Ippisch v. Moricz-Smith

Appeal, as limited by stipulation of the parties, from so much of an order as denied appellant’s motion, pursuant to section 262 of the Civil Practice Act, to sever the counterclaims pleaded by respondent from the action of the appellant. Order modified by striking from the first ordering paragraph the words “ or in the alternative to sever the counterclaims from the action between the plaintiff and defendant ” and by inserting, after such paragraph, the words “ Ordered, that the said motion to sever the counterclaims from the action between the plaintiff and defendant be and the same hereby is granted; and it is further ”, As so modified, order, insofar as appealed from, affirmed, with $10 costs and disbursements to appellant. The action was instituted by appellant against respondent to recover damages for libel and slander. Respondent’s answer, in addition to denials and defenses, pleaded three counterclaims charging, at length, the commission of various torts by appellant and others. The issues presented in appellant’s action and in the counterclaims are completely different and on the record presented we are of the opinion that appellant’s substantial rights would be prejudiced and confusion would arise if all the issues were to be tried together. Under such circumstances, a severance of the counterclaims should have been granted. (Cf. Sporn v. Hudson Transit Lines, 265 App. Div. 360; Murphy v. Appelli, 273 App. Div. 261, and Bata v. National Sur. Corp., 279 App. Div. 726.) Nolan, P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur. [1 Misc 2d 120.]