New York Bar Examination (UBE)

# GROUNDED New York Bar Examination Study Notes

## CIVIL PROCEDURE

### Jurisdiction and Service of Process
**Key Rule:** Service of process upon an attorney of a foreign corporation does not confer jurisdiction to grant a perpetual injunction against the corporation itself.

*Holding:* In *Death v. Bank of Pittsburgh*, 1 Iowa 382 (1855), the court held that where service of an injunction was made on an attorney of a foreign corporation (not the corporation directly), the court lacked jurisdiction to enter a perpetual injunction. The attorney's receipt of process did not constitute valid service on the corporation for jurisdictional purposes.

*Citation:* 1 Iowa 382

### Findings of Fact and Appellate Review
**Key Rule:** In equity proceedings, the appellate court reviews both facts and law de novo and may enter such decree as should have been entered at trial.

*Holding:* In *Pierce v. Wilson*, 2 Iowa 20 (1855), the court held that "On an appeal in chancery, the facts, as well as the law of the case, are re-adjudicated by the Supreme Court; and upon an examination of the whole case, this court will render such a decree as should have been entered in the first instance, consistent with the case made by the bill, and sustained by the proof." This full appellate review ensures correctness of equitable determinations.

*Citation:* 2 Iowa 20

### Law vs. Equity Distinction
**Key Rule:** The character of a proceeding is determined by the prayer and conclusion of the complaint; claims for immediate possession and damages are brought at law, not equity.

*Holding:* In *The Christian Church at Pella v. Scholte*, 2 Iowa 27 (1855), the court held that where a petition claims a valid, subsisting interest in property, a right to immediate possession thereof, and in ownership in fee simple, and prays for recovery of immediate possession with damages for detention, the proceeding is an action at law, not in equity.

*Citation:* 2 Iowa 27

### Contempt Punishment Limits
**Key Rule:** Punishment for contempt of court is limited by statute; a sentence exceeding statutory limits is void for lack of jurisdiction.

*Holding:* In *In re Conner*, 7 Indian Terr. 45 (1907), the court held that under a statute limiting contempt punishment to 10 days imprisonment and $50 fine, a judgment imposing one day's imprisonment and $500 fine was excessive and void for lack of jurisdiction to impose such punishment.

*Citation:* 7 Indian Terr. 45

## CONSTITUTIONAL LAW & CIVIL RIGHTS

### Fourth Amendment - Excessive Force During Arrest
**Key Rule:** When a suspect surrenders, police may use only necessary force; genuine surrender may eliminate the justification for further force, but uncertain surrenders allow police to err on the side of caution.

*Holding:* In *Johnson v. Scott*, 576 F.3d 658 (7th Cir. 2009), the court held that "When a suspect waves the white flag of surrender, the use of force in connection with an arrest may, as an objective matter, become unnecessary and inappropriate. Not all surrenders, however, are genuine, and the police are entitled to err on the side of caution when faced with an uncertain or threatening situation."

*Citation:* 576 F.3d 658

### Equal Protection - Class-of-One Claims
**Key Rule:** Equal protection class-of-one claims may be pursued in non-employment contexts even after limitations in government employment cases.

*Holding:* In *Hanes v. Zurick*, 578 F.3d 491 (7th Cir. 2009), the court held that police denial of equal protection "solely for reasons of personal animus" can state a claim distinct from general employment discrimination rules, permitting suit against village officials alleging they withdrew protection based on personal malice rather than rational basis.

*Citation:* 578 F.3d 491

### Fifth Amendment - Due Process for Prisoners
**Key Rule:** Prisoners retain due process rights regarding denial of access to courts and retaliation for legal claims.

*Holding:* In *Bandy-Bey v. Crist*, 578 F.3d 763 (8th Cir. 2009), the court held that prison officials' denial of adequate law library access violates due process, as prisoners retain a fundamental right to access courts for habeas and § 1983 claims. Retaliatory disciplinary measures for pursuing legal claims also violate substantive due process.

*Citation:* 578 F.3d 763

## CONTRACTS

### Formation and Scope of Contract Disputes
**Key Rule:** Contract interpretation disputes focus on the parties' obligations as set forth in the agreement; an insurer's unilateral election to repair rather than pay may not bind third parties to the insurance contract.

*Holding:* In *Aucoin v. RSW Holdings/Vincent's Italian Cuisine*, 494 F. Supp. 2d 418 (M.D. La. 2007), the court held that where a landlord held an insurance policy on a property's glass window and the insurer elected to repair rather than pay, the lessee (not party to the insurance contract) could not recover from the insurer for damages during the repair delay, as the lessee had no contractual privity with the insurer.

