellant.\", \"head_matter\": \"The People of the State of New York, Respondent, v Raymond Quevas, Appellant.\", \"word_count\": \"260\", \"char_count\": \"1624\", \"text\": \"Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered April 23, 1990, convicting him of sodomy in the first degree (four counts), sexual abuse in the first degree (two counts), sodomy in the third degree (four counts), and endangering the welfare of a child (four counts), upon a jury verdict, and imposing sentence.\\nOrdered that the judgment is affirmed.\\nViewing the evidence adduced at trial in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).\\nContrary to the defendant's contention, the police officer's testimony regarding the complainant's prior identification of the defendant was properly admitted into evidence at the trial (see, People v Hernandez, 154 AD2d 197).\\nFinally, we disagree that the trial court improperly limited the scope of the cross-examination of the complaining witness. It is well settled that the scope of cross-examination rests largely in the sound discretion of the court (People v Mandel, 48 NY2d 952, cert denied 446 US 949; People v Holmes, 138 AD2d 630). The trial court properly exercised its discretion in not allowing counsel to cross-examine the complainant about the alleged acts of an unapprehended accomplice. Bracken, J. P., Sullivan, Balletta and Copertino, JJ., concur.\"}"

ny/1086779.json

@@ -0,0 +1 @@
+"{\"id\": \"1086779\", \"name\": \"Matter of Salvino Belotti, Deceased\", \"name_abbreviation\": \"In re Belotti\", \"decision_date\": \"1914-09\", \"docket_number\": \"\", \"first_page\": \"416\", \"last_page\": \"418\", \"citations\": \"12 Mills Surr. 416\", \"volume\": \"12\", \"reporter\": \"Mills' Surrogate's Reports\", \"court\": \"New York Surrogate's Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T17:22:32.575497+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Matter of Salvino Belotti, Deceased.\", \"head_matter\": \"Matter of Salvino Belotti, Deceased.\\n(Surrogate\\u2019s Court, Bronx County,\\nSeptember, 1914.)\\nExecutors and administrators\\u2014When limited letters of administration GRANTED FOR THE PURPOSE OF PERMITTING PROSECUTION OF AN] action\\u2014Actions arising under section 1902 of Code of Civil Procedure NO LONGER RESTRICTED.\\nUnder sections 2559 and 2592 of the Code of Civil Procedure, as amended in 1914, limited letters of administration may be granted for the purpose of permitting an administrator to prosecute any cause of action, the authority to issue such letters is no longer restricted to causes of action arising under section 1902 of said Code.\\nApplication for limited letters of administration.\\nCharles P. Hallock, for petitioner.\", \"word_count\": \"569\", \"char_count\": \"3458\", \"text\": \"Schulz, S.\\nThe petitioner, a son of the decedent, applies for limited letters of administration authorizing him to revive, bring and prosecute the action mentioned in the petition.\\nThe widow of the decedent has renounced her prior right to such letters. The petition sets forth that the value of the personal property of the decedent is uncertain, unliquidated and undetermined, and that such personal property consists of a claim in an action pending in the Supreme Court, Bronx county, in which the decedent was the plaintiff, to recover possession of certain real property and for damages for withholding possession thereof, and was pending at the time of the death of the decedent.\\nThe question arises whether such limited letters of administration may be granted, and, if so, whether a bond on the part of the administrator may be dispensed with.\\nPrior to Septembgr 1, 1914, limited letters of administration could only be issued pursuant to section 2664 of the Code of Civil Procedure as then in force. Under that section, limited letters could be granted only where a cause of action existed for negligently causing the death of the deceased pursuant to the special provision of law contained in the Code of Civil Procedure, section 1902. Kirwin v. Malone, 45 App. Div. 93; followed in Matter of Carter, 74 Misc. Rep. 1.\\nThe present proceeding was brought subsequently to the 1st day of September, 1914, upon which date chapter 443 of the Laws of 1914 became effective, and is, therefore, governed by the provisions of section 2559 and section 2592 of the Code of Civil Procedure, as now in force. These sections, so far as material, provide as follows :\\nSection 2559. 66 Letters may be granted limiting and restricting the powers and rights of the holders thereof as follows : To an executor or administrator, where a right of action exists.\\\"\\nSection 2592. \\\" Where a right of action is granted to an -s s * administrator by special provision of law, or it is alleged that a cause of action existed in behalf of decedent, and it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered \\u00ae the surrogate may dispense with a bond \\u00ae \\u00ae * and issue letters which as to such cause of action shall be limited to the prosecution thereof.\\\"\\nIt seems clear to me that under the provisions of these sections the relief prayed for in the petition may, and under the -circumstances detailed should, be granted, and in view of the impracticability of giving a bond sufficient to cover the probable amount of the recovery no bond should be required and the letters should be limited in accordance with the provisions of the section last cited. Letters will issue accordingly.\\nDecreed accordingly.\"}"

ny/1087523.json

@@ -0,0 +1 @@
+"{\"id\": \"1087523\", \"name\": \"Anna Stevens, Appellant, v. Arthur T. Weygandt, Respondent\", \"name_abbreviation\": \"Stevens v. Weygandt\", \"decision_date\": \"1914-07-31\", \"docket_number\": \"\", \"first_page\": \"252\", \"last_page\": \"254\", \"citations\": \"13 Mills Surr. 252\", \"volume\": \"13\", \"reporter\": \"Mills' Surrogate's Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T20:34:51.138968+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anna Stevens, Appellant, v. Arthur T. Weygandt, Respondent.\", \"head_matter\": \"Anna Stevens, Appellant, v. Arthur T. Weygandt, Respondent.\\n(Supreme Court, App. Div., Second Department,\\nJuly 31, 1914.)\\nPractice\\u2014Examination of Defendant before Trial in Action to Eecover Monet Loaned.\\nWhere in an action to recover an alleged loan by the plaintiff to the defendant, who was in her employ at the time and had sole charge of certain improvements being made upon premises owned by .her, it appears that the defendant is the only person by whom the plaintiff can establish that the loan was not in fact for her benefit and use in the improvement of her property, she is entitled to an examination of the defendant before trial, but such examination should be limited to the particular transaction which resulted in the alleged loan.\\nBurr, J., dissented.\\nAppeal by the plaintiff, Anna Stevens, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of May, 1914.\\nJulius Kendler and A. Joseph Geist, for the appellant.\\nFred L. Gross, for the respondent.\", \"word_count\": \"570\", \"char_count\": \"3278\", \"text\": \"Rich, J.\\nThe plaintiff appeals from an order of the Special Term vacating an ex parte order for the examination of the defendant before trial. The action is brought to recover an alleged loan of $1,000, which is denied by the answer. The affidavit of the plaintiff upon which the order for the examination was granted was sufficient, and the order from which this appeal is taken was improperly made. It is shown and not denied that the defendant was in her employ at the time the loan was made, and had the sole charge of alterations and improvements being made upon premises owned by her; that at defendant's request she gave him the $1,000, which she understood to be a loan to him which was to be repaid.\\nAs part of plaintiff's affirmative case, it is necessary that she should prove that the money which she delivered to the defendant was a loan, made upon his agreement, express or implied, to repay the same, and this distinguishes the case at bar from the authorities relied upon by the respondent. It seems that the defendant is the only person 'by whom she can establish this fact and show that the money advanced was not in fact for plaintiff's benefit and used in the improvement of her property. I think that the plaintiff is entitled to the examination of the defendant before trial (Tisdale Lumber Co. v. Droge, 147 App. Div. 55; Kornbluth v. Isaacs, 149 id. 108; McKeand v. Locke, 115 id. 174; Richards v. Whiting, 127 id. 208; Shonts v. Thomas, 116 id. 854; Donaldson v. Brooklyn Heights Railroad Co., 119 id. 513; Koplin v. Hoe, 123 id. 827; Cherbuliez v. Parsons, Id. 814), but that the examination should be limited to the transaction between the parties which resulted in the alleged loan.\\nThe order must, therefore, be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term to fix a day when the defendant shall appear for examination under the original order of May 9, 1914.\\nThomas, Carr and Stapleton, JJ., concurred; Burr, J., dissented.\\nOrder reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term to fix. a day when the defendant shall appear for examination under the original order of May 9, 1914.\"}"

ny/1114324.json

@@ -0,0 +1 @@
+"{\"id\": \"1114324\", \"name\": \"The People of the State of New York, Respondent, v. Nathan Baxter, Appellant\", \"name_abbreviation\": \"People v. Baxter\", \"decision_date\": \"1993-02-05\", \"docket_number\": \"\", \"first_page\": \"1014\", \"last_page\": \"1015\", \"citations\": \"190 A.D.2d 1014\", \"volume\": \"190\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T19:34:08.475988+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York, Respondent, v Nathan Baxter, Appellant.\", \"head_matter\": \"The People of the State of New York, Respondent, v Nathan Baxter, Appellant.\", \"word_count\": \"145\", \"char_count\": \"906\", \"text\": \"\\u2014 Judgment unanimously affirmed. Memorandum: At trial, defense counsel informed the court that she had made a mistake in exercising her peremptory challenges when she excused juror number 13 instead of juror number 6. She requested the court to discharge juror number 6 even though that juror had been sworn. On appeal, defendant argues that, because of counsel's mistake, defendant was deprived of effective assistance of counsel. We disagree. That inadvertent error does not rise to the level of ineffective assistance of counsel (see, People v Satterfield, 66 NY2d 796, 798-799).\\nWe have reviewed the issues raised by defendant in his pro se brief and find them to be without merit. (Appeal from Judgment of Onondaga County Court, Mulroy, J. \\u2014 Rape, 1st Degree.) Present \\u2014 Callahan, J. P., Boomer, Green, Boehm and Davis, JJ.\"}"

ny/1128802.json

@@ -0,0 +1 @@
+"{\"id\": \"1128802\", \"name\": \"The People of the State of New York, Respondent, v. Alphonse Bradley, Appellant\", \"name_abbreviation\": \"People v. Bradley\", \"decision_date\": \"1993-05-04\", \"docket_number\": \"\", \"first_page\": \"385\", \"last_page\": \"386\", \"citations\": \"193 A.D.2d 385\", \"volume\": \"193\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T19:48:31.967945+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York, Respondent, v Alphonse Bradley, Appellant.\", \"head_matter\": \"The People of the State of New York, Respondent, v Alphonse Bradley, Appellant.\\n[597 NYS2d 50]\", \"word_count\": \"385\", \"char_count\": \"2452\", \"text\": \"Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered September 12, 1991, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, and, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree, and sentencing him as a second felony offender, to two concurrent terms of 3Yi to 7 years, unanimously affirmed.\\nThe People's evidence clearly established that defendant had been orchestrating a drug selling operation. Police observers saw defendant line up prospective drug buyers, take money from them, and signal his accomplice, who would dispense envelopes of PCP. When police approached, defendant attempted to flee, discarding currency down a sewer as he ran.\\nAlthough defendant never personally possessed the contraband, the evidence clearly established that he acted in concert with his accomplice to possess the PCP with intent to sell. Although defendant was acquitted of a sale count, the resulting verdict was not inherently inconsistent when viewed in light of the elements of each offense (People v Goodfriend, 64 NY2d 695, 697) and the trial evidence (People v Tucker, 55 NY2d 1, 7; People v Ortiz, 170 AD2d 396, lv denied 77 NY2d 998).\\nSince the defendant exercised authority over his accomplice's dispensing of the contraband, defendant's own lack of physical possession does not render the evidence legally insufficient (People v Manini, 79 NY2d 561). We have considered defendant's remaining challenges to legal sufficiency and find them to be meritless.\\nEvidence of the uncharged sales was properly admitted to establish, inter alia, that he acted in concert (see, People v Carter, 77 NY2d 95, 107) and that he possessed the contraband with intent to sell (People v Grant, 181 AD2d 579). The probative value of this evidence outweighed the potential for undue prejudice.\\nDefendant's failure to request in a timely manner appropriate sanctions other than preclusion of testimony, arising out of the People's inadvertent destruction of certain physical evidence, renders the claim unpreserved for review as a matter of law (CPL 470.05 [2]) and we decline to review in the interest of justice.\\nWe have considered defendant's remaining contentions and find them to be without merit. Concur\\u2014Milonas, J. P., Rosenberger, Ellerin and Kupferman, JJ.\"}"

ny/1136166.json

@@ -0,0 +1 @@
+"{\"id\": \"1136166\", \"name\": \"Franklin Stepanian et al., Appellants, v. Frank A. Rozanski et al., Respondents\", \"name_abbreviation\": \"Stepanian v. Rozanski\", \"decision_date\": \"1993-07-16\", \"docket_number\": \"\", \"first_page\": \"973\", \"last_page\": \"974\", \"citations\": \"195 A.D.2d 973\", \"volume\": \"195\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T22:32:38.053916+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Franklin Stepanian et al., Appellants, v Frank A. Rozanski et al., Respondents.\", \"head_matter\": \"Franklin Stepanian et al., Appellants, v Frank A. Rozanski et al., Respondents.\\n[600 NYS2d 599]\", \"word_count\": \"398\", \"char_count\": \"2383\", \"text\": \"Order reversed on the law with costs, motion denied and verdict reinstated. Memorandum: Supreme Court erred in setting aside the jury verdict in favor of plaintiffs pursuant to CPLR 4404. At the close of proof, the court denied defendants' motion for a directed verdict because there were questions of fact for the jury with respect to the two issues raised: (1) \\\"general negligence\\\" and (2) the known vicious propensities of defendants' dog. The court then instructed the jury on those theories. Defendants did not take exception to the charge as delivered, nor did they object to the verdict sheet setting forth the two separate and distinct theories of liability. The jury found: (1) that defendants were negligent and their negligence was a proximate cause of the accident, and (2) that the dog did not possess vicious propensities.\\nBy failing to register any protest to the charge, the instructions \\\"became the law applicable to the determination of the rights of the parties and thus established the legal standard by which the sufficiency of the evidence to support the verdict must be judged\\\" (Harris v Armstrong, 64 NY2d 700, 702). In evaluating the evidence in light of the court's instructions, we cannot say that the jury's verdict finding that defendants were negligent and that their negligence was a proximate cause of the accident is without factual foundation (see, Harris v Armstrong, 97 AD2d 947, affd 64 NY2d 700, supra).\\n\\\"In deciding whether to grant a motion under CPLR 4404 to set aside the verdict, a court should be guided by the rule that if the verdict is one which reasonable men could have rendered after receiving conflicting evidence, the court should not substitute its judgment in place of the verdict\\\" (Harris v Armstrong, supra, at 947; see also, Kuncio v Millard Fillmore Hosp., 117 AD2d 975, 976, lv denied 68 NY2d 608). Where varying inferences from the evidence are possible, the issue of negligence is left to the jury (Eddy v Syracuse Univ., 78 AD2d 989, lv denied 52 NY2d 705).\\nAll concur except Pine, J., who dissents and votes to affirm for reasons stated in decision at Supreme Court, Mintz, J. (Appeal from Order of Supreme Court, Erie County, Mintz, J. \\u2014Set Aside Verdict.) Present\\u2014Callahan, J. P., Green, Pine, Fallon and Davis, JJ.\"}"

ny/1149175.json

@@ -0,0 +1 @@
+"{\"id\": \"1149175\", \"name\": \"Susan E. Dufel et al., Respondents, v. Randy H. Green et al., Appellants\", \"name_abbreviation\": \"Dufel v. Green\", \"decision_date\": \"1993-11-10\", \"docket_number\": \"\", \"first_page\": \"640\", \"last_page\": \"641\", \"citations\": \"198 A.D.2d 640\", \"volume\": \"198\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T18:34:33.562514+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Susan E. Dufel et al., Respondents, v Randy H. Green et al., Appellants.\", \"head_matter\": \"Susan E. Dufel et al., Respondents, v Randy H. Green et al., Appellants.\\n[603 NYS2d 624]\", \"word_count\": \"376\", \"char_count\": \"2326\", \"text\": \"Casey, J.\\nAppeals (1) from a judgment of the Supreme Court (White, J.), entered July 20, 1992 in Montgomery County, upon a verdict rendered in favor of plaintiffs, and (2) from an order of said court, entered September 22, 1992 in Montgomery County, which denied defendants' motion to set side the verdict.\\nDefendants contend that Supreme Court erred in allowing plaintiffs' medical experts to express their opinions as to whether plaintiff Susan E. Dufel's injuries satisfied the statutory standard required by Insurance Law \\u00a7 5102 (d). In Robillard v Robbins (168 AD2d 803, affd 78 NY2d 1105), this Court rejected an identical argument and held that expert testimony on the ultimate issue of fact was permissible. The Court of Appeals' affirmance was based upon the absence of specific objections sufficient to preserve the issue for that Court's review. Defendants ask that we reconsider our holding in Robillard.\\nOnce this Court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision under the doctrine of stare decisis, which recognizes that legal questions, once resolved, should not be reexamined every time they are presented (see, People v Bing, 76 NY2d 331, 338). Although the rule does not require unyielding adherence to even recent precedent, the mere existence of strong arguments to support a different result is not sufficient, in' and of itself, to compel the court to overturn judicial precedent (see, Matter of Higby v Mahoney, 48 NY2d 15, 18). The exceptions to the rule are limited (see, People v Hobson, 39 NY2d 479, 488-491), even in tort cases involving personal injury \\\"where courts will, if necessary, more readily re-examine established precedent to achieve the ends of justice in a more modern context\\\" (supra, at 489). In the end, there must be a compelling reason to change the established rule (see, Matter of Eckart, 39 NY2d 493, 502), and we find the arguments advanced by defendants for changing the rule established in Robillard insufficient. Supreme Court's judgment and order should, therefore, be affirmed.\\nYesawich Jr., J. P., Mercure and Crew III, JJ., concur. Ordered that the judgment and order are affirmed, with costs.\"}"

ny/1157811.json

@@ -0,0 +1 @@
+"{\"id\": \"1157811\", \"name\": \"The People of the State of New York, Respondent, v. Fred Maldonado, Appellant\", \"name_abbreviation\": \"People v. Maldonado\", \"decision_date\": \"1994-01-11\", \"docket_number\": \"\", \"first_page\": \"426\", \"last_page\": \"427\", \"citations\": \"200 A.D.2d 426\", \"volume\": \"200\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T23:25:01.311292+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York, Respondent, v Fred Maldonado, Appellant.\", \"head_matter\": \"The People of the State of New York, Respondent, v Fred Maldonado, Appellant.\\n[608 NYS2d 804]\", \"word_count\": \"197\", \"char_count\": \"1158\", \"text\": \"\\u2014Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered April 14, 1992, unanimously affirmed.\\nApplication by appellant's counsel to withdraw as counsel is granted. (See, Anders v California, 386 US 738; People v Saunders, 52 AD2d 833.) We have reviewed this record and agree with appellant's assigned counsel that there are no non-frivolous points which could be raised on this appeal.\\nPursuant to CPL 460.20, defendant has the right to apply for leave to appeal to the Court of Appeals by making applica tion to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after service of a copy of this order, with notice of entry.\\nDenial of the application for permission to appeal by the Judge or Justice first applied to is final and no new application may thereafter be made to any other Judge or Justice. Concur \\u2014 Ellerin, J. P., Asch, Rubin and Nardelli, JJ.\"}"

