Sorrentino v. First National City Bank

40 A.D.2d 820, 338 N.Y.S.2d 233, 1972 N.Y. App. Div. LEXIS 3230

Opinion

Order of the Supreme Court, New York County, entered August 24, 1972, denying motion for removal, consolidation and for related relief, is modified on the law, the facts and in the exercise of discretion to the extent of removing the Civil Court action to the Supreme Court and directing it and the instant action to be tried jointly, and as so modified, affirmed, without costs and without disbursements. Both causes of action arose from the same occurrence or series of occurrences and the witnesses in both actions will be substantially the same. The central issue in both the actions is: Did Sorrentino, while acting on behalf of her employer Jerdot, receive from First National City Bank $1,000 more than Jerdot was entitled to receive? The answer to that issue might well support National City Bank’s setoff. The facts on which the Jerdot action is based will of necessity have to be litigated in Sorrentino. A joint trial will not prejudice the substantial rights of any of the parties. (See Padilla v. Greyhound Lines, 29 A D 2d 495; Vidal v. Sheffield Farms Co,, 208 Misc. 438.) Concur — Markewich, J. P., Kupferman and McNally, JJ.; Murphy, J., dissents in part in the following memorandum: I disagree. Plaintiff was only authorized to cash Jerdot’s payroll check. If she knowingly received $1,000 more than she was entitled to, defendant’s sole remedy, unless it can prove subsequent ratification by Jerdot, is against plaintiff. However, instead of pursuing such remedy, or suing Jerdot to recover such sum, defendant arbitrarily debited the employer’s account for the alleged overpayment; thereby precipitating Jerdot’s Civil Court action. Defendant Ought not now be permitted to delay the prompt determination of Jerdot’s Civil Court suit by combining it with the instant $100,000 defamation action. Special Term’s refusal to grant such relief was clearly warranted and involved no abuse of discretion. Accordingly, the order appealed from should be affirmed.