Claim of Nussbaum v. Mercury Messenger Corp.

Appellate Division of the Supreme Court of New York

Claim of Nussbaum v. Mercury Messenger Corp.

5 A.D.2d 947, 172 N.Y.S.2d 786, 1958 N.Y. App. Div. LEXIS 6494

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 1958

StatusPublished

This text of 5 A.D.2d 947 (Claim of Nussbaum v. Mercury Messenger Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Nussbaum v. Mercury Messenger Corp., 5 A.D.2d 947, 172 N.Y.S.2d 786, 1958 N.Y. App. Div. LEXIS 6494 (N.Y. Ct. App. 1958).

Pincite

Opinion

Appeals from so much of an order of the Supreme Court, Albany County as directed that plaintiff in Action No. 2 have the right to open and close upon the trial of two negligence actions ordered to be tried together without consolidation. Action No. 1 was first commenced by service of a summons but the complaint therein was not served until after service of the summons and complaint in Action No. 2, with the result that Action No. 2 was first at issue. No basis appears for questioning, as the attorney for Mr. Cook in his plaintiff’s action would have us do, either the propriety or the effect of the extension of time to answer granted the attorneys for Mr. Cook in the action in which he is a defendant, upon the usual stipulation providing for “issue to remain as of original date.” Neither do we find in this case grounds for granting plaintiff in Action No. 1 a preferred status, because the pretrial procedures in that action had been completed and the statement of readiness required by the special rule had been filed prior to completion of those steps in Action No. 2. There is some indication that here again Mr. Cook’s attorneys in Action No. 2 obtained concessions which, in part at least, delayed preparation for trial, but the two actions nevertheless reached the same Trial Term Calendar. We find no occasion to disturb the determination reached by the court below in the reasonable exercise of its discretion. Order affirmed, with $10 costs.

Foster, P. J., Bergan, Coon and Gibson, JJ., concur.

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Appeals from so much of an order of the Supreme Court, Albany County as directed that plaintiff in Action No. 2 have the right to open and close upon the trial of two negligence actions ordered to be tried together without consolidation. Action No. 1 was first commenced by service of a summons but the complaint therein was not served until after service of the summons and complaint in Action No. 2, with the result that Action No. 2 was first at issue. No basis appears for questioning, as the attorney for Mr. Cook in his plaintiff’s action would have us do, either the propriety or the effect of the extension of time to answer granted the attorneys for Mr. Cook in the action in which he is a defendant, upon the usual stipulation providing for “issue to remain as of original date.” Neither do we find in this case grounds for granting plaintiff in Action No. 1 a preferred status, because the pretrial procedures in that action had been completed and the statement of readiness required by the special rule had been filed prior to completion of those steps in Action No. 2. There is some indication that here again Mr. Cook’s attorneys in Action No. 2 obtained concessions which, in part at least, delayed preparation for trial, but the two actions nevertheless reached the same Trial Term Calendar. We find no occasion to disturb the determination reached by the court below in the reasonable exercise of its discretion. Order affirmed, with $10 costs.

Foster, P. J., Bergan, Coon and Gibson, JJ., concur.

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Bluebook (online)

5 A.D.2d 947, 172 N.Y.S.2d 786, 1958 N.Y. App. Div. LEXIS 6494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-nussbaum-v-mercury-messenger-corp-nyappdiv-1958.