ny/1176424.json

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+"{\"id\": \"1176424\", \"name\": \"In the Matter of Douglas L., a Person Alleged to be a Juvenile Delinquent, Appellant\", \"name_abbreviation\": \"In re Douglas L.\", \"decision_date\": \"1996-10-15\", \"docket_number\": \"\", \"first_page\": \"489\", \"last_page\": \"490\", \"citations\": \"232 A.D.2d 489\", \"volume\": \"232\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T21:10:28.874934+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Douglas L., a Person Alleged to be a Juvenile Delinquent, Appellant.\", \"head_matter\": \"In the Matter of Douglas L., a Person Alleged to be a Juvenile Delinquent, Appellant.\\n[648 NYS2d 165]\", \"word_count\": \"383\", \"char_count\": \"2339\", \"text\": \"\\u2014In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Lubow, J.), dated August 23, 1994, which, upon a fact-finding order of the same court (De Phillips, J.), dated April 12, 1994, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of attempted robbery in the first degree, adjudged him to be a juvenile delinquent, and granted him a conditional discharge for a period of 12 months.\\nOrdered that the order of disposition is affirmed, without costs or disbursements.\\nThe appellant's contention that the Family Court should have dismissed the proceeding because he was deprived of his right to a speedy dispositional hearing is without merit. The Court of Appeals has explicitly rejected \\\"wholesale dismissals on a per se basis for speedy dispositional lapses, irrespective of the reasons for the time lapse\\\", holding that, \\\"[e]ven assuming an overarching speedy dispositional phase right does pertain, the Family Court Act does not correspondingly direct dismissal relief for a lapse in that regard\\\" (Matter of Jose R., 83 NY2d 388, 393-394). Under the circumstances of this case, where the record reveals that the initial delay in the dispositional hearing was caused by the appellant's failure to appear and his arrest on unrelated criminal charges, the Family Court properly determined that dismissal was not appropriate (see, Matter of Jose R., supra; Matter of Leonard H., 209 AD2d 617; Matter of Reginald F., 207 AD2d 447). We further note that the subsequent adjournment of this matter on July 5, 1994, was warranted by special circumstances (Family Ct Act \\u00a7 350.1 [5]), since the court needed a Probation Department investigation and report and a mental health evaluation in order to determine the \\\" 'least restrictive disposition consistent with the \\\"needs and best interests of the \\u00a1juvenile] as well as the need for protection of the community\\\" ' \\\" (Matter of Miguel M., 220 AD2d 264, 265, quoting Matter of Eddie M., 196 AD2d 25, 30; see also, Matter of Kasheen A., 197 AD2d 572). Joy, J. P., Altman, Friedmann and Krausman, JJ., concur.\"}"

ny/1193611.json

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+"{\"id\": \"1193611\", \"name\": \"The People of the State of New York, Respondent, v. Douglas Edwards, Appellant\", \"name_abbreviation\": \"People v. Edwards\", \"decision_date\": \"1994-12-27\", \"docket_number\": \"\", \"first_page\": \"500\", \"last_page\": \"501\", \"citations\": \"210 A.D.2d 500\", \"volume\": \"210\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T20:45:10.038440+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York, Respondent, v Douglas Edwards, Appellant.\", \"head_matter\": \"The People of the State of New York, Respondent, v Douglas Edwards, Appellant.\\n[620 NYS2d 992]\", \"word_count\": \"260\", \"char_count\": \"1659\", \"text\": \"\\u2014Appeal by the defendant (1) from a judgment of the Supreme Court, Queens County (Appelman, J.), rendered August 13, 1991, convicting him of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree under Indictment No. 4827/90, upon a jury verdict, and imposing sentence, and (2) from an amended judgment of the same court, also rendered August 13, 1991, revoking a sentence of probation previously imposed by the same court (Chetta, J.), upon a finding that he had violated a condition thereof, upon his admission, and imposing a sen tence of imprisonment upon his previous convictions of attempted robbery in the second degree and attempted assault in the first degree under Indictment No. 1837/89.\\nOrdered that the judgment and amended judgment are affirmed.\\nContrary to the defendant's contention, it was proper for the prosecutor to cross-examine him with respect to omissions in his post-arrest statements to the police. \\\"If defendant testifie[s] and offer[s] an exculpatory explanation not offered previously, his conduct during police questioning [is] admissible on cross-examination to impeach credibility\\\" (People v Aponte, 180 AD2d 910; see, People v Savage, 50 NY2d 673, cert denied 449 US 1016; People v Bishop, 206 AD2d 884).\\nThe defendant's sentences were neither harsh nor excessive (see, People v Suitte, 90 AD2d 80).\\nThe defendant's remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J. P., Lawrence, Ritter and Joy, JJ., concur.\"}"

ny/1215372.json

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+"{\"id\": \"1215372\", \"name\": \"Samuel Sciarrino, Plaintiff, v. Glens Falls Insurance Co., Defendant\", \"name_abbreviation\": \"Sciarrino v. Glens Falls Insurance\", \"decision_date\": \"1970-02-03\", \"docket_number\": \"\", \"first_page\": \"223\", \"last_page\": \"225\", \"citations\": \"62 Misc. 2d 223\", \"volume\": \"62\", \"reporter\": \"New York Miscellaneous Reports\", \"court\": \"New York City Civil Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T20:32:46.935126+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Samuel Sciarrino, Plaintiff, v. Glens Falls Insurance Co., Defendant.\", \"head_matter\": \"Samuel Sciarrino, Plaintiff, v. Glens Falls Insurance Co., Defendant.\\nCivil Court of the City of New York, Queens County,\\nFebruary 3, 1970.\\nAgresta & Malerba for plaintiff. Macklin, Hanan & McKernan for defendant.\", \"word_count\": \"918\", \"char_count\": \"5391\", \"text\": \"Kenneth N. Browne, J.\\nThe plaintiff seeks to recover from his insurer, Glens Falls Insurance Co., on the ground that they failed and refused to meet their obligation under the terms of the policy of insurance.\\nThis court finds that on or about June 9, 1966 the defendant issued a renewed policy of insurance on the 1962 Barbour Express Cruiser NY8892BA and 1964 100 H. P. Mercury S#1466777 belonging to the plaintiff. That on the 11th day of August, 1966 the cruiser was stolen and the plaintiff notified his insurance company of the theft: Thereafter on the 17th day of September, 1966 the plaintiff was notified that his boat had been recovered by the police, with the simultaneous arrest of a person or persons suspected of committing the theft. Upon his arrival to claim his boat the defendant was prevented from so doing and was informed by the police that the boat was being held as evidence, plaintiff testifying that he was not even allowed by the police to go aboard the boat to examine it for damages. Thereafter, the boat, while in police custody, sank on two separate occasions and was finally destroyed by the Army Corps of Engineers as a hazard to navigation in the month of October, 1967.\\nThe defendant interposes two basic affirmative defenses, regarding two clauses of the contract of insurance reading in pertinent part as follows: \\\" Warranted free from any claim for loss, damage or expense caused by or resulting from capture, seizure, arrest, restraint or detainment, or the consequences thereof or of any attempt thereof, or any taking of the Vessel, by requisition or otherwise \\\" (emphasis supplied) and \\\" it is a condition of this policy that no suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless all terms, conditions and warranties in- this policy have been complied with and unless the same be commenced within 12 months next after the calendar date of the happening of the physical loss or damage out of which the claim arose.\\\" (Emphasis supplied.)\\nIt is Hornbook law that where a clause in a policy of insurance is capable of two or more interpretations, the one most favorable to the insured must be adopted. (See Bobrow v. United States Cas. Co., 231 App. Div. 91; Killian v. Metropolitan Life Ins. Co., 251 N. Y. 44; Gerka v. Fidelity & Cas. Co. of N. 7., 251 N. Y. 51; Savery v. Commercial Travelers Mut. Acc. Assn. of Amer., 238 App. Div. 189, 191; Press Pub. Co. v. General Acc. Fire & Life Assur. of Perth, 160 App. Div. 537, affd. 217 N. Y. 648; Stacy v. New Baltimore Mut. Ins. Assn., 182 App. Div. 124.)\\nThe defendant, in the opinion of this court, seeks to slash with a blunted saber and seeks refuge behind the tissue paper shield of its first affirmative defense. It is abundantly clear to this court that the parties never intended that the assured insure the insurer against a contingency, such as this, over which he had no control nor malefic participation. This court finds that it does not lie in the mouth of the defendant herein to assert the afore-mentioned as a defense, knowing full well the circumstances of the alleged \\\" capture, seizure, arrest, restraint and/or detainment.\\\" (Emphasis supplied.) This court considers the alleged first affirmative defense pettifogging and I hereby dismiss it as utterly without merit.\\nThe defendant herein sets forth as its second affirmative defense the short contractual \\\"statute of limitations \\\" and asserts that the plaintiff's action herein was not commenced timely. This court finds as a matter of fact that the plaintiff's ' ' physical loss ' ' did not occur on August 11,1966 as is contended for by the defendant, but rather in or about October, 1967, when the boat and motor were destroyed by the Army Corps of Engineers. This court finds that the plaintiff was never able to assume possession of the boat and motor, through no fault or election of his own, from the date of the theft. This court therefore finds as a matter of fact that the plaintiff's action was commenced timely. Having found the foregoing, this court need not decide whether or not the act of the defendant's agent of negotiating in bad faith until the 12-month limitation had passed without forthrightly disclaiming liability on the policy was sufficient to waive the limitation. It is to be noted in passing, however, that in the opinion of this court the relationship of an assured and his insurer is not one of dealing at arm's length but rather rises almost to the level of coadventurers. Hence, the punctilio of honor the most sensitive should be the standard of conduct in their dealings (see Meinhard v. Salmon, 223 App. Div. 663). Anything less makes a mockery of the sense of security that the assured has paid for and is entitled to receive. Suffice it to say that this deceptive practice should be left to the Legislature to remedy by appropriate safeguards.\\nAs a result of the foregoing, I find that the plaintiff is entitled to judgment as against the defendant in the sum of $2,180, with interest from October 31, 1967, and I order and adjudge that said plaintiff, Samuel Sciarrino, have judgment accordingly.\"}"

ny/12290392.json

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+"{\"id\": \"12290392\", \"name\": \"People v. Smalls\", \"name_abbreviation\": \"People v. Smalls\", \"decision_date\": \"2017-03-31\", \"docket_number\": \"\", \"first_page\": \"952\", \"last_page\": \"952\", \"citations\": \"29 N.Y.3d 952\", \"volume\": \"29\", \"reporter\": \"New York Reports\", \"court\": \"New York Court of Appeals\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-11T02:18:01.022537+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"People v Smalls\", \"head_matter\": \"People v Smalls\", \"word_count\": \"13\", \"char_count\": \"73\", \"text\": \"2d Dept: 145 AD3d 802 (Nassau)\\ndenied 3/6/17 (Stein, J.)\"}"

ny/12305402.json

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+"{\"id\": \"12305402\", \"name\": \"People v. Boyd\", \"name_abbreviation\": \"People v. Boyd\", \"decision_date\": \"2017-07-31\", \"docket_number\": \"\", \"first_page\": \"1090\", \"last_page\": \"1090\", \"citations\": \"29 N.Y.3d 1090\", \"volume\": \"29\", \"reporter\": \"New York Reports\", \"court\": \"New York Court of Appeals\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-11T02:18:01.022537+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"People v Boyd\", \"head_matter\": \"People v Boyd\", \"word_count\": \"18\", \"char_count\": \"91\", \"text\": \"App Div, 1st Dept: 2017 NY Slip Op 72242(U) (NY)\\ndenied 7/28/17 (Wilson, J.)\"}"

ny/1256847.json

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+"{\"id\": \"1256847\", \"name\": \"Janice M. Syron, Respondent, v. Roberta C. Paolelli, Appellant\", \"name_abbreviation\": \"Syron v. Paolelli\", \"decision_date\": \"1997-04-10\", \"docket_number\": \"\", \"first_page\": \"710\", \"last_page\": \"711\", \"citations\": \"238 A.D.2d 710\", \"volume\": \"238\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T17:07:29.485941+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Janice M. Syron, Respondent, v Roberta C. Paolelli, Appellant.\", \"head_matter\": \"Janice M. Syron, Respondent, v Roberta C. Paolelli, Appellant.\\n[656 NYS2d 419]\", \"word_count\": \"555\", \"char_count\": \"3653\", \"text\": \"Yesawich Jr., J.\\nAppeal from an order of the Supreme Court (Harris, J.), entered September 11, 1996 in Albany County, which, inter alia, granted plaintiffs cross motion for a protective order.\\nPlaintiff commenced this action seeking money damages for personal injuries she allegedly sustained as a result of a March 12, 1992 automobile accident that occurred in the City of Schenectady, Schenectady County. During discovery, defendant sought to obtain, inter alia, records of plaintiff's psychiatric and/or psychological treatment. Plaintiff objected to these demands and refused to provide the requested authorizations, maintaining that she was making no claim for treatment of a psychological nature.\\nResponding to defendant's motion to compel disclosure, plaintiff contends that the information contained in these records is irrelevant to the present action and remains privileged, inasmuch as she has not placed her mental condition in issue. Plaintiff also cross-moved for a protective order barring discovery of the records, on the ground that their disclosure would cause her and other members of her family undue embarrassment and injury. After reviewing the records in camera, Supreme Court denied defendant's motion and granted plaintiff's cross motion. Defendant appeals.\\nGenerally, in a personal injury action, the medical records of a litigant, who affirmatively places his or her physical condition or mental or psychological status in issue, are subject to disclosure (see, Koump v Smith, 25 NY2d 287, 294; Evans v Club Mediteranee, 184 AD2d 277; Levine v Morris, 157 AD2d 567; Leichter v Cohen, 124 AD2d 710, 711). However, plaintiff maintains that she is not obliged to disclose her psychological and psychiatric records because she has \\\"not filed a claim alleging an aggravation or development of an emotional trauma or psychological condition\\\", and hence has not waived the physician-patient privilege with respect to these records. We disagree, for in her complaint and bill of particulars alike she specifically alleges that she suffers permanently from \\\"mental anxiety\\\" and \\\"emotional distress\\\" as a result of the accident (see, St. Clare v Cattani, 128 AD2d 766, 767).\\nMoreover, our in camera review of these records discloses that they relate, in part, to therapy and treatment plaintiff received in connection with her complaints of chronic pain stemming, inter alia, from the physical injuries she sustained in the accident, as well as for the emotional distress occasioned thereby. They cannot, therefore, be considered irrelevant to the present action. Some portions of the records\\u2014those dealing with plaintiff's family relationships, and events that occurred in her childhood and adolescence\\u2014are, indeed, unrelated to the vehicular accident and potentially embarrassing to plaintiff and others. These concerns can best be addressed, and defendant's legitimate interests served as well, by allowing discovery of the records with these irrelevant and prejudicial segments redacted (cf., Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 462).\\nCardona, P. J., Mikoll, Crew III and White, JJ., concur. Ordered that the order is reversed, on the law and the facts, without costs, defendant's motion granted except insofar as it seeks discovery of portions of the requested records that refer to plaintiff's family relationships, other members of her family, and events that occurred in her childhood and adolescence, and plaintiff's cross motion granted to the extent necessary to preserve the confidentiality of those portions of the records.\"}"

