Morris Cohon & Co. v. Pennsylvania Coal & Coke Corp.

Decision Date01 March 1960
Citation10 A.D.2d 667,197 N.Y.S.2d 125
PartiesMORRIS COHON & CO., Plaintiff-Respondent, v. PENNSYLVANIA COAL & COKE CORPORATION, now known as Penn-Texas Corp., Defendant-Appellant.
CourtNew 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.

PER CURIAM.

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...

To continue reading

Request your trial
11 cases
  • Karlin v. Avis
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 10, 1972
    ...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......
  • Ortiz v. Kinoshita & Co.
    • United States
    • New York Supreme Court — Appellate Division
    • July 11, 1968
    ...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......
  • Lounsbury v. Bethlehem Steel Corp.
    • United States
    • New York City Court
    • March 3, 1967
    ...for even after the sale Bethlehem Steel Corp. had assets remaining of over one billion dollars. Cf Morris Cohon & Co. v. Pennsylvania Coal & Coke Corp., 10 A.D.2d 667, 197 N.Y.S.2d 125; but see Sorge v. Nott, 34 Misc.2d 545, 226 N.Y.S.2d 57; Clivner v. Ackerman, 51 Misc.2d 856, 274 N.Y.S.2d......
  • Marand Const. Corp. v. Rapid Rehabilitation Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • March 27, 1978
    ...based solely upon the evidence before it and, accordingly, a new trial must be granted (see Morris Cohon & Co. v. Pennsylvania Coal & Coke Corp., 10 A.D.2d 667, 668, 197 N.Y.S.2d 125, 127; 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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT