McNally v. Simons

S.D. New York

McNally v. Simons

29 F. Supp. 926, 1939 U.S. Dist. LEXIS 2181

DecidedJuly 19, 1939

StatusPublished

This text of 29 F. Supp. 926 (McNally v. Simons) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNally v. Simons, 29 F. Supp. 926, 1939 U.S. Dist. LEXIS 2181 (S.D.N.Y. 1939).

Pincite

Opinion

GODDARD, District Judge.

Rule 20 of the new Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, governs the situation. In substance, that provides that joinder of parties defendant is permissible if the claim or claims alleged in an action arise out of a series of transactions or occurrences and there is any question of law or fact common to all of them which will arise in the action.

This case does arise out of the same series of occurrences and there are a number of common questions of fact and law in issue.

The case of Ader v. Blau, 241 N.Y. 7, 148 N.E. 771, 41 A.L.R. 1216, and cases following it, which denied alternative joinder of causes of action where there is a common question of law or fact, are not in point since the adoption of the new federal rules which govern the procedure in the Federal Courts and this is a matter of procedure.

It is obvious why this defendant would prefer to try his case separately, but doing so will result in no substantial prejudice to him; on the other hand delay, expense and inconvenience to witnesses and all concerned will be considerably lessened by trying the entire matter at the same time. Furthermore, as Judge Patterson said in Julius Klugman’s Sons v. Oceanic Steam Nav. Co., D.C., 42 F.2d 461, “Otherwise, it might happen that the complaint was dismissed as to a defendant and that later on a remaining defendant presented clear proof pointing ■ toward the liability of the defendant who was then no longer in the case”. 42 F.2d page 463.

The defendant’s motion is denied.

Settle order on notice.

Free access — add to your briefcase to read the full text and ask questions with AI

GODDARD, District Judge.

Rule 20 of the new Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, governs the situation. In substance, that provides that joinder of parties defendant is permissible if the claim or claims alleged in an action arise out of a series of transactions or occurrences and there is any question of law or fact common to all of them which will arise in the action.

This case does arise out of the same series of occurrences and there are a number of common questions of fact and law in issue.

The case of Ader v. Blau, 241 N.Y. 7, 148 N.E. 771, 41 A.L.R. 1216, and cases following it, which denied alternative joinder of causes of action where there is a common question of law or fact, are not in point since the adoption of the new federal rules which govern the procedure in the Federal Courts and this is a matter of procedure.

It is obvious why this defendant would prefer to try his case separately, but doing so will result in no substantial prejudice to him; on the other hand delay, expense and inconvenience to witnesses and all concerned will be considerably lessened by trying the entire matter at the same time. Furthermore, as Judge Patterson said in Julius Klugman’s Sons v. Oceanic Steam Nav. Co., D.C., 42 F.2d 461, “Otherwise, it might happen that the complaint was dismissed as to a defendant and that later on a remaining defendant presented clear proof pointing ■ toward the liability of the defendant who was then no longer in the case”. 42 F.2d page 463.

The defendant’s motion is denied.

Settle order on notice.

Cite This Page — Counsel Stack

Bluebook (online)

29 F. Supp. 926, 1939 U.S. Dist. LEXIS 2181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnally-v-simons-nysd-1939.

Opinion

Related

Cite This Page — Counsel Stack