ny/1618464.json

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+"{\"id\": \"1618464\", \"name\": \"Hannah Brady, Plaintiff, v. Mary Brady et al., Defendants\", \"name_abbreviation\": \"Brady v. Brady\", \"decision_date\": \"1900-05\", \"docket_number\": \"\", \"first_page\": \"411\", \"last_page\": \"417\", \"citations\": \"31 Misc. 411\", \"volume\": \"31\", \"reporter\": \"New York Miscellaneous Reports\", \"court\": \"New York Supreme Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T22:31:53.119021+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hannah Brady, Plaintiff, v. Mary Brady et al., Defendants.\", \"head_matter\": \"Hannah Brady, Plaintiff, v. Mary Brady et al., Defendants.\\n(Supreme Court, Onondaga Special Term,\\nMay, 1900.)\\n1. Deed \\u2014 Reservation, of \\u201c all mines and minerals \\u201d reserves granite and limestone.\\nUnder an exception and reservation, contained in a deed, of \\u201cail mines and minerals \\u201d, the title to granite and limestone upon the premises remains in the grantor, as these substances are minerals and must be deemed reserved where there is nothing in the nature and context of the deed to show that such was not the intention.\\n3. Access \\u2014 Right not lost by nonuser.\\nA right of access to lands is not lost by mere nonuser.\\n3. Lease \\u2014 Failure as to part of premises demised. __\\nAlthough a lease may fail as to a part of the demised premises, the same being covered by quarry rights, it is good against the lessor as to the remainder of the premises.\\nAction for partition of real estate.\\nCharles S. Mereness, for- plaintiff.\\nCharles L. Griffin, for defendants P'helps and Phelps as Eeceiver.\\nA. E. Kilby, for defendant The Oswegatchie Quarry Company.\\nPurcell, Walker & Bums, for defendants Smith and Sullivan.\\nEdward J. Boshart, guardian ad litem for infant defendants.\", \"word_count\": \"2517\", \"char_count\": \"14290\", \"text\": \"Andrews, W. S., J.\\nOn February 18, 1852, John La Farge, being then the owner and -in possession of 100- acres of land in the town of Diana, Lewis county, FT. Y., conveyed the same by a warranty deed to one Margaret Lewis. In this deed, however, there was excepted and reserved \\\" all mines and minerals which may be found on the above piece of land with the right of entering at any time with workmen and others to dig and carry away the same.\\\"\\nOn March 28, 1859, Margaret Lewis, by a warranty deed, conveyed the same premises to James Garrett. In this deed there were contained no reservations or exceptions.\\nOn October 23, 1865, James Garrett conveyed the premises also by warranty deed to John Ackerman, Sr., and Stephen Ackerman, reserving and excepting, however, \\\" all mines and minerals that may be found on the above premises, with the right of entering at any time to search for and dig and carry away said minerals.\\\"\\nOn Ffovember 14, 1870, John Ackerman conveyed his undivided interest in the premises to Stephen Ackerman, reserving \\\" all mines and minerals, with the right to work and carry away the same.\\\"\\nOn June 2, 1873, Stephen Ackerman conveyed the premises by warranty deed to Edward*'O. Ackerman, which deed contained no reservation or exception.\\nOn April 1, 1874, Edward O. Ackerman conveyed a portion of the premises, containing fifty-nine acres,' to Charles L. Blood, reserving \\\" all mines' and minerals, with the right to dig, work and carry away the same.\\\"\\nOn May 28, 1880, Charles L. Blood conveyed twenty of his fifty-nine acres to Thomas Brady, excepting and reserving \\\" all mines and minerals more especially the limestone bed found within the bounds of the above-described lot, with full- and absolute right of way across said premises to and from mines, minerals and bed of limestone \\\"with men and teams to mine minerals and limestone, and also the right to occupy all the necessary surface ground for the burning and manufacture of said lime and storing the same.\\\"\\nOn Hay 31, 1880, the same Charles L. Blood again conveyed the same premises to Thomas Brady. This deed, however, containing the following reservation: \\\" excepting and reserving unto the party of the first part all mines and minerals in the same manner, the same are excepted in former conveyances of the above-described premises.\\\"\\nOn June 1, 1884, Thomas Brady and wife mortgaged the last-described premises to P. Vidvard, the mortgage containing the same exception as in the first Blood deed above mentioned.\\nAfter the death of Hr. Vidvard his wife, as executrix, assigned this mortgage to Charles P. Leonard. The latter began a foreclosure on June 30, 1887, and the premises mortgaged were, on October-first in the same year, sold to Hary Brady, the widow of Thomas.\\nThomas Brady died in the year 1880 intestate. As has b.een said, his wife, Hary Brady, survived him, and he left three children, Hannah, the plaintiff, and Gertrude and Blanche, the last two being still under age.\\nOn Hovember 25, 1892, Hary Brady executed a lease of said premises for the term of fifty years to James W. Carpenter and James A. Phelps \\\" excepting and reserving mines and minerals as specified in the original conveyance,\\\" but granting to them the right \\\" to dig, mine, quarry, use, remove, appropriate and convert to the sole use and benefit of the parties of the second part, their heirs and assigns, all and any marble, stone or other valuable material or substance to be found on, in or under said lands, with the right to enter upon, erect, maintain, operate, use, remodel or remove any buildings, machinery or other structures that the said parties of the first part may desire.\\\" The right to cultivate the land not occupied was reserved to the lessor. She was to receive as compensation twenty cents for every cubic yard of stone removed.\\nOn December 26, 1893, the above lease was assigned to the Oswegatchie Quarry Company, and on June 25, 1895, the latter company made a sub-lease for a period of twenty years to the Metropolitan Marble Company. The latter company has become insolvent and is represented in this action by its receiver, Phelps.\\nOn January 4, 1894, Mary Brady and the plaintiff, Hannah Brady, who was then an infant over the age of fourteen years, joined in a petition for the sale of a limestone or marble quarry situated on the premises conveyed by Blood to Brady, and stated to be the property of the infant heirs of Thomas Brady. A referee was appointed subsequently to take proofs and report, and he made his report on February 14, 1894. Hpon this report an order was made for the guardian to make a proper contract, and in accordance' with this order a written contract was made on February 14, 1894, by Mary Brady individually, and as special guardian of her children with the defendant Eebecca Phelps, for the sale of the whole twenty acres for the sum of $2,400 \\u2014 $200 being payable on the execution of the contract; $1,200 on May 1, 1894, and the balance secured by a mortgage. So far as the infants' interest was concerned, however, the contract was made subject to the approval of the court.\\nThe purchaser seems to have made the first payment of $200, and on May 1, 1894, the special guardian reported to the court that she had made a contract of sale to Eebecca Phelps. She stated that of the total sum of $2,400 the share of the infants was to be $750. Ho order confirming this contract has ever been made. On the same day the parties to the contract by a written agreement extended the time for its performance to July 30, 1894, and this is the last transaction between them.\\nOn October 1, 1898, Mary Brady conveyed an undivided half of the said premises, excepting and reserving the limestone bed to the p\\\"intiff.\\nThe will of John La Farge was admitted to probate in the year 1858. By it he gave and devised to his wife, who has since died, during the term of her natural life, one-third part of his real estate, and bequeathed all the rest and residue of his property to his children.\\nBy a deed recorded August 6, 1898, certain of the descendants of La Farge, who obtained title under this will, conveyed to the defendant Smith, their right, title and interest in an undivided four-thirty-fifths share of the mineral rights upon the twenty acres before referred to; and he, in turn, later made an agreement with the defendant Sullivan, permitting the latter to enter upon the premises and dig for and carry away the - minerals found thereon.\\nThe twenty acres in question are largely covered with limestone or granite ledges, rising above the natural surface of the ground. There is, it is true, some timber and some tillable land; but probably the chief value of the property consists in this stone. To obtain this material a quarry has been opened.\\nThe plaintiff claims that she and her sisters, subject to their mother's right of dower, are the owners of this limestone or granite bed and that she and her mother each own an undivided half of the remainder of the premises, and that she is entitled to a decree of partition in this action. She also states that the other defendants claim some interest in the property and she asks to have the rights of all the parties fixed and determined. With this end in view and upon the consent of all the parties an order was made bringing in certain defendants not originally sued.\\nThe defendants Sullivan and Smith in their answer claim that the rights to the granite or limestone quarry were reserved in the deed from La Barge to Lewis; that Smith is a tenant in common of the same with the' heirs of La Barge not parties to this action, and that, as such tenant in' common, he had a right to give to Sullivan the authority to remove the material.\\nEebecca Phelps claims that under the infancy proceedings and the contract she is the equitable owner of and is entitled to receive a conveyance of the entire property, subject to the Phelps and Carpenter lease, upon paying the balance of the purchase price.\\nThe defendants Carpenter and Phelps, The Oswegatchie Quarry Company and the Metropolitan Marble Company claim that under the lease made by Mary Brady they are rightfully entitled to possession of the land and the quarry for a period of fifty years from the date of the lease.\\nAs a matter of fact the defendant Sullivan, seems to be in actual possession of the quarry.\\nUpon this state of facts I have reached the following conclusions:\\nFirst. Under the La-Barge deed the ownership of the /limestone and granite upon the twenty acres in question, and the right to enter, dig for and carry away the same remained in the grantor and passed to his children under his will. Armstrong v. Granite Co., 147 N. Y. 495; Hext v. Gill, L. R., 7 Ch. App. 699.\\nThe material clearly is a mineral and. it is reserved from the grant unless \\\" the nature and context of the deed shows that it was not intended to be included \\\" in the reservation.\\nThere is nothing to justify such a finding. The only claim that can be made is that the ledges of 'rock were so apparent and covered so large a portion of the original 100 acres that the parties could not have referred to them; that to except them would practically destroy the grant.\\nYet it may equally well be said that the knowledge that this mineral existed was the very reason that a reservation was inserted in the deed. Bor was the land worthless except for the stone upon it. Much of the 100 acres seems to have been ordinary farming land, and even the twenty acres, as is shown by the sale under the Yidvard mortgage, and the contract with Mrs. Phelps, was valuable for agricultural purposes.\\nSecond. The title of the heirs and grantees of La Barge to the granite and- limestone, as well as the right of access thereto reserved has not, so far as appears in this case, been lost by adverse possession or by abandonment.\\nThere has been, nothing like an open, notorious, continuous possession of the mines and minerals hostile to the rights of the true owners. The possession of the land by Margaret Lewis and her grantees was entirely consistent with the reservation. And the fact that the lime was occasionally burnt upon the premises is insufficient to sustain such defense.\\nAs to the right of access the most that can be said to have been shown is mere nonuser, and this is not enough. Conabeer v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 474.\\nThird. While Smith, as the grantee of the La Barge devisees, is the owner of an undivided share of the limestone or granite bed, she and her licensee, Sullivan, may still be exercising their rights improperly. It is, at least, doubtful whether they may remove the material by means of open quarrying or in such a way as to disturb the surface. Armstrong v. Granite Co., 147 N. Y. 495; Hext v. Gill, L. R., 7 Ch. App. 699; Midland Ry. Co. v. Robinson, L. R., 15 App. Cas. 19-27; Attorney-General v. Granite Co., 35 West. Repr. 617.\\nIn both Hext v. Gill and Attorney-General v. Granite Co., the word \\\" dig \\\" had been used.\\nThis question, however, is not properly before the court in this action and may be ignored here. Whatever the precise rights of Smith and Sullivan, the plaintiff has no title to the stone, and as to them the action must be dismissed.\\nFourth. By the foreclosure of the Vidvard mortgage in 1887, Mary Brady became the owner of the twenty acres, less the mines and .inerals reserved. This, as we have seen, she leased to Phelps and Carpenter, reserving the use of the buildings on the premises, in 1892, and the right to cultivate the land not used or required by them in their business operations. It is true that on the face of the instrument it is apparent that the parties made the contract chiefly with reference to the quarry rights which were not in fact transferred. But neither Mrs. Brady nor her successor in title is in a position to claim that, therefore, the lease was void or could be avoided by them.\\nFifth. By the contract of 1894, Mrs. Brady agreed to sell her interest in the land, subject to the Phelps and Carpenter lease, to Mrs. Phelps. This agreement was distinct from the agreement as to the supposed interests of the infants and is perfectly valid.\\nStill, in view of all the circumstances, I am disposed to hold as a matter of fact that the parties have rescinded this contract. Ballard v. Walker, 3 Johns. Cas. 60.\\nSixth. Consequently the plaintiff and Mary Brady are each the owner of one undivided half of this twenty acres, less the mines and minerals thereon, subject to the rights of Phelps and Carpenter, their assignees and sublessees under the lease of November 25, 1892.\\nSeventh. Apparently it is conceded that no actual partition of this property can be made. Therefore the plaintiff is entitled to the usual interlocutory judgment for its sale, subject to the interests of the lessees just referred to.\\nEighth. The plaintiff may be paid her taxable costs out of the proceeds of such sale, but under the circumstances no costs should be awarded to any of the other parties herein.\\nFindings in pursuance of this opinion may be prepared, and, if not agreed upon, will be settled by me upon proper notice.\\nOrdered accordingly.\"}"

ny/185376.json

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+"{\"id\": \"185376\", \"name\": \"In the Matter of Joseph Anderson, Petitioner, v. Thomas Ricks, as Superintendent of Upstate Correctional Facility, Respondent\", \"name_abbreviation\": \"Anderson v. Ricks\", \"decision_date\": \"2003-07-17\", \"docket_number\": \"\", \"first_page\": \"569\", \"last_page\": \"570\", \"citations\": \"307 A.D.2d 569\", \"volume\": \"307\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T19:56:19.365768+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Joseph Anderson, Petitioner, v Thomas Ricks, as Superintendent of Upstate Correctional Facility, Respondent.\", \"head_matter\": \"In the Matter of Joseph Anderson, Petitioner, v Thomas Ricks, as Superintendent of Upstate Correctional Facility, Respondent.\\n[762 NYS2d 303]\", \"word_count\": \"268\", \"char_count\": \"1794\", \"text\": \"Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.\\nFollowing a tier II disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules prohibiting harassing an employee and damaging state property. According to the misbehavior report, about one week after receiving a new mattress, petitioner complained that it was ripped. When the reporting correction officer ordered petitioner to sign a disbursement form so he could be charged for a replacement mattress, petitioner responded, \\\"Fuck-you, bitch, I ain't paying for nothing.\\\"\\nSubstantial evidence of the charged misconduct was presented in the form of the detailed misbehavior report and the testimony of the correction officer who wrote the misbehavior report after witnessing the conduct in question (see Matter of Law v Goord, 301 AD2d 703, 704 [2003]; Matter of Johnson v Ricks, 297 AD2d 889, 889 [2002]). Petitioner's assertion that the reporting officer filed the misbehavior report against him in retaliation for grievances that he had previously filed against her husband, who is also a correction officer, presented an issue of credibility for resolution by the Hearing Officer (see Matter of Lopez v Selsky, 300 AD2d 975, 975 [2002]). Petitioner's remaining assertions have been examined and found to be without merit.\\nMercure, J.P., Peters, Mugglin, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.\"}"

ny/1929841.json

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+"{\"id\": \"1929841\", \"name\": \"In the Matter of Jerene Castelonia, Petitioner, v. Joseph G. Castelonia, Respondent\", \"name_abbreviation\": \"Castelonia v. Castelonia\", \"decision_date\": \"1979-04-09\", \"docket_number\": \"\", \"first_page\": \"191\", \"last_page\": \"193\", \"citations\": \"99 Misc. 2d 191\", \"volume\": \"99\", \"reporter\": \"New York Miscellaneous Reports\", \"court\": \"New York Family Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-11T02:15:07.987313+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Jerene Castelonia, Petitioner, v Joseph G. Castelonia, Respondent.\", \"head_matter\": \"In the Matter of Jerene Castelonia, Petitioner, v Joseph G. Castelonia, Respondent.\\nFamily Court, Rockland County,\\nApril 9, 1979\\nAPPEARANCES OF COUNSEL\\nStuart M. Mitchell for petitioner. Edward Bolton for respondent. Aaron Sobel, Law Guardian. Rockland County Bar Association, amicus curiae.\", \"word_count\": \"862\", \"char_count\": \"5331\", \"text\": \"OPINION OF THE COURT\\nHoward Miller, J.\\nThe within application for counsel fees is denied without prejudice to any fee which the attorney may receive as assigned counsel under section 722 of the County Law. The applying attorney was assigned to represent the petitioner as an assigned counsel.\\nThere appear to be few available decisions on this issue. One case, People v Matalon (92 Misc 2d 254) involves a Public Defender attorney seeking additional fees from a defendant in a criminal proceeding. While a criminal count of extortion arising out of such demand for said additional fee was dismissed as against the attorney, the matter was referred back to the Grand Jury. People v Matalon (supra), discussed some Federal cases concerning the nature of the services rendered by a Public Defender. These Federal cases, in essence, stated that the relationship of the attorney (Public Defender attorney) with his client takes on all of the incidents of a private attorney-client relationship except one; \\\"the public pays his fee\\\". Where it developed that a defendant was not indigent, the court had the authority to order that the representation of defendant by Legal Aid Society be terminated unless defendant consented to partial payment for representation (People v Wheat, 81 Misc 2d 934; County Law, \\u00a7 722-d).\\nAn assigned attorney under article 18-B of the County Law is a public servant where acting in that capacity. In reviewing the definition of a \\\"Public servant\\\" (Penal Law, \\u00a7 10.00, subd 15) a nonpolice special officer was held to be a public servant (People v Lewis, 87 Misc 2d 806); a State University security officer was held to be a public servant (People v Woodford, 85 Misc 2d 213). The Practice Commentaries in McKinney's under section 10.00 of the Penal Law includes in the definition of \\\"public servant\\\": \\\"every person specially retained to perform some government service\\\". (Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, \\u00a7 10.00, p 23.) The concept of protecting the rights, constitutional and material, of an indigent person is a government service to provide such indigent person with legal services to protect his rights, possible loss of freedom or loss of his child. This concept runs through both section 722 of the County Law and sections 261 and 262 of the Family Court Act.\\nAn attorney, who, by reason of preference in being designated as assigned counsel in a particular matter, should not, by this appointment, be placed in a priority position to secure fees other than those fees as \\\"contracted\\\" (per fee schedule for assigned counsel) as a panelist on the assigned counsel list. The practice suggested by the within application for counsel fees as against the respondent would tend to create inequality between a panel attorney and a nonpanel attorney in the securing of business by voluntarily taking an appointment as assigned counsel and then, in effect, converting such assignment into a private matter.\\nThe court system with the co-operation of the Bar has provided pro bono publico services to indigent litigants. Counsel traditionally provided such services not in order to obtain a fee, but, rather, in order that indigents would be able to obtain competent legal representation. Counsel neither expected nor was entitled to counsel fees for such services.\\nEnactment of article 18-B of the County Law should not be taken as a renunciation of this grand tradition. As the Court of Appeals stated in Matter of Werfel v Agresta (36 NY2d 624, 626-627): \\\"Finally, plans under sections 722, 722-a and 722-b of the County Law are designed to ease the burden of lawyers who serve in assigned capacities in the representation of indigent criminal defendants. The lawyers who participate do so willingly, in the highest traditions of the profession, knowing that the limited fees provided fall short of full, or even fair, compensation for their services (People v Perry, 27 AD2d 154, 158). In so participating, the lawyers undertake an important public service, which before the statute was enacted, they performed without any compensation at all (id.). Petitioner's own services were performed voluntarily, with high competence and with complete success on behalf of his client. Those services exemplify the purpose of the statute and the tradition of the profession.\\\" (People v Washington, 83 Misc 2d 807.)\\nTherefore, article 18-B ought to be viewed as an ameliorative partial provision, not as an abandonment of the pro bono publico concepts. The statute is not intended to change the nature of assigned counsel's obligations and expectations, except insofar as it provides for some limited compensation. This should not be read to open the floodgates to permit assigned counsel to assert a claim for fees against sources other than the county, in excess of statutory fees. The assignment of counsel has been based on a prior determination that the client, here the petitioner, could not afford to retain counsel. It is in this capacity that the attorney was assigned.\"}"

ny/1956852.json

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+"{\"id\": \"1956852\", \"name\": \"In the Matter of the Application of William J. Reed, Respondent, as a Creditor of Henry M. Bailey, Deceased, for Sale of Real Estate. Frances H. Stoddard, as Administratrix of Henry M. Bailey, Deceased, et al., Appellants\", \"name_abbreviation\": \"In re Reed\", \"decision_date\": \"1916-07-21\", \"docket_number\": \"\", \"first_page\": \"543\", \"last_page\": \"543\", \"citations\": \"219 N.Y. 543\", \"volume\": \"219\", \"reporter\": \"New York Reports\", \"court\": \"New York Court of Appeals\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T18:31:21.808489+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Application of William J. Reed, Respondent, as a Creditor of Henry M. Bailey, Deceased, for Sale of Real Estate. Frances H. Stoddard, as Administratrix of Henry M. Bailey, Deceased, et al., Appellants.\", \"head_matter\": \"In the Matter of the Application of William J. Reed, Respondent, as a Creditor of Henry M. Bailey, Deceased, for Sale of Real Estate. Frances H. Stoddard, as Administratrix of Henry M. Bailey, Deceased, et al., Appellants.\\n(Submitted July 12, 1916;\\ndecided July 21, 1916.)\", \"word_count\": \"83\", \"char_count\": \"498\", \"text\": \"Motion for re-argument denied. Nothing in our decision concludes the appellant Blanche T. Bechoff from proving that a deed has been delivered to her, and thereby making herself a party to the proceeding. (See 218 N. Y. 711.)\"}"

ny/2020819.json

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+"{\"id\": \"2020819\", \"name\": \"MARGARET BOHAN, Resp't, v. PORT JERVIS GAS LIGHT CO., App'lt\", \"name_abbreviation\": \"Bohan v. Port Jervis Gas Light Co.\", \"decision_date\": \"1889-03-29\", \"docket_number\": \"\", \"first_page\": \"995\", \"last_page\": \"995\", \"citations\": \"22 N.Y. St. Rep. 995\", \"volume\": \"22\", \"reporter\": \"New York State Reporter\", \"court\": \"New York Court of Appeals\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T21:09:16.006450+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARGARET BOHAN, Resp\\u2019t, v. PORT JERVIS GAS LIGHT CO., App\\u2019lt.\", \"head_matter\": \"MARGARET BOHAN, Resp\\u2019t, v. PORT JERVIS GAS LIGHT CO., App\\u2019lt.\\nNo papers.\", \"word_count\": \"25\", \"char_count\": \"141\", \"text\": \"Motion to dismiss denied, with costs.\\nSee 12 N. Y. State Rep., 875.\"}"

ny/2040334.json

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+"{\"id\": \"2040334\", \"name\": \"Agnes Ronald, App'lt, v. The Mutual Reserve Life Fund Association, Resp't\", \"name_abbreviation\": \"Ronald v. Mutual Reserve Life Fund Ass'n\", \"decision_date\": \"1890-07-18\", \"docket_number\": \"\", \"first_page\": \"981\", \"last_page\": \"984\", \"citations\": \"32 N.Y. St. Rep. 981\", \"volume\": \"32\", \"reporter\": \"New York State Reporter\", \"court\": \"New York Supreme Court, General Term\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T20:08:06.779162+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Agnes Ronald, App\\u2019lt, v. The Mutual Reserve Life Fund Association, Resp\\u2019t.\", \"head_matter\": \"Agnes Ronald, App\\u2019lt, v. The Mutual Reserve Life Fund Association, Resp\\u2019t.\\n(Supreme Court, General Term, First Department\\nFiled July 18, 1890.)\\n1. Insurance (lies) \\u2014 Forfeiture\\u2014Reinstatement.\\nAfter the certificate in suit had lapsed for over a month the premium was paid .and a receipt taken, which stated that it was given on condition that the member was living and of temperate habits, and in as good health as when originally received as a member, and that otherwise the payment, receipt and original certificate should be null and void. The deceased member was not of temperate habits and died the following day of fatty degeneration of the heart. Held, that the payment and receipt constituted a new contract; that the insured was bound by the terms and conditions of the receipt whether he or his agent read it or not, a'nd the facts not being as stated therein, the certificate was not reinstated, but remained null and void.\\n3. Same \\u2014 Waiver.\\nA mere request for proofs of loss, which does not require extra expense and effort on the part of the beneficiary, will not amount to a waiver of such an existing forfeiture.\\nAppeal from judgment entered upon a dismissal of the complaint at circuit at the close of the plaintiff\\u2019s case.\\nAction to recover $5,000 upon a certificate of membership issued by the defendant upon the life of George Eonald and payable to the plaintiff as beneficiary.\", \"word_count\": \"1380\", \"char_count\": \"7866\", \"text\": \"The following opinion was written by the trial judge:\\nBarrett, J.\\nBy the failure to pay the dues, ten dollars, on or about August 21, 1884, the policy became null and void, and all previous payments made thereon were forfeited to the company. The contract of life insurance was then at an end. This was the situation when Mr. Hardenburg went to the office of the company on September 26, 1884, and paid the ten dollars so due on the 21st of the preceding August Mr. Hardenburg was bound to know that a reinstatement of the policy on September 26th depended upon the will of the company, and accordingly he should have examined the instrument given to him at the time of payment Such instrument could not, in the nature of things, have been understood to be an ordinary receipt of dues. It would naturally express the terms of waiver, or the conditions of reinstatement, or whatever else was essential to give renewed life to the old policy or to create a new contract. The receipting clerk had no authority in law to contract afresh for the company, except upon the terms and conditions to which he was limited by the instructions given to him pursuant to the constitution and bylaws, which constitution and by-laws were made part and parcel of the original contract of insurance. Accordingly the payment of the ten dollars, and the delivery, contemporaneously therewith, of the receipt, together constitute the fresh contract. The insured thereupon became bound by the terms and conditions embodied in the receipt, and he so became bound whether he or Mr. Hardenburg read it or not. He was as much bound by the terms of the receipt as he was by the terms of the original policy. How,, this is a conditional receipt. It specifies the fact that the time for the payment of the dues had expired; that such payment was tendered after the expiration of the contract period; and that the receipt was given and accepted upon certain conditions. These conditions read as follows: \\\" That the said member is now living, and of temperate habits, and is in as good health as when originally received as a member of the association under the certificate.\\\" And it further provides that otherwise the payment and the receipt and the original certificate should be null and void. It is clear, upon the evidence, that the insured was not, on September 26, 1884, a man of temperate habits, nor in as good health as when originally received as a member of the association under the certificate. It would seem to follow, therefore, that the payment at that date of the August' dues was null and void, and that the original certificate received no fresh life. It remained just as it was at the time of payment; null and void.\\nIt is also contended that there -was a -waiver resulting from the request for proofs of death, and from the instructions given in regard to them. In my judgment this request and these instructions did not amount to a waiver of an existing forfeiture. The plaintiff was not thereby misled to her prejudice. Her rights depended upon the facts existing at the death of her husband. The question of waiver might subsequently arise with respect to -conditions as to the proofs of death, but the insurer is not bound to abandon its claim of forfeiture if it would insist upon a compliance with the terms of the policy as to the proof of death. The case of Insurance Co. v. Stevenson, 8 Ins. Law J., 922, is in point. The principle which I have stated was there maintained by the court of appeals of Kentucky, and the learned editor of the journal adds a very copious and instructive note, citing all the cases upon the subject, and making the following clear and correct statement of the results: \\\" If the mere demand for formal jproof of loss, with a knowledge that the insured had violated a policy stipulation, were liable to operate as a waiver of such stipulation, it would follow that the insurer must surrender his right to demand such proof, if he would avail himself of the breach; or, at any rate, he could not safely demand proof without at the same time being careful to notify the insured of his proposed future line of defense.\\\" There are cases which hold that there may possibly be an election between the claim of forfeiture because of acts antecedent to the death of the insured and the demand for proofs of death, but those are cases where, upon the facts, there was a clear election; cases where the plaintiff had been subjected to expensive and burdensome efforts to supply elaborate details in the proofs required by the company; cases where the facts otherwise indicated clear abandonment of any position inconsistent with the demand for such elaborate and expensive proofs. It is needless to say that nothing of the kind exists in the present case. The defendant asked for nothing more than the ordinary proofs required under ordinary circumstances, and just as soon as it was clear to the minds of those who were acting for the company that there was no just claim against it, owing to the facts existing at the time of death, that position was promptly asserted. For these reasons I feel constrained to dismiss the complaint; and I think it fair to say that it is one of those cases where a well regulated company, desiring to do justice to all those whom it represents, might fairly, and with a due sense of equity, make the defense it has here. It certainly was a very peculiar case, where, after a policy had lapsed for over a month, and the insured was within one day of his death, suffering from fatty degeneration of the heart, the dues have been tendered without full disclosure of the then existing facts. I do not suppose there is the slightest doubt that if the whole truth had been known to the officers of the company they would scarcely have felt justified in acceding to the request that the insurance be kept alive. I am satisfied, therefore, that in this case the application of the rules of law do not work any real hardship. Complaint dismissed.\\nChas. B. Meyer, for app'lt; Alfred Taylor, for resp't\\nPer Curiam.\\nIt would be unprofitable to add to the reasons given by Mr. Justice Barrett on the trial of this action for dis missing the complaint. It is enough to say that those reasons, seem to us entirely satisfactory and convincing, and that we fully concur in the conclusion to which they led the learned judge.\\nJudgment affirmed on the opinion of the court below, with costs.\\nYan Brunt, P. J., and Bartlett, J., concur.\"}"

