White Plains Iron Works, Inc. v. Corey

Appellate Division of the Supreme Court of New York

White Plains Iron Works, Inc. v. Corey

47 A.D.2d 528, 362 N.Y.S.2d 580, 1975 N.Y. App. Div. LEXIS 8586

Appellate Division of the Supreme Court of the State of New York·Decided January 6, 1975·Published

Opinion

In an action to recover upon promissory notes, defendants appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County, dated November 20, 1973, as, on reargument, (1) adhered to the original decision denying defendants’ motion to vacate a default judgment against them and in favor of plaintiff, entered on March 14, 1973, and (2) vacated a stay. Order reversed insofar as appealed from, in the interest of justice, without costs, defendants’ motion to vacate the judgment granted and immediate trial ordered. The judgment was apparently in excess of the actual damages sustained, since plaintiff stopped production prior to completion of performance of the contract and is in possession of steel which is of substantial value, for which no credit was given to defendants. A new trial is therefore required at least on the issue of damages, but on the record presented we believe a full trial on all the issues is warranted. The trial should proceed forthwith.

Martuscello, Acting P. J., Shapiro, Christ, Benjamin and Munder, JJ., concur.

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In an action to recover upon promissory notes, defendants appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County, dated November 20, 1973, as, on reargument, (1) adhered to the original decision denying defendants’ motion to vacate a default judgment against them and in favor of plaintiff, entered on March 14, 1973, and (2) vacated a stay. Order reversed insofar as appealed from, in the interest of justice, without costs, defendants’ motion to vacate the judgment granted and immediate trial ordered. The judgment was apparently in excess of the actual damages sustained, since plaintiff stopped production prior to completion of performance of the contract and is in possession of steel which is of substantial value, for which no credit was given to defendants. A new trial is therefore required at least on the issue of damages, but on the record presented we believe a full trial on all the issues is warranted. The trial should proceed forthwith.

Martuscello, Acting P. J., Shapiro, Christ, Benjamin and Munder, JJ., concur.

White Plains Iron Works, Inc. v. Corey, 47 A.D.2d 528, 362 N.Y.S.2d 580, 1975 N.Y. App. Div. LEXIS 8586 (N.Y. Ct. App. 1975).

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47 A.D.2d 528 (White Plains Iron Works, Inc. v. Corey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.