Celmayster v. Sharp

22 A.D.2d 873, 254 N.Y.S.2d 392, 1964 N.Y. App. Div. LEXIS 2564

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1964
• Status: Published

Opinion

Judgment unanimously modified, on the law, to the extent of (1) reversing that part thereof which grants judgment to defendant Doris Sharp in Action No. 2 of the consolidated action; (2) severing said Action No. 2 from the consolidated action; (3) granting a new trial upon the issues created by said cause of action and the answer thereto; (4) remanding said cause, which was originally commenced in the Municipal Court, to the Civil Court, New York County, for such new trial. As so modified, the judgment is affirmed, without costs. Action No. 2 was one to recover salary claimed to be due after an alleged wrongful discharge from employment. Defenses to that claim included alleged misconduct, insubordination and lack of co-operation, damages to the business and unlawful use of telephone services. The Trial Justice gave judgment on this phase of the consolidated action before appellant had any opportunity to present any evidence in support of his defenses to the claim. Unlike the other counterclaims, the validity of the claim for wages did not rest on the .basis of the plaintiff’s allegations of fraud for which he was seeking damages. Even though no cause of action for damages for fraud was proven, there still remained a triable issue as to Sharp’s action for wages. Since the original action for such wages was commenced in the then Municipal Court, the retrial of that severed action should be had in the Civil Court, New York County, to which court the severed action is directed to be transferred. We are not allowing costs to either party because both sides must share responsibility for the conduct of trial counsel in unduly and unnecessarily protracting the trial of issues which could adequately have been covered in much less time. Concur — Breitel, J. P., Rabin, Valente, Stevens and Steuer, JJ.