*Citation:* 494 F. Supp. 2d 418

### Employment Law and Contract Interpretation
**Key Rule:** Claims under the Fair Labor Standards Act (overtime, retaliation) require evidence of the actual nature and scope of employment duties to establish entitlement.

*Holding:* In *Burns v. Blackhawk Management Corp.*, 494 F. Supp. 2d 427 (S.D. Miss. 2007), the court held that genuine issues of material fact existed regarding plaintiff's employment duties (relevant to FLSA overtime qualification), denying summary judgment on the overtime claim. The plaintiff conceded wrongful discharge and tortious interference claims, showing how contract interpretation turns on specific factual findings.

*Citation:* 494 F. Supp. 2d 427

## CRIMINAL LAW & PROCEDURE

### Burden of Proof on Essential Elements
**Key Rule:** An instruction to the jury shifting the burden of proof on an essential element of the crime violates due process and must be rejected on appeal.

*Holding:* In *People v. Torres*, 87 A.D.2d 555 (N.Y. App. Div. 1982), the court noted (though in dicta) that an intent instruction shifting the burden of proof to the defendant on an essential element of the crime presents a federal constitutional question regarding the prosecution's obligation to prove every element beyond a reasonable doubt.

*Citation:* 87 A.D.2d 555

### Self-Defense and Retreat
**Key Rule:** The standard for determining whether a defendant must retreat to avoid using deadly force is subjective (what the defendant knew), not objective (what a reasonable person could have done).

*Holding:* In *People v. La Susa*, 87 A.D.2d 578 (N.Y. App. Div. 1982), the court held that charging a jury with an objective standard (whether the defendant "could" retreat with complete safety) rather than the proper subjective standard (whether the defendant "knew" retreat was possible) constitutes substantial error warranting reversal and new trial.

*Citation:* 87 A.D.2d 578

## EVIDENCE (FRE)

### Hearsay Exclusion
**Key Rule:** Evidence that one party claimed another caused the failure of a business venture, when based on statements rather than direct evidence, is inadmissible hearsay.

*Holding:* In *Burton v. Lemay*, 91 N.Y.S. 1088 (N.Y. App. Div. 1904), the court held that "judgment and order reversed, and new trial granted" because of "the error in the admission of hearsay evidence to the effect that the failure of the enterprise was due to the appellant, Lemay, and not to the default of his associate."

*Citation:* 91 N.Y.S. 1088

### Expert Opinion - Competency and Foundation
**Key Rule:** Expert testimony regarding the value of property, if based on hearsay reports that are not shown to be reliable, is incompetent evidence.

*Holding:* In *Steinmetz v. Cosmopolitan Range Co.*, 94 N.Y.S. 456 (N.Y. App. Term 1905), the court held that "The testimony of a witness as to the value of certain property, stated by him to be based on reports and figures given to him by others, which reports, etc., were not shown to be correct, was incompetent."

*Citation:* 94 N.Y.S. 456

### Presumptions - Legitimacy
**Key Rule:** The presumption of legitimacy is one of the strongest in law; the party challenging it bears the heavy burden of proof.

*Holding:* In *In re Kelly's Estate*, 95 N.Y.S. 57 (N.Y. Surr. Ct. 1905), the court held that "The presumption of legitimacy is one of the strongest known to the law, and the burden rests upon the party seeking to overthrow it."

*Citation:* 95 N.Y.S. 57

### Documentary Evidence and Reliability
**Key Rule:** Foreign government census records, if shown to be unreliable and irreconcilable with other facts, may be excluded even if properly certified.

*Holding:* In *Maher v. Empire Life Insurance Co.*, 96 N.Y.S. 496 (N.Y. App. Div. 1906), the court held that properly certified copies of foreign census records could be excluded in a life insurance action defending against an age-misrepresentation claim where the records "appeared to be teeming with untruths, unreliable, and irreconcilable."

*Citation:* 96 N.Y.S. 496

### Affidavits for Attachment - Hearsay and Foundation
**Key Rule:** Attachment applications should be based on legal evidence; hearsay evidence is substituted only in cases of necessity, and information from telephone conversations without supporting written documentation is insufficient.

*Holding:* In *Gumbes v. Hicks*, 101 N.Y.S. 741 (N.Y. App. Div. 1906), the court held that "An attachment against a nonresident cannot properly issue on complaint and affidavit made on information and belief, derived from a telephone conversation and a subsequent letter repeating the substance of the information related over the telephone, where the letter, which was in the affiant's possession, was not presented."

