Habenicht v. R.K.O. Theatres, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: Habenicht v. R.K.O. Theatres, Inc., 260 N.Y.S.2d 890, 23 A.D.2d 378 (N.Y. App. Div. 1965)
• Decision Date: 29 June 1965
• Parties: Frederick HABENICHT, Plaintiff-Appellant, v. R.K.O. THEATRES, INC., Defendant-Respondent.

Page 890

260 N.Y.S.2d 890

23 A.D.2d 378

Frederick HABENICHT, Plaintiff-Appellant, v. R.K.O. THEATRES, INC., Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

June 29, 1965.

Norman Roy Grutman, New York City, of counsel (Ciceil L. Gross with him on the brief), for appellant.

Joseph J. Brophy, New York City, of counsel (Hanlon & Dawe, New York City, attorneys), for respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE and STALEY, JJ.

PER CURIAM.

It is unfortunate that we again are obliged to repeat what we have so often stated--that all litigants, regardless of the merits of their case, are entitled to a fair trial (Salzano v. City of New York, 22 A.D.2d 656, 253 N.Y.S.2d 138). A deprivation of a fair trial calls for a reversal of the decision or verdict rendered. The conduct of the trial judge in this case was such as to deny to the plaintiff the fair trial to which he was entitled. Accordingly, the judgment entered in defendant's favor must be reversed and a new trial ordered.

From the very inception of the trial the court indicated its lack of confidence in the merits of the plaintiff's case, and that indication was made in such fashion that it could not escape the notice of the jury. Not only did not Court, in its remarks, convey to the jury its feeling that the plaintiff's case had no merit, but it also prevented the plaintiff from presenting whatever case he did have. There was constant interference by the Court with the orderly presentation of plaintiff's case by his counsel. Shortly after plaintiff's counsel had commenced his opening remarks the following colloquy took place:

'The Court: Mr. Grutman, I know you are a devotee of the motto: Never say one word where a thousand will say the same thing. This is a stairway case in the RKO theatre, and you hope to establish negligence. Isn't that your case?

Mr. Grutman: I believe, your Honor, that I would like to have the jury have an understanding specifically----

The Court: Specifically, I think you have told them enough.

Mr. Grutman: Are you directing me to----

The Court: To cease, yes. You have an exception. Sit down, please.'

In addition, the trial court repeatedly sustained objections that were never made to testimony offered in behalf of the plaintiff and it overruled objections of plaintiff's counsel while yet in the making, and without even affording counsel an opportunity to explain the basis for such objections. A typical example of that conduct is evidenced by the following colloquy:

'Mr. Grutman: Your Honor I submit----

The Court: Overruled.

Mr. Grutman: You haven't even heard my objection.

The Court: On every ground available it is overruled. I will call for help when I need it.'

At another point in the trial, after an objection had been made, the court said:

'Mr. Grutman, just understand this: I don't want to hear your reasons for objections. If I need your reasons I will ask for them. Your objection is overruled on every conceivable ground available to you.'

It is also apparent from a reading of the entire record that throughout the trial the Court made no attempt to mask its conclusion that plaintiff's case was devoid of merit. The nature and manner of presentation of the court's questions addressed to the plaintiff left little to the imagination as to how it felt the case should be determined. The jury could not...