Dain & Dill, Inc. v. Betterton

39 A.D.2d 939, 333 N.Y.S.2d 237, 1972 N.Y. App. Div. LEXIS 4347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1972
• Status: Published

Opinion

—'Appeal by Daniel L. Betterton and Betterton Homes, Inc., parties in these consolidated actions, from an order of the Supreme Court, Putnam County, dated February 28, 1972, which, upon said court’s own motion at a pretrial conference, (1) severed Action No. 3, the fourth-party action in Action No. 2 and a counterclaim and the third-party action in Action No. 4, (2) referred the remaining actions to a Referee to hear and report and (3) adjourned the severed matters. Order reversed, on the law and in the exercise of discretion, without costs, and case remanded to the trial court for joint trial. The several suits were consolidated for joint trial by three orders of the 'Supreme Court, Putnam County, respectively dated June 14, 1966 (per Dickinson, Acting J.), April 29, 1970 (per Fanelli, J.) and December 2, 1970 (per Galloway, J.). 'In severing the cases as it did, after three prior orders of the Special Term had consolidated them for joint trial, we think the trial court exceeded its authority. “ Setting aside the judicial act of one judge by another of co-ordinate jurisdiction is avoided, wherever possible, as not conducive to the orderly administration of justice” (Matter of United Press Assns. v. Valente, 281 App. Div. 395, 398, affd. 308 N. Y. 71). We think, furthermore, that the Special Term decision, per Mr. Justice Fanelli, established the law of the case, that that decision was binding upon all courts of co-ordinate jurisdiction and that such other courts may not arrogate to themselves powers of appellate review (George W. Collins, Inc. v. Olsker-McLain Ind., 22 A D 2d 485). Munder, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.