Rath v. Retail Credit Co.

Order entered on May 26, 1967, denying motion for defendant-appellant Retail Credit Company to sever the cause of action alleged against it and to strike certain allegations of said cause of action, unanimously reversed, on the law and the facts and in the exercise of discretion, with $30 costs and disbursements to defendant-appellant, and the motion granted, with leave to plaintiff to apply at Special Term for permission to amend his complaint against defendant-appellant. Our difficulty with the allegation that defendant-appellant “anticipated or should have anticipated” repetition of the defamatory matter is the ambiguity of the quoted phrase, which might sanction evidence falling short of the standard of the cases (see Sehoepflm v. Coffey, 162 N. T. 12; Youmans v. Smith, 153 N. T. 214) with predictable uncertainty at later stages of the litigation if allowed to stand. The danger of prejudice to defendant-appellant in a joint trial is in.our opinion foreseeable and warrants the requested severance (cf. Schneph v. New York Times Co., 21 A D 2d 599, 601). Settle order on notice. Concur — Botein, P. J., Eager, Steuer, Capozzoli and McNally, JJ.