Weisinger v. Berfond

• Decision Date: 11 January 1960
• Citation: Weisinger v. Berfond, 21 Misc.2d 788, 198 N.Y.S.2d 799 (N.Y. Sup. Ct. 1960)
• Parties: Bernard WEISINGER, Plaintiff, v. Bernard BERFOND, Shirley Berfond, Joseph Rae, Lee Rae, Regent Land Corp., Stavid Realty Corp., East Flatbush Development Corp., Pauline Schwartz, Investors Collateral Corp., Serene Homes, Inc., Max Kirsch, Inc., Abraham Zinick, Sea View Homes, Inc., David Tomchin, Raymond Rosen, August Tile Co., Inc., Santo DiBona, Angelo J. DiBona, Eustachio Serini, individually and as co- partners with and of Mary Serini, Umberto Piazza and C. O. R. Land Corp., Defendants.
• Court: New York Supreme Court

Page 799

198 N.Y.S.2d 799

21 Misc.2d 788

Bernard WEISINGER, Plaintiff, v. Bernard BERFOND, Shirley Berfond, Joseph Rae, Lee Rae Regent Land Corp., Stavid Realty Corp., East Flatbush Development Corp., Pauline Schwartz, Investors Collateral Corp., Serene Homes, Inc., Max Kirsch, Inc., Abraham Zinick Sea View Homes, Inc., David Tomchin, Raymond Rosen, August Tile Co., Inc., Santo DiBona, Angelo J. DiBona, Eustachio Serini, individually and as co- partners with and of Mary Serini, Umberto Piazza and C. O. R. Land Corp., Defendants.

Supreme Court, Special Term, Kings County, Part III.

Jan. 11, 1960.

Joseph L. Forscher, New York City, for plaintiff.

Charles Wilson, Brooklyn, for defendants Joseph Rae, Lee Rae, Regent Land Corp., and East Flatbush Development Corp.

George Rosling, Brooklyn, for defendants Bernard Berfond, Shirley Berfond, Stavid Realty Corp. and Sea View Homes, Inc.

MILES F. McDONALD, Justice.

The singular circumstances of this case require the court to determine whether or not the advice of Oliver Goldsmith (Art of Poetry, New Plan) Vol. 2, p. 147:

'He who fights and runs away will live to fight another day'

should be adopted as a precept of equity jurisprudence, or whether the court should declare that once having submitted his cause to a court of equity, the plaintiff may be prevented from beating a strategic retreat so that he may then attack when conditions are more propitious.

The observation of Mr. Justice Irving Lehman, later Chief Judge of the Court of Appeals, quoted by Mr. Justice Page, writing for the Appellate Division, First Department, in Trustees of Presbytery of New York v. Westminster Presbyterian Church, 192 App.Div. 163, 182 N.Y.S. 705, 706, is singularly appropriate:

"Concededly there is no precedent for the present action, but the facts upon which the action is based are also apparently without parallel, and it may well be that a court of equity can and should find some method of remedying the situation, by using its well-established powers, even though such powers have never been called into play in a similar situation.' * * *

'A court of equity, having taken jurisdiction of the subjectmatter of the action, will mould its relief so that the interest of all parties will be finally determined in the action.'

It is the opinion of this court that the latter course is to be followed if the failure so to do renders the term 'equity' not the antonym but the synonym of injustice.

On September 17, 1958, plaintiff commenced this action by service of a verified complaint in which it is alleged that by virtue of an oral agreement made on or about the first day of March, 1956 the plaintiff was the owner of an undivided one-quarter interest in a joint venture for the assembly and sale of tax lots in Section 24 on the Tax Map of the Borough of Brooklyn. The property the subject of the agreement included some 120 tax lots in Section 24 (Canarsie) and included more than 500 individual lots having a value in excess of $1,000,000. At or about the same time a notice of pendency of action was filed covering all of said property. During the next twelve months the parties were before the court on numerous procedural matters. Amended complaints were served, amended lis pendens and additional lis pendens were filed, and numerous appeals were taken to the Appellate Division. In the course of the foregoing, an order of final and complete preclusion was entered which prohibited the plaintiff from giving any proof whatsoever concerning the making or existence of the oral contract which served as the basis for the plaintiff's complaint. In October of 1959, more than one year having elapsed since the commencement of the action, and the plaintiff having failed to notice the case for trial, the defendants noticed the case for trial for the November Equity Term. Immediately thereafter plaintiff moved before Special Term, Part 8 of this court to strike the case from the calendar, which motion was denied by Mr. Justice Brown on November 2, 1959. An appeal was taken from Judge Brown's order in the course of which plaintiff moved for a stay of the trial pending the appeal, which motion was denied by the Appellate Division on the same day it was heard. The appeal, however, from the order of Mr. Justice Brown has not as yet been perfected. Thereafter the case came on to be heard at Special Term, Part 3, the Equity Part of this court, on November 16. At that time the attorney for the plaintiff made a further application for an adjournment which was denied. The attorney for plaintiff stating: 'Then in that situation, of course, the plaintiff not being ready to go forth must suffer a default.' At this time the court indicated it would dismiss the plaintiff's complaint and grant the defendants judgment by default. The defendants vigorously opposed the court's proposed action, the attorney for the defendant Berfond stating:

