Carel Almo Service Inc. v. Weisskopf

42 A.D.2d 953, 348 N.Y.S.2d 557, 1973 N.Y. App. Div. LEXIS 3342

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1973
• Status: Published

Opinion

Order, Supreme Court, New York County, entered May 8, 1973, unanimously modified, on the law, so as to delete and vacate the third ordering paragraph of said order. As so modified, the order appealed from is otherwise affirmed, without costs and without disbursements. These actions had been consolidated by order of a Justice of the Supreme Court. No appeal was taken by either party from such order. We have held repeatedly under such circumstances that it is improper for a Justice of co-ordinate jurisdiction to overrule the action of the prior Justice (see, also, 1 Carmody-Wait 2d, New York Practice, i§ 2.64, p. 76). The actions should not have been severed. The fifth defense in Action No. 2 was properly stricken. Obviously, defendants in that action are not in a position to benefit by that defense even if plaintiff in such action violated its covenant with Carel Almo Service Inc. (Carel), though we do not now so hold. Defendants in Action No. 2 received benefits independent of Weisskopf’s relationship with Carel, and were in no wise a party to any agreement between Carel and Weisskopf, nor the intended declared beneficiary of the same. The parties shall serve their respective bills of particulars on the other party within 20 days after service of a copy of the order entered herein, with notice of - entry. In the event the parties are unable to agree upon the time and place for the taking of depositions, this court will entertain suggestions for the same. Settle order on notice to fix time and place for such depositions. Concur — Stevens, P. J., McGivern, Markewich, Murphy and Steuer, JJ.