Northern Operating Corp. v. Anopol

Appellate Division of the Supreme Court of New York

Northern Operating Corp. v. Anopol

30 A.D.2d 690, 291 N.Y.S.2d 831, 1968 N.Y. App. Div. LEXIS 3740

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

DecidedJune 17, 1968

StatusPublished

Cited by5 cases

This text of 30 A.D.2d 690 (Northern Operating Corp. v. Anopol) 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

Northern Operating Corp. v. Anopol, 30 A.D.2d 690, 291 N.Y.S.2d 831, 1968 N.Y. App. Div. LEXIS 3740 (N.Y. Ct. App. 1968).

Pincite

Opinion

In an action for specific performance of a contract for the sale of certain real property (first cause of action) and for damages (second cause of action), defendant appeals from an order of the Supreme Court, Rockland County, dated June 10, 1967, which (1) denied his motion, made during defendant’s case upon a nonjury trial, for a jury trial of the second cause of action, under CPLR 4103, and (2) directed the trial to proceed. Appeal dismissed, with $10 costs and disbursements. No appeal lies from an order made upon a ruling given during the course of a trial (10 Carmody-Wait 2d, New York Practice, §§ 70:37, 70:38). If the merits of the appeal were properly before us, we would affirm the order. At the close of plaintiff’s main case, subject to the calling of an additional witness, defendant moved to dismiss the complaint. During the colloquy on the motion, plaintiff’s counsel said he would limit his ease to the cause for damages. The trial court did not actually dismiss the first cause, defendant proceeded with his case and, during examination of defendant’s first witness, defendant made the motion for a jury trial of the second cause. In our opinion, the motion was not timely. Although it would in no event be necessary to decide whether defendant was entitled as a matter of right to a jury trial of the second cause, it appears unlikely that defendant had such right, since the second cause is essentially one seeking alternative relief and the major thrust of the case is in equity (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4101.37). Brennan, Acting P. J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.

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In an action for specific performance of a contract for the sale of certain real property (first cause of action) and for damages (second cause of action), defendant appeals from an order of the Supreme Court, Rockland County, dated June 10, 1967, which (1) denied his motion, made during defendant’s case upon a nonjury trial, for a jury trial of the second cause of action, under CPLR 4103, and (2) directed the trial to proceed. Appeal dismissed, with $10 costs and disbursements. No appeal lies from an order made upon a ruling given during the course of a trial (10 Carmody-Wait 2d, New York Practice, §§ 70:37, 70:38). If the merits of the appeal were properly before us, we would affirm the order. At the close of plaintiff’s main case, subject to the calling of an additional witness, defendant moved to dismiss the complaint. During the colloquy on the motion, plaintiff’s counsel said he would limit his ease to the cause for damages. The trial court did not actually dismiss the first cause, defendant proceeded with his case and, during examination of defendant’s first witness, defendant made the motion for a jury trial of the second cause. In our opinion, the motion was not timely. Although it would in no event be necessary to decide whether defendant was entitled as a matter of right to a jury trial of the second cause, it appears unlikely that defendant had such right, since the second cause is essentially one seeking alternative relief and the major thrust of the case is in equity (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4101.37). Brennan, Acting P. J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.

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Bluebook (online)

30 A.D.2d 690, 291 N.Y.S.2d 831, 1968 N.Y. App. Div. LEXIS 3740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northern-operating-corp-v-anopol-nyappdiv-1968.

Opinion

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