'* * * to permit this plaintiff in an equity court, unless the law absolutely compels it, to pick up his marbles and walk away and then start another action on the payment of--is it fifty or seventy-five dollars court costs--is just outrageous to our sense of fair play. The plaintiff here is the one who is in difficulties. It is his preclusion and the preclusion was coupled with an application by the plaintiff to be relieved of a default. * * * Now, as I say, if he is to be permitted to walk away from this situation and harass us for the next ten years, render our title unmarketable, either by threats of litigation or by actual litigation, if he is to be permitted to say in this action: I am precluded, I will start another action where the preclusion order has fallen, I am going to start this action, stop it when I am precluded, start another action where I won't be precluded and I will have my cake and eat it, too.'

The defendants then advised the court that they were desirous of presenting proof which in their opinion would justify the court in making a determination on the merits even though the plaintiff abandoned the trial of the action. The court expressed doubt of its authority to grant the defendants such relief stating that it would deny the plaintiff's application for an adjournment, find him in default and dismiss the complaint.

The court then stated it would permit the defendants to submit the proof which they desired to offer and reserved its final decision with respect to the court's power to make a determination upon the merits and granted to the plaintiff an opportunity to submit authorities with respect to his position without waiving any rights to a dismissal of the action by virtue of his application for a voluntary nonsuit, stating that if the court determined 'that the dismissal of the complaint is not the appropriate action and that other action should be taken I will amend the decision with respect to it.'

At this point counsel for plaintiff withdrew and did not participate further in the action. It should be noted that counsel for the plaintiff who was retained solely for the purpose of trial should not be charged with the responsibility for the dilatory tactics prior thereto. No course of action than the one adopted was open to him at the time of the trial. Thereafter the defendants offered testimony covering some 290 pages of stenographic minutes and numerous exhibits, together with the examination before trial of the plaintiff which covered some 1100 pages. The plaintiff has now submitted a proposed judgment dismissing the complaint and granting defendants a single bill of costs. Defendants, on the other hand, have submitted proposed findings of fact and conclusions of law as well as a judgment determining upon the merits the issues framed by the pleadings, directing a cancellation of various notices of pendency of action heretofore filed and directing that costs and expenses occasioned by the filing of notice of pendency of action be assessed against the plaintiff pursuant to Section 123 of the Civil Practice Act. Both sides have submitted extensive and well prepared memoranda in support of their particular positions.

The primary question submitted for the court's determination is whether or not this court has, under the unusual circumstances of this case, the power to grant a judgment in favor of defendants on the merits, even though the plaintiff refused to proceed to trial, or is constrained merely to hold the plaintiff in default and dismiss the complaint, which would be in the nature of a voluntary nonsuit. The court is now of the opinion that the defendants are entitled to a determination upon the merits, and that its previously expressed intention to dismiss the complaint and grant a default judgment is inappropriate, for to hold otherwise would permit a plaintiff to continue to harass a defendant for the entire period of the statute of limitations by repeatedly instituting actions and repeatedly moving for nonsuits when ultimately faced with a trial of the issues raised by the pleadings, for if the court is powerless to act in the first instance it will be equally powerless in succeeding actions. An action in equity would thereby became the sword of an aggressor rather than the shield of the oppressed.

Necessary to the conclusion reached here is the determination that there is no distinction between a voluntary discontinuance and a voluntary nonsuit. Both are stratagems employed to avoid coming to grips with the enemy, and it is the opinion of this court, that it is impossible to distinguish between them and that the limitations imposed upon plaintiff under Rule 301 of the Rules of Civil Practice apply with equal force to both.

Rule 301 of the Rules of Civil Practice as it now exists, was adopted by the justices of the Appellate Division, effective September 1, 1953, in replacement of the prior rule which was simultaneously repealed. Had plaintiff applied for an order of discontinuance the court by the authority conferred by this...