R 5012.Judgment upon part of cause of action; upon several causes

This rule is based upon CPA §§ 474(2) and 476. Cf. NY RCP 114; Fed R Civ P 54(b). Although an action is traditionally viewed as a single judicial unit which can result in only one judgment, the civil practice act has recognized the desirability of permitting the courts to ignore this theory in favor of convenience and justice to litigants. Cf. CPLR § 603 (severance and separate trials); new rule 3212(e) (summary judgment on less than all causes of action or defenses). Section 476 permitted judgment on less than all of the causes of action or part of a cause at any stage of an action if warranted by the pleadings or admissions. The provision was of unquestioned usefulness—there was no reason for delaying judgment and execution where, for example, an answer admitted indebtedness on part of the full amount of a promissory note. See Meise v Doscher, 68 Hun 557, 23 NY Supp 49 (Sup Ct 1893). Similarly, subd 2 of § 474 allowed several judgments against one or more defendants. The matter formerly rested primarily in the court’s discretion; thus it was said that an action or cause would not be severed where the effect would be to leave the action in a chaotic condition. See 7 Carmody-Wait, Cyclopedia of New York Practice 215 (1953).

The only firm limitation on the court’s former discretion to direct separate judgments was a self-imposed one applicable where substantive law defined an obligation as joint, as in an action against co-partners. See Nathan v Zierler, 233 App Div 355, 228 NY Supp 170 (3d Dept 1928); Grossman Steel Chair Corp. v Steinberg, 54 NYS2d 275 (NYC Ct 1944); 7 Carmody-Wait, op cit supra at 226; but cf. 6 Moore, Federal Practice 247–48 (2d ed 1953). This rule is subject to the same limitation.

This rule and former law make the granting of a severance a condition precedent to a judgment on part of a cause of action or on one or more but less than all of the enumerated causes of action.

A judgment as to part of an action under this rule would be final and appealable; the time to appeal would begin to run from its entry. Difficulty was encountered with Federal rule 54(b) early in its history because of the conflict between the final judgment limitation on appealability and an apparently strained use of the new rule to escape the rigors of that limitation. See 6 Moore, Federal Practice 206–07 (2d ed 1953). No such difficulty should be anticipated in this state with its tradition of interlocutory appeals. Accordingly, the Federal limitation requiring “an express determination that there is no just reason for delay” is omitted.

CPA § 475 has been omitted. Its first sentence is covered by §§ 1001(b) and 1002(b) and its second sentence by this rule, the only difference being that the new provisions are framed in terms of broad judicial discretion while the first two sentences of § 475 said that the plaintiff may proceed and may take judgment. The Rodenbeck Board omitted these sentences as covered by analogous proposed rules. See 1 Report of the Board of Statutory Consolidation on the Simplification of the Civil Practice of New York, rules 95, 292, notes 165, 379 (1915).

The third sentence of § 475 is covered by this rule; its language about “the clerk, upon the plaintiff’s application” was obscure since a court order was required to direct the judgment and the severance.

The fourth sentence is covered by CPLR rule 2101(e) authorizing the use of copies of all papers except where otherwise expressly provided. It was added by Throop and, though its language was somewhat obscure, his note explains that it was meant only to authorize the use of copies where for instance, an original of a paper had been filed with the judgment-roll upon taking judgment against some of the defendants and the plaintiff “wishes afterwards to take a judgment, by default, against the others.” Code Civ Proc § 456, note (Throop ed 1880).

The last sentence of § 475 has been omitted as superfluous; its first clause was clearly so and its second clause followed without express statement from the nature of joint liability and the provisions of CPA article 73. See CPLR § 1501. Even Throop felt that the provision was perhaps superfluous. [Code Civ Proc § 475, note (Throop ed 1880).].

Add, L 1962, ch 308, eff Sept 1, 1963.