Palmer v. Socony-Vacuum Oil Co.

Appeal from an order of the Supreme Court, Saratoga Special Term, denying defendant Kingsley’s motion for a separate trial of issues raised by a cross complaint contained in the answer of the defendant Socony-Vacuum Oil Company. The order appealed from was discretionary. The issues involved are not complicated and no clear legal right to a separate trial has been shown. Order affirmed, with $10 costs. Brewster, Foster, Russell and Deyo, JJ., concur; Hill, P. J„, dissents and votes to dismiss the appeal, in the following memorandum: Appeal by defendant Kingsley from an order denying a motion to try separately the issue of contract liability raised by» the codefendant oil company’s answer. The plaintiffs-respondents bring these actions for damages alleged to have been caused by the, combined negligence of both defendants. General denials have been pleaded. Defendant-respondent oil company sets up cross answers against the codefendant alleging contract liability on his part in the event of a recovery against the oil company by plaintiffs for negligence. A separate trial of the issues would seem required in the interests of clarity but, the determination of this issue is an incident of a trial and not appealable. Appellant, following a trial, may have a review if the discretion of the trial justice was unwisely exercised. For this reason I vote to dismiss the appeal.