ny/2135971.json

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+"{\"id\": \"2135971\", \"name\": \"J. Grote against A. Grote\", \"name_abbreviation\": \"Grote v. Grote\", \"decision_date\": \"1813-10\", \"docket_number\": \"\", \"first_page\": \"408\", \"last_page\": \"410\", \"citations\": \"10 Johns. 402\", \"volume\": \"10\", \"reporter\": \"Johnson's Reports\", \"court\": \"New York Supreme Court of Judicature\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T21:29:26.440661+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. Grote against A. Grote.\", \"head_matter\": \"J. Grote against A. Grote.\\nNEW YORK,\\nOct. 1813.\\nWhere A. on the 7th of-De-' comber, 1805, farm,\\u2018theses8 session of which was to be delivered on the 1st of May, 1808, encumbran-8'1 notes'SfoM;he which ten agreement encumbrances, &c. and B. gave to A. his several were left $n the hands of C. until A. should perform his writ-of the 7th of December, 1805, as to the delivery of the farm, &c.; and B. took possession of the farm on the 1st of May, 1808, the title to which had not, been questioned, and all the notes were paid by B., except one, which C delivered to A. In a suit on that note by A. against B. it was held,, that a jury might infer, from circumstances, a redelivery of the note by the defendant to the plaintiff, and that the facts in the case were sufficient evidence of a performance of the condition on which the note was left in the hands of C. or that the defendant had waived the condition, ordis\\u00bb \\u00bb pensed with its performance.\\nTHIS was an action of assumpsit on a promissory note. The _ . . . cause was tried at the Albany circuit, m April, 1813, before Mr.Justice Yates.\\nThe note was proved by the subscribing witness, who testified that it was given for part of the consideration for a certain farm sold by the plaintiff to the defendant; that this note with several \\u00b0thers given by the defendant for the consideration, were left iii the hands of the witness to be kept until the plaintiff should perform the terms of a certain agreement in writing; which was produced by the defendant, dated 7th of December, 1805, and which stated that whereas J. Grote (the plaintiff) had, by way of deed, bearing date with the agreement, conveyed to A. Grote and S. Grote all that certain piece of land, &c. occupied by the plaintiff, being all the right and title to the lands and tenements he inherited from his father, and described in the said deed; it was agreed that the plaintiff should occupy the premises until the 1st of May, 1808. In consideration whereof the plaintiff agreed to pay all the rent then due to the lessor for the premises, or that should grow or become due on the same, until he should give up the possession, and pay all taxes on the premises, &c.; that the same should be free from all encumbrances whatsoever when they, the said A. and S\\u00ed. Or\\u00f3te, should receive possession, and at the expiration of the term, to wit, the 1st of May, 1808, surrender up the house and farm to the said A. and 8. Grote or their legal representatives, in good order, &c. and free from all encumbrances.\\nThe defendant offered to prove that the deed was not executed at the time of the agreement, but this being objected to was overruled by the judge, as contradicting the agreement.\\nIt was then proved that the defendant and 8. Grote went into possession of the farm mentioned, about the 1st of May, 1808, and still remained in possession, and that the title had never been questioned. The consideration given to the plaintiff was 1,880 dollars, payable in instalments of 125 dollars each, and separate promissory notes were given for each instalment; some of the notes became due before the 1st of May, 1808, and were paid, and the note in question was the last, being the only one remaining unpaid, and was delivered by the witness to the plaintiff.\\nThe defendant then offered to prove that there was rent in arrear and due to the landlord, on the farm held by the plaintiff\\u2019s father, and of which the premises mentioned in the agreement were a part, and that the plaintiff was bound to pay that rent; but the evidence was overruled by the judge, who directed the jury to find a verdict for the plaintiff for the amount of the note with interest, and the jury found a verdict accordingly.\\nA motion was made to set aside the verdict, and for a new trial; 1. Because the note was delivered as an escrow, and the condition never performed; and the condition not having been performed, the note was not valid against the defendant, without evidence of a delivery by him to the plaintiff at another time; 2. Because the judge rejected proper evidence; and, 3. Because he misdirected the jury.\\nI. Hamilton, for the defendant.\\nOstrander, contra.\", \"word_count\": \"939\", \"char_count\": \"5220\", \"text\": \"Per Curiam.\\nThe facts well warranted the jury to have presumed the note to have been delivered over to the plaintiff by the assent, and as the act of the defendant. Circumstances may be equivalent to an actual redelivery of a deed. (Cowp. 201.) The note in question, together with other notes given as part of the same consideration, were left with the witness as a trustee for the plaintiff, and to be delivered to the plaintiff, on his performance of the agreement, it was proved .that the defendant had paid the other notes as they successively fell due, and had entered into the possession of the farm for the purchase-money of which the notes were given, and that the title was undisputed; and the present note (being the only one remaining) had been delivered to the plaintiff by .the witness. These facts were evidence that the contingency on which the note was left with the witness had either been fulfilled, or finally dispensed with, by the assent of the parties.\\nThe motion on the part of the defendant ought, therefore, to be denied.\\nMotion deniedv\"}"

ny/2171189.json

@@ -0,0 +1 @@
+"{\"id\": \"2171189\", \"name\": \"Frederick W. Cole, Respondent, v. Edward Kelly, Appellant\", \"name_abbreviation\": \"Cole v. Kelly\", \"decision_date\": \"1889-12-07\", \"docket_number\": \"\", \"first_page\": \"571\", \"last_page\": \"?\", \"citations\": \"4 Silv. Sup. 571\", \"volume\": \"4\", \"reporter\": \"Silvernail's Supreme Court Reports\", \"court\": \"New York Supreme Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T23:08:49.424311+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frederick W. Cole, Respondent, v. Edward Kelly, Appellant.\", \"head_matter\": \"Frederick W. Cole, Respondent, v. Edward Kelly, Appellant.\\nSupreme Court, Fourth Department, General Term,\\nDecember 7, 1889.\\nJudgment. Foreclosure.\\u2014In an action of foreclosure, where some of the defendants make default, and others answer, only one judgment should be entered, and by it the plaintiff should be allowed such relief as he is entitled to against the defaulting defendants, with suitable provisions declaring the result of the trial of the issues raised by the answers of the contesting defendants.\\nAppeal from an order made at the Oneida special term on the 16th day of February, 1889, refusing to vacate a judgment entered January 12, 1889, and also amending the judgment of January 12,1889, nune pro tunc. On the 6th of May, 1886, the defendant, John E. Peterson, and his wife, executed and delivered to the Oswego Mutual Savings Aid Association, a mortgage covering real estate in Oswego city to secure $1,400, which mortgage was recorded on the same day. On the 19th of May, 1886, Peterson and wife executed a second mortgage, covering the same premises, to secure $355 to Cornelia M. Matteson, which mortgage was recorded May 22,1886. In October, 1886, a default was made in the mortgage given to the association, and the same was foreclosed by action; and in that action Cornelia M. Matteson was a party defendant, and was personally served with a summons and notice of object of action. And the other defendants in this action, except Kelly, were defendants in that. action. The usual decree of foreclosure was entered and the premises sold by the sheriff to the association December 11,1886, and the association thereafter by warranty deed conveyed the premises on March 4, 1887, to the defendant Edward Kelly, who has ever since been in the possession of the premises. About the 30th of January, 1888, the plaintiff in this action purchased the second mortgage and commenced this action to foreclose the same, making Kelly a defendant, who appeared in this action and interposed an answer setting up his title under the prior foreclosure, and alleging that the prior foreclosure cut off the mortgage held by the plaintiff. None of the other defendants answered. The issues raised by the answer of Kelly were tried at a special term in Oswego county held on November 27, 1888. The decision upon the merits was in favor of Kelly, and the complaint was ordered dismissed as to Kelly, with costs, but with leave to the plaintiff, if he desired, to enter a judgment against the defendants in default. January 12, 1889, the plaintiff\\u2019s attorney made an ex parte application to a special term in session in Oswego county for a judgment of foreclosure, and obtained such a judgment, and thereafter advertised the premises for sale by the sheriff. The judgment-roll filed contained Kelly\\u2019s answer, but did not contain the findings made upon the trial of the issue. On the 14th of January, 1889, Kelly entered a judgment dismissing the plaintiff\\u2019s complaint as to him, based upon the findings made at the November special term. February 16, 1889, a motion was noticed, and thereupon the order appealed from was allowed.\\nThomas K. King, and J). P. Lester, for appellant.\\nW. K. Gardinier, for respondent.\", \"word_count\": \"1090\", \"char_count\": \"6468\", \"text\": \"Hardin, P. J.\\nAfter the decision at the trial term the-title of the defendant, Kelly was sustained and the lien of the plaintiff's mortgage cut off. Kelly was entitled upon the findings to a judgment to that effect, as well as a provision dismissing the plaintiff's complaint, with costs- The trial Avas only of the issues raised by Iris answer.\\nProperly one judgment should have been entered allowing the plaintiff such relief as he was, by reason of the default of the other defendants, entitled to, with suitable provisions declaring the result of the trial of the issues raised by the defendant Kelly's answer. Because the judgment entered upon the default of the other defendants contained too broad provisions and did not properly declare the results following the decisions made by the trial term, its amendment and correction were allowed. The same result might have been attained by setting aside the judgment directed by Justice Chuichill at the Oswego special term and authorizing the entry of a judgment which should allow the plaintiff all he was entitled to against the defaulting defendants, and coupled with the proper provisions upon the determination of the issues raised by the answer of the defendant Kelly.\\nWe see no force in the suggestion that Kelly, after a decision dismissing the plaintiff's complaint as to him, was entitled to notice of the plaintiff's application for relief as against the defaulting defendants. Hammond v. Morgan, 101 N. Y. 179, is unlike the case before us. That was an action of replevin and there was but one defendant, and it was a proper case for notice of motion when an application was to be made for an order affecting the form of a judgment to be rendered against such defendant. Inasmuch as the mortgage held by the plaintiff was owned by Cornelia M. Matte-son at the time of the foreclosure of the mortgage under which defendant Kelly acquired title, and she was made, a party and her rights cut off by sale upon the mortgage given prior to her mortgage, the defendant Kelly can hold the premises notwithstanding the relief given in this action as against the defaulting defendants other than Kelly. Such is the effect to be given to the first foreclosure in virtue of \\u00a7 1632 of the Code of Civil Procedure.\\nThe judgment as amended by the order appealed from 'protects the rights of defendant, Kelly. The association became a purchaser at the sale had under the prior mortgage, and, as before stated, such sale cut off the Matteson mortgage which was assigned to the plaintiff. If the judgment remains as amended by the order appealed from, it will not authorize, a writ of assistance against Kelly. His rights stand adjudicated and protected. The former judgment of foreclosure under which his grantor took title secures to him the right of ownership and of possession to the premises. We think the order should be affirmed.\\nMartin, J.\\u2014The\\npractice in this case was irregular and not to be commended. But inasmuch as the order appealed from amended the judgment and judgment roll so as to fully protect all the rights of the defendant, Kelly, it should be affirmed. Hence I concur in the opinion of Brother Hardin.\\nOrder affirmed, with ten dollars costs and disbursements.\\nPabkeb, J., concurs.\"}"

ny/2176244.json

@@ -0,0 +1 @@
+"{\"id\": \"2176244\", \"name\": \"Walrath vs. Thompson\", \"name_abbreviation\": \"Walrath v. Thompson\", \"decision_date\": \"1844-05\", \"docket_number\": \"\", \"first_page\": \"540\", \"last_page\": \"543\", \"citations\": \"6 Hill & Den. 540\", \"volume\": \"6\", \"reporter\": \"Hill's Reports\", \"court\": \"New York Supreme Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-11T00:14:45.113105+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walrath vs. Thompson.\", \"head_matter\": \"Walrath vs. Thompson.\\nThe terms of a guaranty must be strictly complied with, or the guarantor will not be bound. Per Bronson, J.\\nJ., being desirous of purchasing goods of the plaintiff on credit, procured a letter of guaranty from the defendant to the plaintiff containing the following clause: \\u201c Mr. J. thought it would be an accommodation to him to have you wait [for payment] until the 1st of January, 1840; if that will answer your purpose, I will be surety for the amount to be paid at that time.\\u201d The plaintiff sold the goods to J. on the receipt of the letter, but took his note for the price payable on the 25th of December, 1839. J. was not called on to pay the note, however, and after the 1st of January, 1840, the plaintiff brought an action to enforce the guaranty. Held, that inasmuch as he had not agreed to wait for payment until the day proposed by the guaranty, the defendant was not liable.\\nIn general, an action to recover money received by the defendant in the character of trustee cannot be maintained until after a demand, or proof in some other way that there has been an abuse of the trust.\\nThis case was before the court in January, 1843, and is reported in 4 Hill, 200. On a second trial it appeared that the castings were delivered to Johnson on the 22d of May, 1839, and on that day Johnson gave the plaintiff his promissory note for the amount, payable seven months from date. The plaintiff said he took the note because he considered Johnson good. It was proved that the defendant afterwards had Johnson\\u2019s books in his hands, and remarked that the plaintiff\\u2019s demand must be paid from the accounts; but he said nothing about his being holden to the plaintiff. The defendant delivered the accounts to one Topliff, and told him to collect and pay over the money to the plaintiff. Topliff collected five or six dollars, and offered the money to the plaintiff, which he refused to receive. The defendant moved for a nonsuit, on the ground, among others, ' that there had not been a compliance with the terms of the guaranty, by which the plaintiff was to wait until the 1st of January, 1840; and he took Johnson\\u2019s note payable on the 22d of December preceding, or, with grace, on the 25th. The action was not commenced until after the 1st of January, 1840: and it did not appear that the plaintiff had ever called upon Johnson. The judge refused the motion for a nonsuit, saying, he supposed all the questions had been examined when the case was before this court on the former occasion. The defendant excepted, and a verdict having been found against him, he now^ moved for a new trial on a bill of exceptions.\\nJ. Watson & B. D. Noxon, for the defendant.\\nA. Taber, for the plaintiff.\", \"word_count\": \"1067\", \"char_count\": \"5857\", \"text\": \"By the Court, Bronson, J.\\nThe terms of a guaranty must be strictly complied with, or the guarantor will not be bound. If he proposes a credit, that particular .credit must be given to the principal. It is not enough that the creditor waits until the time has expired before he calls for payment. He must agree to wait, so that he cannot sue in the meantime. (Wright v. Johnson, 8 Wend. 512; Bacon v. Chesney, 1 Stark. Rep. 192; and see Dobbin v. Bradley, 17 Wend. 422.) If the note was out of the way, the fact that the plaintiff received the guaranty, delivered the property, and did not call for payment until the specified time had expired, would be a sufficient ground for presuming that he agreed to give the required credit. But the note takes away all ground for such an inference; and proves that the plaintiff did not give the specified credit to the principal. On the contrary, he made an agreement which obliged Johnson to pay at an earlier period. The fact that the credit was abridged only a few days, is not important. Cutting off a week is as fatal as though it had been a month. The defendant may have had special reasons for fixing on the first of January as the time for payment. But whether he had or not, it is fatal to the action that there has not been a compliance with the terms of the guaranty. The condition on which the defendant proposed to contract has not been accepted. (Dobbin v. Bradley, 17 Wend. 422; Birckhead v. Brown, 5 Hill, 634.) The objection cannot be got over.\\nBut it is said that the plaintiff could recover under the money counts the five dollars which the defendant had collected on Johnson's accounts, and consequently that the motion for a non-suit was properly overruled. There are two answers to this argument. The first is, that no such question appears to have been made on the trial. The defendant moved for a nonsuit on the ground that no action could be maintained upon the guaranty. That was the question which the judge decided, and the defendant excepted to his opinion. The plaintiff cannot take away the right of review by starting a question now, which was not made on the trial, about the. little sum of five dollars. The .effect would be to charge the defendant with the principal debt, for which he is not liable. The other answer is, that as to the five dollars th\\u00e9 defendant stands in the character of a trustee', and an action will not lie until after a demand of the money, or proof in some other way that there has been an abuse of the trust. (Sears v. Patrick, 23 Wend. 528; Cooley v. Betts, 24 id. 203.) The case here is still worse; for the money was offered to the plaintiff and he refused to receive it.\\nThis brings us back again to the defendant's objection, which is fatal to the action. The circuit judge was evidently of that opinion; but he refused the nonsuit on the supposition that the question had been disposed of by us when the case was up before. I think this point could not have been distinctly made on the first trial. But if it was, we must have overlooked it. It certainly was not decided.\\nNew trial granted. .\\nid) See Smith & Crittenden v. Dann, infra.\"}"

