Court Rulings

Appeal from order and opinion of N.C. Business Court granting in part and denying in part motion to dismiss plaintiff's claims for breach of contract, misappropriation of trade secrets, tortious interference with contractual relations, and unfair and deceptive trade practices.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made ¡November 22, 1892, which, affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial and also affirmed an order denying a motion for a new trial.</p> <p>This was a judgment creditor’s action brought by plaintiff, as administratrix of David Kain, deceased, to have adjudged and declared fraudulent and void as to her intestate, a transfer of certain real estate made by the defendant, Patrick Larkin, to his daughter, Mary E. Larkin, an infant.</p> <p>The material facts are stated in the opinion.</p> <p>The sufficiency of a pleading cannot be raised for the first time in the Court of Appeals. It cannot consider a matter or subject that has not been presented by adjudication to, and determined by, the subordinate court. It has no power to review errors not pointed out by exceptions taken at a proper time. (Code Civ. Pro. §§ 996, 1337; Hofheimer v, Campbell, 59 N. Y. 269; 271, 272 ; Delaney v. Brett. 51 id. 78, 82; S. O. Co. v. A. Ins. Co., 79 id. 506; Knapp v. Simon, 96 id. 291, 292; Duryea v. Vosburgh, 121 id. 57.) Under the liberal construction required to be given to a pleading by the Code of Civil Procedure (§ 519), the complaint sufficiently alleges that Patrick Larkin transferred, after the commencement of plaintiff’s suit on her lawful demand, the entire property, real and personal, of which he was the owner. (Zabriskie v. Smith, 13 N. Y. 330; Marie v. Garrison, 83 id. 23, 28 ; Sanders v. Soutter, 126 id. 196; Hale v. O. N. Bank, 49 id. 626; People v. Rider, 12 id. 433; Seeley v. Engell, 13 id. 548.) The cause of action set forth in the complaint is statutory, and the facts essential to the cause of action are alleged in the language of the statute. (Code Civ. Pro. § 1871; Cole v. Jessup, 10 N. Y. 103, 104; Ford v. Babcock, 2 Sandf. 518; R. R. Co. v. Robinson, 133 N. Y. 242; Knapp v. City of Brooklyn,

(1) An Immigration Judge's predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review. Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), overruled. (2) Whether an asylum applicant has an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant's return to the country of removal is a legal determination that is subject to de novo review.

<bold>1. Immunity — governmental — public housing authority —</bold> <bold>governmental function</bold> <block_quote> A public housing authority created and operated pursuant to N.C.G.S. Ch. <cross_reference>157</cross_reference>, like other municipal corporations, is entitled to immunity in tort and contract for acts undertaken by its agents and employees in the exercise of its governmental functions, but not for any proprietary functions it may undertake.</block_quote> <bold>2. Immunity — governmental — public housing authority</bold> <block_quote> A public housing authority performs a governmental function in providing housing for low and moderate income families and is entitled to rely on the doctrine of governmental immunity.</block_quote><page_number>Page 51</page_number> <bold>3. Immunity — governmental — public housing authority — waiver</bold> <bold>— purchase of liability insurance</bold> <block_quote> A Chapter 157 housing authority has statutory authority to accept liability for its governmental functions by the purchase of insurance, and thus, can waive its sovereign immunity.</block_quote> <bold>4. Immunity — governmental — public housing authority — remand</bold> <bold>of order denying motion to dismiss</bold> <block_quote> The trial court's order denying defendant public housing authority's motion to dismiss plaintiff's claims arising from the use of lead paint on grounds of sovereign or governmental immunity is remanded, because: (1) the order did not contain findings of fact or conclusions of law; and (2) our Supreme Court is unable to discern whether the ruling below was premised upon defendant's insurance coverage.</block_quote>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS.</p> <p>This action was commenced in a justice’s court in Saline Township, Saline County, Arkansas, by Charles Paul against the St. Louis, Iron Mountain and Southern Railway Company, a corporation organized under the laws of the State of Arkansas, and owning and operating a railroad within that State, to recover $21.80 due him as a laborer, and a penalty of $1.25 per day for failure to pay him what was due him when he was discharged. The case, was carried by appeal to the Circuit Court of. Saline County and there tried de novo. Defendant demurred to so much of the complaint as sought. to recover the penalty on the ground that the act of the general assembly of Arkansas entitled “ An act to provide for the protection of servants and employés of railroads,” approved March 25,. ,1889, Acts Ark. 1889, 76, which provided therefor, was in violation of articles five and fourteen of the Amendments to the Constitution of the United States, and also in violation of the constitution of the State of Arkansas. The demurrer was overruled, and defendant answered, setting up certain matters not material here, and reiterating in its third paragraph the objection that the act was unconstitutional and void. To this paragraph plaintiff demurred, and the demurrer was sustainéd. The case was then heard by the court, the parties, having. waived a trial by jury, and the court found that the plaintiff was entitled to recover the sum claimed and the penalty at the rate of daily wages from the daté of the discharge until the date of the commencement of the suit, and entered judgment accordingly. Defendant appealed to the Supreme Court of the State of Arkansas, which affirmed the judgment, 64 Arkansas, 83, and this writ of error was then brought. .</p> <p>The act-in question is as follows:</p> <p>“ SectioN 1. Whenever any railroad company or any company, corporation or person engaged in the business of operating or constructing any railroa

Colorado Governmental Immunity Act—Sovereign Immunity. The Supreme Court considered whether the City and County of Denver waived its immunity under the Colorado Governmental Immunity Act (CGIA). After a motorcycle accident, plaintiff sued the City and County of Denver, and alleged that Denver had waived its immunity under the CGIA because the road on which plaintiff was traveling constituted a dangerous condition that physically interfered with the movement of traffic. To prove a dangerous condition, a plaintiff must prove four elements, one of which is that the road constituted an unreasonable risk to the health and safety of the public. The Court defined "unreasonable risk" in this context as a road condition that creates a chance of injury, damage, or loss that exceeds the bounds of reason. This determination will be fact specific, and in this case, the road did not create an unreasonable risk to the health and safety of the public. Nor did the condition of the road physically interfere with the movement of traffic. The Court reversed the Court of Appeals' judgment.