Barnet Weinstein & Sons, Inc. v. Dic Concrete Corp.

29 A.D.2d 879, 290 N.Y.S.2d 170, 1968 N.Y. App. Div. LEXIS 4422

Opinion

Motion by plaintiff-respondent to resettle the order of this court dated January 24, 1968 granted. The decision of this court dated January 24, 1968 (29 A D 2d 683) is amended so as to include therein the following additional directions with respect to the trial of the seven consolidated actions: (1) If the Trial Justice should grant the application of any party for a jury trial of the issues raised in the first action — the one originally brought in Nassau County — such jury trial shall he held concurrently and simultaneously with the equity or nonjury trial of the issues raised by the counterclaims in the six foreclosure actions. (2) The Trial Justice, in the exercise of his discretion upon the conclusion of all the proof adduced before the jury, may instruct the jury to bring in a verdict as directed by him; or, after the jury shall have returned its verdict, the Trial Justice in the exercise of his discretion may set aside the verdict as contrary to the weight of the evidence and direct a new jury trial as to the issues raised in the first action. (3) Immediately upon the end of the case before the jury, the trial shall proceed before the same Justice without a jury upon all the remaining issues in the foreclosure actions. (4) Upon the final conclusion of the entire trial (jury and nonjury) with respect to all the issues in all the seven actions as consolidated, the Trial Justice shall render his final decision. The order dated January 24, 1968 is resettled so as to include therein, following the provision that the consolidation of the actions is subject to the directions in this court’s decision of January 24, 1968, the further provision that the consolidation is also subject to the additional directions set forth in the court’s amended decision of March 13, 1968. Christ, Acting P. J., Brennan, Hopkins, Munder and Martuseello, JJ., concur.