Fed. Pac. Elec. Co. v. Rao Elec. Equip. Co., 15 A.D.2d 456 (N.Y. App. Div. 1961). · Go Syfert
Fed. Pac. Elec. Co. v. Rao Elec. Equip. Co., 15 A.D.2d 456 (N.Y. App. Div. 1961). Cases Citing This Book View Copy Cite
7 citation events (1 in the last 25 years) across 3 distinct courts.
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited "see" Enden v. Nationwide Mutual Insurance
N.Y. App. Div. · 1998 · signal: see · confidence high
The parties are left in the same position as though there had been no trial, and unless the appellate court in its decision and order directs that a new trial be limited in scope, it should be construed to require a new trial generally (see, Ceravole v Giglio, supra, at 170-171; see, Matter of Sipal Realty Corp. v William, 15 AD2d 456 ).
discussed Cited "see" Phillips v. State Farm Fire & Casualty Co.
N.Y. App. Div. · 1997 · signal: see · confidence high
The parties are left in the same position as though there had been no trial, and unless the appellate court in its decision and order directs that a new trial be limited in scope, it should be construed to require a new trial generally (see, Ceravole v Giglio, supra, at 170-171; see, Matter of Sipal Realty Corp. v William, 15 AD2d 456 ; 10 Carmody-Wait 2d, NY Prac § 70:452, at 492).
Retrieving the full opinion text from the archive…
Federal Pacific Electric Company
v.
Rao Electric Equipment Co., Inc.
Appellate Division of the Supreme Court of the State of New York.
Dec 7, 1961.
15 A.D.2d 456
Cited by 1 opinion  |  Published

This was not a proper motion on which to grant summary judgment under rule 113 of the Rules of Civil Practice, or to grant judgment on the merits. However, under the alternative relief requested by plaintiff in its notice of motion, Special Term could have granted the relief which this court now grants, the record indisputably establishing plaintiff’s right to such relief in the exercise of discretion and as a matter of law. Rule 113 searches the evidentiary facts in the ease to determine the existence or absence of an issue of fact. Hence, the requirement, generally, for a party’s affidavit, and the inadequacy of plaintiff’s proof in this respect. In this ease, however, plaintiff established that defendant should be totally precluded on its counterclaim. Consequently, upon such preclusion, plaintiff was entitled to judgment on the pleadings, the order of preclusion serving to limit defendant’s pleading, leaving only admissions of the cause of action in chief. Since it would serve no useful purpose to remit the parties to proceedings the outcome of which would be, on this record, inescapable, this court does what Special Term could have done in the first instance (Civ. Prac. Act, § 584; 9 Carmody-Wait, New York Practice, pp. 1-83-186; cf. De Rosa v. Slattery Contr. Co., 14 A D 2d 278). Settle order on notice. Concur — Botein, P. J., Breitel, Valente, Stevens and E'ager, JJ.