ny/2208201.json

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+"{\"id\": \"2208201\", \"name\": \"Otis C. Seymour agt. Charles Van Curen and John Adams\", \"name_abbreviation\": \"Seymour v. Van Curen\", \"decision_date\": \"1859-07\", \"docket_number\": \"\", \"first_page\": \"94\", \"last_page\": \"95\", \"citations\": \"18 How. Pr. 94\", \"volume\": \"18\", \"reporter\": \"Howard's Practice Reports\", \"court\": \"New York Supreme Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T22:26:39.643549+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Otis C. Seymour agt. Charles Van Curen and John Adams.\", \"head_matter\": \"SUPREME COURT.\\nOtis C. Seymour agt. Charles Van Curen and John Adams.\\nWhere a complaint alleges a cause of action, for wrongfully taking, carrying away and converting to the use of the defendants a horse; and demands relief for a judgment of $1,500 besides costs, the action is for damages and not to recover specific properly.\\nHence, a requisition to the sheriff to take and deliver the horse, and proceedings thereon are irregular.\\nAn order of wrest of the defendant obtained in such action under subdivision 3 of section 179 of the Code cannot be upheld, because it can only be granted under that provision when the action is to recover the possession of personal property.\\nOn motion to set aside such proceedings the complaint cannot be amended, where no basis is laid for it, if it would otherwise he proper.\\nMonroe Special Term, July, 1859.\\nMotion by defendants to set aside proceedings for the claim and delivery of personal property, and an order for the arrest of the defendants, &c.\\nJ. McConville and J. L. Angle, for defendants.\\nL. H. Hovey, for plaintiff.\", \"word_count\": \"598\", \"char_count\": \"3450\", \"text\": \"T. R. Strong, Justice.\\nThe complaint in this action is for wrongfully taking, carrying away, and converting to the use of the defendants the horse in question; and the relief demanded is a judgment for fifteen hundred dollars besides costs. The nature of the action is determined by the complaint, and particularly by the relief demanded ; it is an action for damages and not to recover specific property. Proceedings for a claim and delivery of the horse are wholly unwarranted in the action, as such proceedings are confined to actions to recover the possession of personal property; hence, the requisition to the sheriff to take and deliver the horse and the proceedings thereon are irregular and must be set aside. (Spalding agt. Spalding, 3 How. Pr. 297.)\\n' An order of arrest is allowable under subdivision 1 of section 179 of the Code, in an action \\\"for wrongfully taking, detaining or converting propertybut the order in the present case was obtained under subdivision 3 of that section, which \\u00a1applies only to actions to recover the possession of personal property, and there is a material difference between an order under the latter and one under the former subdivision. When an arrest is made under subdivision 1, the defendant may be discharged from it on giving bail to the effect that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein ; but if the arrest is under the third subdivision, the defendant, to obtain his discharge, must give an undertaking with sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against the defendant. The order in the latter case can only be upheld in the actions specified in that section, viz.: to recover the possession of personal property. It follows that the order of arrest must also be set aside.\\nIt is said on the part of the plaintiff, that the complaint was prepared in its present form through inadvertence, but it must give character to the action, and no basis is laid for an amendment on this motion, if it would otherwise be proper.\\nThe defendants are allowed $10 costs of motion.\"}"

ny/2255050.json

@@ -0,0 +1 @@
+"{\"id\": \"2255050\", \"name\": \"Henry W. Steinhouser, as Assignee, etc., Respondent, v. John Mason, Appellant\", \"name_abbreviation\": \"Steinhouser v. Mason\", \"decision_date\": \"1892-10-11\", \"docket_number\": \"\", \"first_page\": \"635\", \"last_page\": \"636\", \"citations\": \"135 N.Y. 635\", \"volume\": \"135\", \"reporter\": \"New York Reports\", \"court\": \"New York Court of Appeals\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T18:19:30.843939+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry W. Steinhouser, as Assignee, etc., Respondent, v. John Mason, Appellant.\", \"head_matter\": \"Henry W. Steinhouser, as Assignee, etc., Respondent, v. John Mason, Appellant.\\nAn executor of an assignee for the benefit of creditors is not entitled to be substituted as plaintiff in an action brought by the decedent as such assignee, unless the executor has been substituted as assignee.\\n(Argued October 4, 1892;\\ndecided October 11, 1892.)\\nThis was a motion to substitute Mary C. Steinhouser exe& utrix of the will of Henry W. Steinhouser, as plaintiff in the above entitled action, which was brought by plaintiff as assignee for the benefit of creditors of Charles Magnus.\\nThe following is the opinion in full:\\n\\u201c This is simply a motion to substitute Mary 0. Steinhouser as executrix of the will of plaintiff in his stead. As executrix, so far as any facts now appear, she has no place in the litigation, and no right of substitution. If she has been properly substituted as assignee in the place of her deceased husband, then she should make a motion to be substituted as such in this action, and so far as we can perceive, there would be no answer to such a motion. The moving papers do not disclose the fact that she has been substituted as assignee. This motion must, therefore, be denied; but as she seems to have been thus substituted since notice of this motion, the denial is without costs.\\u201d\\nFra/nhli/n Bien for appellant.\\nAbram, Fling for respondent.\", \"word_count\": \"247\", \"char_count\": \"1435\", \"text\": \"Per Cv/ricmi opinion for denial of motion..\\nAll concur.\\nMotion denied.\"}"

ny/2341362.json

@@ -0,0 +1 @@
+"{\"id\": \"2341362\", \"name\": \"In the Matter of Francis E. Rinehart, an Attorney, Appellant. Committee on Grievances of the Association of the Bar of the City of New York, Respondent\", \"name_abbreviation\": \"In re Rinehart\", \"decision_date\": \"1979-03-29\", \"docket_number\": \"\", \"first_page\": \"1036\", \"last_page\": \"1037\", \"citations\": \"46 N.Y.2d 1036\", \"volume\": \"46\", \"reporter\": \"New York Reports\", \"court\": \"New York Court of Appeals\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T22:22:58.306285+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Francis E. Rinehart, an Attorney, Appellant. Committee on Grievances of the Association of the Bar of the City of New York, Respondent.\", \"head_matter\": \"In the Matter of Francis E. Rinehart, an Attorney, Appellant. Committee on Grievances of the Association of the Bar of the City of New York, Respondent.\\nSubmitted March 12, 1979;\\ndecided March 29, 1979\", \"word_count\": \"95\", \"char_count\": \"577\", \"text\": \"On the court's own motion, the appeal taken as of right from the order of the Appellate Division dated December 7, 1978 disposing of that court's motions Nos. 474A and 3009A dismissed, without costs,. upon the ground that no substantial constitutional question is directly involved; motion for leave to appeal from said order denied.\\nMotion for a stay dismissed as academic.\"}"

ny/2583074.json

@@ -0,0 +1 @@
+"{\"id\": \"2583074\", \"name\": \"The People of the State of New York ex rel. Fred Cosgriff, Relator, v. William H. Craig, as Sheriff of Monroe County, Defendant. The People of the State of New York, Appellant; Fred Cosgriff, Respondent\", \"name_abbreviation\": \"People ex rel. Cosgriff v. Craig\", \"decision_date\": \"1909-01-20\", \"docket_number\": \"\", \"first_page\": \"851\", \"last_page\": \"858\", \"citations\": \"129 A.D. 851\", \"volume\": \"129\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T17:42:42.191063+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York ex rel. Fred Cosgriff, Relator, v. William H. Craig, as Sheriff of Monroe County, Defendant. The People of the State of New York, Appellant; Fred Cosgriff, Respondent.\", \"head_matter\": \"The People of the State of New York ex rel. Fred Cosgriff, Relator, v. William H. Craig, as Sheriff of Monroe County, Defendant. The People of the State of New York, Appellant; Fred Cosgriff, Respondent.\\nFourth Department,\\nJanuary 20, 1909.\\nCrime\\u2014 misdemeanor \\u2014 petit larceny charged as second offense \\u2014 court \\u2014 jurisdiction of police justice of city of Rochester.\\nAlthough petit larceny when charged as a second offense is punishable more severely than the first offense, and although the imprisonment may exceed one year, the crime is not thereby made a felony.\\nAs the police justice of the city of Rochester.has exclusive jurisdiction in the first instance to try all offenses committed within the city of which courts o\\u00a3 Special Sessions have exclusive jurisdiction and also has exclusive jurisdiction in the first instance to try any other misdemeanor committed in the city, it is the duty of said magistrate to try one charged with petit larceny as a second offense, for it is a misdemeanor, and he is without power to commit the accused to the sheriff to await the action of the grand jury.\\nThe section of the city charter providing that said police justice cannot impose an imprisonment exceeding one year for a misdemeanor is qualified by the words \\u201c except where a different punishment is by law prescribed for such offense,\\\" and, hence, he has power to impose the statutory penalty for petit larceny as a second offense although the imprisonment may exceed one year. Nor is he required to commit the prisoner to State\\u2019s prison so as to make the crime a felony, for he may sentence the accused to a penitentiary.\\nOne charged with petit larceny as a second offense has a right to be tried for a misdemeanor rather than for a felony and to imprisonment in a penitentiary rather than in a State\\u2019s prison, for a conviction for a felony is more serious than for a misdemeanor, as it involves the loss of political rights, etc.\\nWilliams, J., and McLennan, P. J., dissented, with opinion.\\nAppeal by the People of the State of New York, through the district attorney of Monroe county, from an order, made by a justice of the Supreme Court and entered in the office of the clerk of the county of Monroe on the 4th day of November, 1908, sustaining a writ of habeas corpus and discharging the relator from the custody of the sheriff of said county.\\nThe opinion delivered by the justice who granted the order appealed from is reported in People ex rel. Gosgriff v. Craig (60 Mise. Rep. 529).\\nHoward H. Widener, District Attorney, and Charles B. Bechtold, Assistant District Attorney, for the appellant.\\nGeorge S. Van Schaick, for the relator, respondent.\", \"word_count\": \"2880\", \"char_count\": \"16512\", \"text\": \"Kruse, J.:\\nThe police justice of the city of Rochester held the relator upon the chax-ge of petit larceny, committed in that city and charged as a second offense. Instead of trying him the police justice committed him to the custody of the sheriff of Monroe county to await the action of the grand jury.\\nThe learned justice before whom the relator was brought on a-writ of habeas corpus held that the offense of petit larceny, although charged as a second offense, was a misdemeanor, and that since the charter of the city conferred upon the Police Court exclusive jurisdiction in the first instance to try and determine all offenses of which Courts of Special Sessions have exclusive jurisdiction, when such offenses are committed within the city, and as the Police Court \\\" also has exclusive jurisdiction in the first instance to try for any other misdemeanor committed in the city, any person who is brought before said court charged with such offense \\\" (Charter of the city of Rochester [Laws of 1907, chap. 755], \\u00a7 468), the duty devolved upon that court to try the accused upon such charge.\\nThe learned district attorney challenges the correctness of the holding that petit larceny charged as a second offense is a misdemeanor. Some criminal offenses are specifically designated as felonies and some as misdemeanors ; others are classified generally. Under the general classification, felonies are such crimes as are or may be punishable by either death or imprisonment in a State prison; any other is a misdemeanor. (Penal Code, \\u00a7 4, 5, 6.) Where the punishment inflicted is imprisonment for a term of less than a year, the imprisonment must be in the county jail, except when otherwise specially prescribed by statute. (Penal Code, \\u00a7 702.) Where the term of imprisonment is for a year, the imprisonment may be either in a county jail, a penitentiary or State prison ; but no person shall be sentenced to imprisonment in a State prison for less than a year. (Penal Code, \\u00a7 703.) Where the imprisonment is for a term exceeding one year, the confinement must be in a State prison (Penal Code, \\u00a7 704); but it is expressly provided in the last section that such section and sections 702 and 703 shall not apply to a case where special provision is made by statute as to the punishment for any particular offense or class of offenses or offenders, and specifically excepts certain classes, such as minors, female convicts and others which need not be here named. A felony for which no other punishment is specially prescribed is punishable by imprisonment for not more than seven years, or by a fine of not more than $1,000, or by both. A misdemeanor for which no other punishment is specially prescribed is punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both. (Penal Code, \\u00a7 14, 15.)\\nThe felonies and misdemeanors referred to in sections 14 and 15 must necessarily be such as are specifically so designated and declared. Every larceny not grand larceny in the first or second degree is petit larceny (Penal Code, \\u00a7 532), and petit larceny is expressly declared to be a misdemeanor. (Penal Code, \\u00a7 535.) In the absence of any special provision, it is, therefore, punishable by imprisonment in the county jail or penitentiary for a term not exceeding one year, or by a fine not exceeding $500, or by both.\\nSection 688 of the Penal Code, however, provides that a person who, after having been convicted in this State of a felony, or an attempt to commit a felony, or of petit larceny, or, under the laws of any other State, government or country, of a crime which, if committed within this State, would be a felony, commits any crime within this State, is punishable upon conviction of such second offense by imprisonment for life in a State prison, if the subsequent crime is such that iqson a first conviction the offender might be punished by imprisonment for that time. As regards other offenses punishable by imprisonment upon first conviction for any term less than that, the person must be sentenced for not less than the longest term nor more than twice the longest term prescribed upon first conviction.\\nSo that a person convicted of petit larceny charged as a second offense may be imprisoned for a term of two years. It is, therefore, argued by the district attorney that such an offense is a felony. That would seem to follow were it not for the express provision of the Penal Code declaring petit larceny to be a misdemeanor, and other provisions contained in that Code to which attention will be presently called.\\nAs has been seen the general classification of crimes as felonies and misdemeanors according to the place of imprisonment, does not apply to a crime which is specifically declared to be a felony or a misdemeanor, and so can have no application to petit larceny. The mere fact that petit larceny charged as a second offense is punishable more severely than the first offense does not, as it seems to me, change the character of the crime so as to make it a felony, in the face of the declaration of the Penal Code declaring every larceny not grand larceny in the first or second degree petit larceny and a misdemeanor.\\nIt is true that under the Revised Statutes (2 R. S. 699, \\u00a7 9; Id. 702, \\u00a7 30) petit larceny charged as a second offense was a felony, but that was because it was expressly made a felony and punishable by imprisonment in a State prison, and a like provision was contained in the original draft of the Penal Code submitted in 1864. Section 688 of the Penal Code, as finally enacted by the Legislature, contains in substance section 750 of the Penal Code as reported by the commissioners, except that subdivision 3 of the original draft, which provided that a subsequent conviction for petit larceny should be punishable in a State prison for a term not exceeding five years, is omitted, and the provisions of the Revised Statutes in that regard were repealed by the Penal Code and not re-enacted therein. (See Laws of 1881, chap. 676, \\u00a7 688, 726, 727, as amd. by Laws of 1882, chap. 102. See, also, Laws of 1886, chap. 593, \\u00a7 1, subd. 4, \\u00b6 1; Id. \\u00a7 2-4.) In thus amending the statute and expressly declaring all larceny not grand larceny misdemeanors, the legislative intent seems reasonably clear to make the crime of petit larceny, although charged as a second offense, a misdemeanor.\\nAssuming that petit larceny charged as a second offense, if a misdemeanor, is not punishable by imprisonment in a State prison, as seems to be contended by the district attorney and conceded by the attorney for the relator, it does not follow that the provision of section 688 of the Penal Code imposing a double penalty for a second offense will become ineffective in a case like this. Section 3 of chapter 574 of the Laws of 1869 (as amd. by Laws of 1892, chap. 587, and Laws of 1893, chap. 114) provides that if the offense is punishable with imprisonment in a State prison for a term of five years or less the imprisonment may be in the penitentiary in the discretion of the court in certain of the judicial departments of this State, including this department, and in this case to the Monroe County Penitentiary (Charter of city of Rochester, \\u00a7 477).\\nThe Police Court seems to have full power to impose the adequate punishment. (Charter of the city of Rochester, \\u00a7 476.) The limitation upon the power of that court to impose imprisonment not exceeding a year for a misdemeanor is subject to the qualification \\\" except where a different punishment is by law prescribed for such offense.\\\" And besides the matter may be removed before the grand jury as provided by sections 57 and 58 of the Code of Criminal Procedure. (Charter of the city of Rochester, \\u00a7 473.) There may be little if any difference in punishment whether the imprisonment is in a State prison or in the penitentiary; but the consequences following a conviction of felony are much more serious than a conviction for a misdemeanor, such, for instance, as the loss of political rights. If petit larceny charged as a second offense is a felony, then every misdemeanor punishable by imprisonment for a year, even if expressly declared to be a misdemeanor, committed after a conviction for petit larceny, becomes a felony, since the punishment may then be double, and that will include offenses against mere police regulations such as unlicensed peddling (Penal Code, \\u00a7 384e) and many others which need not be named.\\nWe think the order should be affirmed.\\nAll concurred, except McLennan, P. J., and Williams, J., who dissented in an opinion by Williams, J.\"}"

ny/2678929.json

@@ -0,0 +1 @@
+"{\"id\": \"2678929\", \"name\": \"Richard J. Donovan, Respondent, v. United Fruit Company, Appellant, Impleaded with Others\", \"name_abbreviation\": \"Donovan v. United Fruit Co.\", \"decision_date\": \"1913-02\", \"docket_number\": \"\", \"first_page\": \"900\", \"last_page\": \"900\", \"citations\": \"155 A.D. 900\", \"volume\": \"155\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T19:47:08.509311+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Richard J. Donovan, Respondent, v. United Fruit Company, Appellant, Impleaded with Others.\", \"head_matter\": \"Richard J. Donovan, Respondent, v. United Fruit Company, Appellant, Impleaded with Others.\", \"word_count\": \"47\", \"char_count\": \"305\", \"text\": \"Order affirmed, with ten dollars costs and disbursements, on Rubin v. Cohen (129 App. Div. 395) and Syme v. Terry & Tench Co. (125 id. 610). Present \\u2014 Ingraham, P. J., McLaughlin, Laughlin, Clarke and Dowling, JJ.\"}"

ny/2682022.json

@@ -0,0 +1 @@
+"{\"id\": \"2682022\", \"name\": \"Edward C. Kosinsky,. Respondent, v. The City School District of the City of Hornell et al., Appellants\", \"name_abbreviation\": \"Kosinsky v. City School District\", \"decision_date\": \"1942-11-11\", \"docket_number\": \"\", \"first_page\": \"908\", \"last_page\": \"908\", \"citations\": \"265 A.D. 908\", \"volume\": \"265\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T20:04:41.436682+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward C. Kosinsky,. Respondent, v. The City School District of the City of Hornell et al., Appellants.\", \"head_matter\": \"Edward C. Kosinsky,. Respondent, v. The City School District of the City of Hornell et al., Appellants.\", \"word_count\": \"47\", \"char_count\": \"282\", \"text\": \"All concur. (The judgment is for plaintiff in a negligence action. The order denies a motion for a new trial.) Present \\u2014 Crosby, P. J., Taylor, Dowling, Harris and MeCurn, JJ.\"}"

