Morris Cohon & Co. v. Pennsylvania Coal & Coke Corp.
| Decision Date | 01 March 1960 |
| Citation | 10 A.D.2d 667,197 N.Y.S.2d 125 |
| Parties | MORRIS COHON & CO., Plaintiff-Respondent, v. PENNSYLVANIA COAL & COKE CORPORATION, now known as Penn-Texas Corp., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
I. Gluckman, New York City, for plaintiff-respondent.
J. L. Rothschild, New York City, for defendant-appellant.
Before BOTEIN, P. J., and BREITEL, RABIN, McNALLY and STEVENS, JJ.
Judgment in favor of plaintiff reversed, on the law and in the exercise of discretion, the verdict vacated and a new trial ordered, without costs to either party. The jury, in a closely contested case involving an alleged oral agreement for substantial commissions, was provided with confused and disconnected proof presented in a disorderly atmosphere of bickering and acrimony. The primary responsibility for this condition was the conduct of trial counsel for both sides, who repeatedly engaged in unseemly protracted exchanges, into which they drew the trial justice. Indeed, from the inception plaintiff's counsel sought to put defendant and the trial court on the defensive with respect to collateral but allowable matters, and defendant's counsel responded in kind. Trial counsel share with the trial justice the duty to maintain in orderly trial, and a verdict obtained in violation of this obligation should not stand. Under the circumstances it is found that the jury did not have a fair opportunity to assay the proof (see: Kohlmann v. City of New York, 8 A.D.2d 598, 184 N.Y.S.2d 357; Bowen v. Mahoney Coal Corp., 256 App.Div. 485, 486, 10 N.Y.S.2d 454, 455; cf. People v. Di Carlo, 242 App.Div. 328, 275 N.Y.S. 40). Moreover, the charge, if finely parsed, was substantially correct in stating the applicable law, but the issues were not reduced to terms likely to be understood by a jury. Particularly, the instruction with respect to ratification was contradictory, and the contradictions were reinforced in the handling of the requests and exceptions to the charge. Since there must be a new trial, it is observed that the ruling that the Statute of Frauds (Personal Property Law, § 31, subd. 10) was inapplicable to the agreement in suit was correct, less than a majority of the voting stock of the corporation being involved. There were, however, a number of erroneous, but ultimately unprejudicial, rulings on the admission of evidence, particularly those which rested on the assumption that any conversations outside the presence...
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...a business opportunity . . . ." 18 N.Y.2d at 527-528, 277 N.Y.S.2d at 272, 223 N.E.2d at 796. While Morris Cohon & Co. v. Pennsylvania Coal & Coke Corp., 10 A.D.2d 667, 668 (1st Dep't 1960), contains language to the contrary, it was effectively overruled by Minichiello, supra, and explicitl......
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...applicable law, it is important that it be reduced to terms likely to be understood by the jury. (See Morris Cohon & Co. v. Pennsylvania Coal & Coke Corp., 10 A.D.2d 667, 197 N.Y.S.2d 125.) Where, as here, a charge is so inadequate or of so confusing a character as to preclude fair consider......
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