13 Misc. 2d 158 | N.Y. Sup. Ct. | 1958
This action was brought to recover royalties allegedly due under a claimed written agreement dated September 15,1936, referred to in the complaint. In pursuance
Objection is made by defendant that I have no jurisdiction in the premises, that plaintiff’s application is in effect a reargument of the matter before Mr. Justice Lynch and that the Appellate Division in its order of modification intended that the matter be presented to Mr. Justice Lynch. The order of modification does not indicate or warrant, much less require, a reference to my learned colleague. And unfortunately, since the decision of the Appellate Division and prior to the making of the instant motion, Judge Lynch has been the victim of untimely demise. Nor is a motion to be relieved a motion for reargument. Although the
The present application is an entirely new one, made by permission of the Appellate Division, if, indeed, such permission were necessary. For it seems to me that, had the Appellate Division merely modified without express leave, plaintiff could have thrown himself upon the favor of the court and have requested that a discretionary disposition be made so as to relieve him of his default under section 327 of the Civil Practice Act in the light of his predicament. The Appellate Division, though modifying the order of Mr. Justice Gold, still permitted an application to be made by plaintiff for the relief indicated. The circumstances were revealed only after Mr. Justice Lynch had made his order. Thus, there could have been no error or misapprehension on the part of my late learned colleague calling for reargument.
If this were necessarily a matter for the attention again of Mr. Justice Lynch, then the Appellate Division could have given consideration on the merits to the matters which induced it to grant plaintiff the permission to seek relief. But the Appellate Division did not consider these matters, and could not have; and the only court that can consider these matters is the one to which the motion is now addressed. If there were any desire on the part of the Appellate Division to send it to Mr. Justice Lynch, prior to his decease, it would only be upon the basis, as I have so often noted, that one judge should handle all matters in a case (Grobman v. Freiman, 3 Misc 2d 656, 659; Silverman v. Rogers Imports, 4 Misc 2d 672, 673-674), but it would not be sent to him for the reason that he alone must resolve it. For this is, as I have pointed out, not a matter for reargument but a matter for consideration de novo.
The objection, therefore, that I have no jurisdiction to pass upon the motion and that the demise of Mr. Justice Lynch precludes the granting of any relief to the plaintiff is overruled, and the motion is entertained.
Now, as to the merits of plaintiff’s prayer to be relieved of the order of preclusion granted by Mr. Justice Lynch by virtue of plaintiff’s failure to produce the agreement pursuant to defendant’s notice and because plaintiff failed to move to open his default of compliance with that notice. The Appellate Division indicated that plaintiff should have acted before the making of the order by Mr. Justice Lynch, but granted leave, neverthe
The motion is therefore entertained favorably, and plaintiff is relieved of the order made by Mr. Justice Lynch, to the extent that plaintiff is permitted to offer in evidence secondary proof of the alleged agreement in the event that the trial court is satisfied that secondary proof is in order, and that such proof as is presented is proper. This disposition is conditional, however, if defendant desires it so, upon plaintiff producing to defendant, for pretrial inspection, all of the documents referred to in any of the three sets of the motion papers herein, and upon plaintiff submitting to pretrial voir dire examination as to any or all of such documents.
Settle order accordingly.