St. John\u27s Law Review

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St. John's University School of Law

St. John's Law Review Volume 42 Number 1 Volume 42, July 1967, Number 1 Article 38 April 2013 CPLR 4213(c): Section Deemed Precatory St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation St. John's Law Review (1967) "CPLR 4213(c): Section Deemed Precatory," St. John's Law Review: Vol. 42 : No. 1 , Article 38. Available at: https://scholarship.law.stjohns.edu/lawreview/vol42/iss1/38 This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. 1967] NEW YORK PRACTICE COVERAGE 155Since neither case presented an "identity of issues," the ques-tion of the effect of Cummings on the Glaser rule would seem toremain unresolved.ARTICLE 42- TRIAL BY THE COURTCPLR 4213(c): Section deemed precatory.In Allied Scrap & Salvage Corp. v. State,"0 3 the defendantmoved to vacate an award on the ground that the decision wasnot rendered within sixty days after the cause was finally sub-mitted, as provided for in CPLR 4213(c). The court, however,noted that the provision of CPA § 442,104 providing for a newtrial if the decision were not rendered within sixty days, wasdeleted from CPLR 4213(c) "because under the old rule courtscustomarily denied the new trial on condition that the decision berendered within an additional specified time." ' This deletion,the court surmised, made CPLR 4213(c) precatory.Two arguments are advanced for the proposition that 4213inust be precatory: (1) there is no method of enforcement; and(2) assuming a means of enforcement, a judge forced to render adecision will be prone to decide against the moving party. Botharguments may be answered.With respect to enforcement, the duty of a judge to renderan opinion is unquestionably a ministerial one. It would seem,therefore, that a writ of mandamus could issue against a judgewho failed to render a decision within the sixty days providedfor in 4213.106 The court in Allied did not discount such a courseof action. As to the second argument, a decision which smacksof abuse of discretion can always be appealed.Thus, it would seem that there is still logical justification foran interpretation of CPLR 4213 which would find that provisionmore than a pious wish.10326 App. Div. 2d 880, 274 N.Y.S.2d 317 (3d Dep't 1966).104 Under CPA § 442, a court trying a case without a jury had to renderits decision "wvithin sixty days after the final adjournment of the term wherethe issue was tried." Upon failure of the court to do so, either party couldmove for a new trial and the court would be obliged to order a new trialabsolutely or order a new trial conditionally upon a decision not beingrendered within a specified time. In practice the section was merely preca-tory, since the motion for new trial was rarely granted and, instead, thetime for the court's decision was generally extended. 4 WEINSTEIN, KORN& MILLER, NEW YORK CIVIL PRACTICE 14213.11 (1966).10 Allied Scrap & Salvage Corp. v. State, 26 App. Div. 2d 880, 274N.Y.S.2d 317, 319 (3d Dep't 1966).106 "[Mandamus] is a proper remedy to compel the performance of aspecific act where the act is ministerial in its character. . . ." 2 BOUVIER,LAW DICTIONARY 2075 (9th ed. 1914). Seemingly, under CPLR 4213 theduty would not be subject to mandamus until the sixty days had passed.

CPLR 4213(c): Section Deemed Precatory

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CPLR 4213(c): Section Deemed Precatory

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