ny/2790287.json

@@ -0,0 +1 @@
+"{\"id\": \"2790287\", \"name\": \"The People of the State of New York ex rel. Maxwell Kaufman, Respondent, v. The Board of Education of the City of New York, Appellant\", \"name_abbreviation\": \"People ex rel. Kaufman v. Board of Education\", \"decision_date\": \"1915-02-05\", \"docket_number\": \"\", \"first_page\": \"58\", \"last_page\": \"60\", \"citations\": \"166 A.D. 58\", \"volume\": \"166\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T18:52:50.965544+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York ex rel. Maxwell Kaufman, Respondent, v. The Board of Education of the City of New York, Appellant.\", \"head_matter\": \"The People of the State of New York ex rel. Maxwell Kaufman, Respondent, v. The Board of Education of the City of New York, Appellant.\\nFirst Department,\\nFebruary 5, 1915.\\nCivil service \\u2014 city of Mew York \\u2014 authority of board of education to discharge employees in a designated class and transfer their duties to others \\u2014 abolition of unnecessary positions.\\nThe board of education of the city of New York may, when work is slack,\\\" decrease its force by discharging some of a specially designated class and transfer to others the duty of performing the work which was formerly done by the persons discharged.\\nWhere the discharge of an employee by the board of education of the city of New York is justified, the question of malice or bad faith on the part of his superiors is immaterial.\\nThe board of education of the city of New York has power to abolish unnecessary positions.\\nAppeal by the defendant, The Board of Education of the City of New York, from part of an order of the Supreme Court; made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of June, 1911, granting an alternative writ of mandamus.\\nCharles McIntyre, for the appellant.\\nJohn T. Loew, for the respondent.\", \"word_count\": \"777\", \"char_count\": \"4470\", \"text\": \"Hotchkiss, J.:\\nThe petitioner was appointed to the position of mechanical draughtsman, sanitary, in 1913. On January 12, 1914, the committee on buildings on account of lack of work dispensed with his services as of February first, thereafter, which action was subsequently ratified by the board. The petitioner was attached to the building bureau of the department, the work of which requires the services of architectural draughtsmen and of sanitary mechanical draughtsmen; the former draw the general plans, and the latter the plans pertaining to piping and sanitary construction. After his discharge, no one was appointed in relator's place, but his work was assigned to architectural draughtsmen, and the relator was restored or is entitled to be restored to the civil service list.\\nThe gist of relator's claim is that inasmuch as there was some work for him to do and an appropriation with which to pay him, he should have been retained, and that the city had no right to discharge him and at the same time assign his work to others. In People ex rel. Horvay v. Board of Education (164 App. Div. 930) we held a relator properly dismissed because it appeared that there was no work for him to do. It is, therefore, not on all fours with the present. The question now presented is whether, when work is slack, the board of education may decrease its working force by discharging some of a specially designated class and transfer to others the duty to perform such work as there is to be done of the character theretofore performed by those in the discharged class.\\nThe board of education has power to abolish unnecessary positions. (People ex rel. Connolly v. Board of Education, 114 App. Div. 1; affd., 187 N. Y. 535.) In People ex rel. Vineing v. Hayes (135 App. Div. 19) we held that when the city officials can decrease the number of employees by distributing their work among others of the force it is their duty so to do. It would be incredible should it be otherwise. Such being the case, and the relator's discharge being justified by the facts, the question of malice or bad faith on the part of any of the relator's superiors is immaterial. (People ex rel. Vineing v. Hayes, supra, 22.) We place no weight whatever on the argument that the board had no power to act through its regular committee. In the light of the legislation, and the rules of the board pertaining to the subject, the question is too clear for argument. Furthermore, the record shows that the relator was appointed in pursuance of the recommendation of a committee of the board, and thereafter confirmed by the board. If the board had no power to delegate the committee to investigate and report as to the propriety of the relator's discharge, it would seem to follow that his appointment was illegal, in which case he ought not to be heard to argue that he was illegally removed from a position to which he has no legal claim.\\nThe order, so far as appealed from, .is, therefore, reversed, with ten dollars costs and \\u2022 disbursements, and the motion denied, with fifty dollars costs.\\nIngraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.\\nOrder reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.\"}"

ny/284320.json

@@ -0,0 +1 @@
+"{\"id\": \"284320\", \"name\": \"Max Kahn, Respondent, v. Howard F. Hart et al., Defendants, and Jerrold P. Rosenthal et al., Appellants\", \"name_abbreviation\": \"Kahn v. Hart\", \"decision_date\": \"2000-03-06\", \"docket_number\": \"\", \"first_page\": \"231\", \"last_page\": \"232\", \"citations\": \"270 A.D.2d 231\", \"volume\": \"270\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T17:01:04.667206+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Max Kahn, Respondent, v Howard F. Hart et al., Defendants, and Jerrold P. Rosenthal et al., Appellants.\", \"head_matter\": \"Max Kahn, Respondent, v Howard F. Hart et al., Defendants, and Jerrold P. Rosenthal et al., Appellants.\\n[704 NYS2d 126]\", \"word_count\": \"355\", \"char_count\": \"2231\", \"text\": \"\\u2014-In an action, inter alia, to recover money due on mortgage notes, the defendants Jerrold P. Rosenthal and Rosenthal & Curry appeal from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), dated March 30, 1999, as denied that branch of their motion which was to dismiss the causes of action to recover damages for legal malpractice as time-barred.\\nOrdered that the order is reversed insofar as appealed from, with costs, and that branch of the appellants' motion which was to dismiss the plaintiffs causes of action to recover damages for legal malpractice as time-barred is granted.\\nThe plaintiff commenced this action against, among others, the appellants Jerrold P. Rosenthal and Rosenthal & Curry, alleging legal malpractice arising from representation provided in 1987 and 1988 on two loan transactions. The plaintiff alleged that he did not learn until 1998, after defaults on the loans, that the appellants failed to record two mortgages executed to secure the loans. Before issue was joined, the appellants moved, inter alia, to dismiss those claims as time-barred. We now grant that relief.\\nPursuant to CPLR 214 (6), an action to recover damages for legal malpractice must be commenced within three years of the accrual of the claim. A claim to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered (see, Santulli v Englert, Reilly & McHugh, 78 NY2d 700; Glamm v Allen, 57 NY2d 87; Kuritzky v Sirlin & Sirlin, 231 AD2d 607; Tal-Spons Corp. v Nurnberg, 213 AD2d 395). Here, the legal malpractice complained of occurred more than three years before the commencement of this action, and the Statute of Limitations was not tolled by the continuous representation doctrine (see, Santulli v Englert, Reilly & McHugh, supra; Glamm v Allen, supra; Kuritzky v Sirlin & Sirlin, supra; Tal-Spons Corp. v Nurnberg, supra; Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505). Accordingly, the plaintiffs claims of legal malpractice should have been dismissed as time-barred. Santucci, J. P., Altman, Friedmann and Goldstein, JJ., concur.\"}"

ny/2880297.json

@@ -0,0 +1 @@
+"{\"id\": \"2880297\", \"name\": \"Leona Holding Corporation, Appellant, v. Ernest A. Bigelow and Mortimer Bishop, Respondents\", \"name_abbreviation\": \"Leona Holding Corp. v. Bigelow\", \"decision_date\": \"1917-02-09\", \"docket_number\": \"\", \"first_page\": \"500\", \"last_page\": \"503\", \"citations\": \"176 A.D. 500\", \"volume\": \"176\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T18:05:36.553180+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Leona Holding Corporation, Appellant, v. Ernest A. Bigelow and Mortimer Bishop, Respondents.\", \"head_matter\": \"Leona Holding Corporation, Appellant, v. Ernest A. Bigelow and Mortimer Bishop, Respondents.\\nFirst Department,\\nFebruary 9, 1917.\\nContract \\u2014 real property \\u2014 agreement to exchange lands \\u2014 specific performance \\u2014 agreement as to number of unrented apartments \\u2014 condition at time set for passing title governs.\\nWhere, by the terms of a written contract for the exchange of real property, the plaintiff, who was to convey an apartment house to the defendant, expressly agreed that an annexed writing stating the number of apartments which were rented was true, which statement showed that only three apartments were vacant, the plaintiff is entitled to a decree of specific performance if at the time set for closing title only two apartments were unrented, although as a matter of fact at the time of the original contract five apartments were vacant.\\nAn apartment was rented within the meaning of the plaintiff\\u2019s warranty where it was occupied by a monthly tenant without a lease, there being nothing in the agreement to compel the plaintiff to deliver the premises covered in every instance by a written lease.\\nAppeal by the plaintiff, Leona Holding Corporation, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of June, 1916, dismissing the complaint upon the merits and granting judgment on the counterclaim upon the decision of the court after a trial at the New York Special Term.\\nAbraham P. Wilkes, for the appellant.\\nHenry A. Wise, for the respondents.\", \"word_count\": \"1395\", \"char_count\": \"8161\", \"text\": \"Page, J.:\\nThe action is brought to enforce specific performance of a contract in writing for the exchange of real property, whereby the plaintiff agreed to exchange an elevator apartment house for a piece of property owned by the defendants on East Ninety-third street, both in the city of New York.\\nAttached to the contract was a list of the rentals for plaintiff's apartment house, and the contract provided: \\\"It is hereby expressly agreed by the party of the first part [plaintiff] that the annexed statement of the rents is a true and correct statement of the income of said premises, and it hereby warrants that there have been made no concessions to tenants or free rents allowed.\\\" The annexed schedule of rents showed that of the thirty apartments in the building at 536 West One Hundred and Forty-fourth street three only were vacant, to wit, Ho. 4, of which the monthly rental was stated to be fifty dollars; Ho. 25, with a monthly rental of fifty-five dollars, and Ho. 61, for which the monthly rental was not stated. The agreement was entered into on the 22d day of December, 1915, and the contract was agreed to be closed on the 31st of December, 1915. On December 30, 1915, the plaintiff's attorney wrote a letter to the defendants as follows: \\\"I hereby send you twenty-four (24) leases for apartments in premises Ho. 530 West 144th Street. It appears that there are five vacancies; one apartment, however, has been rented, possession to be taken on January 1st, 1916. One apartment is occupied by a monthly tenant without a lease.\\n\\\"You will greatly oblige me to inform me at the earliest moment possible whether or no you will be ready to close title at the time specified in the contract.\\\"\\nOn the same day one of the defendants wrote to the plaintiff's attorney returning the leases and stating:\\n\\\"Inote from your letter that there is one monthly tenant, who I presume, occupies apartment 24, for which he has paid $55.00 per month; and that of the 'five' vacancies, one is to be filled by a tenant who goes into possession January 1st.\\\" The letter proceeds to state that the agreement as to the statement of rents was a material and governing factor in the acceptance, and that as the facts did not conform to that statement the defendants elected to terminate the contract.\\nIt was shown that at the time and place set for the closing of the title the plaintiff attended and was ready and willing to deliver the apartment house in the following condition: Apartments Hos. 4 and 25 were vacant, as stated in the list annexed to the agreement. Apartment Ho. 3 was rented and the rent paid for the month of December, but a new lease had been given for this apartment to one Douglas at the same rental beginning January 1, 1916, and Hirsch, the original tenant of Ho. 3, had moved to apartment Ho. 61, which he had rented at sixty dollars per month, to begin January 1, 1916, and in consideration of his change from apartment No. 3 to No. 61 he was allowed to go into apartment No. 61 before the first of January without the payment of any additional rent. Apartment No. 24 was occupied by a tenant named Barsowitch, who had occupied it for three years and was still paying fifty-five dollars a month as a holdover tenant. Apartment No. 53 was rented from January 1, 1916, to a tenant named Kutz. This agreement as to apartment No. 53 had been orally made prior to the making of the contract in suit and a deposit on account received by the plaintiff, and in the answer the defendants admitted that prior to the signing of the said agreement he learned that apartment No. 53 was not physically occupied, but was informed by plaintiff that the same was duly rented at thirty-five dollars per month at the time of signing the said agreement. It further appears that prior to the date of closing apartment No. 21 had been rented by the plaintiff for a term beginning January 1, 1916.\\nThus, before the time for closing the condition of the apartment house owned by plaintiff was better than the contract called for, in that there were only two apartments actually unrented at that time. The only witness called at the trial was Frederick Brown, president of the plaintiff corporation, who testified to these facts, and there were introduced in evidence written documents substantiating his testimony. It is true that on cross-examination Mr. Brown admitted that there were five \\\"vacancies\\\" in the apartment house at the time of the contract, but a full reading of his testimony shows clearly and conclusively that what he meant was physical vacancies. It does appear, however, that four apartments were vacant and unrented at that time, hut before the day for closing two \\u00a9f these were rented under bona fide leases. No fraud is claimed, and the learned trial justice has found at the request of the plaintiff: \\\"That all differences and variances between the facts hereinabove set forth and the facts set forth in the agreement, Exhibit 'A,' annexed to the complaint, occurred through inadvertence and mistake of the plaintiff herein and without any fraud or intent to defraud on its part. \\\"\\nUnder these facts I do not think there was any substantial breach of the contract by the plaintiff, and since the plaintiff was in a position on the day of closing to deliver the premises in even better condition than it had contracted for, the defendants were not justified in refusing to consummate the agreement.\\nNeither was there anything contained in the letter of December thirtieth, quoted above from the plaintiff's attorney to the defendants, which justified them in believing that the contract would not he performed by the plaintiff, for in this letter they were told that there were five vacancies instead of three, but with the explanation that one apartment had been rented, possession to he taken the day following the closing, and another was occupied by a monthly tenant without lease. There is nothing in the agreement which compelled the plaintiff to deliver the premises covered in every instance by a written lease. It merely guaranteed that the rentals were as stated. This apartment was, therefore, not to be deemed vacant within the meaning of the agreement.\\nThe plaintiff showed substantial performance on its part and was entitled to a decree of specific performance.\\nThe judgment should be reversed, with costs, and judgment granted for the plaintiff as prayed for in the complaint, with costs.\\nOlarke, P. J., Laughlin, Dowling and Smith, JJ., concurred.\\nJudgment reversed, with costs, and judgment ordered for plaintiff as stated in opinion, with costs. Order to be settled \\u00a9n notice.\"}"

ny/2971390.json

@@ -0,0 +1 @@
+"{\"id\": \"2971390\", \"name\": \"In the Matter of the Claim of Alexander Heaton, Appellant, against Delco Appliance Division, General Motors Corp., Respondent. Workmen's Compensation Board, Respondent\", \"name_abbreviation\": \"Claim of Heaton v. Delco Appliance Division\", \"decision_date\": \"1958-12-02\", \"docket_number\": \"\", \"first_page\": \"10\", \"last_page\": \"15\", \"citations\": \"7 A.D.2d 10\", \"volume\": \"7\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T21:36:16.813514+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Claim of Alexander Heaton, Appellant, against Delco Appliance Division, General Motors Corp., Respondent. Workmen\\u2019s Compensation Board, Respondent.\", \"head_matter\": \"In the Matter of the Claim of Alexander Heaton, Appellant, against Delco Appliance Division, General Motors Corp., Respondent. Workmen\\u2019s Compensation Board, Respondent.\\nThird Department,\\nDecember 2, 1958.\\nSamuel Weinreb for appellant.\\nBenedict T. Mangano for Delco Applicance Division, General Motors Corporation, respondent.\\nLouis J. Lefkowitz, Attorney-General, for Workmen\\u2019s Compensation Board, respondent.\", \"word_count\": \"1944\", \"char_count\": \"11643\", \"text\": \"Herlihy, J.\\nAppellant contends that section 17 of the Workmen's Compensation Law is not applicable as the \\\" 1794 Treaty of Amity Commerce and Navigation (Jay Treaty) \\\" and the \\\"1899 Convention as to Tenure and Disposition of Beal and Personal Property \\\" guarantee to a nonresident alien the same rights as are afforded to a citizen of the United States.\\nThe Constitution of the United States (art. VI, \\u00a7 2) provides in part: 1 ' This Constitution, and the Laws of the United States and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. ' '\\nIn Asakura v. Seattle (265 U. S. 332, 342) the court said: ' ' Treaties are to be construed in a broad and liberal spirit, and, when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred.\\\" (See, also, Factor v. Laubenheimer, 290 U. S. 276, 293; Matter of Zalewski, 292 N. Y. 332, 336.)\\nThat part of the Jay Treaty survived the War of 1812 was first decided in Society for Propagation of Gospel in Foreign Parts v. Town of New-Haven (8 Wheat. [21 U. S.] 464 [1823]) and is still in force and effect. (Clark v. Allen, 331 U. S. 503; Techt v. Hughes, 229 N. Y. 222; United States State Department, Office of Legal Adviser, Treaties and other International Agree ments in force in Jan., 1958, p. 159 [U. S. Government Pr. Off. 1958, Department of State Publication 6626].)\\nSection 17 of the Workmen's Compensation Law which appellant claims inapplicable reads in part as follows: \\\" Compensation under this chapter to aliens about to become nonresidents of the United States shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children and except that the board, may at its option, or upon the application of the insurance carrier, shall, commute as of the date of death all compensation to be paid to such aliens, by paying or causing to be paid to them one-half of the commuted amount of such compensation as determined by the board. In the case of a resident alien about to become nonresident the future payments of compensation shall be commuted as of the date of nonresidence.\\\" (Emphasis supplied.)\\nThe last sentence of section 17 has been held by this court to apply to an injured alien claimant who has become a nonresident as well as a dependent of a deceased worker. (Matter of Fogorty v. Young, 1 A D 2d 751.)\\nClaimant contends that this section is not enforcible because of article X of the Treaty of 1794 (8 U. S. Stat. 116, 122) which reads: \\\"Neither the debts due from individuals of one nation to individuals of the other, nor shares, nor monies which they may have in public funds, or in the public or private banks, shall ever in any event of war or national differences be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals, having confidence in each other and in their respective governments, should ever be destroyed or impaired by national authority on account of national differences and discontents.\\\"\\nAnd further because of the following excerpts from the Convention of 1899 (31 U. S. Stat. 1939) which read in part as follows:\\n\\\" The United States of America and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, desiring to improve the condition of the citizens and subjects of each of the respective countries in relation to the tenure and disposition of real and personal property situated or being within the territories of the other, as well as to authorize the representation of deceased persons by the Consuls of their respective nations in the settlement of estates, have resolved to conclude a convention for those purposes\\nArticle II\\n\\\" The citizens or subjects of each of the Contracting Parties shall have full power to dispose of their personal property within the territories of the other, by testament, donation, or otherwise; and their heirs, legatees, and donees, being citizens or subjects of the other Contracting Party, whether resident or non-resident, shall succeed to their said personal property, and may take possession thereof either by themselves or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the citizens or subjects of the country where the property lies shall be liable to pay in like cases.\\n#\\nArticle Y\\n\\\" In all that concerns the right of disposing of every kind of property, real and personal, citizens or subjects of each of the High Contracting Parties shall in the Dominions of the other enjoy the rights which are or may be accorded to the citizens or subjects of the most favored nation.\\\"\\nAppellant relies upon a case decided in this court, affirmed in the Court of Appeals, Matter of Iannone v. Radory Constr. Corp. (285 App. Div. 751, affd. 1 N Y 2d 671) which concerned a treaty made in 1948 with the Italian Republic which specifically made provisions (among others) for the protection of wage earners or individuals and relatives, heirs or dependents as the result of occupational disease, injury or death arising out of and in the course of employment or due to the nature of employment. We do not feel the decision of the court in that case is applicable to the present facts. The rule was different as to earlier treaties between the same countries. (Maiorano v. Baltimore & Ohio R. R. Co., 213 U. S. 268.)\\nA United States Supreme Court decision Liberato v. Royer (270 U. S. 535 [1926]) concerned a claim for workmen's compensation under the laws of the State of Pennsylvania which provided in part: ' ' alien parents not residents of the United States shall not be entitled to any compensation \\\". The claimant contended that this was overcome by a treaty with Italy which provided in part the establishment of \\\" civil responsibility for injuries or death caused by negligence or fcmlt \\\" and gave to relatives or heirs of the injured party \\\" right of action, which shall not be restricted on account of the nationality.\\\" The court held that the terms of the treaty did not include rights under the Workmen's Compensation Law and that the above-quoted section of the statute of Pennsylvania was effective because such rights were not dependent upon a showing of negligence or fault by the employer.\\nConsidering the terms, conditions and circumstances under which article X became part of the Treaty of 1794 and giving to it the most favorable interpretation, it was never intended by the contracting parties to include our present day form of compensation between employer and employee or anything vaguely similar to it that might have been in effect at the time of the treaty. Its purpose was, by a Treaty of Amity Commerce and Navigation, to terminate the differences without respect to the merits; to produce mutual satisfaction and understanding; to regulate the commerce and navigation so as to render the same reciprocal to the benefit and satisfaction of both nations. Article X referred to the debts of individuals of both nations and their protection in the event of a war or national differences. It (art. X) was primarily to prevent in the future such unlawful confiscations practiced following the Revolutionary War. The article was directed to the rights of the individual as such and ineffective to abrogate section 17 of the Workmen's Compensation Law of the State of New York.\\nWe likewise conclude that articles II and V of the Convention of 1899 is of no help or solace to the claimant. The wording of article II is clear that it was intended for the purpose of disposing of personal property by testament, donation or otherwise and it cannot inferentially under any favorable interpretation be construed to have application to the present facts.\\nThere is no language in the treaty which can be construed to make claim for death or injuries arising out of the relationship of employer and employee. The right to recover without alleging negligence or fault is given solely and exclusively by the statute of which section 17 is a part. Even though social legislation such as this is subject to liberal interpretation, it cannot be so interpreted as to abrogate the wording and intent of the statute.\\nArticle Y, known under treaty language as the '1 most favored nation clause \\\", is not applicable to the present situation for the reasons previously mentioned herein (applies to division of personal property).\\nWe do not under these circumstances determine what application the Italian treaty (Iannone case, supra) might have as to Great Britain under different circumstances and conditions.\\nApplying the many mandates mentioned herein, we conclude that as to the Treaty of 1794 and the Convention of 1899 there is nothing in the language, taking into consideration the time, circumstances and conditions when they were written and also the present day circumstances, that can overcome or abrogate section 17 of the Workmen's Compensation Law of the State of New York.\\nIn Santovincenzo v. Egan (284 U. S. 30, 40) the court said: ' ' As treaties are contracts between independent nations, their words are to be taken in the ordinary meaning ' as understood in the public law of nations. ' ' '\\nIt has been necessary to document by way of amendment our own Constitution through the years and many new and modern treaties have been executed by this Government and other nations. Section 17, referred to herein, has been described as a harsh statute which finds very little justification in any principle of fairness. However, the fortuitous circumstances here cannot be overcome by judicial interpretation. Our duty is done when we enforce the law as written by the legislative branch of the Government.\\nIn arriving at this conclusion, we are mindful of the admonition of Mr. Justice Cardozo in Techt v. Hughes (229 N. Y. 222, 247): \\\" No one can study the vague and wavering statements of treatise and decision in this field of international law with any feeling of assurance at the end that he has chosen the right path. One looks in vain either for uniformity of doctrine or for scientific accuracy of exposition. There are wise cautions for the statesman. There are few precepts for the judge. All the more, in this uncertainty, I am impelled to the belief that until the political departments have acted, the courts, in refusing to give effect to treaties, should limit their refusal to the needs of the occasion; that they are not bound by any rigid formula to nullify the whole or nothing they are free to make choice of the conclusion which shall seem the most in keeping with the traditions of the law, the policy of the statutes, the dictates of fair dealing, and the honor of the nation.\\\"\\nThe decision and award of the Workmen's Compensation Board should be affirmed, without costs.\\nFoster, P. J., Bergan, Gibson and Reynolds, JJ., concur.\\nDecision and award of the Workmen's Compensation Board affirmed, without costs.\"}"

