People ex rel. Fish v. Martin

5 A.D.2d 1050, 174 N.Y.S.2d 230, 1958 N.Y. App. Div. LEXIS 6053

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1958
• Status: Published

Opinion

Order of Onondaga County Court and judgments of Syracuse Municipal Court reversed on the law and facts and a new trial granted in Syracuse Municipal Court with costs to the appellant to abide the event. Memorandum: The Trial Judge erred in requiring plaintiff to elect whether to proceed in contract or in fraud, particularly after the parties had opened to the jury. The two theories are neither inconsistent nor mutually exclusive. Much of the proof is common to both and plaintiff was seriously prejudiced in not being permitted to submit them together. This error permeated and prejudiced both causes of action to sueh an extent that the plaintiff is entitled to a new trial upon the entire complaint. All concur. (Appeal from an order of Onondaga County Court affirming a judgment of Syracuse Municipal Court for defendant for no cause of action, in an action by a real estate broker to recover commissions; also appeal from judgment of Syracuse Municipal Court, entered pursuant to the order of affirmance by the County Court.)

Present — McCum, P. J., Williams, Bastow, Goldman and Halpern, JJ.