Citation Numbers: 32 A.D.2d 897
Filed Date: 7/3/1969
Status: Precedential
Modified Date: 1/12/2022
Order, entered August 27, 1968, affirmed, with $30 costs and disbursements to plaintiffs-respondents. There is no merit whatever in the defendant’s argument, persistently adhered to in its reply brief, that the renewal application was improperly considered by a Justice other than Mr. Justice Lyman, who decided the original motion. The defendant knew or should have known of the illness of Mr. Justice Lyman and time of this court has been wasted in the consideration of irrelevant and improper arguments. Furthermore, the order is sustainable as a proper exercise of the discretion of Special Term. Here, the large number of plaintiffs (162), and the advanced age and special hardship of some, justified the direction that the plaintiffs’ depositions be taken in Ohio on conditions as fixed by Special Term. Concur — Eager, J. P., Capozzoli, Tilzer and Nunez, JJ.; Steuer, J., dissents in the following memorandum: This order, which is contrary to every prior applicable ruling of this court, has been affirmed for the reason that appellant’s counsel has stubbornly insisted "on an invalid ground and subordinated the real question involved. While we have the adversary system, decision should not be based on selection of the wrong adversary. This is an action for severance pay brought by 111 former employees of defendant. They all reside in or around Springfield, Ohio. Defendant moved to examine plaintiffs. Plaintiffs moved for a protective order to have the examinations held in Springfield. The application was denied by the late Judge Lyman. Plaintiffs thereupon moved to renew their application on an additional showing of hardship. Defendant asked to have the motion referred to Judge Lyman. There is very frequently a tenuous line between what is an application to reargue, which must be referred, and an application to renew, which need not be. Generally that question is resolved by agreement between the two Judges involved — the one who decided the original motion and the one before whom the second