Opinion
November 4, 1940.
In an action to recover damages for personal injuries caused by negligence, the Elm Coal Oil Corp. appeals from so much of an order granting a new trial as imposes conditions and restrictions and directs that upon such new trial the issues to be tried be limited to the single question of fact as to whether at the time of the occurrence of the accident alleged in the complaint the relationship of master and servant existed between appellant and defendant Arthur C. Waterman, Jr., also known as Roland Waterman, and directs, upon and in accordance with the determination of that single question, the entry of judgment dismissing the complaint or in favor of plaintiff for $3,000. Order modified by striking therefrom the fourth, fifth and sixth ordering paragraphs and inserting in lieu thereof the following: "Further Ordered, that a new trial of the issues arising upon the pleadings as between the plaintiff and the defendant Elm Coal Oil Corp., be and the same hereby is granted." As thus modified, the order, in so far as appealed from, is affirmed, without costs. There is no authority for the procedure adopted by the learned Trial Term justice, which has the effect of limiting the new trial granted upon the motion of the appellant. At such new trial all issues of law and fact arising between the plaintiff and the appellant must be tried. The trial cannot lawfully be limited to the single issue specified. ( Wilcox v. Hoch, 62 Barb. 509, 511; Story v. New York Harlem R.R. Co., 6 N.Y. 85 91; Parker v. Laney, 58 id. 469, 472; vide Wolstenholme v. Wolstenholme File Mfg. Co., 64 id. 272, 273; City of Buffalo v. D., L. W.R.R. Co., 176 id. 308, 311; and Bergman v. Scottish Union Nat. Ins. Co., 264 id. 205.) Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.