ny/2992032.json

@@ -0,0 +1 @@
+"{\"id\": \"2992032\", \"name\": \"George Ford, Appellant, v. New York State Board of Parole, Respondent\", \"name_abbreviation\": \"Ford v. New York State Board of Parole\", \"decision_date\": \"1976-05-17\", \"docket_number\": \"Petitioner is no longer in custody\", \"first_page\": \"901\", \"last_page\": \"901\", \"citations\": \"52 A.D.2d 900\", \"volume\": \"52\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T19:09:03.354332+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George Ford, Appellant, v New York State Board of Parole, Respondent.\", \"head_matter\": \"George Ford, Appellant, v New York State Board of Parole, Respondent.\", \"word_count\": \"74\", \"char_count\": \"485\", \"text\": \"In a proceeding pursuant to CPLR article 78 inter alia to compel respondent to vacate a parole revocation warrant, petitioner appeals from a judgment of the Supreme Court, Nassau County, entered November 13, 1975, which denied the application. Appeal dismissed as moot, without costs or disbursements. Petitioner is no longer in custody. Hopkins, Acting P. J., Martuscello, Latham, Titone and Hawkins, JJ., concur.\"}"

ny/3002778.json

@@ -0,0 +1 @@
+"{\"id\": \"3002778\", \"name\": \"Before State Industrial Commission, Respondent. In the Matter of the Claim of Clarence Barnard, Respondent, for Compensation under the Workmen's Compensation Law, v. The Otesaga Hotel, C. B. Knott, Proprietor, Employer, and \\u00c6tna Life Insurance Company, Insurance Carrier, Appellants\", \"name_abbreviation\": \"Claim of Barnard v. Otesaga Hotel\", \"decision_date\": \"1919-09\", \"docket_number\": \"\", \"first_page\": \"883\", \"last_page\": \"883\", \"citations\": \"189 A.D. 883\", \"volume\": \"189\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T18:07:54.071683+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Before State Industrial Commission, Respondent. In the Matter of the Claim of Clarence Barnard, Respondent, for Compensation under the Workmen\\u2019s Compensation Law, v. The Otesaga Hotel, C. B. Knott, Proprietor, Employer, and \\u00c6tna Life Insurance Company, Insurance Carrier, Appellants.\", \"head_matter\": \"Before State Industrial Commission, Respondent. In the Matter of the Claim of Clarence Barnard, Respondent, for Compensation under the Workmen\\u2019s Compensation Law, v. The Otesaga Hotel, C. B. Knott, Proprietor, Employer, and \\u00c6tna Life Insurance Company, Insurance Carrier, Appellants.\", \"word_count\": \"42\", \"char_count\": \"312\", \"text\": \"Award unanimously affirmed.\"}"

ny/3007898.json

@@ -0,0 +1 @@
+"{\"id\": \"3007898\", \"name\": \"Roger Fracentese et al., Respondents, v. Sprain Lake Knolls, Inc., Appellant\", \"name_abbreviation\": \"Fracentese v. Sprain Lake Knolls, Inc.\", \"decision_date\": \"1960-04-25\", \"docket_number\": \"\", \"first_page\": \"881\", \"last_page\": \"881\", \"citations\": \"10 A.D.2d 881\", \"volume\": \"10\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-11T00:16:55.916001+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Roger Fracentese et al., Respondents, v. Sprain Lake Knolls, Inc., Appellant.\", \"head_matter\": \"Roger Fracentese et al., Respondents, v. Sprain Lake Knolls, Inc., Appellant.\", \"word_count\": \"164\", \"char_count\": \"952\", \"text\": \"In an action to recover damages for breach of a contract to construct a house, defendant, the builder, appeals from a judgment of the City Court of Yonkers, entered May 14, 1959, after trial before the court without a jury, in favor of plaintiffs for $3,000, with interest and costs. It was claimed that an automobile could not be brought into the garage, an integral part of the house, because the grade of the driveway was too steep. There was testimony that proper regrading of the driveway would entail lifting the entire house and that the cost of such regrading would be more than the cost of constructing a new driveway and garage, which was estimated at $3,000. Judgment affirmed, with costs. (Bellizzi v. Huntley Estates, 3 N Y 2d 112; Russ v. Lakeview Development, 133 N. Y. S. 2d 641, 644.) Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.\"}"

ny/3021760.json

@@ -0,0 +1 @@
+"{\"id\": \"3021760\", \"name\": \"LOEB et al. v. KEYES et al.\", \"name_abbreviation\": \"Loeb v. Keyes\", \"decision_date\": \"1895-05-04\", \"docket_number\": \"\", \"first_page\": \"491\", \"last_page\": \"493\", \"citations\": \"33 N.Y.S. 491\", \"volume\": \"33\", \"reporter\": \"West's New York Supplement\", \"court\": \"New York Supreme Court, General Term\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T18:23:43.845074+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LOEB et al. v. KEYES et al.\", \"head_matter\": \"(86 Hun, 353.)\\nLOEB et al. v. KEYES et al.\\n(Supreme Court, General Term, Fourth Department.\\nMay 4, 1895.)\\nAccount Stated\\u2014What Constitutes.\\nA balance account contained in a book o\\u00a3 accounts does not constitute an account stated, where it does not appear that it was ever rendered.\\nAppeal from judgment on report of referee.\\nAction by Joseph Loeb and others against Frank R. Keyes and another on a note dated at Binghamton, January 12,1893, made by defendant F. R. Keyes to the order of, and indorsed by, the other defendant, for $1,442.82, payable at the First National Bank of Binghamton six months after date. The defense was payment. The recovery was for the sum of $1,382.48, with interest from July 15, 1893. Defendants appeal.\\nAffirmed.\\nArgued before HARDIN, P. J., and MARTIN and MERWIN, JJ.\\nGeorge F. Lyon, for appellants.\\nDowns & Smith, for respondents.\", \"word_count\": \"1269\", \"char_count\": \"7052\", \"text\": \"MERWIN, J.\\nThe plaintiffs were dealers in tobacco in the city of Philadelphia, Pa., and the defendant F. R. Keyes was a dealer in Binghamton. In the month' of October, 1892, they \\\"made an agreement by which plaintiffs were to sell said Keyes tobacco from time to time, for which said Keyes should giv\\u00a7 promissory notes indorsed by said Cora W. Keyes, and that the plaintiffs should give him credit from time to time for such notes so given; that, in addition to his own notes, the said Keyes was to turn into plaintiffs such customers' paper (of said Keyes) as might be acceptable to the plaintiffs, and that they should give him credit for such customers' paper; that as said Keyes' own notes became due, from time to time, if he had sufficient credit with the plaintiffs on account of such customers' notes so credited to him, that his own notes should be taken up by plaintiffs, and returned to him; that such agreement was to continue during the pleasure of the plaintiffs.\\\" In pursuance of this agreement the parties had a series of transactions extending from the month of October, 1892, to July or August, 1893. On January 12,1893, the plaintiffs sold Keyes a quantity of tobacco for the price of $4,328.44; and, in payment of the same, Keyes gave three notes, dated that day, for $1,442.82 each, due, respectively, in four, five, and six months after date, to the order of, and indorsed by, the defendant C. W. Keyes. The last one of these became due July 15, 1893, and is the note in suit. The tobacco was never delivered to Keyes, but by a subsequent arrangement the plaintiffs were to sell the same, and give Keyes credit for the amount they should receive, which they accordingly did. In keeping the account the plaintiffs, at the time of the sale, charged Keyes with the price of the goods, and credited him with the notes given. On the resale of the goods the plaintiffs credited Keyes with the amount, the date being May 12, 1893. When the first and second notes became due, they were charged to Keyes, and no question is made about them here. When the note in suit became due, it was not in fact paid; but the defendants claim that there was then a credit to them on the books of the plaintiffs which was applicable to the payment of this note, and that the plaintiffs, under their agreement, were bound to pay it. Under the agreement, which, it is to be observed, was to continue only during the pleasure of the plaintiffs, it was provided that plaintiffs should take up Keyes' notes when they became due, \\\"if he [Keyes] had a sufficient credit with the plaintiffs on account of such customers' notes so credited to him.\\\" It is not shown that Keyes, at the time the note in suit became due, had sufficient or any credit then from such customers' notes; and it is found by the referee that at that time \\\"said Keyes had already been credited by plaintiffs with the amount received by them on the resale of the tobacco mentioned in the above sixth finding, but that said Keyes did not have to his credit with plaintiffs sufficient customers' paper, including said last-mentioned credit, to pay and take up the note in suit, or any part thereof.\\\" The evidence justifies this finding. On the 5th July, 1893, when the last credit of any kind was made, there was an apparent balance of credit to Keyes of about $8,900. There were then outstanding notes of Keyes, given by him to plaintiffs, and for which he had received credit, to the amount of about $10,300. These were five in number, and one of them was the note in suit. The other four amounted to about $8,900, and were given in renewal of notes given on purchase of goods. These renewals formed a part of the aggregate credit to Keyes, and, deducting them, there was practically no credit applicable to the note in suit. One of these renewals was due July 4th, and the others July 18th, August 8th and 18th.\\nIf there was not sufficient credit from customers' notes, then, under the agreement, there was no obligation on plaintiffs to take up the notes. The plaintiffs, it may be said, had only in their hands defendants' promises to pay, and there was on them no legal obligation to use those for the purpose of paying or canceling the note in suit. But the defendants say the plaintiffs have stated an account in which this note is charged off, and so they are bound as by an account stated. The argument is mainly based on sched ule C, which is dated November 14, 1893, is a transcript of the plaintiffs' books, and is in form an account of the dealings between plaintiffs and Keyes; the latest date of any entry being August 18, 1893. In this account, which apparently was made up after this suit was commenced, the note in suit is charged to Keyes under date of August 8, 1893, and the other four notes above referred to are also charged to Keyes. Each side is footed, and then, below, is entered, \\\"Balance due J. Loeb & Co., $1,382.48.\\\" This appears to be the balance of the two columns. It does not appear that this account was ever rendered to Keyes. It was not therefore a stated account. Allen v. Culver, 3 Denio, 284. The only account in fact rendered was dated July 5, 1893. That is headed \\\"Statement,\\\" and in it the note in suit was not charged to Keyes, and it does not appear whether the plaintiffs then held it. There was, however, a memorandum of this and the four other notes above referred to, and they are added to the charges against Keyes, the amount of credits is deducted, and a balance is shown due plaintiffs of $1,379.78. On July 11, 1893, the plaintiffs wrote Keyes, \\\"You will please send us settlement for balance due us, as per statement left with you by our Mr. E. Loeb, at once.\\\" Keyes did not respond, and this suit was brought on August 12, 1893. We fail to see here any account stated which bound the plaintiffs to treat the note in suit as paid. We are of the opinion that the referee did not err in holding that the defense of payment was not made out. The defendants cannot complain of the amount of the recovery, as it is only for the amount conceded to be due from Keyes. The judgment should be affirmed.\\nJudgment affirmed, with costs.\\nHARDIN, P. J., concurs. MARTIN, J., not voting.\"}"

ny/3022917.json

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+"{\"id\": \"3022917\", \"name\": \"Mildred Short, an Infant by Albert Short, Her Parent, et al., Plaintiffs, v. Robert J. Thygiesen, Respondent, and Donald G. Dibble, Appellant\", \"name_abbreviation\": \"Short v. Thygiesen\", \"decision_date\": \"1976-11-05\", \"docket_number\": \"\", \"first_page\": \"1082\", \"last_page\": \"1083\", \"citations\": \"54 A.D.2d 1082\", \"volume\": \"54\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T17:07:39.008903+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mildred Short, an Infant by Albert Short, Her Parent, et al., Plaintiffs, v Robert J. Thygiesen, Respondent, and Donald G. Dibble, Appellant.\", \"head_matter\": \"Mildred Short, an Infant by Albert Short, Her Parent, et al., Plaintiffs, v Robert J. Thygiesen, Respondent, and Donald G. Dibble, Appellant.\", \"word_count\": \"445\", \"char_count\": \"2805\", \"text\": \"Order and judgment unanimously reversed, with costs, and motion denied. Memorandum: Defendant Donald G. Dibble appeals from an order and judgment granting defendant Robert J. Thygiesen's motion for dismissal of Dibble's cross claim against him in plaintiffs' negligence action against these two defendants to recover for injuries which the infant plaintiff suffered on October 18, 1972 while a passenger in Thygiesen's automobile when it was in collision with defendant Dibble's automobile. Plaintiffs' action was begun in January, 1973. In June, 1973 defendant Thygiesen settled with plaintiffs for the sum of $10,000 in exchange for a release in which plaintiffs reserved all rights against defendant Dibble. Thereafter Dibble served an amended answer to the complaint, containing a cross claim against Thygiesen. It is from the order and judgment granting Thygiesen's motion for dismissal of that cross claim that Dibble appeals. Special Term rested its decision on the fact that the Court of Appeals has held that the principle of its Dole v Dow Chem. Co. (30 NY2d 143) decision shall apply to all cases after its date, March 22, 1972 (see Kelly v Long Is. Light. Co., 31 NY2d 25, 29, n 3). Effective September 1, 1972, section 15-108 of the General Obligations Law provided that a payment from a released co-tort-feasor only reduced plaintiff's claim against all defendants in the amount of the payment, but the right of contribution between co-tort-feasors remained (L 1972, ch 830, \\u00a7 3; Blass v Hennessey, 44 AD2d 405). Effective September 1, 1974, section 15-108 of the General Obligations Law was amended to provide that a settlement by one co-tort-feasor reduces plaintiff's claim by the amount thereof and to the extent of the settling tort-feasor's culpability for plaintiff's injuries, but it denies to the remaining co-tortfeasor the right of contribution from the settling tort-feasor. The 1974 amendment appears to be a very equitable solution of this aspect of problems arising since Dole v Dow Chem. Co. (supra). Nevertheless it cannot properly be applied ex post facto in cases where rights were fixed before the amendment. At the time of plaintiffs' accident and when defendant Thygiesen made his settlement, defendant Dibble's rights were as established under the principle declared in Dole v Dow Chem. Co., (supra), and as then provided in section 15-108 of the General Obligations Law (cf. Burdick v Pintarelli, 52 AD2d 1027). Those rights may not properly be denied to him by later evolving legislation. (Appeal from order and judgment of Monroe Supreme Court\\u2014summary judgment.) Present\\u2014Marsh, P. J., Moule, Simons, Dillon and Witmer, JJ.\"}"

ny/3084017.json

@@ -0,0 +1 @@
+"{\"id\": \"3084017\", \"name\": \"The People of the State of New York v. Stanley Ford\", \"name_abbreviation\": \"People v. Ford\", \"decision_date\": \"1961-10-10\", \"docket_number\": \"\", \"first_page\": \"743\", \"last_page\": \"744\", \"citations\": \"14 A.D.2d 743\", \"volume\": \"14\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T20:22:26.976614+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York v. Stanley Ford.\", \"head_matter\": \"The People of the State of New York v. Stanley Ford.\", \"word_count\": \"21\", \"char_count\": \"115\", \"text\": \"Concur \\u2014 Botein, P. J., Breitel, Rabin, Eager and Noonan, JJ.\"}"

ny/3168603.json

@@ -0,0 +1 @@
+"{\"id\": \"3168603\", \"name\": \"PEARSON v. BROADHEAD et al.\", \"name_abbreviation\": \"Pearson v. Broadhead\", \"decision_date\": \"1913-04-30\", \"docket_number\": \"\", \"first_page\": \"1135\", \"last_page\": \"1135\", \"citations\": \"141 N.Y.S. 1135\", \"volume\": \"141\", \"reporter\": \"West's New York Supplement\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T17:33:15.461549+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PEARSON v. BROADHEAD et al.\", \"head_matter\": \"PEARSON v. BROADHEAD et al.\\n(Supreme Court, Appellate Division, Fourth Department.\\nApril 30, 1913.)\\nAction by Thomas Pearson against Almet N. Broadhead and another.\", \"word_count\": \"47\", \"char_count\": \"323\", \"text\": \"No opinion. Plaintiff's exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendants upon the nonsuit, with costs.\"}"

ny/3169459.json

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+"{\"id\": \"3169459\", \"name\": \"The People of the State of New York, Respondent, v. Raymond Roberts, Appellant\", \"name_abbreviation\": \"People v. Roberts\", \"decision_date\": \"1966-07-05\", \"docket_number\": \"\", \"first_page\": \"655\", \"last_page\": \"655\", \"citations\": \"26 A.D.2d 655\", \"volume\": \"26\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T23:14:00.588428+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of New York, Respondent, v. Raymond Roberts, Appellant.\", \"head_matter\": \"The People of the State of New York, Respondent, v. Raymond Roberts, Appellant.\", \"word_count\": \"464\", \"char_count\": \"2697\", \"text\": \"Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 2, 1965, convicting him of feloniously selling a narcotic drug, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and the facts, and new trial granted. In our opinion, tire cumulative effect of the following errors deprived defendant of a fair trial; (1) Testimony by a police officer was admitted that the buyer of the narcotics told him that defendant had sold it to him. This was hearsay although defendant, then in the custody of the police, was present when the statement was made. Defendant's silence under such circumstances does not constitute an acquiescence in the statement (People v. Rutigliano, 261 N. Y. 103, 106). The error was compounded by the court's refusal to charge that such silence is not evidence of guilt. (2) Testimony by a police officer was admitted that he had observed defendant, several hours before the transaction in question, take four men into a building and that the men emerged later, staggering. He also testified that defendant admitted to selling the men narcotics. This constituted proof of the commission of a crime other- than that for which he was being trie,d (see People v. Goldstein, 295 N. Y. 61, 64). The testimony had no probative value as to the issues in the case. (3) The court charged the jury: \\\"And I tell you right now if you feel that these officers framed this defendant and that he did not sell these two glassine envelopes, throw it out; find him not guilty.\\\" This was improper since the implication was that, unless the jury thoiight that the police officers were framing the defendant, they should find him guilty. (4) A police officer testified that defendant told him, in answer to his question how did he support himself, that \\\"he was living with a girl and she was working\\\". This was irrelevant and prejudicial. (5) The prosecutor implied in his summation that an important witness had not been called by the People because it would have put his life in danger. The error was compounded when the court, in response to defendant's objection, instructed the jury that they could consider this factor. This was improper and highly prejudicial. We have noted that defendant's admissions introduced at the trial were obtained by -the police without the warning required by the holding in Miranda v. State of Arizona (384 U. S. 436). However, the holding in that ease is not to be applied to trials held prior to June 13, 1966 (Johnson v. State of New Jersey, 384 U. S. 719). Ughetta, Acting P. J\\\" Christ, Hill, Rabin and Benjamin, JJ\\\" concur,\"}"

