Opinion
November 24, 1970
In this proceeding pursuant to article 78 of the CPLR in the nature of mandamus and prohibition, petitioner seeks (1) to compel a Justice of the Supreme Court to sign and have entered a proposed interlocutory judgment, upon a jury verdict in favor of respondent Manzitto in a certain action after a split trial of the issue of liability only and (2) to prevent the said Justice or any other Justice from proceeding with the trial of the assessment of damages; and said Justice cross-moves to dismiss the proceeding upon objections in point of law. Cross motion granted and proceeding dismissed on the merits, without costs. The action in which petitioner seeks entry of an interlocutory judgment is a negligence case, tried before a jury in the Supreme Court, Kings County, on the issue of liability only. The jury's verdict was for the plaintiff against the defendant (petitioner herein). The Trial Justice then directed the trial of the assessment of damages to be held immediately before the same jury. Petitioner objected to proceeding and insisted upon its right to have an interlocutory judgment entered so that an appeal might be taken to this court from the determination insofar as liability only was concerned. A temporary stay of all proceedings pending review and disposition of the instant proceeding was granted in the order to show cause upon which the proceeding was commenced. The Trial Justice held the original jury for several days, but time and circumstances finally required that it be discharged and it is now impossible to try the damage questions before the same jury which determined liability. We find no abuse of discretion and no error in the steps taken by the learned Trial Justice. As a matter of policy, for the more efficient operation of court calendars and for the speedier disposition of cases, this court favors and encourages the concept and the fullest use of the split trial procedure. It is our view, further, that, as a general rule, an immediate trial of the damage question before the same jury which decided liability is preferred. A Trial Justice in the exercise of his discretion should weigh exigent circumstances which may be present in exceptional cases and which may justify interposition of an interlocutory judgment and an appeal on the liability question alone. In Fortgang v. Chase Manhattan Bank ( 29 A.D.2d 41), this court reconsidered its earlier position with respect to a right of appeal from an interlocutory judgment or order determining liability only in a split trial procedure. To achieve uniformity of appellate practice with the First Department we followed Hacker v. City of New York ( 25 A.D.2d 35) and held that there was an appeal, as of right, in such cases. The holding is specifically circumscribed by this language in Hacker (p. 37): "We do not have in this case, it must be emphasized, the `one continuous proceeding' * * * in which the issues of liability and damages proceed to determination together, or in which the issue of liability is first determined by triers who promptly go on to hear the issue of damages" (emphasis added). Thus, the right of appeal which was pronounced and defined in Hacker and then by this court in Fortgang was not meant to apply to those cases where liability and damages would be tried immediately and successively before the same jury, because in such cases it was recognized that the final judgment would promptly ensue and the defendant could appeal from the entire judgment without any undue prejudice. In the instant case we dismiss the proceeding in its entirety and leave to the Trial Justice the decision as to whether to proceed now with the assessment of damages before a different jury or whether to sign an interlocutory judgment. His intention to proceed before the same jury which determined liability should have been carried out, but that was rendered impossible by the action of petitioner in commencing this proceeding and by the concurrence of passage of time and other circumstances intervening. Our determination herein will prevent petitioner's obtaining an unfair tactical advantage, i.e., proceeding under a claim of right to appeal instead of proceeding immediately to the trial of the assessment of damages. In the usual case in the future it shall be the discretionary decision of the Trial Judge, as expressed hereinabove, to proceed with the assessment of damages immediately before the same jury or to interpose an interlocutory judgment. Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.