Opinion
December 14, 1923.
John B. Doyle, for the appellant.
Feltenstein Rosenstein [ Moses Feltenstein of counsel], for the respondents.
This action is for an accounting. The defendants set up a general release. The plaintiff has replied that this release was obtained by fraud and misrepresentation. Application was made to Special Term that the issue raised by the reply of the plaintiff to the effect that the release was obtained by fraud and misrepresentation should be first tried. This application was granted. The trial thereof was begun and it became apparent as the case progressed that the trial of this issue involved the trial of the accounting action. Thereupon the judge sitting at the trial made an order in which he determined that this was a general release and sent back the issue raised by the reply to that general release for trial before the Special Term, in connection with the main question upon the accounting.
The order was right, as far as it sent back the case for trial. The respondents do not object to this, except that they want the benefit of the conclusion of the trial judge to the effect that this was a general release. But the trial judge had no right to find one fact in the case and then send all the other facts to another court for trial, when the fact found was only one of a number of facts to be found in order to determine the issue sent to him for trial. He had the right when it appeared upon the trial of the case that the issue raised by the answer and reply involved the same issue as was raised upon the accounting, to send it all to the Special Term to be tried together, notwithstanding the order of Special Term that it be tried separately. The facts as presented at the trial itself may have been quite different from those presented in affidavits to the Special Term.
The order should be modified and the matter should be sent to the Special Term for trial of all the issues raised by the complaint answer and reply. As so modified the order should be affirmed without costs to either party.
CLARKE, P.J., DOWLING, McAVOY and MARTIN, JJ., concur.
Order modified so as to provide only that all the issues raised by the complaint, answer and reply be remitted to the Special Term for trials, and as so modified affirmed, without costs.