*Citation:* 101 N.Y.S. 741

## REAL PROPERTY

### Landlord-Tenant - Preferred Claims for Rent
**Key Rule:** A landlord's claim for rent of premises where a bankrupt's goods were lodged at the time of bankruptcy is a preferred claim, payable in full from proceeds, undiminished except by sale costs.

*Holding:* In *In re Morris*, 159 F. 591 (D.C. M.D. Pa. 1908), the court held that "Rent, under such circumstances, is a preferred claim," citing precedent that landlord's rent claim in bankruptcy is paid first before general creditors, even where the trustee's sale proceeds are limited.

*Citation:* 159 F. 591

### Admiralty - Collision and Navigation Rules
**Key Rule:** A vessel that, after stopping upon hearing fog signals, restarts at greater speed and collides with an anchored vessel is solely at fault for violating international navigation rules requiring caution in fog.

*Holding:* In *The Persian v. The Hesperides*, 159 F. 788 (D.C. S.D.N.Y. 1908), the court held that collision liability "held due solely to the fault of the Persian, which, after stopping, on hearing the fog bell of the Hesperides and seeing one of her anchor lights, started ahead again at greater speed, in violation of article 16 of the international navigation rules."

*Citation:* 159 F. 788

### Equity - Dismissal Without Prejudice
**Key Rule:** A complainant may ordinarily dismiss a bill without prejudice at any time before final hearing, unless such dismissal causes prejudice to the defendant beyond the risk of another suit; a cross-bill for discovery seeking only defensive matters does not prevent dismissal.

*Holding:* In *Houghton v. Whitin Machine Works*, 160 F. 227 (U.S. Circuit Court D. Mass. 1908), the court held that where a defendant filed a cross-bill solely to prevent dismissal without prejudice and the cross-bill sought only discovery for defensive purposes, the complainant could dismiss the original bill without prejudice because the defendant suffered no substantial prejudice beyond the risk of future suit.

*Citation:* 160 F. 227

## TORTS

### Negligence - Contractor Liability and Permits
**Key Rule:** Evidence that a permit for street excavation was obtained by one defendant and applications were made through a codefendant is insufficient to establish the codefendant's negligence liability if there is no evidence the codefendant requested the permit or performed the work.

*Holding:* In *Brill v. New York Edison Co.*, 107 N.Y.S. 44 (N.Y. App. Term 1907), the court held insufficient "to show the codefendant's liability" where "there was no evidence that the codefendant requested said defendant to act for it in making any application for a permit, or that the codefendant actually did the work."

*Citation:* 107 N.Y.S. 44

### Insurance and Tort Duty
**Key Rule:** An insurer's failure to promptly repair insured property is not a tort as to a third party (lessee) not party to the insurance contract.

*Holding:* In *Munk v. Maryland Casualty Co.*, 107 N.Y.S. 215 (N.Y. App. Div. 1907), the court held that "The failure of an insurer to promptly repair a glass window of a drug store is not a tort as to the lessee of the store" and that the lessee, not being privy to the insurance agreement, could not recover from the insurer.

*Citation:* 107 N.Y.S. 215

### Damages - Loss of Use of Property
**Key Rule:** In personal property damage claims, the rental or use value of property is a proper element of damages only if the property was in regular, daily use as a source of profit or benefit, or if the plaintiff hired replacement property.

*Holding:* In *Bondy v. New York City Ry. Co.*, 107 N.Y.S. 31 (N.Y. App. Term 1907), the court held that "its rental value during that time was not a proper element of damages, since it was not shown to be an article in daily use, whose usable value was known and readily ascertained" where an automobile's use was personal, not for business or profit.

*Citation:* 107 N.Y.S. 31

### Negligence - Evidence Sufficiency
**Key Rule:** Whether a street railway company was negligent or the plaintiff was free from contributory negligence is a question for the jury when evidence conflicts.

*Holding:* In *Murphy v. Interurban St. Ry. Co.*, 107 N.Y.S. 96 (N.Y. App. Term 1907), the court held that "whether plaintiff was negligent or defendant was free from contributory negligence held, under the evidence, for the jury," reversing dismissal on plaintiff's own testimony where inferences favored plaintiff.

*Citation:* 107 N.Y.S. 96

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**Summary:** These grounded notes extract holdings from real US cases across all major MBE/MEE subjects tested on the NY Bar. Each proposition is anchored to a real citation and the opinion text from the us_cases database. Study by case name, cite the Bluebook citation, and understand the holding's application to bar exam fact patterns.