ny/3234404.json

@@ -0,0 +1 @@
+"{\"id\": \"3234404\", \"name\": \"Virginia Ritto et al., Respondents, v. Molly Goldberg, as Executrix of Lewis Goldberg, Doing Business as 775 Realty Co., Appellant, and Washing Machine Clinic et al., Appellants-Respondents\", \"name_abbreviation\": \"Ritto v. Goldberg\", \"decision_date\": \"1969-10-30\", \"docket_number\": \"\", \"first_page\": \"557\", \"last_page\": \"558\", \"citations\": \"33 A.D.2d 557\", \"volume\": \"33\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T19:29:25.784479+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Virginia Ritto et al., Respondents, v. Molly Goldberg, as Executrix of Lewis Goldberg, Doing Business as 775 Realty Co., Appellant, and Washing Machine Clinic et al., Appellants-Respondents.\", \"head_matter\": \"Virginia Ritto et al., Respondents, v. Molly Goldberg, as Executrix of Lewis Goldberg, Doing Business as 775 Realty Co., Appellant, and Washing Machine Clinic et al., Appellants-Respondents.\", \"word_count\": \"900\", \"char_count\": \"5378\", \"text\": \"Judgment affirmed, with $50 costs and disbursements to the plaintiffs-respondents. In this case, as in Kurek v. Port Chester Housing Auth. (18 N Y 2d 450), there was ample evidence for the jury finding that defendant-appellant landlord Goldberg exercised sufficient control over the washing machines installed by the licensee to charge Goldberg with liability for their proper maintenance. The machines were installed in the basement of the multiple dwelling in a room bearing a sign \\\"Laundry Room\\\" and open for the use of all 94 tenants. Although the lessees of the laundry room were to have \\\" exclusive use \\\" of the room \\\" for the operation of the coin metered laundry equipment and machines,\\\" necessarily some measure of control remained with the landlord Goldberg since the same room contained Consolidated Edison meters. Goldberg too agreed to supply all of the electricity, gas and water required for the operation of the laundry equipment and machines. Goldberg, moreover, had actual notice of the defective operation of the machine in question. It was Goldberg's superintendent who received all complaints from the tenants as to defective or improperly working machines in the laundry room and conveyed these complaints to the lessee-owner's service contractor. The. lessee-owner of the machines referred all tenants' complaints to the superintendent, while the repairmen received complaints only from the superintendent. Notice to the superintendent and his communication of tenants' complaints, was, in the language of the trial court, \\\"an active function and assumption of obligation which the landlord undertook as part of the wheel which set in motion the process of repairing any part of the defective machinery.\\\" The failure on Goldberg's part to have the machinery properly repaired, or to post a sign warning his tenants of its defective condition, easts him in the role of an active tort-feasor. (Kurek v. Port Chester Housing Auth., supra, p. 455.) Concur Capozzoli, Tilzer and Markewieh, JJ.; Eager, J. F., and MeGivem, J., dissent in the following memorandum by Eager, J. P.: I would reverse the judgment as against the defendant Goldberg and dismiss the complaint as to her. In this case, the landlord (Goldberg) had leased the room containing the coin-automatic washing machines to the defendant H. B. H. Metered Machine Co. (the owner of the machines). Liability may not be predicated on the landlord's mere ownership of the real property. (See Cullings v. Goetz, 256 N. Y. 287; Roark v. Hunting, 24 N Y 2d 470.) Clearly, section 78 of the Multiple Dwelling Law does not apply to impose liability on the landlord. (See Liddell v. Novak, 246 App. Div. 848; Kitchen v. Landy, 215 App. Div. 586; Fleming v. Oppel, 254. App. Div. 740.) Under the circumstances, the landlord may not be held liable for the condition of a washing machine not owned, controlled, directed or operated by him. He was not guilty of the preach of any duty owing to the tenants. He had no right to interfere with the washing machine belonging to and under the control of another, so it may not be properly argued that he was under a duty to repair or close off the machine. Furthermore, he had no right and, therefore, was under no duty to close off access to the laundry room or to post warnings which would have curtailed the use of the machines; to do so, would have placed him in violation of the obligations owing under the lease of the room to the owner of the machines. The ease of Kurek v. Port Chester Housing Auth. (18 N Y 2d 450) is inapplicable to support the verdict against- the landlord here in that in Kurek there was evidence that the landlord retained \\\"some control\\\" (see trial court's charge to jury) over the particular machine as well as of the room in which the machine was placed. The trial court there correctly charged the jury that \\\" legal control may exist where a party or person is in a position to exercise power or authority to manage, direct, supervise, restrict, regulate, govern, administer or oversee the machines in question.\\\" On this basis, the proof in the Kurek ease was such that the jury could find liability on the part of the landlord, and the Court of Appeals held that \\\"a verdict against the Authority [the landlord] could have been sustained only if the jury found that the Authority had actual notice of the defective operation of the machine and had neglected to have it promptly repaired or to warn tenants of the danger involved in its use.\\\" (Kurek, p, 455.) But here there is no evidence to sustain a finding that the landlord reserved any control over the washing machines installed by the lessee, and the laundry room was leased exclusively to the owner of the machines; consequently, the landlord was not under a duty to have the machine \\\"promptly repaired\\\". Furthermore, there is no evidence in the record here to sustain the conclusion that the landlord was'bound to \\\"warn tenants of the danger \\\" involved in the use of the machine; there was no evidence to support a finding that the landlord was under a. duty or had volunteered to communicate any complaints concerning the machines to the owner thereof or to the service contractor.\"}"

ny/3256304.json

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+"{\"id\": \"3256304\", \"name\": \"Thomas Industries, Inc., Plaintiff, v. Harry Sackren et al., Defendants and Third-Party Plaintiffs-Respondents. New York Blackboard, Inc., Third-Party Defendant-Appellant\", \"name_abbreviation\": \"Thomas Industries, Inc. v. Sackren\", \"decision_date\": \"1971-06-14\", \"docket_number\": \"\", \"first_page\": \"601\", \"last_page\": \"602\", \"citations\": \"37 A.D.2d 601\", \"volume\": \"37\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-11T01:12:56.993220+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas Industries, Inc., Plaintiff, v. Harry Sackren et al., Defendants and Third-Party Plaintiffs-Respondents. New York Blackboard, Inc., Third-Party Defendant-Appellant.\", \"head_matter\": \"Thomas Industries, Inc., Plaintiff, v. Harry Sackren et al., Defendants and Third-Party Plaintiffs-Respondents. New York Blackboard, Inc., Third-Party Defendant-Appellant.\", \"word_count\": \"1106\", \"char_count\": \"7031\", \"text\": \"In an action on respondents' written guarantee, the third-party defendant appeals from an order of the Supreme Court, Kings County, dated May 14, 1970, which denied its motion to dismiss respondents' third-party complaint. Order reversed, on the law, with $10 costs and disbursements, and third-party complaint dismissed. Sackren and Raskin (S & R), the third-party plaintiffs, personally guaranteed performance by Professional Surplus Co., Inc. (Professional), not a party to this action, of all of the terms and provisions of a sublease of a building entered into between the latter, as sublessee, and Benjamin Electric Manufacturing Co. (now Thomas Industries, Inc., the plaintiff), as sublessor. Thereafter, Professional entered into a further sublease of portions of the premises with New York Blackboard, Inc. (Blackboard), the third-party defendant. The suit by the plaintiff, Thomas Industries, Inc., is against S & R on their guarantee. In their third-party complaint S & R allege that if they are held liable to plaintiff on their guarantee of performance it will be because Blackboard has breached the terms of its sublease with Professional; and S & R therefore seek recovery over against Blackboard for any judgment which may be rendered against them. It is apparent that there is no privity of contract, or other relationship, between S & R and Blackboard. The record is barren of any intimation that Blackboard was at any time prior to this lawsuit even aware that S & R had guaranteed performance of the terms of the sublease between plaintiff's predecessor and Professional. McCabe v. Queensboro Farm Prods. (22 N Y 2d 204), cited in the dissenting opinion, has no application to the fact pattern here. In that case the third-party plaintiff alleged that the third-party defendant \\\"had participated on the job as a joint venturer and had agreed to share all losses arising out of the performance of the roofing contract \\\" (p. 207). That being the fact, said Chief Judge Fuld, \\\" such an agreement would entitle him [the third-party plaintiff] to be indemnified for one half of any loss which \\\"he might suffer as a result of McCabe's [plaintiff's] lawsuit\\\" (p. 208). Thus, there was a contractual relar tionship between the third-party plaintiff and the third-party defendant, which brought the third-party complaint directly within the provisions of CPLR 1007, which provides: \\\" After the service of his answer, a defendant may proceed against a person not a party who is or may be liable to him for all or part of the plaintiff's claim against him \\\", Here, the third-party plaintiff and the third-party defendant are complete strangers to each other and the latter can in no event be liable to the former \\\"for all or part of the plaintiff's claim\\\". Under such circumstances, since there is no possibility of S & R obtaining a judgment over against Blackboard, the third-party complaint does not state a cause of action and must be dismissed. Rabin, P. J., Martuseello, Shapiro and Christ, JJ., concur; Hopkins, J., dissents and votes to affirm the order, with the following memorandum: The third-party plaintiffs, officers of Professional Surplus Co., Inc., personally guaranteed the performance of a lease between Professional, as sublessee, and Benjamin Electric Manufacturing Co., as sublessor, in order to obtain the approval of Benjamin to a second sublease, by Professional to New York Blackboard, Inc. That sublease between Professional and Blackboard provided that it was subject to the terms of the master lease and the terms of the first sublease, between Benjamin and Professional; and it further provided that Blackboard would comply with all laws and regulations of Federal and State agencies and with any direction of a public officer with respect to the premises. Thereafter, the New York City Fire Department directed that an automatic sprinkler system be installed in the premises. Blackboard refused to make the installation; and the master landlord was compelled to do so. The master landlord sued its tenant and the plaintiff (the successor of Benjamin) for its expenses; and the plaintiff suffered judgment in the sum of some $10,000 recovered against it. Plaintiff in this action seeks to recover the amount of the judgment, and its counsel fees in defending the suit against it, from the third-party plaintiffs on their guarantee. The third-party complaint against Blackboard alleges that, if the third-party plaintiffs are held liable to plaintiff, then that liability was created by Blackboard's breach of the sublease between it and Professional, and hence judgment is sought over against Blackboard in the event the third-party plaintiffs are held liable to plaintiff. In my opinion, the third-party complaint states a cause of action and was properly interposed in this litigation. The third-party plaintiffs, as guarantors of the lease between Benjamin and Professional, are subrogated to all the rights of Professional against Blackboard under the terms of the second sublease, the one between Blackboard and Professional. The second sublease was subject to the terms of the master lease and the first sublease; moreover, it imposed a responsibility expressly on Blackboard to comply with the directions and regulations of local public officials. Hence, the third-party plaintiffs are subrogees of the rights of plaintiff in the enforcement of the terms of the first sublease (10 Williston, Contracts [3d ed.], \\u00a7 1264, 1265) and to the rights of Professional in the enforcement of the terms of the second sublease with respect to the covenant of compliance with the municipal direction (Johnson Serv. Co. v. E. H. Monin, Inc., 253 N. Y. 417, 422). As subrogation is a remedy designed to adjust the equities, it lends itself admirably to use in third-party actions, where indemnity and suretyship are the prime issues. Here, the true question before the court is the party which in this series of leases should bear the expense of the installation of equipment required by the Fire Department. One action has already been completed; the defendant held in damages in that action has commenced a second action; and the third-party complaint will eliminate further litigation. It is no longer a requirement in third-party actions that an indemnitee show actual loss by payment of a judgment against him. The indemnitee may secure a conditional judgment whereby liability is determined, but not requiring the third-party defendant to pay until the judgment in the main action has been paid (McCabe v. Queensboro Farm Prods., 22 N Y 2d 204, 208). By this method the rights of the parties are fixed without further delay or harassing litigation \\u2014 a particularly important consideration in light of the complex of parties, documents and legal relationships involved in this litigation. Hence, I would affirm the order.\"}"

ny/3300959.json

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+"{\"id\": \"3300959\", \"name\": \"Fred Di Puma et al., Respondents, v. Manhattan Eye, Ear, Nose and Throat Hospital, Appellant, et al., Defendant\", \"name_abbreviation\": \"Di Puma v. Manhatan Eye, Ear, Nose & Throat Hospital\", \"decision_date\": \"1982-07-15\", \"docket_number\": \"\", \"first_page\": \"531\", \"last_page\": \"531\", \"citations\": \"89 A.D.2d 531\", \"volume\": \"89\", \"reporter\": \"Appellate Division Reports\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T20:09:41.553988+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fred Di Puma et al., Respondents, v Manhattan Eye, Ear, Nose and Throat Hospital, Appellant, et al., Defendant.\", \"head_matter\": \"Fred Di Puma et al., Respondents, v Manhattan Eye, Ear, Nose and Throat Hospital, Appellant, et al., Defendant.\", \"word_count\": \"239\", \"char_count\": \"1449\", \"text\": \"Order, Supreme Court, New York County (Gammerman, J.), entered March 24; 1982, granting the motion of defendant Manhattan Eye, Ear, Nose and Throat Hospital to reinstate its answer, and determining that defendant is deemed to have waived a medical malpractice panel, is reversed, on the law and the facts, and in the exercise of discretion, so far as appealed from, and the last two sentences of said order are stricken, without costs. Defendant's attorney failed to appear at a conference scheduled to be held before Justice Gammerman on February 17, 1982. Defendant was notified of this within a day or two after the default and immediately moved to vacate the default. The default was inadvertent. As it does not appear from the record that the February 17, 1982 conference was a date set for a hearing before a medical malpractice panel, and the motion to vacate the default was made immediately, the default should have been excused without condition. Nothing in the record supports the court below's determination that by reason of the defendant's default, defendant is deemed to have waived a section 148-a of the Judiciary Law panel. Concur \\u2014 Sullivan, Silverman, Asch and Milonas, JJ.\"}"

ny/3432912.json

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+"{\"id\": \"3432912\", \"name\": \"Ross, Respondent, v. Ingersoll et al., Appellants\", \"name_abbreviation\": \"Ross v. Ingersoll\", \"decision_date\": \"1898-02-11\", \"docket_number\": \"\", \"first_page\": \"1142\", \"last_page\": \"1142\", \"citations\": \"49 N.Y.S. 1142\", \"volume\": \"49\", \"reporter\": \"West's New York Supplement\", \"court\": \"New York Supreme Court, Appellate Division\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T21:42:55.318415+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROSS, Respondent, v. INGERSOLL et al., Appellants.\", \"head_matter\": \"ROSS, Respondent, v. INGERSOLL et al., Appellants.\\n(Supreme Court, Appellate Division, First Department.\\nFebruary 11, 1898.)\\nAction by John 0. Ross against Robert H. Ingersoll and another.\\nH. B. ICingham, for appellants.\\nE. Hassett, for respondent.\", \"word_count\": \"45\", \"char_count\": \"311\", \"text\": \"No opinion. Order affirmed, with $10 costs and disbursements.\"}"

ny/3501782.json

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+"{\"id\": \"3501782\", \"name\": \"VAN DYKE v. NEW YORK STATE BANKING CO. et al.\", \"name_abbreviation\": \"Van Dyke v. New York State Banking Co.\", \"decision_date\": \"1896-12\", \"docket_number\": \"\", \"first_page\": \"735\", \"last_page\": \"736\", \"citations\": \"43 N.Y.S. 735\", \"volume\": \"43\", \"reporter\": \"West's New York Supplement\", \"court\": \"New York Supreme Court\", \"jurisdiction\": \"New York\", \"last_updated\": \"2021-08-10T17:08:49.092769+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VAN DYKE v. NEW YORK STATE BANKING CO. et al.\", \"head_matter\": \"(18 Misc. Rep. 661.)\\nVAN DYKE v. NEW YORK STATE BANKING CO. et al.\\n(Supreme Court, Special Term, Onondaga County.\\nDecember, 1896.)\\n1. Replevin\\u2014Affidavit\\u2014Description of Property.\\nCode Civ. Proc. \\u00a7 1695, providing that an affidavit in replevin shall \\u201cparticularly describe the chattel to be replevied,\\u201d requires a description from which the officer may determine with reasonable certainty what he is required to replevy, and therefore it is not complied with by a description unintelligible to any one except an expert in the business to which the chattels pertain.\\n2. Same\\u2014Affidavit\\u2014Amendments.\\nThe court may permit an affidavit in replevin to be amended so as to more particularly describe the property to be replevied, since such amendment violates no \\u201csubstantial right\\u201d (Code Civ. Proc. \\u00a7 723) of defendant.\\nReplevin by John H. Van Dyke against the New York State Banking Company and others. An order was granted, on defendants\\u2019 motion, to show cause why the proceedings had should not be vacated \\u201con the ground that said proceedings are void, and that there is no sufficient affidavit or proof to confer jurisdiction,\\u201d and on the further ground that the affidavit does not describe with sufficient certainty the chattels to be replevied.\\nCharles G. Baldwin, for the motion.\\nThomas Hogan, opposed.\", \"word_count\": \"722\", \"char_count\": \"4159\", \"text\": \"HISCOCK, J.\\nThe specific defects relied upon by defendants upon the argument of this motion were the alleged failure of plain tiff's affidavit in replevin to comply with the requirements of sections 1695 and 1712 of the Code, by\\u2014First, disclosing whether the agent and attorney making the same did so upon personal knowledge, or upon information and belief, and in the latter event in not stating the sources of information and belief; and, second, by containing a proper and adequate description of the chattels to be taken by the sheriff.\\nIt is insisted by plaintiff that the first defect is not available to defendant upon the motion, even if it exists by reason of the omission of the order to show cause (here talcing the place of a notice of motion) to particularly specify and point out for attack such alleged weakness in the affidavit. This claim of plaintiff seems to be well founded. There is nothing in the order to show cause definitely so calling attention to the alleged fault as seems to be necessary. Paddock v. Guyder (Sup.) 8 N. Y. Supp. 905; Stevens v. Middleton, 14 Wkly. Dig. 126; Kloh v. Fertilizer Co., 86 Hun, 266, 33 N. Y. Supp. 343; Oliver v. French, 82 Hun, 436, 31 N. Y. Supp. 740.\\nThe second defect claimed in the affidavit was concededly pointed out in the motion papers with sufficient accuracy, the only question raised by plaintiff' being whether said affidavit did comply with the section of the Code referred to, and \\\"particularly describe .the chattel to be replevied.\\\" It does not seem to me so to do. The words and characters used for that purpose are utterly unintelligible, at least to a person not an expert. Counsel for plaintiff was himself unable, upon the argument, to say what they meant. While it is possible, as suggested in his brief, that somebody would be found who would understand them, I do not think that is enough or a compliance with the Code. The intent of that must have been that the description of the chattels should be plain enough, so that, among other things, the sheriff to whom it was delivered would be able to -determine from it, with some degree of accuracy and intelligence, what he was required to replevy.\\nIn the event that the affidavit should be found defective, plaintiff, upon the argument of the motion, asked for leave to amend it. I do not see that any substantial rights of defendants can be impaired by allowing such relief in respect to the defect found to exist as above stated. The granting of it seems to be well within the law and precedents established in analogous cases, and is allowed upon payment of $10 costs. Code, \\u00a7 723; Ethridge v. Orcutt, 12 N. Y. St. Rep. 372; Stone v. Pratt, 90 Hun, 39, 35 N. Y. Supp. 519; McAdam v. Walbrau, 8 Civ. Proc. R. 451; Depew v. Leal, 2 Abb. Prac. 131; Babcock v. Kuntzsch, 85 Hun, 33, 32 N. Y. Supp. 587.\\nOrdered accordingly.\"}"